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Introduction: The Reconstruction Amendments

and the Incorporation of the Bill of Rights:


Individual Rights: From the Founding Through Reconstruction:
1. Ratification of the Bill of Rights
a. Created: 1789
Ratified: 1791
b. Barron v. Baltimore: The Court held that the Bill of Rights was a
restriction of federal actions, not state and local conduct.
2. The Reconstruction Amendments
3. Slaughterhouse Cases (1873): 5 years after the 14th's ratification
a. LA legislature gave a monopoly in the livestock landing and the
slaughterhouse business for New Orleans to the Crescent City Livestock
Landing and Slaughter-House Company. The law required that the
company allow any person to slaughter animals in the slaughterhouse for
a fixed fee.
b. Butchers brought suit: argued that the law impermissibly violated their
right to practice their trade. Invoked the Bill of Rights. Argued that the
restriction created involuntary servitude, deprived them of their property
w/o due process of law, denied them equal protection of the laws, and
abridged their privileges or immunities as citizens
c. Holding: Court said the purpose of the 13th and 14th Amendments was
solely to protect former slaves and thus interpreted each provision
narrowly and solely to achieve this limited goal. Court held that the
privileges or immunities clause was not meant to protect individuals
from state government actions and was not meant to be a basis for
federal courts to invalidate state laws.
i. Why? They found this to be too extreme of a reading of the
amendment to the limitation of States and thus wouldnt accept it.
The Court believed it was the states job to protect the privileges
and immunities of its citizens, not the federal governments.
ii. Senator Howard, Wilson, and Bingham said the exact opposite in
their speeches before the US Senate in 1866/69/71. see moodle
attachment
iii. All of these narrow interpretations were subsequently overruled,
except for the privileges or immunities clause. ie Court said equal
protection clause only applied to Blacks; overruled in the 1960s.
iv. What the Court thought "privileges" and "immunities" were:
right to come to the seat of the government to assert any claim he
may have upon that government, to transact any business he may
have with it, to seek its protections, to share its offices, to engage in
administering its functions, of free access to its seaports and courts
of justice in the several States, to demand the care and protections
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of the federal government when on the high seas or within the


