188 F.3d 531 | D.C. Cir. | 1998
Lead Opinion
Opinion for the Court filed by Circuit Judge SILBERMAN.
Circuit Judges WALD, GINSBURG, KAREN LeCRAFT HENDERSON, and GARLAND join in Parts I, III, & IV.
Opinion concurring in part and concurring in the result filed by Chief Judge HARRY T. EDWARDS, with whom Circuit Judges WALD and GARLAND join in Part II.
Opinion concurring in part and concurring in the result filed by Circuit Judges WALD and GARLAND.
Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS, with whom Circuit Judge
TATEL joins, and Circuit Judge WALD joins in Parts II and III, and Circuit Judge GARLAND joins in Part III.
Dissenting opinion filed by Circuit Judge TATEL.
The District of Columbia appeals the district court’s grant of summary judgment to plaintiffs/appellees, a group of minors, parents, and a private business, enjoining enforcement of the District’s Juvenile Curfew, and holding that it violates the fundamental rights of minors and their parents and is unconstitutionally vague. A divided panel of our circuit affirmed the district court, and rehearing en banc was granted. A plurality believes that the curfew implicates no fundamental rights of minors or their parents. Even assuming the curfew does implicate such rights, we hold that it survives heightened scrutiny. And, it does not violate the First or Fourth Amendment rights of minors.
I.
The District of Columbia Council, determining that juvenile crime and victimization in the District was a serious problem — and growing worse — unanimously adopted the Juvenile Curfew Act of 1995, which bars juveniles 16 and under from being in a public place unaccompanied by a parent or without equivalent adult supervision from 11:00 p.m. on Sunday through Thursday to 6:00 a.m. on the following day and from midnight to 6:00 a.m. on Saturday and Sunday, subject to certain enumerated defenses. See D.C.Code Ann. §§ 6-2182, 6-2183 (1996). The curfew provides that a minor (defined as “any person under the age of 17 years,” but not “a judicially emancipated minor or a married minor”) cannot remain in a public place or on the premises of any establishment within the District of Columbia during curfew hours. A parent or guardian commits an offense by knowingly permitting, or through insufficient control allow
Appellees sued the District of Columbia seeking an injunction against enforcement of the curfew and a declaration that the curfew violates the minors’ Fifth Amendment Due Process and Equal Protection rights to freedom of movement; violates the parents’ Fifth Amendment due process rights to raise their children; violates the minors’ First Amendment rights to freedom of expression and assembly; violates the minors’ Fourth Amendment right to be free from unreasonable searches and seizures; and is unconstitutionally vague. The district court granted summary judgment to appellees and enjoined enforcement of the curfew. Hutchins v. District of Columbia, 942 F.Supp. 665, 668 (D.D.C. 1996). The court concluded that “it is a well-settled legal principle that the right to free movement is a fundamental right generally,” and although the “[sjtate has a great interest in regulating the activities of, and providing protection for, minors,” this “interest does not automatically dilute the constitutional rights of [ ] minors.” Id. at 671. Thus, minors who are not in the custody of the state have a fundamental right to free movement. Since the curfew intrudes on minors’ right to free movement, as well as on the parents’ fundamental rights to direct their children’s upbringing, it must be subjected to strict scrutiny. Accordingly, the law must be narrowly tailored to promote the District’s asserted compelling interests in protecting the welfare of minors by reducing the likelihood that minors will perpetrate or become victims of crime, and by promoting parental responsibility by assisting parents in exercising reasonable supervision of minors entrusted to their care. The district court found that the statistical data produced by the District did not meet that test. The court also thought that four of the curfew’s defenses — the First Amendment defense, the emergency defense, the responsible entity defense, and the sidewalk defense — were “woefully vague” and
II.
A.
Appellees contend (and the district court determined) that the curfew infringes on a substantive fundamental right—the right to free movement—and as a substantive right it cannot be taken away merely through “due process.”
Although appellees cite numerous cases in support of the proposition that “the right to free movement is as old as the Republic,” the cases do not support such a sweeping assertion. It is true that the right to interstate travel is well-established. See Saenz v. Roe, — U.S. -, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Although the precise source of this right remains somewhat obscure, see Shapiro, 394 U.S. at 629 n. 8, 89 S.Ct. 1322, its origins reflect a concern over state discrimination against outsiders rather than concerns over the general ability to move about. See Saenz v. Roe, — U.S. -, 119 S.Ct. 1518, 143 L.Ed.2d 689 (grounding at least one component of the right to interstate travel in the Privileges and Immunities Clause of the Fourteenth Amendment); United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (describing the right to interstate travel as originating in the Articles of Confederation and as being a “necessary concomitant of the stronger Union the Constitution created”); Zobel v. Williams, 457 U.S. 55, 79-81, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982) (O’Connor, J., concurring in the judgment) (describing the right as originating in the Privileges and Immunities Clause of Art. IV); Edwards v. California, 314 U.S. 160, 173-74, 62 S.Ct. 164, 86 L.Ed. 119 (1941) (describing the right as being grounded in the Commerce Clause); Zobel, 457 U.S. at 60 n. 6, 102 S.Ct. 2309 (describing the right to travel cases as a particular application of equal protection
The Court has suggested on occasion that some more generalized right to movement may exist. See, e.g., Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) (“Freedom of movement is basic in our scheme of values.”); Guest, 383 U.S. at 758, 86 S.Ct. 1170 (proclaiming that citizens of the United States “must have the right to pass and repass through every part of [the country] without interruption, as freely as in [their] own states” (quoting Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 49, 18 L.Ed. 745 (1867) (quoting The Passenger Cases, 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702 (1849) (Taney, C.J., dissenting)))); Williams v. Fears, 179 U.S. 270, 273, 21 S.Ct. 128, 45 L.Ed. 186 (1900) (indicating that the “right of locomotion,” like the “right to contract,” is protected by substantive due process). But those comments are only dicta — the cases involved travel across borders, not mere “locomotion.”
Nor do the vagrancy cases relied on by appellees support their claim. While Justice Douglas noted in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), that “wandering or strolling” from place to place was historically part of the “amenities of life,” id. at 164, 92 S.Ct. 839, the Court actually held only that the vagrancy law at issue was void for vagueness, see id. at 165-71, 92 S.Ct. 839; see also Kolender v. Lawson, 461 U.S. 352, 357-62, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). While vagrancy statutes certainly prohibit individuals from moving about, the constitutional infirmity in these statutes is not that they infringe on a fundamental right to free movement, but that they fail to give fair notice of conduct that is forbidden and pose a danger of arbitrary enforcement. In other words, they do not afford procedural due process.
The Supreme Court in Maricopa County specifically declined to decide whether the right to interstate travel recognized in Shapiro has its analogue in intrastate travel. The circuits are split on this question. Compare King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 647-48 (2d Cir.1971) (holding that a municipal resolution imposing a five-year residency requirement for admission to public housing burdened fundamental right to intrastate travel and stating that it would be “meaningless to distinguish between interstate and intrastate” travel) with Wardwell v.
Be that as it may, there is an important caveat to bear in mind when considering potential extensions of substantive due process, which “has at times been a treacherous field,” Michael H. v. Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality) (quoting Moore, 431 U.S. at 502, 97 S.Ct. 1932). The Supreme Court has warned us that our analysis must begin with a careful description of the asserted right for the more general is the right’s description, ie., the free movement of people, the easier is the extension of substantive due process. See Reno v. Flores, 507 U.S. at 302, 113 S.Ct. 1439; see also Michael H., 491 U.S. at 127 n. 6, 109 S.Ct. 2333 (proper level of generality at which to describe the right is “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified”) (opinion of Scalia, J., joined by Rehnquist, C.J.). And the “doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Reno v. Flores, 507 U.S. at 302, 113 S.Ct. 1439 (quoting Collins v. Marker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). For that reason we 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? Do they have the right to freely wander the streets — even at night? See id. (defining the asserted right, not as freedom from physical restraint, but as “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing and able private custodian rather than a government-operated or government-selected child care institution”).
We think that juveniles do not have a fundamental right to be on the streets at night without adult supervision. The Supreme Court has already rejected the idea that juveniles have a right to “come and go at will” because “juveniles, unlike adults, are always in some form of custody,” id. (quoting Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984)), and we see no reason why the asserted
Neither does the asserted right here have deep roots in our “history and tradition.” As the District noted, juvenile curfews were not uncommon early in our history, see Note, Curfew Ordinances and the Control of Nocturnal Juvenile Crime, 107 U. Pa. L. Rev. 66, 66-69 n.5 (1958), nor are they uncommon now, see Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551, 555 & n.11 (1997) (discussing research demonstrating that the use of curfews to control delinquency and reduce juvenile victimization is the norm in major American cities) (citing William Ruefle & Kenneth M. Reynolds, Curfews and Delinquency in Major American Cities, 41 Crime & Delinq. 347, 353 (1995)). That juvenile curfews are common is, of course, not conclusive in determining whether they comport with due process, but the historical prevalence of such laws is “plainly worth considering” in determining whether the practice “ ‘offends some principle of justice so deeply rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Schall, 467 U.S. at 268, 104 S.Ct. 2403 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). In sum, neither history nor precedent supports the existence of a fundamental right for juveniles to be in a public place without adult supervision during curfew hours, and we decline to recognize one here.
Even if juveniles themselves lack a fundamental right of movement, appellees claim that parents have a fundamental, substantive due process right to direct and control their children’s upbringing and that such a right is abridged by the curfew. Whether children under the age of 17 are to be free to be abroad at night is presumptively a matter for their parents to determine, as part and parcel of that upbringing. (Appellees suggest that this concept extends to permitting a child of any age — even four — to be on the street in the middle of the night.) This parental fundamental right alone, it is argued, obliges us to judge the D.C. curfew by heightened scrutiny. We disagree, not because we think that no such fundamental right exists in any dimension, but rather because we think it not implicated by the curfew.
In the early twenties, the Supreme Court held unconstitutional a state statute that prohibited the teaching of subjects in foreign languages and the teaching of foreign languages to children before the eighth grade (even in a private school), see Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and a statute that required children 8 to 16 to attend a public school, see Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Although these cases could be thought to rest on the Court’s perception that the statutes had an irrational basis, see Meyer, 262 U.S. at 403, 43 S.Ct. 625 (concluding that the statute as applied was “arbitrary and without reasonable relation to any end within the competency of the state”), in Pierce the Court did observe that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” id. at 533, 45 S.Ct. 571. And by 1944 in Prince, the Court said that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations thp' state can neither supply nor hinder.” Prince, 321 U.S. at 166, 64 S.Ct. 438 (citing Pierce and Meyer) (emphasis added). Although the Court in Prince held that the state could ban children from selling magazines on the street, even when accompanied by a parent and despite the religious nature of the publications, it did so after balancing the state’s interest against the parents’ rights. See id. at 165-70, 64 S.Ct. 438. That approach might suggest a more searching inquiry than rational basis review. (This was long prior to the doctrinal development of the formal tests that are now part of modern substantive due process, and, therefore, the Court did not speak in terms of strict scrutiny or rational basis.) But the Court emphasized that the state’s interest in guarding the welfare of children — even against the wishes of a parent — was particularly powerful to ward off the “evils ... [of] public places” and the “possible harms arising from other activities subject to all the diverse influences of the street.” Id. at 168, 64 S.Ct. 438. By so reasoning, the Court distinguished between the “private realm of family life,” id. at 166, 64 S.Ct. 438, and those activities subject to the evils of public places, applying something very close to rational basis review for laws restricting the latter. See also Wisconsin v. Yoder, 406 U.S. 205, 215, 231, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (high school attendance law unconstitutionally infringed on parents’ rights to direct the religious upbringing and education of their children; only those interests of the “highest order” can overcome those parental rights).
