When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross," as James Madison put it.
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Many non-originalists, like Justice Byron White, have also been critical of substantive due process.
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In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur.
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Following the refusal, Osborne filed a claim for due process under 42 U.S.C. §1983, challenging a State's "deprivation of any rights... secured by the Constitution" and requested the DNA evidence against him be tested at his personal expense by Short Tandem Repeat (STR) analysis, a method more discriminating than both RFLP and DQ Alpha, and unavailable at the time of his trial.
On June 26, 2003, the U.S. Supreme Court in a 6-3 decision in Lawrence v. Texas struck down the Texas same-sex sodomy law, ruling that this private sexual conduct is protected by the liberty rights implicit in the due process clause of the United States Constitution, with Sandra Day O'Connor's concurring opinion arguing that they violated equal protection.
In National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois and Quill Corp. v. North Dakota, the Court concluded that the Commerce Clause and Due Process Clause of the U.S. Constitution require that there be a nexus between the taxing state and the vendor of goods or services, in the form of a physical presence.
On December 20, 2013, federal judge Robert J. Shelby of the U.S. District Court for Utah struck down Amendment 3 as unconstitutional under the Due Process and Equal Protection clauses of the U.S. Constitution.
In 1987, the District Court determined that laws that treat homosexuals as a class must be reviewed under the federal courts' heightened scrutiny standard because homosexuals are a "quasi-suspect class", noting that Bowers v. Hardwick held that only that "under the due process clause lesbians and gay men have no fundamental right to engage in sodomy".