jurisdiction of a foreign government.
1. Justice Field Dissent: All of these rights existed before the
PoI clause was adopted, thus this was an interpretation in a
manner to rob it of all meaning.
d. Present Context: The PoI clause was rendered a nullity by the
Slaughterhouse Cases and its has been ever since. It was dead on arrival.
Justice Thomas urged its revival in McDonald v. City of Chicago.
4. Saenz v. Roe (1999): Revival of the PoI
a. California law limited welfare benefits for new residents in the state to the
level of the state that they moved from for their year of residence.
b. Holding: Justice Stevens held that prior decisions clearly established that
the right to travel is a fundamental right. He explained that one aspect of
this is the right of new residents to be treated the same as longer term
residents of a state, and he said that this aspect of the right to travel is
protected by the PoI clause of the 14th.
i. State counterargument: State said it was justified in restricting
welfare benefits for new residents to avoid Cali being a magnet for
those moving to the state solely to collect its higher welfare
benefits.
1. Court rejects:
a. 1: studies show this to be a very small amount of
people, not large enough to justify a burden on those
who had no such motive.
b. 2: Cali has said to the Court that the legislation was
not enacted for any such reason
c. 3: even if it were, such a purpose would be
unequivocally impermissible.
c. Rehnquist Dissent, joined by Thomas:
d. Thomas Dissent, joined by Rehnquist: Thomas is open to reevaluating
the meaning of the PoI clause but in the appropriate case. He thinks the
majority attributes a meaning to the PoI clause that likely was unintended
when the 14th was enacted and ratified. PoI entails fundamental rights
beyond every public benefit established by positive law. He doesnt want
the PoI clause to become a tool for inventing new rights by whomever
happens to be on the Court at that time.
i. he did take this up in his concurrence in McDonald.
e. Present Context: The use of this dead clause could possibly open up the
PoI clause to protect fundamental rights beyond the right to travel.
Probably not though b/c in McDonald the court rejected using it to apply
the Bill of Rights to the States, saying there's jurisprudence to just do it
with the Due Process clause.
"Substantive Due Process" and the Incorporation Debate:
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1. Incorporation Debate:
a. Once the Court found that the due process clause of the 14th protected
fundamental rights from state infringement, there was a major debate over
which liberties are safeguarded
i. Total Incorporationists: believed that all of the Bill of Rights should
be deemed to be included in the due process clause
1. eg Justices Black and Douglas
ii. Selective Incorporationists:believed that only some of the Bill of
Rights were sufficiently fundamental to apply to state and loval
governments.
1. Cardozo said that due process clause included "principles of
justice so rooted in the tradition and conscience of our
people as to be ranked as fundamental" and that were
therefore "implicit in the concept of ordered liberty." Palko
b. The Debate revolved around 3 Issues:
i. History: Whether the framers of the 14th intended for it to apply the
Bill of Rights to the states
1. Adamson v. California: Note Case
a. Prosecution commented on the Adamson's failure to
take the stand at his trial in his murder conviction;
claimed this violated the 14th through its incorporation
of the 5th's self-incrimination privilege. Majority
followed Cardozo in Palko saying the 14th doesnt
incorporate all of the Bill of Rights and this is not a
fundamental right to be incorporated.
b. Justice Black Dissent: "My study of the historical
events that culminated in the 14th Amendment
persuades me that one of the chief objects [of] the
first section was to make the Bill of Rights,
applicable to the states." He believed through the PoI
clause.
2. Historical debate is unresolved b/c there were some who
ratified thinking it would and some who wouldnt. Multiple
intents
ii. Federalism: Applying the BoR to the states imposes a substantial
set of restrictions on state and local governments
1. Total: federalism is not a sufficient reason for tolerating
violations of fundamental fairness.
a. History shows that there are instances where states
and state courts will not adequately protect rights;
safeguarding precious liberties shouldnt rest on faith
in the states.
2. Selective: the desirability of preserving state and local
government autonomy by freeing them from the application
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of the Bill of Rights. States on their own are capable of


advancing individual rights.
iii. Appropriate Judicial Role
2. Duncan v. Louisiana (1968): Current Law
a. Facts: Duncan convicted of battery and sought trial by jury but LA only
gives that for capital punishment or hard labor punishment possibilities so
he was convicted and sentenced with the request denied. Argued the right
to jury trial is imposed against the states by the 14th's incorporation of the
6th's guarantees.
b. Holding: Court agrees. 6th's right to jury trial in criminal cases is a
fundamental right.
c. Rule: The Court summarized the formulations in deciding whether a
provision of the BoR is incorporated: "The question has been asked
whether a right is among those 'fundamental principles of liberty and
justice which lie at the base of all our civil and political institutions,'
whether it is 'basic in our system of jurisprudence,' and whether it is a
'fundamental right, essential to a fair trial.'"
d. Justice Harlan Dissent, Stewart joining:
Right to Bear Arms:
1. History:
a. US v. Cruikshank (1876): Court, interpreting the Amendment narrowly in
light of its preamble, declined to enforce the Amendment to protect gun
possession or use unconnected to military purposes. Also, 2nd only
applies to the federal government.
b. US v. Miller (1939): Court upheld a conviction under the National
Firearms Act, holding that the regulated weapons lacked any "reasonable
relationship to the preservation or efficiency of a well regulated militia."
3. D.C. v. Heller (2008): Note Case
a. From 1791 when the 2nd was adopted until 2008, the Court never found any law
to violated this provision. The Court viewed the 2nd as protecting a right to have
guns for the purpose of militia service.

b. Facts: The case concerned the constitutionality of a 32 year old DC ordinance


that prohibited possession of handguns and imposed significant restrictions on
long guns. Handguns were effectively banned the possession of handguns. The
Court invalidated the ordinance as violating the 2nd in a 5-4 decision.

