Opinion
CAUSE NO. IP00-1410-C-T/G.
December 14, 2000.
Entry On Motion For Preliminary Injunction
Plaintiff, Nancy Hodgkins, individually and on behalf of the Plaintiff Class, defined as all persons in the City of Indianapolis who are parents or legal guardians of persons who are under the age of 18, seeks a preliminary injunction enjoining Defendant Bart Peterson, Mayor of the City of Indianapolis, Indiana, from enforcing the newly enacted Indianapolis curfew ordinance until the court reaches a decision on the merits of this action. She claims that the City's curfew ordinance violates the U.S. Constitution because it unlawfully impinges upon the substantive due process right of parents to raise and control their children without undue government interference.
I. Background
Nancy Hodgkins and her husband are the parents of three minor children, Colin, born on August 6, 1983; Brandon, born on January 2, 1984; and Caroline, born on October 22, 1986. Ms. Hodgkins and Colin successfully challenged Indiana's curfew law, Indiana Code § 31-37-3-1 et seq. in another case in this court, Hodgkins v. Peterson, Cause No. IP 99-1528-C-T/G ("Hodgkins I"). The undersigned's judgment that the curfew law is unconstitutional because it is overbroad in violation of minors' First Amendment rights is on appeal to the Court of Appeals for the Seventh Circuit. The Plaintiffs in Hodgkins I had claimed that the curfew law was unconstitutional because it violated the parents' substantive due process rights to make decisions as to the care, custody and control of their children. The undersigned did not reach this claim, though, as the law was held to be in violation of the First Amendment.
Following the decision in Hodgkins I, on August 28, 2000, the City of Indianapolis promulgated a new curfew ordinance, and on August 30, 2000, Mayor Bart Peterson approved of and signed the ordinance. The City made the following findings in promulgating the new ordinance:
WHEREAS, the problems facing our youth — drug and alcohol abuse, sexually transmitted disease, and crime commission and victimization chief among them — are exacerbated during the late night hours and early morning hours, when fewer opportunities for adult supervision exists; and
WHEREAS, our youth have natural rights to grow, develop, and express themselves, but by virtue of their age, inexperience, and lack of full maturity they do not have the full rights of adulthood; and
WHEREAS, statistics establish that in the absence of a curfew law, youth will be unsupervised in public places late at night and early in the morning; and
WHEREAS, courts across the nation that have examined curfew laws have found that state and local governments have a substantial and compelling interest in determining when youth may be unsupervised in public places in light of the dangers that may befall juveniles and the community in the absence of supervision; and
WHEREAS, a curfew law provides not only a tool for law enforcement to protect youth and the community, but serves to empower parents to set and enforce limits on the activities of their children. . . .
The curfew ordinance makes it unlawful for a child under age fifteen to be in a public place in the county after 11:00 p.m. or before 5:00 a.m. any day of the week. Sec. 381-102. Under the ordinance, it is unlawful for a child age fifteen, sixteen or seventeen to be in a public place in the county between 1:00 a.m. and 5:00 a.m. on Saturday or Sunday; after 11:00 p.m. on Sunday through Thursday; or before 5:00 a.m. on Monday through Friday. Sec. 381-101. The curfew ordinance does not apply to a child who is:
(1) Accompanied by the child's parent, guardian, or custodian;
(2) Accompanied by an adult specified by the child's parent, guardian, or custodian; or
(3) With the consent of the child's parent, guardian, or custodian, either participating in, going to, or returning from:
a. Lawful employment;
b. A school-sanctioned activity; or,
c. An expressive, religious, or associational activity protected by either federal or state law, including but not limited to the free exercise of religion, freedom of speech, and the right of assembly.
(Ex. 1 to Def.'s Br. Opp'n Mot. Prelim. Inj., City-County General Ordinance No. 101,2000 at 1-2.) Under the ordinance, "it is unlawful for a parent, guardian or custodian of a child under the age of eighteen (18) years recklessly to cause, suffer or allow that child to commit a curfew violation. . . ." (Id. at 2.)
Ms. Hodgkins would like her children, with her permission, to lawfully remain outside the home past curfew hours without being accompanied by their parents or other adults to do such things as work on school work, run errands for the family, attend to emergency matters or to socialize with friends. Ms. Hodgkins and her husband have given Colin tickets to the Indiana Pacers basketball games. Colin attends the games with friends and not with his parents or custodian. Attendance at the games will cause him to be out past the curfew. Ms. Hodgkins also believes that as her children become older she should have the right to decide when they are mature enough to accept responsibility of being out late, possibly past curfew hours. She believes she has the right to decide how late they will be out depending on who they are with, what they are doing and where they are going. She will be liable under the curfew ordinance if she allows her children to violate the curfew.
II. Discussion A. Preliminary Injunction Standard
"[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotation omitted). To prevail on a motion for preliminary injunction, the movant must make a threshold showing of (1) a likelihood of success on the merits, (2) irreparable harm if the preliminary injunction is denied, and (3) the inadequacy of any remedy at law. See, e.g., Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999). If this showing is made, then the court must balance the harm to the movant if the preliminary injunction were wrongfully denied against the harm to the opposing party if the injunction were wrongfully granted, as well as the public interest. See, e.g., id. Thus, the initial inquiry is whether Plaintiff has made a clear showing of a likelihood of success on the merits of her claim that the curfew ordinance is unconstitutional because it violates her substantive due process rights.
B. Parental Rights
The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." This "includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests." Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000) (quotation and citation omitted) (four Justice plurality). The Supreme Court's most recent pronouncement on parental rights came in Troxel in the context of child visitation rights. The Court examined a Washington statute which allowed "any person" to file a petition to seek visitation rights with a child and authorized the state court to grant such visitation when in the best interest of the child. Id. at 2061. The plaintiffs were the paternal grandparents of two children whose mother and father never married. The grandparents had regular visits with the children, but after the children's father passed away, the mother sought to restrict the grandparents' visits with the children. The grandparents brought an action against the mother seeking visitation rights under the Washington statute. Id. at 2057. The mother's fitness as a parent was not at issue. Id. at 2061. The Court reiterated that "[t]he liberty interest . . . of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel, 120 S. Ct. at 2060. The Court held that the statute as applied unconstitutionally infringed on the mother's fundamental due process right to make decisions concerning the care, custody, and control of her children. Id. at 2060-61, 2063-64, 2065.
