Ramos ex rel. Ramos v. Town of Vernon

WINTER, Circuit Judge,

dissenting.

I respectfully dissent.

I begin with a summary of my views.

This action was brought as a facial challenge to an ordinance that imposes a late night/early morning curfew on minors. The curfew applies only to those minors not engaged in one of the many activities permitted by the ordinance. In particular, there is no restriction on the nocturnal travel or activities of any minor so long as the minor’s parents or guardians are informed of the specific activity intended and approve of it. Therefore, the only minors whose freedom to move about during the curfew hours is restricted are those: (i) who do so surreptitiously or against the express wishes of their parents or guardians, or (ii) whose parents or guardians decline to monitor the late night/early morning activities of their minor children. The relief requested by appellants is a declaration that the ordinance is unconstitutional and a broad injunction against its enforcement against anyone, including minors on the street contrary to the wishes of their parents or guardians. See Appellant’s Br. at 43.

*188My colleagues hold the ordinance unconstitutional as applied to minors who have not been prohibited by their parents or guardians from being out during the curfew hours. In so holding, they reason as follows: There is a constitutionally protected right to travel, and the curfew violates the Equal Protection Clause by denying minors that right while allowing it to adults. However, they qualify the constitutional right of minors to travel by stating that it is subject to parental or guardian prohibition. See Maj. Op. at [176 n.3, 182, 183],

This unique constitutional theory was never argued by appellants. Until this decision, the parties, the district court, see Ramos v. Town of Vernon, 48 F.Supp.2d 176, 180-81 (D.Conn.1999), and the Supreme Court of Connecticut, see Ramos v. Town of Vernon, 254 Conn. 799, 761 A.2d 705, 709 (Conn.2000), have all viewed the claims asserted as facial rather than as applied. Appellants’ equal protection argument has been that the ordinance facially violates the equal protection rights of minors, whether or not they have parental consent. In fact, the portion of appellant’s brief that lays out their equal protection argument never mentions parental consent as having any relevance whatsoever.1

My colleagues’ lengthy discussion of the right to travel and their condemnation of the use of age as a benchmark for limiting that right, see Maj. Op. at [181], results in a rather radical reordering of conventional legal schemes. Until now, it has always been thought that the unrestricted freedom of children, say five-year olds, to move about a community and do as they please is dangerous for any number of obvious reasons, and no one has seriously viewed governmental restrictions on such freedom as analogous to Jim Crow laws. Moreover, a constitutional right whose exercise is subject to the prohibition of another individual is, to say the least, a constitutional oddity. My colleagues’ opinion cites copious legal authorities, but none remotely suggests the existence, much less wisdom, of such a constitutional scheme.

Given the ordinance’s exemption for activities undertaken with parental or guardian permission and the court’s holding that minors’ constitutional rights to movement are subject to parental or guardian prohibition, the constitutional “vice” cured by my colleagues’ ruling is a restriction that most would regard as a virtue — the ordinance’s limit on the unsupervised movement of children whose parents or guardians are utterly indifferent to their whereabouts and activities during the late night/early morning hours.2

In my view, the lack of any right of children to travel is apparent from the limit on this right recognized by my colleagues: the power of parents or guardians to forbid it. Parental or guardian control over the movement of children stems from the fact that children are always in the custody of parents, guardians, or the state and do not have the panoply of rights accorded adults. See Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). In particular, they do not have “the right to come and go at will,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), because of their vulnerability and immaturity, see Bellotti v. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979).

*189Because minors are in the custody of their parents or guardians and have no right to travel independent of parental control, only two pertinent constitutional issues arise with regard to the curfew before us. The first issue is whether the particular age selected as dividing minors from adults is constitutionally impermissible under an articulable constitutional standard. My colleagues do not contend that the present curfew’s use of the age of eighteen violates any such standard or even that such a standard exists. Rather, they condemn the ordinance as an impermissible use of “stereotypes” to disable arbitrarily a “politically] powerless[ ]” minority. Maj. Op. at [181]. This is an argument with broad negative implications for any use of age as a legal distinction between minors and adults. For example, the “stereotypes” associated with five-year olds are stronger than those associated with seventeen-year olds, and the former are far less powerful politically than the latter.

