2

Many jurisdictions in the United States have curfew laws, which prohibit youth of a certain age (usually under 18) from being in public or in a business establishment during certain hours.

Given the fact that the United States Constitution protects citizens' freedom of movement, how are Curfew Laws not unconstitutional?

  • 8
    "the United States Constitution protects citizens freedom of movement". What clause is that? It seems to me it's one of those things "invented by the courts" but not literally in the constitution. So the courts are equally likely to invent its limits (be it by upholding laws that prescribe such limits). – SX welcomes ageist gossip Sep 16 at 10:06
  • 1
    Legal restrictions that restrict a young person's ability to vote, to own property, to work, to get married, and to leave their parents have all been upheld. – David Hammen Sep 16 at 13:49
  • @Fizz: Ninth Amendment. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." – jamesqf Sep 16 at 17:24
  • @jamesqf What is your point? That only means that lower level laws can grant other rights; that as long those "lower-level" rights do not contradict rights granted by the Constitution, you cannot challenge the existence of those rights on constitutional grounds. But it does not mean that the US Constitution grants those rights at all (which is what the OP claims and Fizz contests). – SJuan76 Sep 17 at 11:21
7

According to one academic source:

The Supreme Court, however, has yet to review the constitutionality of curfews. They declined in 1976 to hear a case about juvenile curfews.

And in somewhat more detail, regarding lower courts' decisions:

Litigants challenging juvenile curfew laws generally have not argued that youth is a “suspect classification” like race or gender. Instead, the typical claim is that curfew laws single out juveniles from the rest of the population in a way that infringes upon their fundamental right of “free movement.” In response, state governments have argued that no such right exists and that curfews are, in any event, justified by the compelling interests of preventing juvenile crime and protecting juveniles from becoming victims of crime.[...]

Courts have tried to fit the problem of juvenile curfews into the existing formal framework, with inconsistent results. They have employed all three tiers of scrutiny: not only rational and strict, but also intermediate scrutiny, which is not typically used to address asserted infringements on fundamental rights. Intermediate scrutiny, which evolved to deal with the problem of gender discrimination, permits a more fact-specific approach than strict and rational review and enables a court to uphold or strike down legislation depending on how the court weighs the various interests involved

The courts’ struggles have played out visibly in recent years. Among the six federal appeals courts to rule on curfew challenges since 1993, two courts—the Fifth and Ninth Circuits—applied strict scrutiny but reached opposite results. Four courts applied intermediate scrutiny with equally inconsistent results: The Second and Seventh Circuits struck down the curfews before them, while the Fourth and D.C. Circuits upheld curfew laws. The two most recent state supreme courts to address juvenile curfew laws both applied strict scrutiny but also reached opposite results. One commentator went so far as to observe that, in juvenile curfew cases, “the level of scrutiny applied has proven largely irrelevant.”

[...] Although the Supreme Court has held that the Constitution protects an individual’s right to interstate travel, it has not decided whether individuals enjoy a right to intrastate travel. In addition, it is debatable whether the “localized movement” implicated by juvenile curfew laws fits within a general right to intrastate travel or free movement. Another open question is whether minors enjoy such a right at all. [footnote on that:] See Hutchins v. District of Columbia, 188 F.3d 531, 538 (D.C. Cir. 1999) (en banc) (plurality opinion) (“[W]e must ask not whether Americans enjoy a general right of free movement, but rather whatever are the scope and dimensions of such a right (if it exists), do minors have such a substantive right?”). [...] In Qutb v. Strauss, the Fifth Circuit considered a Dallas, Texas curfew ordinance that prohibited persons under the age of seventeen from remaining in a public place from 11:00 p.m. until 6:00 a.m. on weeknights and from midnight until 6:00 a.m. on Friday and Saturday nights. The curfew also contained a number of exceptions designed to address concerns from earlier curfew cases. The court began by invoking the formal tiers of scrutiny framework. Perhaps to avoid the difficult question of how the framework might accommodate the peculiar “fundamental interest” in moving about freely, the court “assume[d] without deciding” that the curfew impinged upon a fundamental right and therefore subjected the ordinance to “strict scrutiny.” As an early sign that the strict scrutiny standard might lack its traditional bite, however, the court noted that the “ordinance is directed solely at the activities of juveniles and, under certain circumstances, minors may be treated differently from adults.”

The court had no trouble concluding that the city had a compelling interest in reducing juvenile crime and victimization. Instead, the decision hinged on whether the curfew was narrowly tailored to further those interests.

In support of the curfew’s tailoring, the city presented statistical data to establish the following: (1) juvenile crime increases proportionally with age; (2) juveniles were arrested in Dallas for over five thousand crimes per year, including murders and sex offenses; (3) murders (including those committed by adults) were most likely to occur between 10:00 p.m. and 1:00 a.m.; (4) most aggravated assaults occurred between 1:00 a.m. and 3:00 a.m. and sixteen percent of rapes occur on public streets; and (5) thirty-one percent of robberies occur on streets and highways.71 The court concluded on the basis of these statistics that the city of Dallas had established a sufficient “fit” between the curfew ordinance and the city’s compelling interests.72 The court also concluded that, because the curfew contained numerous exceptions, the ordinance “employ[ed] the least restrictive means of accomplishing its goals.”