c. Holding:The 2nd is not limited to this and ruled that it protects an individual right
to have guns for personal safety, especially in the home. DC, of course, is a part
of the federal government so the Court has no occasion to consider whether the
2nd applies to state and local governments. (see McDonald)

i. Textual Analysis: 2nd has two parts:

1. Prefatory Clause: "A well regulated Militia, being necessary to the


security of a free State,"

2. Operative Clause: "the right of the people to keep and bear Arms,
shall not be infringed."

a. "right of the people" creates an presumption that this is an


individual right, not a collective right. Dont need to
participate in a structured military organization.

b. "keep and bear Arms" applies to weapons not specifically


designed for military use

3. (x) The prefatory clause does not limit the operative clause
grammatically, but rather announces a purpose

ii. Historical Analysis: 2nd was a response to abuses by the King in the
Revolutionary period.

1. State constitutional provisions prior to the 2nd's ratification


showed an individual right to bear arms for defensive purposes

2. Postratification commentary, pre-Civil War cases, post-Civil War


legislation and cases all confirm that the 2nd was not meant to be
limited to a right to have firearms for militia service.

iii. Caveat: Individual right to keep and bear arms isn't unlimited
1. Longstanding laws prohibiting the possession of firearms by felons
and mentally ill, carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms are fine.

2. Scalia didnt define the scope, as he stated.


d. Stevens Dissent, joined by Souter, Ginsburg, and Breyer: The conclusion
that the 2nd protects an individual right doesnt tell us anything about the scope
of that right.

i. Guns can be used to hunt, for self defense, to commit crimes, for sporting
activities, and to perform military duties. Obviously can't use a gun to
commit crimes, the question before the court is if the 2nd protects the
right to possess and use guns for nonmilitary purposes like hunting and
personal self-defense

ii. Purpose: 2nd was adopted to protect the right of the people of the States
to maintain a well regulated militia, not to limit any legislature's authority
to regulate private civilian uses of firearms.

iii. Historical Background: 2nd was a response to the power of Congress to


disarm the State militias and create a national standing army, posing an
intolerable threat to the sovereignty of the States.
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iv. Jurisprudence: Miller held the 2nd protects the right to keep and bear
arms for certain military purposes, but that it doesnt curtail the
legislature's power to regulate the nonmilitary use and ownership of
weapons

e. Breyer Dissent, joined by Stevens, Souter, and Ginsburg: A reasonableness


test should be used for the 2nd

i. 2nd doesnt protect an individual right, but even if it did, the DC law would
survive scrutiny. In balancing the interests of the presence of handguns in
high crime urban areas, the DC ordinance represents a permissible
legislative response to a serious, indeed life-threatening, problem and is
tailed to that problem b/c it concerns one class of weapon, handguns,
leaving residents free to possess shotguns and rifles.

1. The DC ordinance was reasonable in light of the problem of


handgun violence in the US. DC is more knowledgeable about DC
problems than the Court, so the Court should be more deferential
to DC legislature.

ii. No evidence the Framers viewed handguns as central to the 2nd or that
they would have extended the Amendment to the right to keep loaded
handguns in homes to confront intruders in urban settings.

f. Present Context: What level of scrutiny should be used for this right? Scalia
wasnt clear, just said more than rational basis.

4. McDonald v. City of Chicago (2010): 2 years after Heller


a. Court held that the 2nd is incorporated and applies to state and local
governments. Alito's plurality opinion, joined by Roberts, Scalia, and
Kennedy, did so through the due process clause of the 14th, while
Thomas, concurring in the judgment, used the PoI clause.
b. Facts: Chicago and Oak Park, Ill. adopted ordinances banning the
possession of handguns. Chicago made is so can only possess a
handgun if registered but prohibited registration of most handguns,
effectively banning them.
c. Holding: 5-4. 4-1 found that the 2nd is incorporated into the due process
clause of the 14th. Alito carefully reviewed the history of the application of
the Bill of Rights to the states and how almost all of its provisions have
been found to apply to state and local governments through the process of
incorporation. The plurality concluded that the 2nd was likewise a right
that should be found to apply to state and local governments through
incorporation into the due process clause.
i. Fundamentality Analysis: For the 2nd to be incorporated in the
concept of due process it must be fundamental to our scheme of
ordered liberty (Duncan) or deeply rooted in this Nation's history
and tradition.
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1. Heller held that self defense is the central component of the