The second pertinent is,sue is whether the curfew violates a liberty interest of parents or guardians to raise their children as they please. See, e.g., Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (recognizing the substantive due process fundamental right of parents “to make decisions regarding the care, custody, and control of their children”). If it does not, then minors whose curfew-hour activities are unknown to, and unapproved by, their parents or guardians have no constitutionally recognized right to be out during the curfew hours. If the ordinance does violate the rights of parents or guardians, then the ordinance is unconstitutional for that reason.

Given that the dispositive issues are whether the curfew age is impermissibly high or whether the ordinance violates the authority of those who have custody of minors — their parents or guardians — there is no need to discuss, much less to create, a personal right in minors of all ages to travel,3 or to ruminate about discrimina*190tion against the “lifestyles of some juveniles,” the use of “stereotypes and assumptions about young people,” the relative “[in]ability [of minors] as a class, to articulate or mount an effective defense against such a restriction,” or minors’ lack of the right to vote. See Maj. Op. at [180-81]. Nor is there need to seek refuge in the Carolene Products footnote, 304 U.S. at 153, 58 S.Ct. 778 n.4, much less to suggest that minors may be a suspect class, see Maj. Op. at [181 & n.4], a view that would cast constitutional doubt on the vast number of distinctions the law draws between minors and adults and among minors.

Moreover, my colleagues’ broad attack on the use of age to make legal distinctions between minors and adults, or, in their words, the “arbitrarfy] targeting” of a “politically] powerless[ ]” minority, Maj. Op. at [187], [181], has profound implications for the law. To be sure, such a use of age does entail stereotypical judgments, but these are time honored and deeply rooted distinctions. Moreover, if age cannot be used to regulate the right to travel, then it may not or should not be used to regulate the exercise of other important rights, such as the rights to vote, to work, to marry, to quit school, to live away from parents, to sign contracts, to serve in the military, etc., all of which are legally limited by the stereotypical use of age. For example, my colleagues’ opinion would fully support a challenge to the right of government to prevent children under 16 from driving — “targeting” a “politically powerless” minority’s exercise of the fundamental right to travel — when not prohibited by parents.

Also, if age cannot be used to distinguish between adults and minors — and minors are not to be accorded the full legal rights of adults — what standard can be used to distinguish between those with adult rights and those without?

Therefore, given my views as to what issues are dispositive on this appeal, the remainder of my dissenting opinion deals largely with a question — parental or guardian rights and obligations — not squarely addressed by my colleagues, and does not confront in further detail the equal protection issue that is the subject of the great bulk of my colleagues’ opinion. Because, in my view, the ordinance does not impinge on any cognizable constitutional right of minors and serves only to support and enhance — rather than burden — parental or guardian rights, it should be subject to rational basis review and *191upheld. Moreover, even under the intermediate scrutiny standard of review selected by my colleagues, the ordinance easily passes muster.

DISCUSSION

a) The Ordinance

The operative provisions of the ordinance are set out in the margin.4 It establishes curfew hours for minors, defined as any persons under the age of eighteen. The curfew hours are 11:00 P.M. to 5:00 A.M., for Sundays through Thursdays, and midnight to 5:00 A.M., for Friday and Saturday nights. The ordinance contains various exemptions, including, as noted, one for any and all specific activities approved by a child’s parent or guardian.

Appellants Angel5 and Richard Ramos are minors who want to be outside their home during curfew hours. Implicitly, they claim that at least some of the curfew-hour activities in which they hope to engage do not fall within the exception for activities undertaken with the specific permission of their mother. Similarly, appellant Janet Ramos, the boys’ mother, believes that they should be allowed to stay out late at night and in the early morning hours without activity-specific permission from her. She claims that the ordinance interferes with her constitutional right as a *192parent to raise her sons as she chooses.6 b) The Role of Parental Consent and the Right of Minors to Travel

As discussed above, ray colleagues do not quarrel with the use of the age eighteen as dividing minors and adults. In light of their acquiescence and the fact that eighteen is almost universally the age selected for that purpose, there is no need for me to discuss its validity in the present context.