In reaching its holding, the Troxel Court relied on "extensive precedent," including Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), Prince v. Massachusetts, 321 U.S. 158 (1944), Wisconsin v. Yoder, 406 U.S. 205 (1972), and other cases recognizing parental rights. In Meyer, the Court held unconstitutional a state statute prohibiting the teaching of subjects in any language other than English because it deprived teachers and parents of liberty guaranteed by the Fourteenth Amendment. See Meyer, 262 U.S. at 396-97, 399-400. In discussing the liberty protected by the Fourteenth Amendment, the Supreme Court said, "Without doubt, it denotes . . . the right of the individual . . . to . . . establish a home and bring up children. . . ." Id. at 399. That right includes, the Court said, "the power of parents to control the education of their own." Id. at 401. The Court indicated that this liberty interest may not be interfered with by a law without "reasonable relation" to a state purpose. See Meyer, 262 U.S. at 399-400.
Two years later, in Pierce, the Supreme Court held unconstitutional a state statute compelling the attendance of children between 8 and 16 years of age at public schools. See Pierce, 268 U.S. at 530. Applying Meyer, the Court concluded that the statute "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." Pierce, 268 U.S. at 534-535. The Court explained that a "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 535. In striking down the statute, the Court required a "reasonable relation" between laws abridging constitutional rights and some government purpose. See id. at 535.
In upholding a child labor law prohibiting minors from selling magazines in streets or public places, the Supreme Court in Prince again recognized that parents have a right to direct the upbringing of their children. See Prince, 321 U.S. at 165-66. The Court stated: "It 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." Id. at 166 (citing Pierce). The Court added that "it is in recognition of this that [the Court's decisions] have respected the private realm of family life which the state cannot enter." Id. However, the Prince Court recognized that the "rights of parenthood are [not] beyond limitation," id., and said:
Acting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience.
Prince, 321 U.S. at 166 (footnotes omitted). The Court noted, for example, that the state can compel child vaccinations. See id. The Court concluded 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.
In Yoder, the Supreme Court held that a statute requiring children to attend school until the age of sixteen was unconstitutional as applied to the Amish. See Yoder, 406 U.S. at 234-35. Yoder was decided under the Free Exercise Clause of the First Amendment; however, the holding was based in part on the "interests of parents." Id. at 232-33. The Court noted that the parents' right to guide their children's religious upbringing and education has "a high place in our society." Id. at 213-214. The Court further stated:
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.
Id. at 232.
Other Supreme Court decisions have recognized that certain parental rights are fundamental liberty interests, though the holdings were not based on parental rights. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (upholding statute banning assisted suicides; "[T]he `liberty' specially protected by the Due Process Clause includes the right . . . to direct the education and upbringing of one's children."); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (parental rights termination proceeding; "Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect.") (quotations omitted); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (termination of parental rights; "The fundamental liberty interest of natural parents in the care, custody, and management of their child."); Bellotti v. Baird, 443 U.S. 622, 638 (1979) (action challenging statute regulating minors' access to abortions; "deeply rooted in our Nation's history and tradition, is the belief that the parental role implies a substantial measure of authority over one's children"); Parham v. J. R., 442 U.S. 584, 602 (1979) (action challenging laws allowing voluntary admission of minor children to mental hospitals by parent or guardian; "Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course."); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (action challenging adoption statutes; "We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected."); Smith v. Org. of Foster Families, 431 U.S. 816, 842-844 (1977) (action challenging state procedures for removal of foster children from foster parents' homes; recognizing that a private realm of family life has been afforded substantive due process protections); Carey v. Population Servs. Int'l, 431 U.S. 678, 708 (1977) (Powell, J., concurring) (action challenging statute regulating provision of contraceptives to minors; noting that the statute "prohibits parents from distributing contraceptives to their children, a restriction that unjustifiably interferes with parental interests in rearing their children"); Moore v. East Cleveland, 431 U.S. 494 (1977) (plurality opinion) (holding ordinance limiting occupancy of a dwelling to members of a single family with a limited definition of "family" violated due process; recognizing a "host of cases" that "have consistently acknowledged a "private realm of family life which the state cannot enter."); Roe v. Wade, 410 U.S. 113, 152-53 91973) (holding state statute prohibiting abortions at any stage of pregnancy unconstitutional; fundamental rights to privacy has "some extension" to activities relating to, inter alia, marriage, family relationships, and child rearing and education); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding unconstitutional statute that automatically allowed state to assume custody of illegitimate child upon death of mother without allowing father to assert parental rights; "It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.'") (citation omitted); Ginsberg v. New York, 390 U.S. 629, 639 (1968) (upholding statute prohibiting sale of obscene materials to minors; "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.").
In light of such precedent, the Troxel Court concluded: "[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel, 120 S. Ct. at 2060 (four Justice plurality). Four other Justices agreed. See id. at 2066 (Souter, J., concurring) ("We have long recognized that a parent's interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause. . . ."); id. at 2068 (Thomas, J., concurring) ("parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them"); id. at 2071 (Stevens, J., dissenting) ("Our cases leave no doubt that parents have a fundamental liberty interest in caring for and guiding their children, and a corresponding privacy interest — absent exceptional circumstances — in doing so without the undue interference of strangers to them and to their child."); id. at 2076 (Kennedy, J., dissenting) ("the custodial parent has a constitutional right to determine, without undue interference by the state, how best to raise, nurture, and educate the child.").