2nd and self defense is a basic right recognized throughout
time and many countries. (basic = fundamental?)
a. How far can one "zoom out" to make a right
fundamental?
2. Historical Analysis:
a. Blackstone stated in 1765 that the right to keep and
bear arms was one of the fundamental rights of
Englishmen, as it was in the 1689 English Bill of
Rights for self defense. This notion carried over to the
American colonists and the Framers. Many States
made the adoption of the Bill of Rights a condition to
ratification to protect such rights from infringement by
the Federal government.
b. Civil Rights Act of 1866 explicitly included this right to
stop Southern states from taking it away from Blacks,
referencing debates over the 14th calling the right
fundamental.
3. Chicago Argue: If you can imagine another country w/o the
right, it is not fundamental to a scheme of ordered liberty,
and there are many countries that dont recognize a right to
keep and bear arms, so this right is not fundamental.
a. Court dismisses. If true, we are the only civilized
society with our deeming fundamental rights such as
right to jury trial.
ii. Caveat: This is not an absolute right, as stated in Heller
1. Court emphasized it had found a right to have firearms in
one's home for the purpose of personal safety.
2. Government can regulate where one and who can have
firearms.
d. Justice Thomas Concurrence: He would find that the 2nd applies to
state and local governments through the PoI clause of the 14th. Alito
rejected this and relied solely on due process.
i. The right to keep and bear arms is a privilege of American
citizenship that applies to the States through the 14th's PoI clause,
not through a clause that speaks only to "process."
e. Justice Stevens Dissent:
i. Methodology: Originalism and historical analysis are not proper
methods to determine what "liberty" means. Liberty is dynamic, not
meant only to preserve. The judge is meant to interpret the
meaning of the word, not to give its historical definition.
ii. Fundamentality: The right to bear arms is not fundamental b/c:
1. (1) Firearms have a fundamentally ambivalent relationship to
liberty. can defend but also can help hurt.
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2. (2) The right is different in kind from the liberty interest


recognized under the Due Process Clause. Its not critical to
leading a life of autonomy, dignity, or political equality.
(deeply rooted?). Same as Chicago argue.
3. (3) Other civilized societies dont have this right or hold it has
intrinsic to ordered liberty
4. (4) 2nd is different in kind from the other rights in the Bill of
Rights in that it was adopted on States behalves, not
individuals, in protecting them from encroachment by the
Federal government (despite Heller).
5. (5) States have a long history of regulating firearms, even if
the interest is deeply rooted.
6. (6) Federalism should be allowed to flourish here to meet the
needs of varying State circumstances.
f. Justice Breyer Dissent, joined by Ginsburg and Sotomayor:
i. Solely relying on history and originalism is wrong for incorporation,
other factors must be used to determine if a right is sufficiently
fundamental to remove it from the political process in every State.
1. Breyer lists a bunch of factors; 463
2. Private self defense doesnt comprise a necessary part of
the democratic process that the Constitution seeks to
establish.
3. Federalism: Private gun regulation is the quintessential
exercise of a State's "police power."
a. State's know their circumstances better than the
Courts, allow federalism to flourish and experiment.
4. Deference: State legislature's are better at answering
complex empirical based questions required to determine
the constitutionality of state gun laws.
5. Incorporation deprives the decisions from a democratic
process and this doesnt have an offsetting justification.
g. Present Context: Again, what level of scrutiny should be used for 2nd
Amendment challenges?
5. Limited Regulations: Court, both in McDonald and in Heller, only consider laws
effectively banning all possession of handguns. The Court had no occasion to
consider the constitutionality of more limited regulations.