The rights of children are not coextensive with the rights of adults. “[E]ven where there is an invasion of protected freedoms ‘the power of the state to control the conduct of children reaches beyond the scope of its authority over adults Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (quoting Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 88 L.Ed. 645 (1944)). “This is peculiarly true of public activities ....” Prince, 321 U.S. at 168, 64 S.Ct. 438. Although “children generally are protected by the same constitutional guarantees against governmental deprivations as are adults,” Bellotti, 443 U.S. at 635, 99 S.Ct. 3035, the Supreme Court “long has recognized that the status of minors under the law is unique in many respects,” id. at 633, 99 S.Ct. 3035. In 1995, the Supreme Court stated that “[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. They are subject, even as to their physical freedom, to the control of their parents or guardians.” Vemonia, 515 U.S. at 654, 115 S.Ct. 2386; see also Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (following Vemonia).

Thus, minors are at all times in the custody of either their parents or the state,7 see Flores, 507 U.S. at 302, 113 S.Ct. 1439, and subject to the restrictions of legislation rationally related to state interests in protecting their well being, see Ginsberg, 390 U.S. at 639-40, 88 S.Ct. 1274. Even if a general fundamental right to travel exists,8 therefore, that right does not extend to minors, who, in the words of the Supreme Court, do not have “the right to come and go at will.” Vemonia, 515 U.S. at 654,115 S.Ct. 2386.

Because minors have no right to travel without valid parental or guardian consent, *193the only cognizable right implicated by the ordinance is Ms. Ramos’s claimed liberty interest in allowing her sons to be out on their own in the late night/early morning hours without activity-specific permission. See Appellants’ Br. at 40 (citing Troxel, 530 U.S. at 66, 120 S.Ct. 2054). Any such liberty interest is not absolute but is itself limited by government’s responsibility to protect children. In particular, government oversees the conduct of parents and guardians to prevent child neglect, see, e.g., Conn. Gen.Stat. §§ 17a-90, 17a-101 (2001), provides for compulsory education, see, e.g., Conn. Gen.Stat. § 10-184 (2001), and assumes responsibility for custody where parents or guardians fail in their responsibilities, see, e.g., Conn. Gen.Stat. § 17a-101g (2001); see also Flores, 507 U.S. at 302, 113 S.Ct. 1439 (“[WJhere the custody of the parent or legal guardian fails, the government may (indeed, we have said must) either exercise custody itself or appoint someone else to do so.”),

c) Constitutionality of the Ordinance

1) Level of Judicial Scrutiny

In my view, the appropriate level of judicial scrutiny concerning the ordinance’s impact on parental or guardian authority is limited to whether the ordinance in question is rationally related to recognized, legitimate governmental interests.

In Bellotti 443 U.S. at 634, 99 S.Ct. 3035, the Supreme Court noted three established state concerns in protecting the well-being of minors. These are the special vulnerability of children, their relative lack of ability to make critical decisions in an informed and mature manner, and the importance of parental authority in bringing up children. See id. The state and parental interest in protecting the well-being of minors has been described by the Supreme Court as “supervening,” Ginsberg, 390 U.S. at 638 n. 6, 88 S.Ct. 1274, and “transcendent,” id. at 640, 88 S.Ct. 1274. Significantly for purposes of this case, the relation of challenged legislation to the state interest need only be rational. See id. at 639-41, 88 S.Ct. 1274 (finding restriction on First Amendment rights of minors to be justified, “at least if it was rational for the legislature to find that the minors’ exposure to such material might be harmful ” (emphasis added)).

However, even assuming for the sake of argument that a right of parents or guardians is significantly burdened by the ordinance and that an intermediate scrutiny standard applies, the ordinance must be upheld for reasons stated in part (c)(2) infra.

