What is the test for determining whether a person has a fundamental right?

California, United States of America


The following excerpt is from San Benito Foods v. Veneman, 50 Cal.App.4th 1889, 58 Cal.Rptr.2d 571 (Cal. App. 1996):

Exactly which rights are both vested and fundamental has also been further defined by the courts. A license which has already been obtained has been held to be vested, while whether the underlying right is considered fundamental must be considered "from the standpoint of its economic aspect or its effect ... in human terms and the importance ... to the individual in the life situation." (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, 112 Cal.Rptr. 805, 520 P.2d 29, internal quotation marks omitted.) "[T]he crucial question [in determining whether a right is fundamental] is not the actual amount of harm or damage in the particular case but the essential character of the right in human terms. Thus, the critical area of focus is the nature of the right...." (Dickey v. Retirement Board (1976) 16 Cal.3d 745, 751, 129 Cal.Rptr. 289, 548 P.2d 689.)

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