The Troxel plurality opinion, however, evoked disagreement from the other Justices regarding the scope of fundamental parental rights. Justice Souter recognized that parental rights "in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment." See Troxel, 120 S. Ct. at 2066 (Souter, J., concurring). He emphasized, however, that the Court has not defined the breadth of parental rights: "Our cases, it is true, have not set out exact metes and bounds to the protected interest of a parent in the relationship with his child. . . ." Id. at 2066. Justice Stevens noted that parental liberty interests "have never been seen to be without limits," id. at 2071 (Stevens, J., dissenting), and are subject to state interference in "exceptional circumstances." Id. Highly critical of the plurality's extension of the theory of parental rights, Justice Scalia stated:
Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their children-two of them from an era rich in substantive due process holdings that have since been repudiated. [citing Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Wisconsin v. Yoder, 406 U.S. 205 (1972)]. The sheer diversity of today's opinions persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection. . . . While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.
Troxel, 120 S. Ct. at 2074 (Scalia, J., dissenting) (footnoted omitted).
Justice Scalia predicted that by embracing parental rights, the Supreme Court "will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures. . . ." Id. at 2074-75 (Scalia, J., dissenting). And, finally, Justice Kennedy joined in the concern over the expansion of fundamental parental rights, writing, "The principle exists, then, in broad formulation; yet courts must use considerable restraint, including careful adherence to the incremental instruction given by the precise facts of particular cases, as they seek to give further and more precise definition to the right." Id. at 2076 (Kennedy, J., dissenting).
These Justices' concern over the breadth of the fundamental parental rights implied by the Troxel plurality opinion has support in Supreme Court precedent. As the Court noted less than ten years ago, "the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (citation omitted) (holding due process does not require municipalities to provide certain minimal levels of safety and security in the workplace and city's failure to train or warn employees of known hazards did not violate substantive due process rights of employee). The Court repeatedly has instructed lower courts that "`[s]ubstantive due process'" analysis must begin with a careful description of the asserted right, for `[t]he 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. 292, 302 (1993) (quoting Collins, 503 U.S. at 125) (holding federal regulation providing for release of alien juveniles only to parents, close relatives or legal guardians, except in unusual and compelling circumstances, did not violate juveniles' substantive due process rights); see also Washington v. Glucksberg, 521 U.S. 702, 721-22 (1997) (holding no substantive due process right to assisted suicide); Bowers v. Hardwick, 478 U.S. 186, 194-95 (1986) (holding Georgia statute criminalizing sodomy did not violate homosexual's fundamental rights).
Flores, Glucksberg and Bowers exemplify the precision with which the Supreme Court has described the asserted right when a substantive due process claim is raised. In Glucksberg, the Court rejected the following formulations of the asserted right: "a liberty interest in determining the time and manner of one's death," the "right to die," the liberty "to choose how to die," the "right to control of one's final days," "the right to choose a humane, dignified death," and "the liberty to shape death." Glucksberg, 521 U.S. at 722 (quotations omitted). The Court stated that the claimed right was the "right to commit suicide which itself includes a right to assistance in doing so." Id. at 723. The Flores Court rejected the respondents' argument that the right at issue was the "freedom from physical restraint," Reno, 507 U.S. at 302, and added that the right was not the "right to come and go at will. . . ." Id. Instead, the Court described the right asserted 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 of a government-operated or government-selected child-care institution." Id. Similarly, the Bowers majority narrowly described the right asserted as whether homosexuals have a fundamental constitutional right "to engage in sodomy," 478 U.S. at 190; see also id. at 191; rather than "the right to be let alone," see Bowers, 478 U.S. at 199 (Blackmun, J., dissenting), advocated by the dissent. Chief Justice Burger wrote separately in order "to underscore [his] view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy." Bowers, 478 U.S. at 196 (Burger, C.J., concurring). "It is important . . . to focus on the allegations in the complaint to determine how [the plaintiffs] describe the constitutional right at stake. . . ." Collins, 503 U.S. at 125. A careful formulation of the interest at stake assists the determination of whether the specific right asserted comes within the scope of a fundamental right recognized by the Supreme Court. Plaintiff argues that the curfew ordinance unlawfully impinges on the substantive due process right of parents to rear their children without undue interference. More specifically, she complains that the ordinance impinges on her rights to rear her children because it contains no "parental approval exception." (Mem. Supp. Mot. Prelim. Inj. at 6; see also Compl. ¶ 17 (claiming ordinance "contains no exceptions for youth who are out during curfew hours while running errands at the behest of their parents, while attending an emergency at the behest of their parents, or while otherwise engaged in activities with the permission of their parents.")). Thus, the right asserted may be framed as the right of parents to allow their children to be in public places without adult supervision during curfew hours.
Similarly, in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the Supreme Court described the asserted right as the "right to refuse life-saving hydration and nutrition," id. at 279, rather than the "right to die".
The Supreme Court has not examined parental rights in the context of a nocturnal juvenile curfew law, but several lower federal courts have. See Hutchins v. Dist. of Columbia, 188 F.3d 531 (D.C. Cir. 1999) (en banc); Schleifer v. City of Charlottesville, 159 F.3d 843, 853 (4th Cir. 1998), cert. denied, 119 S. Ct. 1251 (1999); Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997); Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994); Johnson v. City of Phelousas, 658 F.2d 1065 (5th Cir. 1981); Ramos ex rel. Ramos v. Town of Vernon, 48 F. Supp.2d 176, 185 (D. Conn. 1999); McCollester v. City of Keene, 586 F. Supp. 1381 (D.N.H. 1984); Bykofsky v. Burrough of Middleton, 401 F. Supp. 1242 (M.D. Pa.), aff'd, 535 F.2d 1235 (3rd Cir. 1975), cert. denied, 429 U.S. 964 (1976). None of these was decided after Troxel.