We glean from these cases, then, that insofar as a parent can be thought to have a fundamental right, as against the state,
III.
A.
Even if the curfew implicated fundamental rights of children or their parents, it would survive heightened scrutiny. Assuming such rights are implicated, we must first decide whether, as the district court held, strict scrutiny applies or whether, as Judge Rogers concluded, see Hutchins v. District of Columbia, 144 F.3d 798, 809 (D.C.Cir.1998), vacated and reh’g en banc granted, 156 F.3d 1267 (D.C.Cir.1998), intermediate scrutiny is called for. We think the latter. Considering children’s rights first, we agree that constitutional rights do not instantaneously appear only when juveniles reach the age of majority. See Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Still, children’s rights are not coextensive with those of adults. See Prince, 321 U.S. at 169, 64 S.Ct. 438; see also Bellotti v. Baird, 443 U.S. 622, 633-39, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion). So “although children generally are protected by the same constitutional guarantees ... as are adults, the State is entitled to adjust its legal system to account for children’s vulnerability” by exercising broader authority over their activities. Bellotti, 443 U.S. at 635, 99 S.Ct. 3035. This means, at minimum, that a lesser degree of scrutiny is appropriate when evaluating restrictions on minors’ activities where their unique vulnerability, immaturity, and need for parental guidance warrant increased state oversight. See Carey v. Population Services International, 431 U.S. 678, 693 n. 15, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (plurality opinion); Bellotti 443 U.S. at 634, 99 S.Ct. 3035. The reasoning of Bellotti Prince, and Carey necessarily suggests that something less than strict scrutiny — intermediate scrutiny — would be appropriate here. Not only can juveniles be thought to be more vulnerable to harm during curfew hours than adults, but they are less able to make mature decisions in the face of peer pressure, and are more in need of parental supervision during curfew hours. See Schleifer, 159 F.3d at 847 (applying intermediate scrutiny, reasoning that the “qualified rights” of juveniles should be subject to something more than rational basis and something less than strict scrutiny review). Compare Nunez v. City of San Diego, 114 F.3d 935, 946 (9th Cir.1997) (rejecting lesser degree of scrutiny for equal protection challenge to juvenile curfew but noting that strict scrutiny in the context of minors “may allow greater burdens on minors than would be permissible on adults”).
To withstand intermediate scrutiny, the curfew must be “substantially related” (rather than narrowly tailored) to the achievement of “important” (rather than compelling) government interests.
Whether the curfew is “substantially related” to the achievement of that interest is the more difficult question here. Neither the Supreme Court nor the lower federal courts has expounded upon — explained in doctrinal terms — the phrase “substantial relationship.” That test obviously calls for a more searching inquiry than rational basis (the minimum standard for judging equal protection claims), yet a more deferential one than strict scrutiny’s narrow tailoring component. In judging the closeness of the relationship between the means chosen (the curfew), and the government’s interest, we see three interrelated concepts: the factual premises upon which the legislature based its decision, the logical connection the remedy has to those premises, and the scope of the remedy employed.
The plaintiffs in this case criticize the District’s legislative decision on all three grounds. Thus, appellees argue: that the District improperly relied on statistical evidence from other cities showing the effectiveness of similar curfew laws in reducing juvenile crime and victimization because the other cities are not sufficiently comparable; that testimony as to the effectiveness of the curfew in the District itself (during the first three months) was unreliable; that the District’s juvenile arrest statistics (the most fundamental factual premise for the need for a curfew) were flawed because they included 17 year olds not covered by the curfew; that the District’s statistics did not adequately establish that the District’s problem centered on juvenile crime and victimization during curfew hours; and that the District did not produce data showing that crimes committed by and against juveniles occurred in “public,” i.e., outside of the home where juveniles will presumably be during curfew hours.
Of course, in considering the District Council’s decision, we must bear in mind that we are not reviewing a district court’s or an agency’s findings of historical fact which is a more structured kind of decision than a legislative judgment. And even in the context of review of agency rulemaking, we are obliged to give great leeway to predictive judgments based on a matter within the agency’s sphere of expertise. See Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965, 971 (D.C.Cir.1999). To be sure, in two cases applying intermediate scrutiny in the context of quasi-suspect classes, the Supreme Court closely and skeptically examined statistical social science data purporting to justify differential treatment of men and women. See Craig, 429 U.S. at 199-204, 97 S.Ct. 451; Hogan,
Bearing in mind, then, that we are reviewing a legislative decision, we turn to appellees’ specific objections to the District’s decisionmaking. Taking first the District’s diagnosis of its own situation, we ask whether it was impermissible for the Council to rely on arrest statistics that included 17 year olds and victimization statistics that covered 15 to 19 year olds. Appellees claim that including 17 year olds’ arrests will necessarily overstate the magnitude of juvenile crime — at least as the District has defined juveniles. But the District brought to our attention more data showing that arrests for youths under 17 have been increasing steadily.
In any event, the District is not obliged to prove a precise fit between the nature of the problem and the legislative remedy-just a substantial relation. The District can hardly be faulted for determining not to include 17 year olds in the curfew; obviously that would be more intrusive and create more of an enforcement problem. And even if minors under 17 are less likely to commit crimes than 17 year olds, common sense tells us that younger children will surely be more vulnerable.
Appellees also claim that the District’s data is flawed because it failed to establish that the District had a problem with juvenile crime and victimization during curfew hours. The material presented to the Council on this point consisted of a chart prepared by the Metropolitan Police Department which showed that most juvenile arrests took place during curfew hours. Echoing the district court, appellees argue that this evidence is “woefully deficient,” Hutchins, 942 F.Supp. at 677, because the source data, from which the chart was compiled, appears to conflict with the chart. While the data is admittedly less than crystal clear, any discrepancies appear to be minor.
Nevertheless, appellees argue that the District was obliged to confíne the curfew to high-crime areas of the city. We flatly disagree. To have done so would have opened the Council to charges of racial discrimination. Indeed, it would have faced attacks on that decision similar to those directed to the “broad sociological propositions” the Supreme Court disapproved of in Craig.
Appellees’ claim that the District was not entitled to rely on curfew experiences in other cities strikes us as particularly weak. Of course no city is exactly comparable to any other, but it would be folly for any city not to look at experiences of other cities. And in drawing conclusions from those experiences, legislatures are not obliged to insist on scientific methodology. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (holding that under intermediate scrutiny in the First Amendment context, a city may rely on evidence generated by other cities “so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses”); see also Craig, 429 U.S. at 201-04, 97 S.Ct. 451 (noting that state had relied on statistical evidence from other jurisdictions and, although criticizing state’s proof on many grounds, not disapproving of such evidence per se). The Fourth Circuit in Schleifer noted that Charlottesville, in adopting its own juvenile curfew, had relied on a showing that Lexington, Kentucky had a successful juvenile curfew. Although the court there recognized that there was testimony that curfews may be more effective in smaller cities (suggesting that Lexington and Charlottesville may have similar experiences), the court also emphasized that the judgment about the potential efficacy of a curfew “is a political debate, not á judicial one.” Schleifer, 159 F.3d at 850. In any event, the District had its own indications that the curfew was effective in the District of Columbia- — the Deputy Chief of the Metropolitan Police Department testified before the D.C. Council that in its first three months the curfew had resulted in fewer juveniles on the streets during curfew hours, and thus a “reduction of the number of juvenile late night arrests,” noting a 34% decrease in arrests of juveniles under 17 years old. Appellees question the relevance of this testimony because the District did not demonstrate that this drop in juvenile arrests was attributable to the curfew as opposed to some other factor. We think that objection calls for an absurd preciseness in legislative decisionmaking which would make
Finally, we note that the eight defenses to the curfew strengthen the relationship between the curfew and its goal of reducing juvenile crime and victimization by narrowing the scope of the curfew.
B.
Assuming, as we do in this section of the opinion, that the fundamental rights of parents are implicated by curfews,
IV.
Appellees’ remaining attacks on the curfew fall away. They contend that the district court correctly concluded that four of the curfew’s defenses — the First Amendment activity defense, the responsible entity defense, the sidewalk defense, and the emergency defense — are “woefully vague and undefined,” and that these defenses therefore do not withstand constitutional scrutiny. Hutchins, 942 F.Supp. at 679. Insofar as appellees contend that there is too much imprecision in the articulation of these defenses, they are really undermining their claim that parental rights are impinged upon. For the very flexibility that the administration of the curfew contemplates enhances parental control.
Appellees claim that the First Amendment defense
Appellees contend that the sidewalk defense
Appellees also challenge the “emergency” defense,
Appellees argued before the district court that the curfew also violated their First and Fourth Amendment rights, but because the district court found the curfew unconstitutional on equal protection and due process grounds, it did not reach these additional constitutional claims. We exer
The curfew “possesses the potential to suppress First Amendment rights,” according to appellees, and this defect is not cured by the curfew’s defense for First Amendment activities. This argument is self-defeating because we cannot hold a statute facially unconstitutional (appellees’ challenge is a facial one) based on a mere possibility that the statute might be unconstitutional in particular applications. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).
Finally, appellees argue that the curfew violates the Fourth Amendment because it allows a police officer to arrest an individual without probable cause. The curfew provides that a police officer may not make an arrest “unless the officer reasonably believes that an offense has occurred.”! 6 — 2183(c)(1). This formulation, however, is precisely how the Supreme Court has defined probable cause, see Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), and the curfew therefore conforms to the requirements of the Fourth Amendment.
For these reasons, we conclude that the curfew law is constitutional. Accordingly, we reverse the district court’s grant of summary judgment in favor of appellees and remand for the district court to enter summary judgment for the District of Columbia.
So ordered.
HARRY T. EDWARDS, Chief Judge, concurring in part and concurring in the result, with whom Circuit Judges WALD and GARLAND join in Part II:
In my view, the disputed curfew law implicates significant rights of both minors and parents and, accordingly, is subject to no less than so-called “intermediate scrutiny.” I therefore do not join Part II of the opinion for the court, which rests on the
I.
