The problem is that most likely a court would say you still have a choice. Ok so that choice may be walk or swim, but it is a choice. right?
I read the opinion and the way I interpret the facts of the case, there are two issues here. the first issue is a contract issue. i.e. between Gilmore and the airlines. This is two private entities who are free to contract as they will. The second issue is the government regulation of the private entites.
With regards to the first issue. Any airline can make any rule they want with regards to the contract, so long as those rules are in effect at the time of the contract. If the airlines want to see photo ID when you check in then that is the airlines right. It may be for revenue protection or it could be for security reasons it doesn't matter. The airline is free to have what ever rules it wants in place, and the customer is free to decide if they want to contract with the airline based on these rules. Private contracts are not subject to constitutional challenges, unless the private individual is acting for the government or is violating the "civil rights" of the customer. (In otherwords refusing the carry the person based on a protected category.) From this grounds the ID requirement is fine.
The second issue is the government requiring an ID to use a private carrier or access a public building. This issue is where there is a constitutional challenge, that may or may not be sucessful. Currently, I can get through an entire airport without anyone from the airline I am flying every actually seeing my ID. However, the government requires ID to access the security checkpoint. (Well you still don't need ID you just get SSSS). Currently, every person is entitled to a right to privacy. However, SCOTUS has been slowly eroding the full right to privacy. We have to provide our name when asked by the police or other law enforcement, but up to now we have not been required to show ID. There is no current requirement in the US that you have an ID. However, having one does make your life simplier. If the Gilmore case does go to SCOTUS, the issue will turn on 2 issues. 1) does congress have the right to regulate the activity, and 2) Does the regulation unreasonably interfere with constitutional gaurentees? I think most likely the SCOTUS would rule against Gilmore on appeal for the following reasons.
1. Congress has the express power to regulate interstate commerce. Congress has the implied power to regulate intrastate commerce, when the intrastate commerce effects interstate commerce. If we look back at the depression era cases, such as Wickerd v. Filborne, the SCOTUS ruled that the simple act of growing food for yourself in your garden effected interstate commerce so that it could be regulated by the FEDs, it is more than likely the SCOTUS would rule that even a flight entirely within the state of CA would be under the control of the commerce clause. Thus congress has the power to develop regualtion in this area
2) is the ID requirement reasonable to meet the stated governmental purpose? This is the tougher question. The court would have to look to the alternatives available to Gilmore and if any of those alternatives are reasonable. This court has given reasonable a wider definition than many of us would deam reasonable, but that is the way it is now. Most likely the court would rule that Gilmore, could use several modes of transportation to get where he wanted, where the government regulation requiring an ID is not present. Currently, the federal government does not require an ID to ride the bus, take a train, walk, ride your bicycle, or ride in a car as a passenger. The court would then rule that Gilmore has the option of these modes of transportation. While these may be more expensive, less convientient or even take significantly longer none of them are per se unreasonable. Thus the regulation would most likely pass this muster as well.
I guess what I am saying, is while I don't necessarily agree with having to show ID to go places by air, I cannot say this ruling is legally and constitutionally wrong.
Where I would like to see the challenge is access to a government building, that one needs to access and there are no alternatives available. The one I can think of is accessing a DMV.
Just had a second thought that may work on this case, but not likely. If I was Gilmore's attorney, I would go for the arguement that not requiring all passengers to have ID is the fatal flaw. In particular, children under a certain age get a free pass without an ID. It is possible to get a government ID for a child, therefore, allowing children through without ID is creating a different category of person and is not providing equal protection under the law. Further by exempting children congress is failing to meet the stated goal. Therefore the imposition is not narrowly tailored to meet the goal. The problem with this arguement is that it is easily fixable by Congress, and we won't like the fix.
Please keep in mind I have been writing patent applications all day so I may not make a whole lot of sense here.