2) Application

The ordinance lists three purposes to be served by its restrictions: (i) promoting responsible parenting; (ii) preventing harm to minors; and (iii) protecting the community from juvenile crime. Plaintiffs conceded in the district court, and have not withdrawn that concession in this court, that each of these purposes constitutes a compelling governmental interest. Ramos, 48 F.Supp.2d at 184. Plaintiffs argue only that the ordinance is not substantially related to the stated goals. The district court rejected this argument, holding:

Given the multiplicity of factors that may affect crime rates, the Court declines to overrule a legislative judgment that a curfew ordinance can help achieve the goals of reducing juvenile crime and juvenile victimization, as well as facilitating parental authority, simply because scientific uncertainty exists in regard to the ordinance’s effectiveness. Thus, the Court concludes that the history and perception of criminal activity in Vernon, combined with the conflicting evidence regarding the ordinance’s effectiveness, provide adequate grounds to find that the means of the ordinance are substantially related to its goals.

Id. at 185. I agree.

*194Turning first to the goal of fostering responsible parenting, the ordinance requires only that parents or guardians be informed of and approve the late night/early morning activities of their minor children. These requirements simply cannot be described as a burden on responsible parents or guardians because they require nothing of parents or guardians inconsistent with their paramount responsibilities. To be sure, there are parents who view their responsibilities as more narrow or even non-existent, like the parent described above who allows her minor daughter to be out all hours of the day or night without parental knowledge or supervision of her activities. See Note 2, supra. However, the parameters of any parental or guardian liberty interest established by the Constitution are not set by the lowest common denominator.

The curfew here is more exception than rule. Not forbidden are any and all specific activities approved by parents or guardians, emergency errands, activities with adult supervision, job-related conduct, and any exercise of First Amendment rights. Given the ordinance’s range of exceptions, it is unsurprising that appellants have difficulty in offering examples of beneficial activities prevented by it. Angel and Richard claim only that the curfew prevents them from engaging in “social activities with friends,” Compl. at 3, although they offer no reason why their mother cannot be informed of these activities in advance. In fact, the activities of minors constrained by this ordinance amount to no more than unapproved, unsupervised, idle hanging out in late night/early morning hours. In describing these activities as a “vital component of [juveniles’] life in an open society,” Maj. Op. at [172], my colleagues, with all due respect, accord these activities a rather inflated value.

Even if the ordinance marginally burdens parents, the state has an acknowledged affirmative role to play in setting minimum standards of parenting. See Flores, 507 U.S. at 302, 113 S.Ct. 1439. Where conduct may be harmful to minors, the state may intervene to protect minors from themselves and/or from deficient parents or guardians. See Conn. Gen.Stat. §§ 17a-90, 17a-101, 17a-101g (2001); Flores, 507 U.S. at 302, 113 S.Ct. 1439. The ordinance here is modest and seeks to prevent a total parental or guardian failure by requiring only that there be explicit permission for activities in the curfew hours and that the permission be activity-specific. Responsible parents will not find the ordinance to be restrictive and will find it helpful in rebutting the “all the other kids do it” argument. The less responsible parents who may perceive a burden in the ordinance’s requirements will be alerted to take their role more seriously. As the district court noted, “neither the record in this case, nor logic, nor common sense” support the view that the “independence” of juveniles “to be on the streets and in public places at all hours of the night without any adult supervision ... is crucial for the[ir] development.” Ramos, 48 F.Supp.2d at 187.

To be sure, some may disagree with this view of responsible parenting. However, the ordinance’s restriction on parental prerogatives is similar to other unquestionably valid restrictions mandated by the state that impose obligations on parents and forbid the abdication of parental responsibility. For example, in Connecticut, leaving children unattended and unsupervised at home is evidence of neglect. See, e.g., Tate v. Tate, No. FA-96-0324793, 1998 WL 170142, at *3-7 (Conn.Super.Ct. Feb. 10, 1998) (unpublished opinion); In re Princess J., 1992 WL 118280, at *2 (Conn.Super.Ct. May 22, 1992) (unpublished opinion).