Part II of the opinion for the court suggests that the fundamental rights accorded to parents are limited to “the parents’ control of the home and the parents’ interest in controlling, if he or she wishes, the formal education of children.” This section of the opinion concludes that this right “does not extend to a parent’s right to unilaterally determine when and if children will be on the streets — certainly at night.” It goes on to hold that the curfew law does not implicate any fundamental rights of parents, because limitations on where one’s child may be at night are “not among the ‘intimate family decisions’ encompassed by such a right.” In Part III, the opinion holds, alternatively, that, “even if the curfew implicated fundamental rights of ... parents,” the curfew law survives intermediate scrutiny. The opinion acknowledges in a footnote that “a substantially broader formulation” of parental rights than that discussed in Part II.B is assumed for the purposes of Part III.B. However, the opinion never specifically defines what fundamental parental rights are at issue here. Some explication is necessary, I think.
Certainly it should be clear that parents’ rights cannot be limited to only those activities that are within the home or involve the formal education of one’s child — such a formulation is much too narrow. I do not agree with the suggestion in Part II.B of the opinion for the court that parents’ rights are limited solely to “intimate family decisions,” unless “intimate” is meant to include more than just what goes on within the confines of the home and with regard to the child’s education. As numerous Supreme Court decisions make clear, a parent’s stake in the rearing of his or her child surely extends beyond the front door of the family residence and even beyond the school classroom.
Over fifty years ago, the Supreme Court broadly stated that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); accord Reno v. ACLU, 521 U.S. 844, 865 n. 31, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). More recently, the Court has recognized that the parental right to raise children in the manner that the parents see fit is deeply entrenched:
The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.
Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); see also Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is
To be sure, there are circumstances, as I discuss below, under which the state’s interests may trump the rights of parents. To say, however, as Part II.B of the opinion for the court suggests, that a curfew law that regulates and restricts minors’ activities outside the home during the nighttime hours does not even implicate the broad fundamental rights of parents is to disregard the teachings of decades of Supreme Court case law. The Court has never limited its definition of parental rights to include only the right to supervise activities that take place literally inside the home or literally inside the classroom. Indeed, such a limitation is implausible.
Surely a nighttime curfew law implicates parents’ rights to control the “care,” “nurture,” “upbringing,” “management,” and “rearing” of their children, even if the law — by definition — regulates activity that takes place outside the home and school. The fact that some of the aforecited Supreme Court cases inyolve parents’ rights to control the education of their children is not surprising, but neither is it evidence that the Court meant to imply that parents have no rights to control other aspects of their children’s lives. Thus, when the Court explained in Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), that “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society,” no one could reasonably believe that the Court meant to limit parents’ authority to only child-rearing that takes place literally within the physical confines of “their own household.” Such a view would come as a stunning surprise to countless parents throughout our history who have imposed restrictions on their children’s dating habits, driving, movie selections, part-time jobs, and places to visit, and who have permitted, paid for, and supported their children’s activities in sports programs, summer camps, tutorial counseling, college selection, and scores of other such activities, all arising outside of the family residence and school classroom. To ignore this reality is to ignore the Supreme Court’s admonition in Yoder that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” 406 U.S. at 232, 92 S.Ct. 1526.
There is no doubt that, in certain instances, the state may lawfully regulate the activity of children without regard to parental preferences. Indeed, the Supreme Court has noted that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” Prince, 321 U.S. at 167, 64 S.Ct. 438, and has permitted parental rights to be circumscribed to accommodate the Government’s legitimate interest in the “moral, emotional, mental, and physical welfare of the minor,” Stanley, 405 U.S. at 652, 92 S.Ct. 1208 (internal quotation marks omitted). However, when the Government does intervene in the rearing of children without regard to parents’ preferences, “it is usually in response to some significant breakdown within the family unit or in the complete absence of parental caretaking,” Action for Children’s Television v. FCC, 58 F.3d 654, 679 (D.C.Cir.1995) (Edwards, C.J., dissenting), or to enforce a norm that is critical to the health, safety, or welfare of minors. The
It would be unreasonable to require the state to make a particularized shoiving that every child will benefit from a specific law enacted to protect the welfare of minors. For example, not every child will gain precisely equal benefits from child labor laws or education laws, but there is no doubt that the state may reasonably regulate education, see Yoder, 406 U.S. at 213, 92 S.Ct. 1526, and that it may regulate and even prohibit child labor, see Prince, 321 U.S. at 166, 64 S.Ct. 438. Rather, the case law suggests that if there is a significant and important goal to be achieved that generally enhances the health, safety, or welfare of unemancipated minors, the state may pass legislation to achieve that goal, so long as the legislation does not unduly tread on parents’ rights to raise their children.
There are three obvious categories of cases in which the state may pass legislation that is aimed at protecting children: (1) laws in which parents’ rights are not accommodated, because accommodating parents’ interests would defeat the entire purpose of the legislation, e.g., preventing parents from retaining custody of children they have abused; (2) laws in which parents’ rights are not implicated at all, e.g., preventing convicted sex offenders from working in places where they would have substantial contact with children; and (3) laws in which parents’ rights are implicated, but are accommodated.
This case involves the third category, i.e., accommodation. A good example of the “accommodation” category is found in the area of education. It is by now well-established that a state may enact compulsory education requirements; however, it is equally clear that the state must accommodate parents’ rights to raise their children by allowing a child to attend private, rather than public school, see Pierce, or by allowing parents to teach their children at home, see Yoder. In other words, as long as certain standards are met, parents may educate their children as they see fit.
II.
As the opinion for the court acknowledges, the Court in Prince appeared to engage in a more searching inquiry than mere rational basis review, although that case was decided before the Court had adopted the labels of strict scrutiny, intermediate scrutiny, or rational basis to characterize the appropriate standard of review. See Prince, 321 U.S. at 165-70 & nn. 15-16, 64 S.Ct. 438 (balancing the parental interest with the state interest and looking to child labor statistics for support). In my view, Prince and other such cases indicate that there must be a substantial relationship between the objectives of a law that limits parents’ rights and the protection of children. Such a law must also reasonably accommodate parents’ rights to raise their children as they see fit.
In this case, I have no real doubt that, as the opinion for the court shows, the curfew law is substantially related to the protection of minors from the dangers of juvenile crime. The difficult question here is whether the curfew law, in seeking to protect children, adequately accommodates parents’ rights to determine what activities are necessary to their children’s upbringing and growth. In my view, the D.C. law adequately accommodates parents’ rights, because, although parents’ decision making is not unfettered, the law allows parents great discretion in how to manage the activities of their children.
First, as the opinion for the court notes, § 6 — 2183(b)(1)(A) allows a minor to travel anywhere with a parent or other adult. In addition, subsection (B) allows minors to run “errands” for their parents, and I read this to include any task a parent may
In a different context, I have had much to say about the distinction between governmental regulations that facilitate parental rights as distinguished from those that impermissibly preempt parental rights. See Action for Children’s Television v. FCC, 58 F.3d at 678-82 (Edwards, C.J., dissenting). So I will not belabor the point further here. Suffice it to say, in my view, this case involves a situation in which the Government’s interests are clear, as is the connection between the objectives of the law and the protection of minors. In fact, this is one of those unique cases in which the governmental regulations both serve to protect minors and, also, to facilitate parents’ control over the activities of their children. See id. at 682 (“It would be hard to object to some sort of regulation of indecency in broadcast as well as other media were it narrowly tailored to facilitate parental supervision of children’s exposure to indecent material.”). No responsible parent would willingly send a child into danger. A law designed to curb the possibility of danger; while at the same time affording parents wide freedom to direct their children’s activities, is one that passes constitutional muster. Although parental rights have been implicated by the curfew law, they have not been imper-missibly infringed.
I therefore concur in the conclusion that the curfew is constitutional, but only because I find that the curfew law is substantially related to the protection of children and that the rights of parents have been adequately accommodated.
. Appellees argued below that the curfew violated both substantive due process and equal protection rights. The equal protection claim is based on the premise that the District’s curfew law failed to accord the same "equal protection of the laws” to minors as to those 17 and over. Although appellees do not and cannot claim that age is a suspect class, see, e.g., Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), they contend that the curfew violates equal protection because the classification between these two age groups burdens the juveniles' fundamental rights—it serves to deprive only those under 17 of their fundamental right to "free movement.” See Hutchins, 942 F.Supp. at 670; see also Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (holding that a law requiring the sterilization of certain criminals violated equal protection because marriage and procreation are fundamental rights, and by ordering the sterilization of some criminals but not others, the state "has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment”). On rehearing en banc, we take appellees to have renewed their Fifth Amendment substantive due process as well as their Fifth Amendment equal protection claims. Appellees have couched their claim in terms of the threshold question that must be addressed in both the substantive due process and equal protection inquiries—is there a fundamental right at issue?
. Kent and Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), could even be viewed primarily as First Amendment cases.
. Appellees suggest in a footnote, without explanation, that the curfew may not even survive a rational basis review of their equal protection claim. We need not consider cur
. Although appellees challenge the curfew as a violation of juveniles' substantive due process and equal protection rights, they do not claim that the standard of review {i.e., heightened scrutiny) should be applied any differently for one or the other.
. At the request of the D.C. Council during its consideration of the curfew law, the Metropolitan Police Department compiled statistics on total juvenile arrests and juvenile arrests during the proposed curfew hours between January 1993 and February 1995. This information — the source data — was later summarized in a chart and included in the D.C. Council committee report on the curfew law. There are discrepancies in this information which has caused some confusion. The source data consists of statistics for juvenile arrests during curfew hours by offense, the total number of juvenile arrests during curfew hours (adding up the arrests by offense), and the total number of juvenile arrests for all hours. The total number of juvenile arrests during curfew hours contains errors of addition: adding the arrests by offense for fiscal year 1994 yields a total of 2,292 rather than the 2,312 listed, and the fiscal year 1995 totals should be 862 rather than 581. (The numbers for fiscal year 1993 were added correctly.) These mathematical errors resulted in listing a total of 3,722 juvenile arrests during curfew hours when the correct number is 3,694 — a minor discrepancy which does not affect the bottom line conclusion. There is also some confusion over the number of total arrests for all hours. Appellees note that adding up the total arrests for all hours in the source data appears to yield some 2,400 more juvenile arrests than the number listed as the "total” in the chart. The source data for fiscal 1993, however, included total arrests for the entire fiscal year for 1993 but included arrests during curfew hours for only a portion of the fiscal year — from January 1993. The
. To be sure, the defenses, to the extent they provide for juveniles to be out during curfew hours, will not by themselves necessarily result in reduced juvenile victimization. But the substantial relationship test does not demand that every aspect of the curfew law advance the asserted government interests equally.
. For purposes of Part III.B we do not assume a narrow definition of parental rights, limited to activities within the home or classroom, but rather assume a substantially broader formulation.
. Thai may well suggest that appellees really object to any sort of curfew.
. Section 6 — 2183(b)(1)(H) provides a defense if a minor is "[e]xercising First Amendment rights protected by the United States Constitution, including free exercise of religion, freedom of speech, and the right of assembly.”
