Distinguishing Between Fundamental and Nonfundamental Rights.  In deciding whether a right is a fundamental privacy right, the Court uses three different approaches:

(1) Reasoning by Analogy.  Here the Court compares the right at issue to rights already declared to be fundamental privacy rights as well as those declared to be nonfundamental liberty rights and decides which analogy is more convincing. 

(2) History and Tradition.  The Court also looks to history and tradition to see if the right is deeply rooted in the fabric of American society.  We first saw this approach in Griswold.  In considering tradition, issues arise as to how broadly or narrowly tradition is to be interpreted.  This argument was at the core of the disagreement between Justices Scalia and Brennan in the Michael H. case.  Recently, in Lawrence v. Texas, a majority of the Court downplayed the importance of history and tradition in overturning Bowers v. Hardwick.  It is difficult to make extensive arguments based on history and tradition in the exam context because you are usually not provided with specific historical materials to support such arguments. You can, however, make use of general arguments about history and tradition.

(3) Protection for Intimate and Personal Choices Central to Personal Identity.   As a third approach to deciding whether a right is a fundamental privacy right, the Court looks at whether the right at issue is central to personal identity. This approach was used in Casey, for example. In that case, the Joint Opinion stated: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” This approach was also used in Lawrence v. Texas.