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State v. Druktenis1/30/2004
ental right. Trujillo III, 1998-NMSC-031, 16. "Challenged legislation garners strict scrutiny if it affects the exercise of a fundamental right or a suspect classification such as race or ancestry." Id. "A fundamental right is that which the Constitution explicitly or implicitly guarantees." Richardson, 107 N.M. at 696, 763 P.2d at 1161; see Howell v. Heim, 118 N.M. 500, 505-06, 882 P.2d 541, 546-47 (1994) (quoting Richardson, and holding asserted interest not to be a fundamental Article II, Section 18 right). The question is, do the interests here rise to the level of a fundamental right, a concept that "remains vague today." Rotunda & Nowak, supra, § 15.7, at 629.
No United States Supreme Court case has addressed the nature of the specific interests that are involved in the present case and the involvement of government dissemination of truthful information for the protection of society, where, at the same time, the dissemination necessarily implies that the subject is a likely repeat sex offender when such implication is or may be incorrect and the effect will likely be harmful. In our search for meaningful decisional direction from the varied decisions of the United States Supreme Court relating to the privacy and reputation interests generally, and relating to the importance and intensity given to the nature of the particular right being exercised and restricted, we are unable to fit the interests asserted here into any category that has merited the application of strict scrutiny in privacy and reputation infringement review. Our independent analysis of the character of the interests at stake in this matter of first impression in New Mexico leads us to conclude that the interests do not rise to the level of a fundamental right. Several considerations underlie this ceiling on the status of the interests we are examining here.
First, the United States Supreme Court has not expanded its view of an implied fundamental right to include the implied privacy interest Defendant claims has been burdened. Fundamental rights essentially have emanated from natural law concepts or very basic liberal (in the nineteenth century sense of the term) democratic concepts clearly essential to individual liberty in this Country in the view of a majority of Justices of the United States Supreme Court. See Rotunda & Nowak, supra, § 15.7, at 626-36. We have not found the interests asserted in this case to have their origin in natural law, nor have we found where the interests historically have been considered essential to constitutional democracy, as is, for example, the right to vote. See Bullock v. Carter, 405 U.S. 134, 143 (1972) (requiring close constitutional scrutiny when the right to vote is restricted); Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (stating that "the right of suffrage is a fundamental matter in a free and democratic society"). From our review of Supreme Court cases on fundamental rights, as well as those on government dissemination of private, confidential information, we doubt the United States Supreme Court will go so far as to hold any interest asserted here to be a fundamental right. Cf. Washington v. Rodriguez, 82 N.M. 428, 431, 483 P.2d 309, 312 (Ct. App. 1971) (refusing to extend right of privacy to prison inmate sodomy).
Further, for the liberty interest to be a fundamental one, the interest must be one "traditionally protected by our society," or "rooted in history and tradition." Michael H. v. Gerald D., 491 U.S. 110, 122-23 (1989); but see Lawrence, 123 S. Ct. at 2480 (making " istory and tradition . . . the starting point but not in all cases the ending point of the substantive due process inquiry" (internal quotation marks and citation omitted)). We ha
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