.As the District points out, it is ordinarily for local courts to provide definitive interpretations of state laws. See Grayned, 408 U.S. at 110, 92 S.Ct. 2294. We do not purport to provide such an interpretation of D.C. law
. Section 6 — 2183(b)(1)(G) provides a defense if a minor is "[i]n attendance at an official school, religious, or other recreational activity sponsored by the District of Columbia, a civic organization, or another similar entity that takes responsibility for the minor, or going to, or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by the District of Columbia, a civic organization, or another similar entity that takes responsibility for the minor.”
. Section 6-2183(b)(1)(F) provides a defense if a minor is ”[o]n the sidewalk that abuts the minor's residence or that abuts the residence of a next-door neighbor if the neighbor did not complain to the Metropolitan Police Department about the minor’s presence.”
.Section 6-2183(b)(l)(E) provides a defense if a minor is "[i]nvolved in an emergency.” "Emergency” is defined as "an unforeseen combination of circumstances or the resulting state that calls for immediate action. The term ‘emergency’ includes, but is not limited to, a fire, natural disaster, an automobile accident, or any situation that requires immediate action to prevent serious bodily injury or loss of life.” 2d. at § 6-2182 (2). "Serious bodily injury” is defined as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. at § 6-2182 (11).
. We do not understand appellees' reference to the statute’s "overbreadth'' to be an assertion of a facial challenge under the First Amendment overbreadth doctrine — which is really a standing exception (not applicable here) for parties engaged in unprotected conduct to challenge applications of the statute against third parties not before the court. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-04, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985); Sanjour v. EPA, 56 F.3d 85, 92 n. 10 (1995).
. A majority of the court has not concurred in Part II, so I see no need to air my dissent with respect to that portion of the opinion for the court.
Concurrence in Part
concurring in part and concurring in the result:
For the reasons stated in the Fourth Circuit’s opinion in Schleifer v. City of Charlottesville, 159 F.3d 843, 846-47 (4th Cir.1998), as well as those expressed in Part II of Chief Judge Edwards’ opinion and Part III of Judge Rogers’ opinion, we conclude that the District of Columbia’s Juvenile Curfew Act implicates the constitutional rights of children and their parents, and that intermediate scrutiny is the appropriate level of review. For the reasons stated in Part III of the Opinion of the Court, we conclude that the Curfew Act passes that scrutiny, and for the reasons stated in Part IV agree that it is otherwise constitutional as well.
ROGERS, Circuit Judge, with whom Circuit Judge TATEL, joins, concurring in part and dissenting in part, and with whom Circuit Judge WALD joins in Parts II and III, and Circuit Judge GARLAND joins in Part III:
All members of the court agree that a test at least as rigorous as intermediate
Even when the court assumes that the curfew burdens a fundamental right to movement, it fails to conform its application of intermediate scrutiny to Supreme Court instruction and example demonstrating that the proper judicial role requires attention to the evidence on which the legislature relies in intruding upon a fundamental right. When properly applied, intermediate scrutiny reveals that key elements of the curfew — age and time — are insufficiently tailored to address the problem of juvenile crime and victimization that confronted the legislature. By ignoring evidence that almost half of juvenile crime is committed by persons not covered by the curfew, and that most of that crime occurs at hours not within the curfew, the legislature has failed to demonstrate, on this record, the requisite fit between the problem and the chosen solution.
Enticed by the apparent success of curfews in other cities, the District of Columbia transplanted a Dallas, Texas ordinance without apparent determination that circumstances here warranted exactly the same solution. The Council of the District of Columbia had an accurate understanding that juvenile crime and victimization are serious problems, but, so far as the record shows, no accurate basis for concluding that nocturnal crime in certain public areas by youths under 17 was a sufficiently serious part of this problem to warrant severely limiting the rights of thousands of minors who were neither criminals nor likely victims of crime. The rhetoric supporting the curfew therefore does not fit the reality of what the curfew does. Consequently, the court’s labored effort to construct a rationale for the curfew, attempting to avoid the inconveniences created by flawed and deficient information before the legislature, see, e.g., Op. at 543, eviscerates the distinction between intermediate scrutiny, which requires that justifications for complex, but burdensome, policy choices emanate from the legislature and that burdens be tailored to specific ends, and the less rigorous rational-basis scrutiny, where the court defers to legislative policy choices with far less concern for serious evidentiary defects or loose tailoring.
Accordingly, because the court accords less respect to minors than is constitutionally required, and more deference to the D.C. Council than is constitutionally warranted, I respectfully dissent from its holding that the curfew survives intermediate scrutiny.
A.
Claims invoking fundamental rights have been a source of institutional diffidence for Article III courts, which are reluctant to venture where “guideposts for responsible decisionmaking ... are scarce and open-ended.” Collins v. City of Barker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Yet though the terrain may be unchartered, the Constitution’s guarantees of “liberty” and “due process” are entrusted, along with countless others, to independent oversight by the judiciary. See, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 618-20, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Courts must carefully define the contested right, employing sufficient specificity to ground the right in a concrete application and sufficient generality to connect the right to its animating principles. See, e.g., Washington v. Glucksberg, 521 U.S. 702, -, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772 (1997); Griswold v. Connecticut, 381 U.S. 479, 481-85, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
The parties differ as to how abstractly the court should define the right that plaintiffs invoke. Appellees-plaintiffs assert a broad right, regardless of age, to “freedom of movement,” while appellant-defendant denies that juveniles have a fundamental right “to wander in public places at night without adult supervision.” The United States, as amicus curiae, similarly opposes juveniles’ alleged right “to roam the streets unsupervised” during curfew hours.
The plurality initially vacillates between reviewing a broad and narrow right, but ultimately views this case as raising only a narrow question. The opinion first suggests that plaintiffs invoke a right to “liberty,” Op. at 536, but then proceeds as if this case has nothing to do with whether “Americans” in general have a right to “free movement” because it relates only to juveniles’ claimed right to be free from adult supervision at night. See Op. at 538-39. The plurality seems to assume that the general right to free movement is entirely distinct from a right of (1) minors to (2) unsupervised movement (3) at night. This distinction between the right and a particular manifestation of it is an unhelpful means of weighing a state burden on an asserted liberty interest. Rather, by confronting the broader claim the court can develop meaningful standards to guide its review of the subsidiary claim that is directly at issue.
At first glance, the plurality’s narrow construction of the contested right seems sensible. This country lacks a tradition of tolerance for the nocturnal wanderlust of minors, and the plurality’s recognition of this uncontested fact avoids the more searching analysis that fundamental rights review entails.
First, defining a right as the mirror-image of a particular burden (i.e., the right to do the specific thing that a challenged rule prevents) tips the scales against recognizing the right. Safeguarding the abstract ideals of the Constitution fre
Second, the plurality’s decision to define the asserted right narrowly confuses the ultimate question of balancing state interests against individual interests with the question of how to define an individual’s interest with sufficient care to ensure that judicial review is not a hollow exercise of deference to conventional wisdom. The plurality has relied on the District of Columbia’s strong defense of the curfew to hold that there is nothing to defend against — that there is no principle against which the curfew need be tested. See Op. at 538-39. The difficult issue in this case involves reconciling two conflicting interests: individual freedom to walk on public streets without fear of police intervention, see, e.g., Gomez v. Turner, 672 F.2d 134, 143 n. 18 (D.C.Cir.1982), and the authority of the state to act in the best interest of minors, see, e.g., Bellotti v. Baird, 443 U.S. 622, 633-34, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion). This issue arises only if one recognizes a right at a sufficient degree of abstraction to connect with precedent in analogous areas. The plurality avoids this question by citing clear governmental interests — controlling the aimless wandering of minors in areas where harm can befall them — to eliminate any possibility that a contrary right may exist. Yet the fact that a state may have good reasons to treat the movement of minors differently from that of adults does not therefore mean that minors lack a right to movement; it means only that the right may in some circumstances be insufficient to overcome a particular burden. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n. 9, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). Consequently, age should not be an element of the right at issue because the state interests that are relevant at the balancing stage of analysis do not aid the distinct inquiry at the definitional stage.
Third, construing rights narrowly displaces delicate value judgments, but does not avoid them. The admirable aim of narrowly defining a right is to “rein in the subjective elements that are necessarily present in due-process judicial review.” Glucksberg, at -, 117 S.Ct. at 2268. Broadly defined rights are prone to manipulation, and afford courts ample discretion when applying general principles to concrete fact patterns. Rights defined too narrowly, however, suffer from the opposite problem: the more specific the definition of a right, the more its vitality can become a question of judicial preference or unwarranted deference to legislative discretion because the court lacks external standards to guide its analysis. By asking a broader question, such as ‘does a curfew impermissibly interfere with a generally applicable right of movement,’ the court can gain access to standards and precedents to structure and guide its analysis. There may never be an objective answer to a claim involving the balance between individual rights and state interests, cf. Moore
The plurality’s methodology also obscures another, still deeper, value judgment. Here, the plurality defines the asserted right narrowly; in another case, the court might define a right more broadly, because the plurality does not articulate a standard to guide the process of defining rights. The court’s choice about how abstractly to define a right may easily become influenced by its view of the underlying conduct at issue. Favored conduct will be integrated with similar cases that have protected analogous rights, while disfavored conduct will be relegated to unprotected isolation. Compare Franz v. United States, 707 F.2d 582, 595 (D.C.Cir.1983) (recognizing “freedom of a parent and child to maintain, cultivate, and mold their ongoing relationship”) with Dronenburg v. Zech, 741 F.2d 1388, 1395 (D.C.Cir.1984) (rejecting right to “homosexual conduct in the Navy”). Although this subjectivity plagues any attempt to find an appropriate level of generality at which to define a right, it is more disconcerting where the court professes to act out of concern for judicial restraint. See Op. at 538.
Fourth, narrowly focusing on the movement rights of minors — as opposed to a right of movement generally — needlessly entangles equal protection and due process analysis by defining a fundamental right with reference to the class of people asserting it. Usually, due process challenges involve generally applicable rights, while equal protection challenges involve burdens that fall disproportionally on classes that share a disfavored trait. Here, appel-lees-plaintiffs have raised both types of claim under the Fifth Amendment. However, because they do not allege that youth is a suspect classification,
B.
From this analysis it follows that the contested right should be defined more abstractly in two ways: first without regard to age, and second without regard to the manner in which it is exercised. This section discusses the former issue, the next section discusses the latter. In neither section is it necessary to define a “right to liberty,” Op. at 536, but neither is it necessary to disconnect the rights of minors at night from those of citizens in general, see Op. at 539.
The plurality defines a right that is coherent only in cases involving minors, as the age of the claimant is an element of the definition. Apparently, the plurality views freedom of movement as a privilege earned — if at all — by ritual passage into adulthood. Yet “[cjonstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Danforth, 428 U.S. at 74, 96 S.Ct. 2831. The question here is whether “fundamental” rights, like “constitutional” rights more generally, apply to minors.