Johnson is of little assistance to the court in deciding the instant case because the curfew ordinance was held to violate the constitutional rights of minors due to its over breadth. See Johnson, 658 F.2d at 1073-74. However, in discussing the justification for greater restrictions on the constitutional rights of children than adults, see Bellotti v. Baird, 443 U.S. 622, 634 (1979), the court noted that by removing from parents the decision of whether children should engage in associational activities during curfew hours, the ordinance inhibited the parents' rights in child-rearing. See Johnson, 658 F.2d at 1074. Further, in Naprstek v. City of Norwich, 545 F.2d 815 (2d Cir. 1976), parents asserted that a juvenile curfew law impermissibly infringed their due process rights to family privacy. The court, however, did not address the parental rights argument. Rather, it found the law unconstitutional based on its vagueness because it did not specify the time each day at which the curfew ended. See id. at 818. Thus, Naprstek is of no assistance to the court in deciding the issues before it.
The Ninth and Fifth Circuits along with two district courts have held that curfew laws implicated parents' fundamental due process rights. See Nunez, 114 F.3d at 951-51; Qutb, 11 F.3d at 495-96; McCollester, 586 F. Supp. at 1386; Bykofsky, 401 F. Supp. at 1262-63. The first circuit to address parental rights in the curfew context was the Fifth Circuit which in Qutb recognized parents' fundamental due process right to rear their children without undue government interference, citing Ginsberg. See Qutb, 11 F.3d at 495. The court then determined that "the only aspect of parenting that this ordinance bears upon is the parents' right to allow the minor to remain in public places, unaccompanied by a parent or guardian or other authorized person, during the hours restricted by the curfew ordinance." Id. at 495-96. The court reasoned, based on the broad exemptions included in the ordinance, that parents retained the right to make decisions regarding their children in "all other areas." Id. at 496. It therefore held that the ordinance did not impermissibly impinge on parental rights. Id.
The ordinance examined by the Qutb court applied to persons under 17 and contained the following exceptions: (1) minors accompanied by parent or guardian; (2) minors on an errand for a parent or guardian; (3) minors in motor vehicles traveling to or from a place of employment or involved in employment related activities; (4) minors attending school, religious or civic organization functions or general exercise of First Amendment speech and associational rights; (5) minors engaged in interstate travel; (6) minors on the sidewalk in front of the minor's home or that of a neighbor; and (7) in case of an emergency. See id. at 490.
One judge concurred in the result, but expressed no view on the majority's reasoning. See id. at 496 (King, J., concurring in result).
Subsequently, in Nunez, the Ninth Circuit cited to the Supreme Court's decisions in Ginsberg v. New York, 390 U.S. 629 (1968), and Stanley v. Illinois, 405 U.S. 645 (1972), and held that the curfew ordinance violated the parents' substantive due process rights to rear their children without undue government interference. See Nunez, 114 F.3d at 951-52. The court explained that the ordinance lacked an exception for specific activities pre-approved by parents. The court continued by concluding that because of this, "parents could not allow their children to function independently at night, which some parents may believe is part of the process of growing up." Nunez, 114 F.3d at 952 (citing Qutb, 11 F.3d at 496). For this reason, the Ninth Circuit held that the ordinance was not narrowly tailored to further the government's compelling interest in the health, safety and welfare of minors. See id.
The ordinance at issue in Nunez applied to minors under the age of 18 but did not apply when the minor was (1) accompanied by a parent, guardian, or other adult having the care and custody of the minor; (2) on an emergency errand directed by parent, guardian, or other adult having the care and custody of the minor; (3) returning directly home from a meeting, entertainment or recreational activity directed, supervised, or sponsored by local educational authorities; or (4) engaged in legitimate employment. See Nunez, 114 F.3d at 938-39.
The Bykofsky district court recognized that "[t]he Constitution protects the right of parents to direct their children's upbringing and family autonomy against state interference." Bykofsky, 401 F. Supp. at 1262. It continued, however, by observing that "the right of the parent to direct the upbringing of his children and the right to family autonomy are not absolute." Id. The court then held that the curfew ordinance did not impermissibly impinge on the parents' rights to direct the upbringing of their children. See Bykofsky, 401 F. Supp. at 1264. It relied on the numerous exceptions to the ordinance, including accompaniment by a parent, in stating that the interference with parental rights in influencing and controlling their children was "minimal." Id. Further, the court stated that "[t]he ordinance does not dictate to the parent an over-all plan of discipline for the minor." Bykofsky, 401 F. Supp. at 1264. The court found that the ordinance furthered several important governmental interests, including keeping juveniles off the streets without adult supervision during the nighttime hours and imposing a duty on parents to know the whereabouts and activities of their children at night. Id. The court concluded that these interests outweighed the parents' interest in the upbringing of their children, which was only minimally infringed. See id.
The Bykofsky curfew ordinance, which applied to minors under the age of 18, contained the following exceptions: "(a) The minor is accompanied by a parent (defined to include a legal guardian, a person who stands in loco parentis, or a person to whom legal custody has been given by court order); (b) The minor is accompanied by an adult authorized by the parent to take the parent's place in accompanying the minor for a designated period of time and specific purpose within a specified area; (c) The minor is exercising first amendment rights protected by the Constitution, such as free exercise of religion, freedom of speech, and the right of assembly. . .; (d) In a case of reasonable necessity but only after the minor's parent has communicated to the Middletown police station personnel' the facts establishing such reasonable necessity . . .; (e) The minor is on the sidewalk of his residence, or on the sidewalk of either next-door neighbor, so long as the neighbor does not object to the minor's presence on his sidewalk; (f) The minor is returning home by a direct route from, and within thirty minutes of the termination of, a school activity or an activity of a religious or other voluntary association, provided prior notice of said activity and the place and probable time of termination has been given in writing to the Chief of Police or the officer assigned by him on duty at the police station; (g) The minor has been authorized, by special permit obtained from the Mayor, to be on the streets during the curfew hours for normal or necessary nighttime activities inadequately provided for by other exceptions in the ordinance; (h) The minor is a member of a group of minors permitted by a `regulation' issued by the Mayor to be on the streets during the curfew hours for normal or necessary nighttime activities inadequately provided for by other exceptions in the ordinance, there being too many persons involved for use of the individualized permit procedure of exception (g) above; (i) The minor carries a certified card of employment; (j) The minor is in a motor vehicle with parental consent for normal travel, with interstate travel through Middletown excepted in all cases from the curfew; (k) A minor is seventeen years of age and is excepted from the curfew by `formal rule' promulgated by the Mayor excepting designated minors, minors in a defined group or area, or all minors seventeen years of age." Id. at 1246-47.