Faced with an ordinance imposing similar modest restrictions, federal judges far exceed their authority when they reject a legislative judgment and substitute their personal view of responsible parenting. The question of whether it is responsible *195to give children permission to be out at any time of the day or night, without knowledge of where they are or who they are with and without regard to the child’s age, is best left to the judgment of the state or local community. By compelling local government to take the narrowest view of parental or guardian responsibility, my colleagues’ sanction “I don’t care” parenting. Indeed, in defending child neglect cases, alert counsel can mine my colleagues’ opinion for very useful language— e.g., allowing unrestricted nighttime absences from the home is a “way of preparing a child for adult life,” Maj. Op. at [182— 83], monitoring juveniles who “act differently” from adults is an “[injappropriate” discrimination against “lifestyles,” Maj. Op. at [180].9

Turning now to the harm — and crime— prevention goals of the ordinance, the issue that divides me from my colleagues is whether a municipality may perceive a problem in idle, late night hanging out by minors and act prophylactically, or whether it must, as my colleagues require, produce proof of a number of actual crimes by, or against, juveniles in a particular community during the curfew hours. Such documentation is reportedly unavailable because Connecticut law renders arrest records of those under 16 confidential, Appellants’ Br. at 6 n.6; J.A. at 220, and because Vernon’s Police Department records do not contain a reliable time of arrest, Appellants’ Br. at 19 n.15. Nevertheless, our precedents state that prophylactic action satisfies even intermediate scrutiny.

As noted by my colleagues, we do not require “scientific certainty” of a regulation’s substantial relationship to an important governmental interest. See Maj. Op. at [183-84] (citing Ginsberg, 390 U.S. at 642-43, 88 S.Ct. 1274). Indeed, we have previously based findings of such a substantial relationship on generalized, non-local information. In Barry v. City of New York, 712 F.2d 1554, 1556 (2d Cir.1983), the plaintiffs challenged a New York City regulation requiring disclosure of personal financial information by public officials. Because cognizable privacy interests were involved, we applied intermediate scrutiny. See id. at 1559. Although the plaintiffs successfully showed that the New York City department in question had a “virtually corruption-free history,” id. at 1561, we nonetheless sustained the regulation because it was sufficient that New York City had a general concern about corruption and that financial disclosure would alleviate such a concern, see id. Similarly, in Buzzetti v. City of New York, 140 F.3d 134 (2d Cir.1998), in upholding the city’s zoning ordinance regulating adult entertainment as serving “substantial governmental interestfs]” in the face of challenges on First Amendment and equal protection grounds, we held that New York City was “entitled to rely on the experiences of ... other cities.” Id. at 140 (quoting Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50-51, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)) (alterations in Buzzet-ti).

Given that we know that similar curfew ordinances are valid where demonstrable harms have occurred, see Appellants’ Br. at 18 & n.14 (citing cases), and that idle hanging-out by minors may give rise to serious problems that, once in being, are difficult to remedy, it is enough for me that a community has some grounds to believe in good faith that idle hanging-out in the late hours by minors is beginning to lead to such problems. I do not believe that a community must stay its hand until some numeric test of documented crimes, much less murders, during curfew hours is satisfied.

*196We need not leave at the door of the courtroom our standards of child neglect or our experience with adolescents, much less our common sense. Idle-hanging out by minors, particularly late at night, is generally and rightly regarded as a potential source of trouble for the juveniles and for the community. That is why midnight basketball is viewed by many as a crime-fighting mechanism. It is often the late hours when young children are introduced to alcohol, cigarettes, or drugs, are first tempted to commit outrageous or unlawful acts, form embryonic and then growing gangs, develop violent animosities with peers, and generally get used to engaging in anti-social or even criminal behavior. What is done first at 2:00 A.M. may well, over time, be repeated in more serious fashion in the afternoon. Moreover, it is important to recognize that the problem here can escalate as the exercise of responsible parental authority is persistently undermined by the “all the other kids are allowed to do it” argument.