The most reasonable reading of these cases is that minors and adults share many fundamental rights, but that the protective force of some of these rights is contracted or diluted when applied to minors. To the extent that a right defines a boundary to state authority, age is generally not a meaningful credential for access to the protected zone, “magically” conferring admission on a given birthday. There may be good reasons for making the boundaries of a right more malleable for minors than adults — states have stronger countervailing interests and minority status renders minors less competent to resist state intervention
In a relative sense, a right that is “fundamental” for adults in their relationship with the state is equally fundamental, if not equally forceful, for minors because it defines the few areas of activity warranting especially careful tailoring of intrusive state means to worthy state ends. Minors, like adults, are able to enjoy the fruits of free movement and to chafe under its restriction, and thus there is little reason to link the fundamentality of the right to the age of the claimant. The cases on which the court relies to contract the scope of minors’ rights are inapposite to curfews because they arise in unique contexts, such as challenges to school regulations and disciplinary procedures, involving state interests associated with the educational environment warranting enhanced control over minors’ behavior. See, e.g., Vemonia School Dist. 47J v. Acton, 515 U.S. 646, 656, 115 S.Ct. 2886, 132 L.Ed.2d 564 (1995); Hazehvood School Dist. v. Kuhlmeier, 484 U.S. 260, 266-67, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); Ingraham v. Wright, 430 U.S. 651, 681, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Just as adults may have more freedom as civilians than as prison inmates or members of the armed forces,
The plurality assumes that minors cannot claim a right to be “unsupervised” because they are always in “some form of custody.” Op. at 539. This characterization misses the point. Minors subject to the curfew are by definition unaccompanied by a responsible adult. To say that they are in some metaphysical bond of “custody” begs the question of whose custody they are in, and the extent to which certain personal prerogatives are immune from custodial restraint, at least by a government custodian. At a minimum, unaccompanied minors are not under direct government control, and thus theories of custody announced in a case dealing with incarcerated juvenile delinquents are unhelpful in assessing the burdens imposed by a curfew. See Op. at 539, citing Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). The Supreme Court appeared to recognize as much in Prince, which relied on a balancing of state and parental interests rather than an undifferentiated notion of custody to regulate the activities of minors in public streets. See Prince, 321 U.S. at 164-71, 64 S.Ct. 438.
C.
For the reasons discussed, the conduct at issue should be more generally defined
II.
A.
The Supreme Court’s jurisprudence on the right to “move” encompasses several distinct concepts. The discrete components include the right to relocate from state to state, the right to cross state borders for purposes other than relocation, the right to cross national borders, and the right to intrastate or localized movement. These rights are “fundamental” under established doctrine.
The importance of intrastate mobility is apparent from its utility and the implications of its denial. As Justice Douglas explained:
Freedom of movement, at home and abroad, is important for job and business opportunities — for cultural, political, and social activities — for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we enjoy. We nevertheless place our faith in them, and against restraint, knowing that the risk of abusing liberty so as to give rise to punishable conduct is part of the price we pay for this free society.
Aptheker, 378 U.S. at 519-20, 84 S.Ct. 1659 (Douglas, J., concurring). Plaintiffs have asked for nothing more than the “cultural, political, and social ... commingling” that free movement permits. For example, one would like to go to swimming practice, Complaint at ¶ 4, another to ballet performances, id. at ¶ 11, and another to dances and late-night movies, id. at ¶ 16. Viewed in isolation, these activities are of no great constitutional moment; viewed together, they constitute the rhythm of daily life for our city’s youth, and the fruits of a stable pluralist society tolerant of individual liberty. Thus, even if this case raises a purely intrastate question — which is not at all clear
B.
The plurality apparently fears that “lightly extend[ing]” the right to movement will require searching review of trivial or incidental impediments to movement that do not bear any relation to the “basic notions” that animate the right. Op. at 538. These concerns are misplaced. As with any right, the right to free movement is not unlimited; reasonable burdens, including those that are “incidental! ] and remote! ]” — are acceptable. Williams, 179 U.S. at 274, 21 S.Ct. 128; see also Shapiro, 394 U.S. at 629, 89 S.Ct. 1322; Califano v. Aznavorian, 439 U.S. 170, 177, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978); Lutz, 899 F.2d at 269. Cf. Glucksberg, at - n. 8, 117 S.Ct. at 2282 n. 8 (Souter, J., concurring); Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). For example, the Supreme Court has noted that the government might bar travel to certain regions in emergencies and may constrain the travel options of certain classes of citizens, such as felons. See Zemel v. Rusk, 381 U.S. 1, 15, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Jones v. Helms, 452 U.S. at 420, 101 S.Ct. 2434. Likewise, regulating conduct in public spaces and legitimate law enforcement objectives, see, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), may also justify burdens on free movement. These limits should vitiate the plurality’s concern that recognizing a right to free movement would impair a state’s authority to operate traffic lights. See Op. at 538. The right to free movement does not shield all conduct of which movement is a component, but simply protects an individual from police interference for mere presence, without more, on a public street.
Moreover, the plurality’s preoccupation with incidental burdens is misplaced. Whatever else the curfew might be, it is not an incidental burden. The curfew does not cover a few specifically identified people, it covers a class of thousands; it does not apply to a few discrete areas, but to an entire city; it does not constrain specific types of movement, but with few exceptions bars all movement in public; it is not confined to a brief period, but extends for roughly 25% of the day. In short, the imagined consequences of recognizing the proposed right are inapposite, exaggerated, and can be addressed by settled doctrine.
III.
Having concluded in Part II that the curfew burdens a fundamental right, I join
Fifth Amendment substantive due process and equal protection scrutiny is generally two-tiered: strict scrutiny applies to burdens on fundamental rights, while rational basis scrutiny applies to burdens on rights that do not qualify as fundamental. See, e.g., Glucksberg, at -, 117 S.Ct. at 2271; Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Under either standard, courts must determine whether the state’s interest in imposing a challenged burden is sufficiently weighty, and whether the state’s means are sufficiently tailored to its ends. Strict scrutiny demands narrow tailoring to a compelling interest, see Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), while rational basis review demands a rational relationship to a legitimate interest. See Ohio Bureau of Employment Serv. v. Hodory, 431 U.S. 471, 489, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977). Between these poles lies intermediate scrutiny, which allows more refined analysis than usually-fatal strict scrutiny and rarely-fatal rational basis review. To satisfy intermediate scrutiny, a burden must be substantially related to an important interest. See United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). As explained in Part IV, this standard is flexible enough to respect state regulatory prerogatives while exacting enough to protect individual rights from unnecessary encroachment.
Nothing inherent in the definition of a fundamental right requires that “strict scrutiny” apply here. While burdens on fundamental rights trigger the most exacting review available, which as to adults is strict scrutiny, it is possible for a less stringent standard to be the most exacting available for minors. See Carey v. Population Serv. Int'l, 431 U.S. 678, 693 n. 15, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (plurality opinion). Even though there is a formalistic allure to treating all fundamental rights alike, and therefore applying strict scrutiny to lawys regulating minors as well as adults, to do so would ignore the real, and legally accepted, differences between minors and adults. As noted in Part I, minors and adults share basic rights, but these rights have less force when used by minors as shields against regulation. Unduly intrusive judicial scrutiny of laws burdening minors would fail to respect the relative amenability of minors to regulation and would demand too much justification from government in an area in which it frequently must act. Cf. Burdick v. Takushy 504 U.S. 428, 433-34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Given that the force of the right to movement varies with the status of the people asserting it, the standard of review must be sensitive to the context in which it is applied. As Justice Frankfurter cautioned, “[ljegal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to determination of a State’s duty towards children,” May v. Anderson, 345 U.S. 528, 536, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) (Frankfurter, J., concurring).
When a minor’s fundamental right to movement is at issue, intermediate rather than strict scrutiny is most appropriate.
IV.
Some juvenile curfews may survive intermediate scrutiny, but the present curfew does not. The curfew has legitimate ends, but the D.C. Council inadequately tailored its means to these ends in light of the severe burdens that the curfew imposes on minors’ fundamental rights.
To survive intermediate scrutiny, statutory burdens must be substantially related to an important government interest. See, e.g., Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988); Hogan, 458 U.S. at 724, 102 S.Ct. 3331. Review under this standard is far from “toothless,” Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), and this court has given it meaningful bite. See Lamprecht v. Federal Communications Comm’n, 958 F.2d 382, 391-98 (D.C.Cir.1992) (per Thomas, Circuit Justice). The standard places duties on both legislatures and courts: legislative analysis must be “reasoned,” and judicial analysis must be “searching.” Hogan, 458 U.S. at 726, 728, 102 S.Ct. 3331. Only burdens that demonstrate a reasonable fit — or “congruen[cej” — with their benefits may withstand scrutiny. See, e.g., Turner Broadcasting System v. Federal Commnications Com’n, 520 U.S. 180, 215, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997); Board of Trustees v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). A legislature seeking to protect minors need not produce “scientifically certain criteria of legislation,” Ginsberg, 390 U.S. at 643, 88 S.Ct. 1274 (citation omitted), but neither can it rest on unsubstantiated speculation. See, e.g., Gault, 387 U.S.. at 29-30, 87 S.Ct. 1428. Or as this circuit has put it, “[a]ny ‘predictive judgments’ concerning group behavior and the differences in behavior among different groups must at the very least be sustained by meaningful evidence.” Lamprecht, 958 F.2d at 393.
The curfew clearly satisfies the “important interest” requirement of intermediate scrutiny. The curfew seeks to reduce crime by and against minors, and to assist parents and guardians “in carrying out their responsibility to exercise reasonable
The curfew has three essential elements: it operates on a defined class in defined places at defined times. The District government defends each definition with statistical evidence cataloging a severe epidemic of juvenile crime and victimization. While juveniles are the source of and victims of an intolerably large volume of crime in the District, examination of the record reveals that the evidence does not fit the definitions that the D.C. Council crafted. See Craig v. Boren, 429 U.S. 190, 200, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).
First, the evidence upon which the D.C. Council relied is too broad because it documents a problem that the curfew does not address. The curfew applies only to persons under 17, but the statistics include crimes by youths as old as 17 and victimization of youths as old as 19.
Second, the evidence on which the D.C. Council relied is also too narrow because it does not indicate when juvenile crime and victimization occur.
The weakness of the evidence that the D.C. Council did consider is particularly troubling in light of evidence it did not consider. As the district court noted, the D.C. Council ignored evidence showing that more than 90% of all juveniles do not commit any crimes, at night or otherwise. See 942 F.Supp. at 676. The curfew thus burdens a far larger class of minors than are responsible for crime or at risk because of it. If the D.C. Council had decided that the benefits of the curfew for a subset of the affected class (or the public in general) were worth the costs to the entire class, the court might properly defer to legislative discretion. But because there is virtually no record to indicate that the D.C. Council assessed the extent to which the affected class was responsible for or at risk from the targeted activities, and whether the targeted ages and hours were a significant component of the perceived problem, the foundation for deference evaporates. This view is consistent with the purpose of intermediate scrutiny, which does not require the least restrictive means necessary to satisfy important governmental interests, but does result in judicial invalidation of laws that burden “substantially” more rights than necessary. Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); cf. Pickett v. Brown, 462 U.S. 1, 17-18, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Plyler, 457 U.S. at 228-29, 102 S.Ct. 2382.
If the curfew did not burden fundamental rights, these evidentiary defects would not warrant judicial intervention under rational basis scrutiny. See Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978) (citations omitted). Unlike an administrative agency, which generally must explain the basis for the rules it promulgates, see 5 U.S.C. § 553(c); Securities & Exch.
The Supreme Court has repeatedly demonstrated that, under intermediate scrutiny, it will not tolerate a severe burden on a fundamental right simply because a legislature has concluded that the law is necessary. Rather, the Court has independently examined the evidence before the legislature to determine whether an adequate foundation justified the challenged burdens. For example, in Craig, the Supreme Court held that the Oklahoma legislature lacked an adequate basis for permitting women to consume low-alcohol beer at a younger age then men.
As in Craig, a plurality of the Supreme Court in Turner Broadcasting refused to accept that interests which in the “abstract” were important could “in fact” justify a particular burden. 512 U.S. at 664, 114 S.Ct. 2445. In Turner, where the Supreme Court was asked to affirm a decision by Congress to require cable operators to carry local broadcast signals, the Court recognized that Congress was entitled to “substantial deference,” but refused to uphold the statute because the record provided insufficient evidence of a “genuine” problem creating a “need” for the particular burdens that Congress imposed. Id. at 665, 114 S.Ct. 2445. Rather than rely on legislative “findings,” the Court remanded for further development of facts sufficient to permit the judiciary to fulfill its “obligation to exercise independent judgment” and test Congress’s inferences against the record. Id. at 666, 114 S.Ct. 2445. The Court also rejected statistics proffered by the government because they were either too general or failed to address the salient features of the regulations. For example, statistics showing that the programming rules would prevent broadcasters from being dropped from cable systems were unhelpful because they did not explain what the consequence of such action would be, and whether there was a “serious risk of financial difficulty” for broadcasters absent the regulation. Id. at 667, 114 S.Ct. 2445. Likewise, the Court faulted the “paucity” of evidence describing the precise burdens that the statute imposed on cable operators because the absence of such evidence precluded the court from determining whether the burdens were substantially broader than necessary to achieve Congress’s goals. See id. at 667-68, 114 S.Ct. 2445. This evidentiary failure is similar to the problem in the instant case: this court lacks sufficient evidence to determine whether the curfew restrains too many minors in too severe a manner in light of the volume of crime for which minors of the targeted ages are responsible during the targeted hours.
This court has been similarly vigilant when applying intermediate scrutiny. In Lamprecht, the court, writing through Circuit Justice Thomas, reviewed gender preferences within the FCC’s scheme for licencing radio stations. Recognizing that it must defer to the policy judgments of Congress and the FCC, the court nevertheless demanded “meaningful evidence” of a link between the rule and an important purpose. 958 F.2d at 393. It then went on to dissect the statistics supporting the gender distinction, concluding that awarding women licences solely on the basis of gender did not advance the goal of. programming diversity because, among other reasons, stations owned primarily by women were only 1.25 times more likely to broadcast “women’s programming” than stations owned by men. See id. at 397. The court concluded that this correlation, and similar evidence, was an insufficient predicate to survive intermediate scrutiny. See id. at 398.
Decisions of other circuits affirming curfews do not suggest a contrary methodology, as the curfews under review were founded upon sturdier evidence. In Schleifer, the Fourth Circuit reviewed a curfew enacted by Charlottesville based on specific data documenting a crime problem in that city with reference to the age of offenders, see 159 F.3d at 850, the time of occurrence, see id., and the place of occurrence, see id. at 851. Moreover, the city supplemented evidence of the effects of curfews in other cities with specific analysis relating these studies to local circumstances. See id. at 850. This greater effort at tailoring established the requisite congruence and thus led the Fourth Circuit to conclude that the curfew is “a meaningful step towards solving a real, not
Given the inadequacy of the District’s statistics, all that remains to justify the curfew are bare assumptions about the demographics of crime and conventional political wisdom. Neither is sufficient to justify a sweeping restriction of minors’ fundamental right to movement. See Turner Broad. Sys., 512 U.S. at 664, 114 S.Ct. 2445 (plurality opinion); Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Gault, 387 U.S. at 29-30, 87 S.Ct. 1428. Cf. Cleburne Living Ctr., 473 U.S. at 448-49, 105 S.Ct. 3249. If the legislature wants to solve pressing problems by carving exceptions to fundamental rights, intermediate scrutiny requires that it use a restrained and delicate blade; here, the D.C. Council sliced broadly with too little regard for available evidence.
Nor can the evidentiary deficiencies be overcome by looking to the experiences of other cities, as the court and the District of Columbia urge. The experience of other cities with law enforcement tools may be relevant and may provide useful information to inform the D.C. Council’s decisions. But this is not the same as saying that the tools used by other cities can be imported without consideration of the characteristics of the two communities. In concluding that the D.C. Council could properly rely on the experiences of New Orleans, San Antonio, and Dallas with juvenile curfews, the court relies on Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52-53, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), in which the Supreme Court acknowledged that intermediate scrutiny permits one jurisdiction to rely on evidence accumulated by another addressing a similar problem. Compare City of Richmond v. J.A. Croson Co., 488 U.S. 469, 505, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Yet under Renton, a city may rely on data collected in another city only “so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” Renton, 475 U.S. at 52-53, 106 S.Ct. 925. Indeed, Renton and Seattle, the city that had gathered the data on which Renton relied,- chose different remedies to their common problem. See id. at 52, 106 S.Ct. 925. By contrast, the D.C. Council appears to have adopted the Dallas ordinance “wholesale” without attempting to tailor it, save in a few very inconsequential ways, to the District’s circumstances. 942 F.Supp. at 678. The need for substantial tailoring precludes off-the-rack solutions on the scale present here. See Renton, 475 U.S. at 52-53, 106 S.Ct. 925. Thus, while Renton’s, reasoning may be applicable, the D.C. Council failed to establish a fit between local circumstances and the borrowed ordinance and data.
In a time too-often punctuated by reports of senseless youth violence and untimely death, and of promising lives lost to the sadly familiar vices of the streets, minors are easy targets of ambitious law enforcement measures, as well as well-intentioned government paternalism, and cannot readily defend their rights in political fora. When challenges to legislative reforms are presented, it falls to the courts to ensure that the political branches respect minors’ rights even as they exercise their considerable discretion to assess and promote minors’ best interests in the face of pervasive threats. See, e.g., Gault, 387 U.S. at 21-22, 87 S.Ct. 1428. The court appropriately concludes that intermediate scrutiny best serves this important but limited judicial role of protecting fundamental rights while deferring to delicate legislative judgments. Applying such scrutiny to the record at hand, the court falters, however, attempting to finesse the congruence required by intermediate scrutiny. Accordingly, I respectfully dissent, concluding that in the absence of a record warranting deference the curfew does not survive the heightened scrutiny that accompanies the burdens it places on minors’ right to free movement.
. Only four judges of the court expressly state that the curfew does not burden a fundamental right, while Judges Wald and Tatel join me in concluding in Part II that it burdens a fundamental right to movement. Judge Garland, in concurring in Part III of my opinion, agrees that the Curfew Act implicates constitutional rights of minors. Chief Judge Edwards likewise agrees that the curfew implicates significant rights of minors. Judges Ginsburg and Henderson do not reach this question because they would sustain the curfew even under the heightened standard of review that would apply assuming a fundamental right were at stake. In discussing minors' fundamental right of movement in Parts I and II, therefore, I refer to Part 11(A) of Judge Silberman’s opinion as that of a “plurality.” Elsewhere I refer to Judge Sil-berman’s opinion as that of “the court.”
. Specifically, I dissent from Part 11(A) of Judge Silberman’s plurality opinion, which states that the curfew does not implicate a fundamental right to movement; I concur in the conclusion of Part III(A) of the court’s
. While the curfew defines a category of “minor[s],” see D.C.Code § 6-2182(5), this opinion uses "minors,” "juveniles,” and "children” interchangeably. These terms are not precise because the cutoff age for adulthood varies throughout the D.C.Code from under 15, see D.C.Code § 3-301, to under 16, see D.C.Code§§ 16-1021, 22-2011, 24-1101, to under 17, see D.C.Code§ 22-2001, to under 18, see D.C.Code §§ 3-401, 3-441, 16-2301, 21-301, 24-1101, 28:1-103, 31-401, to under 21, see D.C.Code§ 16-2301.
. The Supreme Court has subjected classifications based on old age to rational basis review, see Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), but has not considered classifications based on youth. Whether laws that target the young rather than the elderly would warrant a different result under the political process theories on which the Court has relied in this area, see, e.g., Murgia, 427 U.S. at 313, 96 S.Ct. 2562; Vance v. Bradley, 440 U.S. 93, 113-14 & n. 1, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) (Marshall, J., dissenting); cf. United States v. Carolene Prod. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), is a question for another day; while appellees-plaintiffs have advanced a vaguely stated equal protection theory, they have not attempted to define a suspect or quasi-suspect class.
. The Supreme Court has avoided such age-based distinctions in other fundamental rights cases. For example, in abortion cases, the Court has never held that the underlying right is separately defined for adults and juveniles. Instead, the court has weighed state interests against minors’ interests in light of the right at issue. See, e.g., Lambert v. Wicklund, 520 U.S. 292, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997); Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); H.L. v. Matheson, 450 U.S. 398, 101
. Neither Justice Stevens’ concurring opinion nor Justice White’s dissenting opinion address Justice Scalia’s methodology for defining rights. See 491 U.S. at 132, 138, 109 S.Ct. 2333 (Stevens, J., concurring in the judgment); id. at 157, 109 S.Ct. 2333 (White, J., dissenting).
. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.). Cf. Lutz v. City of York, 899 F.2d 255, 267-68 (3d Cir.1990).
.Whether such rights apply to all minors of any age is irrelevant because the curfew applies to all minors under 17, and thus presents no occasion to distinguish among age groups or speculate about when a particular age cutoff might warrant additional deference. In discussing rights burdened, by a curfew, there is no reason to become distracted by the claims of toddlers. Neither the D.C. Council nor the District of Columbia in the district court indicated that persons of tender ages were part of the problem that the curfew sought to remedy.
. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); see also Danforth, 428 U.S. at 74, 96 S.Ct. 2831; In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
. See Tinker, 393 U.S. at 506, 89 S.Ct. 733; West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). The plurality cites Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), for the proposition that minors have narrow First Amendment interests. Op. at 539. However, in Ginsberg the Supreme Court held only that states may use separate standards of obscenity for adults and children to account for the different reactions of minors and adults to similar material. See id. at 637-38, 88 S.Ct. 1274. This holding is hardly surprising because obscenity is not protected speech, see id. at 635, 88 S.Ct. 1274, and obscenity standards focus in part on audience composition and thus may account for the differences between adult and juvenile audiences.
. See Goss v. Lopez, 419 U.S. 565, 581-82, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); In re Winship, 397 U.S. 358, 365-68, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Gault, 387 U.S. at 28, 87 S.Ct. 1428.
. See, e.g., Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). But see Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989).
. See generally Thompson v. Oklahoma, 487 U.S. 815, 823-25, 834-35, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion).
. See, e.g., Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Brown v. Glines, 444 U.S. 348, 354-55, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980).
. Even if custody were a relevant concept, simply reciting its presence would be insufficient to negate a generally applicable right. Cf. Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (holding, in the analogous area of prisoners’ rights, that inmates in state custody generally possess rights that are "not inconsistent with ... status as a prisoner or with the legitimate peno-logical objectives of the corrections system.”). Even if minors are in some form of custody, they possess rights not inconsistent with their status as minors or with the legitimate objectives of the custodial entity. The court would therefore need to inquire whether a curfew survives this test.
. See, e.g., Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Zobel v. Williams, 457 U.S. 55, 60 n. 6, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982); Jones v. Helms, 452 U.S. 412, 418, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981); Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Griffin v. Breckenridge, 403 U.S. 88, 105, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958); Edwards v. California, 314 U.S. 160, 174, 62 S.Ct. 164, 86 L.Ed. 119 (1941); Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186 (1900); Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79, 21 L.Ed. 394 (1872); Ward v. Maryland, 79 U.S. (12 Wall.) 418, 430, 20 L.Ed. 449 (1870); Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L.Ed. 357 (1868); Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 47, 18 L.Ed. 745 (1867); Passenger Cases, 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702 (1849) (Taney, C.J., dissenting); Cotfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D.Pa.1823) (per Washington, Circuit Justice). Cf. Civil Rights Cases, 109 U.S. 3, 39, 3 S.Ct. 18, 27 L.Ed. 835 (1883) (Harlan, J., dissenting) (noting, while discussing "the right of a colored person to use an improved public highway,” that "personal liberty consists, says Blackstone, in the power of locomotion, of changing situation, or removing one’s person to whatever place one’s own inclination may direct, without restraint, unless by due course of law”) (quotation marks omitted).
. Even the plurality concedes that a “draconian” curfew could implicate a fundamental right, see Op. at 9, avoiding the question of whether the present curfew would be impermissible if applied to adults. If the curfew would fail intermediate scrutiny as applied to adults, then the court has given scant weight to minors' rights; if not, then the court’s conception of fundamental rights is too narrow.
. The Third Circuit held that the “right to move freely about one’s neighborhood or town” was subject to reasonable time, place, and manner restrictions, and that such restrictions were reviewable under intermediate rather than strict scrutiny. See Lutz, 899 F.2d at 268-69.
. Cf. Memorial Hosp., 415 U.S. at 255-56, 94 S.Ct. 1076. But cf. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 264, 277, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993); Wardwell v. Board of Educ. of City School Dist. of City of Cincinnati, 529 F.2d 625, 627-28 (6th Cir.1976); Wright v. City of Jackson, 506 F.2d 900, 902-03 (5th Cir.1975).
. The record does not indicate whether the curfew impedes interstate travel, which is likely because numerous residential communities in the District of Columbia abut the Maryland and Virginia borders, and the region shares an integrated mass transit network. The curfew thus prevents young District of Columbia residents from leaving and presumably attempts to bar young Virginia
. Less clear, however, is the origin of this right, which the Supreme Court has never authoritatively pinpointed, partly because of the differences, and thus potentially distinct origins, among the discrete rights that the Court has addressed. Among the possible sources of the right are the due process clauses of the Fifth and Fourteenth Amendments, see, e.g., Aptheker, 378 U.S. at 505-06, 84 S.Ct. 1659; Kent, 357 U.S. at 125, 78 S.Ct. 1113; Williams, 179 U.S. at 274, 21 S.Ct. 128, the privileges and immunities clauses of Article IV, see, e.g., Saenz, - U.S. -, 119 S.Ct. 1518, 143 L.Ed.2d 689; Ward, 79 U.S. (12 Wall.) at 430; Paul, 75 U.S. (8 Wall.) at 180; Corfield, 6 F. Cas. at 551-52, and the Fourteenth Amendment, see, e.g., Saenz, - U.S. -, 119 S.Ct. 1518, 143 L.Ed.2d 689; Edwards, 314 U.S. at 178, 62 S.Ct. 164 (Douglas J., concurring); id. at 183-84, 62 S.Ct. 164 (Jackson, J., concurring); Twining, 211 U.S. at 97, 29 S.Ct. 14; Slaughter-House Cases, 83 U.S. (16 Wall.) at 79, and the dormant commerce clause, see, e.g., Edwards, 314 U.S. at 174, 62 S.Ct. 164. Given the Supreme Court's reluctance to attach the right to movement to a single constitutional provision, see, e.g., Guest, 383 U.S. at 757, 86 S.Ct. 1170; Jones v. Helms, 452 U.S. at 418-19, 101 S.Ct. 2434; Memorial Hosp., 415 U.S. at 280 n. 4, 94 S.Ct. 1076 (Rehnquist, J., dissenting); Shapiro, 394 U.S. at 630, 89 S.Ct. 1322, there is no reason for this court to resolve the debate; rather, it suffices here simply to conclude that the complaint states a claim subject to review under the balancing test generally applied to fundamental rights, most frequently under the substantive component of the Due Process Clause.
. Two circuits have applied strict scrutiny to juvenile curfews based on the assumption that a fundamental right was at issue; none has applied rational basis scrutiny. See Nunez v. City of San Diego, 114 F.3d 935, 946 (9th Cir.1997); Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir.1993).
. Intermediate scrutiny emerged from equal protection and First Amendment jurisprudence, but is also appropriate in due process cases. See Schleifer, 159 F.3d at 847; Lutz, 899 F.2d at 269; Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Moore, 431 U.S. at 499, 97 S.Ct.
. Section five of the curfew also applies to seventeen year-olds when operating a motor vehicle. The scope of this motor vehicle curfew is unclear: it applies "after midnight” but has no termination time. If challenged, this omission could prove problematic. See Naprstek v. City of Norwich, 545 F.2d 815, 818 (2d Cir.1976).
. See DISTRICT OF COLUMBIA COURTS, 1994 ANNUAL REPORT tbl. 31 (1994); DISTRICT OF COLUMBIA COURTS, 1993 ANNUAL REPORT tbl. 31 (1993); DISTRICT OF COLUMBIA COURTS, 1992 ANNUAL REPORT tbl. 29 (1992); DISTRICT OF COLUMBIA COURTS, 1991 ANNUAL REPORT tbl. 24 (1991); DISTRICT OF COLUMBIA COURTS, 1990 ANNUAL REPORT tbl. 27 (1990).
.The District of Columbia did offer a chart purporting to document crimes by juveniles during curfew hours. The district court found, however, that this chart was "woefully deficient” because it included crimes by minors not covered by the curfew, was "undated ... [and] prepared by an unknown author, under circumstances that are also mysterious,” and contained unreliable information. 942 F.Supp. at 677. For example, the chart suggests that more juvenile crimes were committed during the 6-8 curfew hours than other, more reliable, data show were committed during the entire 24 hour day during the same period. See id. Despite the district court's rejection of this evidence — even after a hearing in which the District of Columbia sought to defend it — the court has decided to credit it. See Op. at 543-44 n.5.
. Given the evidentiary problems as to age and time, I do not address possible deficiencies with regard to where the crime and victimization occur.
. See Deposition of Jeffrey A. Butts.
. See Snyder, Howard. "Time of Day Juveniles are Most Likely to Commit Violent Crime Index Offenses.” Adapted from Sick-mund, M., Snyder, H., Poe-Yamagata, E. Juvenile Offenders and Victims: 1997 Update on Violence. Office of Juvenile Justice and Delinquency Prevention, 1997. OJJDP Statistical Briefing Book. Available: http: //ojjdp.ncjrs.org/ojstatbb/qa053.html.
.On appeal, the District of Columbia obliquely contends that it has statistics showing a high incidence of crime during curfew hours, but in the district court it conceded that the D.C. Council did not consider such data. See 942 F.Supp. at 676-77; see also Deposition Testimony of Sally B. Weinbrom at 60.
. The court distinguishes Craig because it concerned “the hotly contested and sensitive question as to the differences between men and women,” which the court deems ”[in]comparable” to the instant case where the "[pllaintiffs do not dispute that the difference between adults and minors generally justifies a government’s differential treatment of minors....” Op. at 542-43. Yet the court seems to forget that in this section of its analysis, it has assumed that the curfew burdens a fundamental right, which, given the intrusions by the curfew, renders the curfew “hotly contested and sensitive.” Moreover, the court's attempt to limit the instruction in Craig by reference to the Supreme Court’s statement "that proving broad sociological propositions by statistics is dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause,” 429 U.S. at 203, 97 S.Ct. 451, is no more successful. For, as it admits, the court must still address the plaintiffs' “dispute [about] this particular differential treatment [that] interfered] with their ‘fundamental’ right to free movement.” Op. at 542-43. Craig, as well as other intermediate scrutiny precedent, tells the court how to proceed.
. The opinion of the Fifth Circuit affirming the Dallas curfew likewise suggests that Dallas presented more evidence than the District has presented in the instant case, including statistical data that fit the ages covered by the curfew, the time of offenses, and the places they occurred, see Qutb, 11 F.3d at 493, although the opinion does not provide enough detail to conclude whether the court exercised the scope of review that Craig and other cases demand. It is of some significance, however, that this was the second time that the Fifth Circuit had considered a juvenile curfew, and its opinion indicates that the deficiencies that the court had previously identified in the first curfew had been rectified. See id. at 494.
. In addition, the Renton analogy may be inapt to the extent that curfews present more complex questions, and are thus more in need of tailoring to local peculiarities, than the zoning at issue in Renton. Moreover, Renton involved one city borrowing data from another when it could not have collected any data of its own, in an effort to prevent a problem that had not yet arisen. See 475 U.S. at 44, 50-51, 106 S.Ct. 925. Forcing Renton to develop local data would have been extraordinarily burdensome in an area of law (zoning) over which cities have substantial discretion. In contrast, the District of Columbia had ample opportunities to examine its own local juvenile crime problem in light of local demo
. Relying on arrest statistics, see Op. at 544, can be misleading because arrests often do not occur contemporaneously with offenses, and presumably will decline during periods— such as curfew hours — when potential arres-tees are not out in public. For example, the curfew led to fewer arrests of fugitive minors and minors carrying weapons, but this does not mean that the curfew reduced the number of juvenile fugitives or weapons offenders living in the city. Seemingly more relevant in assessing the curfew’s effectiveness would be whether juvenile crime fell during curfew hours, and whether juvenile crime increased during non-curfew hours or after the district court's injunction. Along these lines, it is interesting to note that while juvenile crime fell during the period in which the curfew was in effect, it also appears to have continued to fall significantly even after the district court enjoined enforcement of the curfew. See Jay Matthews, “Lives of D.C. Children Improve, Study finds,” Washington Post, September 3, 1998, Metro section (citing the Fifth Annual D.C. Kids Count report). While this data may not preclude the possibility that the curfew might have precipitated an even greater decline had it remained in force, it does undermine the court's inference that the decline in juvenile crime during the curfew period is attributable to the curfew.
. Extending the D.C. curfew to encompass the entire day (other than school hours) may seem like a fanciful hypothetical, but at oral argument counsel for the United States contended that such' a curfew would survive rational basis scrutiny.
Dissenting Opinion
dissenting:
I agree with Judge Rogers that the District of Columbia juvenile curfew implicates a fundamental right to free movement and that the right should be defined without regard to the age of the right-
I know that many parents believe that the curfew reinforces their efforts to ensure their children’s safety and proper upbringing. Indeed, one of the curfew’s stated purposes is to “[a]id[ ] parents or guardians in carrying out their responsibility to exercise reasonable supervision of minors entrusted to their care.” D.C.Code Ann. § 6-2181(e)(3) (Supp.1998). As Chief Judge Edwards and Judge Silberman observe, moreover, the law contains several “defenses” that to some extent preserve parents’ control over their children’s activities. See Silberman Op. at 545-46 (citing D.C.Code§ 6-2183(b)(l)(A), (B), (D), (E), (G)); Edwards Op. at 551-52 (same).
Restating the legislative judgment that “the curfew facilitates rather than usurps parental authority,” Silberman Op. at 545-46, however, does not answer plaintiffs’ assertion of parental rights. Whatever views the judges of this court, members of the D.C. Council, or even the majority of D.C. parents may have regarding the range of discretion needed for proper parenting, the relevant fact is that plaintiffs in this case disagree. In their complaint, see Complaint ¶ ¶ 5, 8, 10, 16, 33, 43, and uncontroverted affidavits, they claim that the curfew interferes with their ability to raise their children as they see fit. For example, Kimberly Denise Dean, a plaintiff who lives in Northeast Washington, said this:
I am the mother of Natiya Daniel Tapper, who is 14 years old, and subject to the District of Columbia’s new curfew law. I have one other child, Qiana Shontay Dean, who is 17 years old.
I have taken great care to raise my daughters and hope they will grow up to be responsible adults. Naturally, this includes setting limits on their activities, such as hours by which they should be in at night. However, the curfew law, [sic] takes away my parental discretion to set those limits. As a responsible parent, I do not often allow my fourteen-year-old child, Natiya, to go out after 11:00 p.m. However, there are times when I decide after careful consideration that she should be allowed to participate in activities that require her to be out after 11:00 p.m.
For instance, last May I allowed Nati-ya to help Qiana celebrate her seventeenth birthday. Qiana, Natiya and a*572 couple of Qiana’s girlfriends ate dinner at a local restaurant, saw a late-movie, and then completed the celebration with an early breakfast. My daughters did not arrive home until after 2 a.m.
Soon Natiya will be in high school, and I expect that, like her sister, she will become more involved in social activities that will keep her out late at night. I will try to make wise decisions about whether to allow Natiya to engage in these activities when the time comes. The curfew law, if allowed to stand, will unfairly restrict Natiya’s legitimate social activities and interests, as well as my ability to raise Natiya in the way that I see fit.
Dean Decl. ¶ ¶ 2-4, 6 [JA 402-03]. Another plaintiff, Robert Jablon of Northwest Washington, said:
My wife and I have taken great care to try to raise our children so that they will — we hope — grow into responsible adults.... [J]ust as part of teaching children about responsible behavior involves setting limits, part of that teaching also involves showing them that rules are not rigid, and that reasonable exceptions should be made when there is good justification. Accordingly, my wife and I allow [our eleven-year-old son] Joel to stay out late from time to time, or to go out early in the morning, when in our view there is an appropriate reason. For example, we regularly allow our son Joel to walk our family dog, Calle, around the block before going to bed at night, which could be after midnight during the summer or before 6:00 a.m. We have also allowed Joel to ride his bike to and from a neighborhood friend’s house four or five blocks away when Joel is invited to attend a movie and to return home after midnight on a weekend night or during the week in summer.... It usurps our role as parents for the government to step in and tell us and our children that we cannot make those decisions for ourselves, and it threatens to make us, as well as our children, criminals if we exercise parental discretion in customary, reasonable ways.
Jablon Decl. ¶ 3 [JA 423-24].
Even if walking the family dog could be classified as an “errand” under the curfew’s defenses, see Edwards Op. at 651-52, no fair reading of the law would allow parents to permit their children during curfew hours to participate in a birthday celebration or ride a bike to a friend’s house. The curfew likewise eliminates parents’ discretion to allow their children to take an early-morning jog through the neighborhood, go to a restaurant with friends after a school dance, or — as the District conceded at oral argument — “go out to a friend’s house to do math homework at night” unaccompanied by an adult. Oral Arg. Tr. at 17. The D.C. law makes criminals of parents who consent to their children’s participation during curfew hours in a wide range of social, education-ál, and recreational activities — non-criminal activities that some parents (however few or many) consider fundamental to their children’s growth and well-being. See D.C.Codb§ 6 — 2183(a)(2), (d) (providing for enforcement and criminal penalties).
Thus, not only do I disagree that “[t]he curfew’s defenses allow the parents almost total discretion over their children’s activities during curfew hours,” Silberman Op. at 545-46, I think the curfew squarely implicates the well-established “liberty of parents and guardians to direct the upbringing and education of children under their control.” Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). As the Supreme Court-stated in Wisconsin v. Yoder, “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). See
State interference with this long-recognized parental right to raise children demands strict judicial scrutiny. It is in the context of family, in addition to school and other societal institutions, that children of this diverse and democratic nation begin to develop habits of responsibility necessary for self-governance and to observe not only the formal rules established by government but also the informal rules and understandings that undergird civil society. Through parents, children first learn to relate conduct to consequences, to exercise freedom with responsibility, and to respect the views of others. Ms. Dean’s and Mr. Jablon’s affidavits describe precisely that process: They are attempting to teach their children in the way they think best, granting them more freedom when they demonstrate responsibility. As Justice Powell said, “[tjhis affirmative process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens.” Bellotti, 443 U.S. at 638, 99 S.Ct. 3035 (opinion of Powell, J.). The parenting process described by Justice Powell — the very process that the curfew curtails for these plaintiffs — is likewise essential, in my view, to equipping young people with the confidence they need to resist the many destructive influences of society. Schools and other governmental institutions, to be sure, are indispensable to this learning process. Parents, however, retain a critical role because “[w]e have believed in this country that this process, in large part, is beyond the competence of impersonal political institutions.” Id.
Heightened constitutional protection for parental autonomy is required for another reason. In Yoder, the Supreme Court’s unqualified characterization of parents’ “primary role” in child-rearing as “an enduring American tradition” reflected its recognition that “ ‘[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children. ...’” 406 U.S. at 232-33, 92 S.Ct. 1526 (quoting Pierce, 268 U.S. at 535, 45 S.Ct. 571). Indeed, we refuse to regard “[t]he child [as] the mere creature of the state,” Pierce, 268 U.S. at 535, 45 S.Ct. 571, because insistence on a particular theory of parenting, like “affirmative sponsorship of particular ethical, religious, or political beliefs!,] is something we expect the State not to attempt in a society constitutionally committed to the ideal of individual liberty and freedom of choice,” Bellotti, 443 U.S. at 638, 99 S.Ct. 3035 (opinion of Powell, J.). Of course, this does not mean that Ms. Dean’s and Mr. Jablon’s authority to raise their children is impervious to state regulation. It does mean that to be valid, limitations on parental rights not only must seek to achieve compelling objectives (which the D.C. juvenile curfew does), but also must demonstrate a close fit — substantiated by record evidence — between means and ends (which the curfew does not).
Relying on Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the District argues that parental authority in child-rearing implicates no fundamental right and is subject to reasonable regulation. To be sure, Prince, which was decided before the modern three-tier framework for reviewing equal protection and fundamental rights claims, said that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare.” Id. at 167, 64 S.Ct. 438. But as I read Prince, it stands not for the broad proposition that reasonable state regulations may override parental judgments on matters of child welfare, but for the now-settled principle that religious practices may be circumscribed by reasonable, neutral laws of general applicability.
Confirming this view, the Supreme Court recently situated Prince in the line of cases establishing that “the right of free exercise does not reheve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring in the judgment)); see id. at 880, 110 S.Ct. 1595 (characterizing Prince as finding “no constitutional infirmity in ‘excluding [these children] from doing there what no other children may do’ ”) (quoting Prince, 321 U.S. at 171, 64 S.Ct. 438). Explaining the different approach taken in Wisconsin v. Yoder, where the Court demanded “more than merely a ‘reasonable relation to some purpose within the competency of the State’ ” in holding compulsory school attendance laws inapplicable to Amish parents who refused to send their children to school, 406 U.S. at 233, 92 S.Ct. 1526, quoted in Smith, 494 U.S. at 881 n. 1, 110 S.Ct. 1595, Smith said that Yoder implicated not only free exercise but also “the right of parents, acknowledged in Pierce ..., to direct the education of their children,” id. at 881, 110 S.Ct. 1595. Smith thus makes clear that a square assertion of parental rights elevates the standard of review applicable to a free exercise claim otherwise subject to rational basis scrutiny. See id. (“The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as ... [parental rights].... ”). In light of Smith, I am unconvinced by the District’s reliance on Prince for the proposition that rational basis review applies to parental rights claims. Smith leaves no doubt that if the child labor law in Prince, like the compulsory school attendance law in Yo-der, had genuinely implicated a parental right distinct from the right of free exercise, then some form of heightened scrutiny should have applied. See Smith, 494 U.S. at 881, 110 S.Ct. 1595; accord City of
In sum, the inquiry triggered by plaintiffs’ claim of a fundamental right is not whether the curfew on the whole helps or hinders parental control — that is a policy question for D.C. lawmakers, not federal judges — but rather whether the District has provided sufficient justification for imposing the particular restrictions on parental control to which these plaintiffs object. On this question, I stand by my view that although the District’s goal of reducing crime by and against juveniles is important enough to justify restrictions on parental liberty under either strict or intermediate scrutiny, the method it chose so plainly lacks an evidentiary link to the stated, goal that it fails the tailoring prong of both strict and intermediate scrutiny. See Hutchins, 144 F.3d at 826-27 (Tatel, J., concurring in the judgment); Rogers Op. at 565-70. I respectfully dissent.