In contrast with Bykofsky, the district court in McCollester held that the curfew ordinance at issue impermissibly impinged the parents' liberty and privacy interests in family and childbearing. See McCollester, 586 F. Supp. at 1386. In doing so, the court relied on the line of Supreme Court cases including Yoder, Prince and Ginsberg suggesting a parental right against undue state interference. See id. The court explained that the curfew ordinance "usurp[ed] parental discretion in supervising a child's activities. . . even where the parent exercised reasonable control or supervision. . . ." Id.
The ordinance in McCollester prohibited juveniles under 16 from being on public streets or any public place from 10 p.m. until 5 a.m. The ordinance excepted juveniles: (1) accompanied by a parent, legal guardian, or person over 18 authorized by the parent or guardian; (2) in transit to or from employment; (3) in transit between 10 p.m. and midnight to or from a restaurant, library, movie theater, store, or other place of public accommodation; and (4) in transit between 10 p.m. and midnight to or from a church, meeting hall, school, courthouse, or other place of public worship or assembly. See McCollester, 586 F. Supp. at 1383.
The District of Columbia Circuit and the Fourth Circuit along with a district court, on the other hand, have held that curfew laws did not implicate a parent's substantive due process rights. See Hutchins, 188 F.3d at 540; Schleifer, 159 F.3d at 853; Ramos, 48 F. Supp. at 187. In Hutchins, the plaintiffs claimed that parents have a fundamental right to direct and control their children's upbringing and that this right was impinged by the curfew law. See Hutchins, 188 F.3d at 540. Though the court agreed that parents have such a fundamental right, a four-judge plurality determined that the curfew did not implicate that right. See id. The plurality reasoned, based on Meyer, Pierce and Yoder, that the parents' fundamental right in the upbringing of their children "is focused on the parents' control of the home and the parents' interest in controlling . . . the formal education of children." Hutchins, 188 F.3d at 540-41. The plurality concluded that a parent's right to determine whether and when children will be on the streets was not among the "intimate family decisions" encompassed by fundamental parental rights. See id. at 541. Thus, the Hutchins plurality concluded that the parental right asserted by the plaintiffs did not come within the scope of those rights which the Supreme Court has recognized as fundamental parental rights.
The curfew considered in Hutchins contained eight defenses which were that the minor was: (1) accompanied by a parent, guardian, or adult authorized by the parent to be a caretaker for the minor; (2) on an errand for the parent, guardian or authorized caretaker; (3) in a vehicle involved in interstate commerce; (4) engaged in employment activity; (5) involve in an emergency; (6) on the sidewalk abutting the minor's residence or next-door-neighbor's residence, provided the neighbor had not complained to police; (7) in attendance at an official school, religious, or other recreational activity sponsored by the District of Columbia, a civic organization, or other similar entity taking responsibility for the minor; and (8) exercising First Amendment rights. Travel to and from such activities recognized as defenses to the curfew also was included in the defenses. See Hutchins, 188 F.3d at 545.
The other seven judges on the court were of the opinion that the curfew did implicate the parents' substantive due process rights. See Hutchins, 188 F.3d at 543 (noting that Judges Wald, Ginsburg, Henderson and Garland join in Parts I, III and IV of the opinion), 541 (assuming that the curfew implicated the fundamental rights of the children and their parents); id. at 549-50 (Edwards, C.J., concurring in part and concurring in result); id. at 552 (Wald, J., concurring) (concluding curfew implicates the constitutional rights of the parents); id. at 571-72 (Tatel, J., dissenting) (concluding curfew infringes parent's fundamental right to control the upbringing of their children). Relying on Prince, Yoder, Pierce, Stanley and Ginsberg, Chief Judge Edwards concluded that the Supreme Court had not limited parental rights to activities "literally inside the home or literally inside the classroom." Id. at 550. He stated that such a limitation disregarded Supreme Court precedent and was "implausible." Id. (recognizing 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.'") (quoting Yoder, 406 U.S. at 232).
In Schleifer, the plaintiffs claimed that a city ordinance violated the parents' constitutional rights to direct their children's upbringing without undue government interference, including the right to decide whether to allow their children to engage in activities during curfew hours. See Schleifer, 159 F.3d at 852. The plaintiffs argued the ordinance interfered with that right because it prohibited children's activities that had the parents' approval but did not fall under one of the ordinance's eight exceptions. The Fourth Circuit held that the ordinance did not implicate "the kinds of intimate family decisions" such as a parent's custodial rights or authority to direct a child's education, which the Supreme Court has recognized as fundamental, citing Yoder, Stanley, and Meyer. See Schleifer, 159 F.3d at 853. The court expressed concern that acceptance of the plaintiffs' argument would lead to artful pleading by litigants in the future:
The ordinance considered by the Schleifer court prohibited persons under seventeen from remaining in a public place, motor vehicle, or establishment during curfew hours. It contained eight exceptions: (1) parental accompaniment; (2) parental errand; (3) employment; (4) attendance at supervised activities sponsored by school, civic, religious, or other public organizations; (5) interstate travel; (6) sidewalks abutting the minor's parents' residence; (7) emergencies; and (8) exercise of First Amendment rights. See 159 F.3d at 846.
litigants could simply artfully plead violations of parental rights to avoid the Supreme Court's determination that children do not possess all the freedoms of adults. Arguments based on minors' rights to engage in particular conduct would be routinely recast as arguments based on parents' rights to allow their children to engage in precisely the same conduct.
Id. at 852. Furthermore, the court stated that several of the ordinance's exceptions accommodated the parents' rights, including the accompaniment and errand exceptions. See id. at 853. It concluded, based on the limited scope of the curfew and its exceptions, that the ordinance satisfied even strict scrutiny. See id. at 851, 853.
One judge dissented from the Schleifer majority, emphasizing the Supreme Court's "deference to the traditional authority of parents over the activities of their children." Schleifer, 159 F.3d at 862 (Michael, J., dissenting). In that judge's view, the ordinance was not designed to be supportive of parental rights, but rather displaced the exercise of parental discretion. See id. at 867-68. The judge therefore concluded that the curfew neither supported a compelling state interest in fostering and strengthening parental responsibility nor served the compelling state interest of promoting the safety and well-being of minors. See id. at 867-68.
The Ramos district court held that the parents' liberty interests were not unconstitutionally infringed. The court first observed that the Supreme Court had yet to clearly define the limits of a state's ability to interfere with the parents' rights to raise their children as they see fit. See Ramos, 48 F. Supp.2d at 187. Because the ordinance permitted minors to engage in any activity during curfew hours if accompanied by a parent and allowed minors to perform specific errands if permitted by a parent, the court determined that the plaintiffs claimed a constitutional right "to allow their children to be on the streets and in public places at all hours of the night without any adult supervision." Id.
The ordinance, which was applicable to minors under 18 years of age, also excepted minors engaged in specific business or activity directed or permitted by a parent, guardian, or other adult having the care and custody of the minor; minors engaged in legitimate employment; and minors exercising First Amendment rights. Ramos, 48 F. Supp.2d at 179.
The court reasoned, citing Yoder and Meyer, that this type of parental authority did not rise to the level with which the Supreme Court held the states may not interfere. See id. The Ramos court therefore held the ordinance did not unconstitutionally infringe the parents' rights. Id.
It bears repeating that none of the federal decisions involving parental rights in the curfew context were decided with the benefit of the opinions in Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000). One might question whether the Hutchins, Schleiber, and Ramos courts would reach the same decisions in light of the sweeping language in Troxel's plurality opinion stating that "[t]he liberty interest . . . of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel, 120 S. Ct. at 2060 (2000) (quotation and citation omitted). And, as this court has observed, four out of the other five Justices apparently agree that such a fundamental right exists. See id. at 2066 (Souter, J., concurring); id. at 2068 (Thomas, J., concurring); id. at 2071 (Stevens, J., dissenting); id. at 2076 (Kennedy, J., dissenting). However, after a careful study of Troxel and the earlier Supreme Court parental rights cases such as Meyer, Pierce, Yoder, and the other cases cited by the Troxel plurality, see Troxel, 120 S.Ct. at 2060, the court concludes that the Plaintiff has not made a clear showing that the fundamental parental right extends to the right asserted in the instant case — the parents' right to allow their children to be in public places without adult supervision during curfew hours.
First and foremost, the nature of the parental rights that the Supreme Court has recognized as fundamental is quite important. The parental right asserted in Troxel was the mother's right to control the persons with whom her children associated and consequently, the persons who would have influence over them. Subsumed within that right is the right to limit visitation with her children by others. See Troxel, 120 S. Ct. at 2064 ("We do not, and need not define today the precise scope of the parental due process right in the visitation context.") As Justice Souter points out in his concurrence:
Meyer's repeatedly recognized right of upbringing would be a sham if it failed to encompass the right to be free of judicially compelled visitation by "any party" at "any time" a judge believed he "could make a `better' decision" than the objecting parent had done. The strength of a parent's interest in controlling a child's associates is as obvious as the influence of personal associations on the development of the child's social and moral character. Whether for good or for ill, adults not only influence but may indoctrinate children, and a choice about a child's social companions is not essentially different from the designation of the adults who will influence the child in school.
Troxel, 120 S. Ct. at 2066-67 (Souter, J., concurring).
The parental right at stake in Meyer v. Nebraska, 262 U.S. 390 (1923), was the parents' right to control their child's education. The Court wrote about "the natural duty of the parent to give his children education," and the "supreme importance" Americans have placed on "education and the acquisition of knowledge". Meyer, 262 U.S. at 400. Pierce v. Society of Sisters, 268 U.S. 510 (1925), also involved the parental right to control and direct their children's education. In addition, the parents asserted a right to direct their children in religious matters. See Pierce, 268 U.S. at 532 ("the Society's bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training"). The parental right claimed in Prince v. Massachusetts, 321 U.S. 158 (1944), was the right to teach one's child "the tenets and the practices of their faith," id. at 164, and the Court remarked that religion had a "preferred position" in the constitutional scheme. Id. And, in Wisconsin v. Yoder, 406 U.S. 205 (1972), the parental right asserted was, similar to Prince, the right "to guide the religious future and education of their children." Id. at 232.
Simply put, the parental rights asserted in the instant case and the parental rights recognized as fundamental by the Supreme Court are qualitatively different. The fundamental parental rights recognized in Meyer (education), Pierce (education and religion), Prince (religion), Yoder (education and religion) and Troxel (associations) are of a higher quality than that claimed by Plaintiff in the instant case. So, too, are the parental rights recognized as fundamental in a host of other Supreme Court cases. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996) (termination of parental rights); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (same); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (adoption); Smith v. Org. of Foster Families, 431 U.S. 816, 842-844 (1977) (removal of foster children from foster homes); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (child custody rights). Thus, the Plaintiff has not persuaded the court that the parental rights at stake in this case compare favorably to those at stake in the Supreme Court cases and are, therefore, worthy of the same level of protection.
Further support for the doubt that the fundamental parental right in child rearing extends to the right to allow one's child to go out in public places without adult supervision during curfew hours may be found in the Supreme Court's decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Though the substantive due process analysis was undertaken in a different context (striking down as unconstitutional sections of an abortion statute), the Court's observations have equal bearing here:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S. [ 431 U.S. 678], 685 [1977], 97 S. Ct., at 2016. . . . Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Id. at 851 (emphasis added); see also id. at 926-27 (Blackmun, J., concurring/dissenting) ("[T]he fundamental right of privacy protects citizens against governmental intrusion in such intimate family matters as procreation, childrearing, marriage, and contraceptive choice. These cases embody the principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government.") (Emphasis added).
The Plaintiff has not persuaded the court that the decision of a parent whether to allow his or her child to be in public places unsupervised by an adult during curfew hours is an intimate family matter that fundamentally affects a person. See Hutchins, 188 F.3d at 541; Schleiber, 159 F.3d at 853; Ramos, 48 F. Supp.2d at 187. Such a decision simply is not of an intimate and personal nature. Nor is it central to personal dignity and autonomy. Such a decision does not define the attributes of personhood, the concept of existence, of meaning, of the universe, or the mystery of human life. The Plaintiff has not carried her burden of showing that this type of decision comes within the scope of fundamental parental rights recognized by the Supreme Court.
Of course, the mere fact that the Supreme Court has not yet decided whether parents have a fundamental right to allow their minor children to be in public places during curfew hours does not constrain this court from doing so. The undersigned, however, does not believe that, if faced with such a claim, the Supreme Court would recognize the claimed right as a fundamental right.
Moreover, recognition of a fundamental right in the instant case seems contrary to common sense and sound judgment. To be sure, a limitation of fundamental parental rights solely to the parents' home and a child's formal education is far too restrictive. And in this regard, the undersigned disagrees with the Hutchins plurality. But the expansive definition of fundamental parental rights sought by Plaintiff in this case fails to allow sufficient consideration for the state's (sometimes competing) interest in the welfare of its children. Further, recognition of a fundamental right in this context would embroil the federal courts in family law and family matters traditionally left to the states. In addition, the court joins in the concern of the Schleifer court that recognizing a fundamental parental right in this context would create a significant risk of artful pleading in the future. It would be far too easy for plaintiffs to assert "parental rights" in order to elevate the rights of children to the same status of those of adults. And, if anything, it remains clear that though children have some constitutional rights, they are not always coextensive with those of adults. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995) ("Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination — including even the right of liberty in its narrow sense, i.e., the right to come and go at will."); Bellotti v. Baird, 443 U.S. 622, 634 (1979) ("the constitutional rights of children cannot be equated with those of adults"); Joy v. Penn-Harris-Madison School Corp., 212 F.3d 1052, 1063 (7th Cir. 2000) ("Public high school students have a lesser expectation of privacy than the general public.").
As counsel for the Plaintiff pointed out at oral argument, the ordinance challenged in Schleifer does not appear to make parents liable for their children's curfew violations, whereas, the City's ordinance makes it unlawful for parents to allow, recklessly to cause or suffer a child to commit a curfew violation. Nonetheless, the same concerns over artful pleading are raised in the instant case.
For example, as the City suggests, it could be argued that a parent has the right to determine the age at which his or her child may smoke, consume alcohol, drive a motor vehicle or quit school. The government clearly has the right to regulate the ages at which children may conduct these types of activities.
C. Standard of Judicial Review
As the City contends, when neither a fundamental right nor a suspect class is involved, courts generally review legislation with the lowest level of judicial scrutiny. Under that level of scrutiny, a law is upheld if it is rationally related to a legitimate government interest. See, e.g., Vacco v. Evans, 521 U.S. 793, 799 (1997); Romer v. Evans, 517 U.S. 620, 631 (1996); Vance v. Bradley, 440 U.S. 93, 97 (1979); Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir. 1997). Plaintiff does not dispute that protecting youth and assisting law enforcement and parents in protecting youth are laudable goals and, inferentially, legitimate government interests. No reasonable person could dispute that the City has a legitimate interest in protecting youth from victimization, drug and alcohol abuse, sexually transmitted diseases and in protecting the community from crimes committed by youth. This judge has no doubt that the curfew ordinance is rationally related to those interests.
Age is not a suspect class. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, ___, 120 S. Ct. 631, 645-46 (2000).
Perhaps, review of the curfew ordinance requires something more stringent than the lowest level of judicial scrutiny. The rationale for a heightened level of review is that the parental right at stake, though not fundamental, is indeed significant. Furthermore, the parents are not the only ones with interests implicated by the curfew ordinance. The children and City also have important interests at stake: The children have a liberty interest, and the City has an interest in the welfare of its children. In an effort to balance the often competing interests of parents, their children, and the City, the court believes that the most appropriate standard of review of the curfew ordinance is at the heightened level of review of intermediate scrutiny. See Hutchins, 188 F.3d at 541; Schleifer, 159 F.3d at 847.
To withstand intermediate scrutiny, the curfew ordinance must be "substantially related" to an "important" government interest. See Clark v. Jeter, 486 U.S. 456, 461 (1988); see also Hutchins, 188 F.3d at 545; Schleifer, 159 F.3d at 847. In considering the curfew ordinance under this intermediate level of scrutiny, the court is mindful that the "rights of parenthood are [not] beyond limitation." Prince, 321 U.S. at 166. "The state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and that this includes, to some extent, matters of conscience and religious conviction." Prince, 321 U.S. at 167. As the Supreme Court said in Yoder, "To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." Yoder, 406 U.S. at 233-34.
The court concludes that the Plaintiff has not made a clear showing at this stage that the curfew ordinance fails to pass muster at the intermediate level of scrutiny. The curfew ordinance seems to be substantially related to the City's interests of protecting its youth from victimization and protecting the rest of the City from crimes committed by youth during curfew hours. These interests are indeed important government interests. The City's evidence supports a finding that crime increases at night and that minors are thus most vulnerable and at risk at night. (See Affidavit of Jeffrey S. Decker ¶ 14 ("the nocturnal curfew hours are some of the busiest hours for IPD [Indianapolis Police Department] in terms of addressing and dealing with criminal offenses generally, the curfew hours are, in my experience, the most dangerous hours for juveniles to be out . . . without adult . . . young people were the most vulnerable to and at risk of victimization"); Affidavit of Richard Witmer ¶ 7 (stating that the busiest hours for the Beech Grove Police Department "were between the hours of 6 p.m. to 6 a.m. and, therefore, were potentially dangerous hours for juveniles because of lack of adult supervision"); Affidavit of Brian Toepp ¶ 6 ("The community is also at risk due to the fact that those children who are in the community during the `curfew' time . . . have a high risk of becoming victims. . . . ")). Plaintiff correctly points out that the evidence does not directly establish that juvenile crime rates increase at night or whether only the overall crime rates increase at night. Such a level of specificity, however, is not necessary at this preliminary injunction stage of the proceedings. One could reasonably infer that juvenile crime rates like the overall crime rate increase at night. But even if juvenile crime rates don't increase at night, it seems obvious that because crime generally increases at night, juveniles, like all other persons, are more likely to be victimized during the night.