(The author of the paper disagrees with courts' findings and spends some paragraphs attacking them [in particular the interpretation of the statistics], but I'll skip that there... simply because another court judging a fairly similar matter found otherwise:)

In Nunez v. City of San Diego, the Ninth Circuit considered a challenge to a substantially more burdensome curfew than that upheld by the Qutb court. No hours extension was provided for weekend nights, and the curfew lacked many of the exceptions that had characterized the Dallas curfew. Unlike the Fifth Circuit in Qutb, the Nunez court expressly recognized the “right to free movement” as a fundamental right. Following the formal binary approach for fundamental interests, the court therefore applied “strict scrutiny.” Nevertheless, the court determined that in applying strict scrutiny it would recognize that “minors’ rights are not coextensive with the rights of adults,” not because minors lack such rights or because their rights are not as “fundamental,” but because “the state has a greater range of interests that justify the infringement of minors’ rights.” In applying its chosen standard of review, the court announced that it would be “mindful that strict scrutiny in the context of minors may allow greater burdens on minors than would be permissible on adults as a result of the unique interests implicated in regulating minors.”

Finding that reducing juvenile crime and victimization is a compelling interest, the Nunez court turned to means testing. The city presented national data showing, at best, lukewarm support for the curfew’s efficacy. The data revealed that (1) the juvenile crime rate was rising nationally, and that (2) juvenile crime nationally peaks at 3:00 p.m. and again at 6:00 p.m. Localized statistics also provided mixed support: A 1995 report showed that only fifteen percent of juvenile arrests took place during curfew hours, and that juvenile victimization actually increased during curfew hours in the year after enforcement began.

The court determined that while “the statistical evidence provides some, but not overwhelming, support for the proposition that a curfew will help reduce crime,” the city had made “little showing . . . that the nocturnal, juvenile curfew is a particularly effective means of achieving that reduction.” The court also “reject[ed] the City’s further justification that the ordinance ha[d] the additional beneficial deterrent effect of permitting police officers to get juveniles off the streets before crimes are committed.”

The court’s response to the evidence, however, was striking. In spite of its apparent rejection of the city’s justification for the curfew ordinance, the court ruled that in the face of such “concerns” the ordinance might nevertheless survive strict scrutiny. After concluding that minors are especially vulnerable at night—a position unsupported by the city’s own statistics—the court opined that San Diego had established “some nexus” between the curfew and its compelling interests. [...] The court struck down the curfew only because it lacked the exceptions from the Dallas curfew upheld in Qutb.

[...]

Schleifer involved a curfew similar to the Dallas curfew from Qutb. In an unusual step, the court began by considering what level of scrutiny should apply to children’s rights without ever mentioning which rights were implicated. While acknowledging that laws that impinge on a group’s fundamental rights are subject to strict scrutiny, the court nevertheless reasoned, based on some of the Supreme Court’s juvenile rights decisions, that minors’ rights are not coextensive with those of adults. The court therefore concluded that intermediate scrutiny, not strict scrutiny, was appropriate.

The Hutchins opinion followed a similar pattern. Addressing another Dallas-model curfew, the D.C. Circuit, sitting en banc, splintered, revealing the tenuousness of the tiers of scrutiny framework as applied to juvenile curfew laws. A plurality of four judges reasoned that minors do not enjoy a fundamental right “to be on the streets at night without adult supervision,” and therefore would have applied a rational basis test. Three judges concluded for reasons substantially expressed in Schleifer that intermediate scrutiny was appropriate, and that the curfew should be upheld.

Regarding the (fairly well-known) distinction that US Supreme court applied to minors' rights, but which nonetheless is/was open to further interpretation(s):

In Bellotti, the [US Supreme] Court approved parental-notification provisions in abortion statutes as long as the statutes contained judicial bypass procedures. In its opinion, the plurality “recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” Courts that invoke Bellotti in the juvenile curfew context often have read this language to establish a test under which children enjoy lesser rights if at least one of the three prongs—vulnerability, inability to make mature decisions, and the importance of the parental role— are implicated by the circumstances in question. Courts have, however, disagreed on the ramifications of this test. In Nunez, for example, the Ninth Circuit concluded that “[t]he Bellotti test does not establish a lower level of scrutiny for the constitutional rights of minors in the context of a juvenile curfew. Rather, the Bellotti framework enables courts to determine whether the state has a compelling interest justifying greater restrictions on minors than on adults.” In contrast, the D.C. Circuit concluded in Hutchins that Bellotti “necessarily” means that intermediate scrutiny is the proper test.

(Emphasis in original.)

| improve this answer | |
  • It's curious that youth has not been considered a "suspect characterization" like race or gender, when I suspect that these are motivations that underlie the creation and enforcement of a number of youth curfew laws. – Obie 2.0 Sep 16 at 14:24
  • @Obie2.0 Yeah, age would definitely be defined as an intrinsic immutable characteristic, just like race or sex. Some American youth should try again to challenge this. Thanks for the detailed answer Fizz – robbieperry22 Sep 16 at 18:24
  • 3
    @robbieperry22 Age is pretty much the opposite of an immutable characteristic. – Acccumulation Sep 17 at 3:18
  • @Acccumulation I see what you mean haha, I guess rather immutable at a given point of time. – robbieperry22 Sep 17 at 9:23
  • 1
    @robbieperry22 at a given point of time everything is immutable (your age, your weight, the clothes you are wearing at that moment, your position in space...) – SJuan76 Sep 17 at 11:24

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .