The New Constitutional Right to Maintenance in the United States


John H. Ryskamp


The 2003, United States Supreme Court case of Lawrence v. Texas is not a maintenance case. It abolished laws against sodomy. In doing so, however, it overruled the case which prevented a right to maintenance in the United States. In the 1937 case of West Coast Hotel v. Parrish, the Supreme Court, although sustaining a minimum wage law, nevertheless did so on the sole basis of demoting liberty (supposed by the Court to forbid minimum wage laws) to an unenforceable interest. The notion of an unenforceable interest was part of the scrutiny regime established in West Coast Hotel. The regime said that most facts—including maintenance—were subject to government discretion as long as that discretion was rationally related to a legitimate government interest. This, the Court felt, was necessary in order to rein in liberty.

Lawrence v. Texas has ended that regime by finding an individually enforceable right to liberty, elevating it from its previously unenforceable status as an interest. We currently have no idea what standard the United States Government must meet in order to violate the new individually enforceable right to liberty. However, the scrutiny regime has clearly been abolished because its basis—the demotion of liberty to an unenforceable interest—has been overruled.

Even as an unenforceable interest, the Supreme Court had prepared the ground for a Constitutional reevaluation of maintenance in a case pursuant to West Coast Hotel. In United States v. Carolene Products, the Court sustained a law banning substitute ingredients in milk, on the basis that maintenance is important to health. Nevertheless, in 1989, the Court, in DeShaney v. Winnebago County, found specifically that maintenance was not an individually enforceable right; it based this decision on the idea that liberty had been demoted to an unenforceable interest.

The anomaly—and the larger dispute as to whether liberty ever had anything to do with minimum wage laws or maintenance in the first place—ended with Lawrence v. Texas. We are in the same position with respect to maintenance as we are with respect to liberty. The Court has not yet indicated no idea what standard the United States Government must meet in order to violate the new individually enforceable right to maintenance. However, we do know one thing: maintenance is now an individually enforceable right in the United States. This is a profound change in the Constitutional history of the United States which, given the predominance of the United States in world legal policy, will affect the social policies of every other nation.


Constitutional Law

Date of this Version

April 2006