In any event, the community here had more than sufficient grounds to pass such an ordinance. As noted above, it perceived a growing problem with teenagers, had complaints from adults, found from a survey a growing concern among teenagers over violence and guns among their peers, and experienced the murder of a minor who was a former gang member. My colleagues discount much of this as discrimination against “lifestyles” and discount the murder as occurring during a robbery. Maj. Op. at [180, 184-85, 186]. However, responsible parenting is all about discrimination against “lifestyles.” Also, it is not unreasonable to believe that gang members may be more likely targets of robbery or murder than those without such associations, and that a curfew may save some minors from ever becoming gang members.

The ordinance in question strongly furthers each of the governmental interests listed in Bellotti and easily survives any level of scrutiny. The ordinance encourages and strengthens the exercise of responsible parental authority. See Bellotti, 443 U.S. at 634, 99 S.Ct. 3035. As the Supreme Court has observed, “[l]egal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding.” Id. at 638-39, 99 S.Ct. 3035. Idle hanging-out in the late night/early morning hours increases the vulnerability of minors to the development of harmful patterns of behavior, injuries of various sorts, undesirable personal relationships, and temptations that would be resisted by more informed and mature persons. The connection between the ordinance and very important governmental interests is, therefore, not only rational but substantial.

CONCLUSION

I therefore respectfully dissent.

ORDER

Jan. 22, 2004

A three-judge panel decided this case on June 2, 2003. A petition for rehearing by the panel and a petition for rehearing in banc was filed on June 13,. 2003. On December 19, 2003, the panel granted the petition for rehearing by the panel and issued an amended opinion. A new petition for rehearing in banc was filed with this court on December 31, 2003. There being no majority in favor thereof, the petition for rehearing in banc is DENIED.

Chief Judge WALKER, joined by Circuit Judges JACOBS, CABRANES, RAG-GI, and WESLEY dissent from the denial of rehearing in banc.

. Alternatively, appellants argue that the ordinance violates the due process rights of parents to raise their children as they please.

. One parent testified that she had given her teenage daughter blanket permission to be out at any time of the day or night. See J.A. at 302, 1175.

. My colleagues' discussion of the right to travel is not only irrelevant but also of questionable validity. In creating the right of minors to travel, my colleagues reason that “denying the existence of a constitutional right is too blunt an instrument to resolve the question of juvenile rights to freedom of movement," Maj. Op. at [178], and caution against "defin[ing] the relevant interest so narrowly that it is not deemed a constitutional right and heightened scrutiny does not come into play," id. at [176-77]. However, contrary to my colleagues’ analysis, the Supreme Court has emphasized the importance of carefully defining the interest at issue, stating that fundamental rights should be expanded only with reluctance and "utmost care”:

[W]e "ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible deci-sionmaking in this unchartered area are scarce and open-ended.” By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field.”

Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)) (citations omitted) (alterations in Gluclcsberg).

Fundamental. rights consist only of “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ ” id. at 720-21, 117 S.Ct. 2258 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)), and analysis must begin with a " 'careful description' of the asserted fundamental liberty interest,” id. at 721, 117 S.Ct. 2258 (quoting Flores, 507 U.S. at 302, 113 S.Ct. 1439). Requiring both a grounding in tradition and a "careful description” allows ”[o]ur Nation's history, legal traditions, and practices [to] provide the crucial ‘guideposts *190for responsible decisionmaking.' " Id. (quoting Collins, 503 U.S. at 125, 112 S.Ct. 1061).

In Flores and in Gluclcsberg, the Supreme Court employed this approach and arrived at a relatively detailed description of the asserted right prior to determining whether it should be considered a fundamental right. See Gluclcsberg, 521 U.S. at 722-25, 117 S.Ct. 2258 (distinguishing narrowly defined rights such as the rights “to hasten impending death by consuming lethal medication” or "to refuse unwanted medical treatment” from broadly stated rights, such as “self-sovereignty” or "personal autonomy,” and adopting the narrower definitions of the asserted rights); Flores, 507 U.S. at 302, 113 S.Ct. 1439 (defining the asserted right specifically, as the "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 childcare institution,” rather than more generally, as a right to "freedom from physical restraint,” or "to come and go at will”).