The Plaintiff has not argued that they are not important government interests.
This same criticism also applies to the City's evidence regarding sexually transmitted diseases ("STD's"). The affidavit does not state that youth are more likely to contract STD's during curfew hours. But common sense suggests that they are.
Some parents, like Ms. Hodgkins, may disagree that the ordinance empowers them to set and enforce limits on their children's nighttime and early morning activities. But the ordinance need not be substantially related to each and every purpose it is intended to serve. It is enough that the ordinance is substantially related to some important government interest. See, e.g., Clark, 486 U.S. at 461. It should be noted that although the City's ordinance does not contain the number or breadth of exceptions as those in other curfews which federal courts have upheld, far from completely restricting a parent's authority with respect to his or her child's nocturnal activities, the City's curfew ordinance affords parents some discretion to allow their children to go out in public during curfew hours. Parents, guardians and custodians may allow their children to go out and about in public places as long as they accompany their children or see that their children are accompanied by an adult specified by them. Parents, guardians and custodians have the discretion to allow their children to participate in, go to and return from lawful employment, school-sanctioned activities, and expressive, religious or associational activities protected by federal or state law. It bears noting that parents may choose to allow their children aged fifteen, sixteen or seventeen to stay out later than children under the age of fifteen. Thus, the ordinance allows parents some authority to give their children more responsibility to stay out later as they age and mature. As for those parents who encourage and even demand their children to be home during certain hours of the late evening or very early morning, (which the court suspects is the vast majority of parents of children under the age of 18), the curfew ordinance surely supports their efforts in supervising their children and keeping them off the streets and safely within the confines of the home.
But even if the highest level of review were the most appropriate level of review, as the Plaintiff argues, the court believes that the curfew ordinance would satisfy strict scrutiny. Under strict scrutiny, the ordinance can be upheld only if it is narrowly tailored to serve a compelling government interest. See Reno v. Flores, 507 U.S. 292, 302 (1993); Gillespie v. City of Indianapolis, 185 F.3d 693, 708 (7th Cir. 1999), cert. denied, 120 S. Ct. 934 (2000). The City's interests in protecting its youth from victimization and protecting the rest of the City from crimes committed by youth during curfew hours are not only important but compelling. Indeed, the Plaintiff has not asserted that these interests are not compelling; rather, she argues only that the ordinance is not narrowly tailored to serve those interests. The court, however, is not convinced by the Plaintiff's argument.
The curfew has a fairly narrow scope. It prohibits children under fifteen from being in a public place after 11:00 p.m. or before 5:00 a.m. any day of the week. As for children aged fifteen through seventeen, they are prohibited from being in a public place between 1:00 a.m. and 5:00 a.m. on Saturday or Sunday, after 11:00 p.m. on Sunday through Thursday, and before 5:00 a.m. on Monday through Friday. The curfew affects fewer hours at night than the curfew upheld under strict scrutiny in Qutb v. Strauss, 11 F.3d 488, 490 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994) (curfew hours were from 11 p.m. to 6 a.m. on week nights and 12 a.m. to 6 a.m. on weekends). Further, the curfew ordinance does not apply to a child who is by the child's parent, guardian, custodian or an adult specified by the child's parent, guardian, or custodian. Nor does the ordinance apply to a child who, with the consent of the child's parent, guardian or custodian, is participating in, going to, or returning from lawful employment, a school-sanctioned activity, or an expressive, religious or associational activity protected by federal or state law. Thus, parents may allow their children to be in public places during curfew hours under certain circumstances. Given this, parents do have some control over whether, when and where their children under the age of 18 may be during curfew hours. The Plaintiff has not persuaded the court that the curfew ordinance would not satisfy strict scrutiny, even if that were the appropriate level of review.
At oral argument City counsel argued that the court should presume a constitutional construction of the ordinance by the state courts. Given the court's view that the ordinance would satisfy the appropriate level of review (intermediate scrutiny) and even strict scrutiny, it is unnecessary to reach this issue.
III. Conclusion
Few reasonable people could question the existence of parental rights in the care, custody and control of children. The real issue in this case is whether the City's curfew ordinance unconstitutionally impinges on those rights. Plaintiff seeks a preliminary injunction. To be entitled to a preliminary injunction, she must show a likelihood of success on the merits of her claim that the curfew ordinance unconstitutionally impinges her substantive due process rights. She has not done so and, therefore, Plaintiff's motion for a preliminary injunction is DENIED.To say that Plaintiff has not shown a likelihood of success on her claim, however, is not to say that her claim ultimately will fail. This entry is a ruling on the motion for preliminary injunction only; it is not a ruling on the merits of Plaintiff's claim that the City's curfew ordinance unconstitutionally impinges her substantive due process rights. That decision awaits another day.
The denial of the motion for preliminary injunction is immediately appealable under 28 U.S.C. § 1292(a)(1). See Oxxford Clothes XX, Inc. v. Expeditors Int'l of Washington, Inc., 127 F.3d 574, 577 (7th Cir. 1997). If an appeal is taken from today's decision, it is recommended that the Seventh Circuit consider this appeal and the appeal in Hodgkins v. Peterson, this court's cause number IP 99-1528-C-T/G and Seventh Circuit cause number 00-2919, together because the two cases are closely related. ALL OF WHICH IS ORDERED this 14th day of December 2000.