By invoking a generic, overbroad and unestablished "right to free movement,” Maj. Op. at [176], my colleagues have defined the asserted interest too generally. The numerous exceptions to the curfew, particularly the consent exception, and the time-honored distinction between minors and adults are too inextricably intertwined with the relevant "history and tradition" to be disregarded when defining the asserted interest.

. (b) DEFINITIONS.

1. Curfew Hours: For minors under eighteen (18) years old: shall be between 11:00 p.m. on any Sunday, Monday, Tuesday, Wednesday, or Thursday until 5:00 a.m. of the following day; and 12:01 a.m. until 5:00 a.m. on any Saturday or Sunday.
5. Minor: shall mean any person under eighteen (18) years of age.

(c) OFFENSES.

1. Curfew for Minors. It shall be unlawful for any minor to remain, idle, wander, stroll or play in any public place or establishment in the Town during curfew hours unless accompanied by a parent, guardian, custodian or other adult person having custody or control of such minor or unless the minor is on an emergency errand or specific business or activity directed or permitted by his parent, guardian, or other adult person having the care and custody of the minor or where the presence of such minor is connected with or required by some legitimate employment, trade, profession or occupation, or unless the minor is exercising his/her first amendment rights.
2. Parents’ Responsibility. It shall be unlawful for the parent, guardian or other adult person having custody or control of any minor under the age of sixteen (16) to suffer or permit or by inefficient control to allow such person to be on the streets or sidewalks or on or in any public property or public place or establishment within the Town during the curfew hours. However, the provisions of this Section do not apply to a minor accompanied by his or her parent, guardian, custodian or other adult person having the care, custody or control of the minor, or if the minor is on an emergency errand or specific business or activity directed by the minor’s parent, guardian, custodian or other adult having the care and custody of the minor or if the parent, guardian or other adult person herein has made a missing person notification to the Police Department.

(d) SPECIAL FUNCTIONS.

Any minor attending a special function or event sponsored by any religious, school, club, or other organization that requires such minor to be out at a later hour than that called for in this section shall be exempt from the provisions of this ordinance provided such minor has the approval of his or her parent or guardian to attend said function or event. Such minors who attend said function or event shall be required to be in their homes or usual places of abode within one half hour after said function or event is ended.

Town of Vernon, Conn., Ordinance 204 (Dec. 21, 1998) (as amended by Ordinance 222).

. Angel is no longer a minor subject to the ordinance. Whether his action is moot is irrelevant in light of Richard’s continued presence in the action.

. Because Richard is no longer under 16 and Angel is no longer a minor, their curfew violations cannot result in liability for Ms. Ramos. However, she can still assert that she has a right to supervise or not supervise her children as she pleases. See Troxel, 530 U.S. at 66, 120 S.Ct. 2054 (recognizing fundamental right of parents to make decisions concerning the care, custody and control of their children).

. In Bellotti, the Court recognized that a statute requiring parental consent for an abortion imposed "qualifications that typically may be imposed by the state on a minor's right to make important decisions." Bellotti, 443 U.S. at 640, 99 S.Ct. 3035. It was only the "unique nature of the abortion decision, especially when made by a minor,” id. at 642, 99 S.Ct. 3035, that led the court to require that the state provide an alternate procedure, in addition to parental consent, by which a minor might obtain authorization for an abortion, id. at 643-44, 99 S.Ct. 3035. The Court did not, therefore, extend to minors the personal autonomy regarding abortions extended to adults.

.The existence and scope of a constitutional right to freedom of movement have not been clearly established by the Supreme Court, even for adults. See generally Hutchins v. Dist. of Columbia, 188 F.3d 531, 536-38 (D.C.Cir.1999) (plurality opinion) (documenting uncertainty in Supreme Court decisions and a split among the circuit courts as to the existence, scope and source of a fundamental right to free movement).

. My colleagues suggest that adjudications of "unfit parenting” in individual cases can satisfy government’s role in encouraging responsible parenting. However, they cite no constitutional provision or caselaw restricting the power of government to impose before-the-fact substantive obligations on parents and limiting the government's role to post-theft-barn-door-closing measures.