Unit I: "Unenumerated" Rights:


A Right to Privacy?:
1. Meyer v. Nebraska (1923): The Court used the Due Process Clause to nullify a
statute mandating that no student, whether in government or private school, be
taught in any language other than English until after completing the 8th grade.
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a. The D was convicted under this statute for teaching the German language
in a parochial school. The state claimed that this was within its police
power and the Supreme Court of Nebraska agreed.
b. The purpose of the statue was summarized by that court as:
i. "The legislature had seen the baneful effects of permitting
foreigners, who had taken residence in this country, to rear and
educate their children in the language of their native land. The
result of that condition was found to be inimical to our own safety
. The enactment of such a statue comes reasonably within the
police power of the state."
c. Holding: The Court disagreed with the state's claim of power, holding the
this statute "unreasonably infringes the liberty guaranteed to the P in error
by the 14th."
i. This liberty, explained Justice McReynolds, "denotes not merely
freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized
at common law as essential to the orderly pursuit of happiness by
free men."
ii. McReynolds found that the Due Process Clause protected those
"civil rights" or "privileges or immunities" that had been asserted by
the framers of the 14th when speaking of the meaning of the PoI
clause - the interpretation rejected by the 5 judge majority in
Slaughter House.
1. How? "The established doctrine is that this liberty may not
be interfered with, under the guise of protecting the public
interest, by legislative action which is arbitrary or w/o
reasonable relation to some purpose within the competency
of the State to effect." the DPC requires that the legislature
not be the sole judge of such matters, but that any person
whose liberty is abridged has a right to seek redress in a
court of law to determine whether the action of the
legislature exceeds its lawful constitutional power.
"Determination by the Legislature of what constitutes proper
exercise of police power is not final or conclusive but is
subject to supervision by the courts."
iii. Conclusion: The statute exceeded the police power of the state of
Nebraska by finding that the means chosen was unrelated to any
appropriate end.
1. The state claimed that its mandate was issued to promote
civic development by inhibiting training and education of the
immature in foreign tongues and ideals before they could
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learn English and acquire American ideals. The Court


rejected the idea that the state could pursue this end by
means that abridged the "fundamental rights" of "the
individual." In short, "a desirable end cannot be promoted by
prohibited means."
2. Pierce v. Society of Sister (1925): The DPC was used by the Court to strike
down a law mandating that all children attend public - that is, government schools.
a. As in Meyer, the issue for the Court was the relationship of means to ends.
While the court didnt deny the power of the state to regulate schools, in
another opinions by Justice McReynolds, it demanded that the state
establish a legitimate reason to restrict both the liberty of parents to send
their children to private schools as well as the liberty of the schools to
operate.
b. Private educations, explained McReynolds, is "not inherently harmful, but
long regarded as useful and meritorious." The state had shown nothing to
rebut this long-established view. "Certainly there is nothing in the present
records to indicate that they have failed to discharge their obligations to
patrons, students, or the state. And there are no peculiar circumstances or
present emergencies which demand extraordinary measures relative to
primary education."
c. Holding: The Court, as in Meyer, held that due process required
legislatures to establish to the satisfaction of an independent tribunal that
its restrictions on liberty were necessary and proper: "Rights guaranteed
by the Constitution may not be abridged by legislation which has no
reasonable relation to some purpose within the competency of the State."
i. Applied to the statute in Pierce, this principle led to the conclusion
that: "The fundamental theory of liberty upon which all governments
in this Union repose excludes any general power of the state to
standardize its children by forcing them to accept instruction from
public teachers only. The child is not the mere create of the state;
those who nurture him and direct his destiny have the right, coupled
with the high duty, to recognize and prepare him for additional
obligations."
ii. The schools themselves had a right not to be deprived of their
sometimes lucrative business w/o a showing of necessity and
propriety. The business and property of these schools "are
threatened with destruction through the unwarranted compulsion
which appellants are exercising over present and prospective
patrons of their schools. And this court has gone very far to protect
against loss threatened by such action."
3. Overall: Meyer and Pierce found that the "due process of law" included judicial
scrutiny to ensure that a deprivation of life, liberty, or property was within either
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the "police power" of the state or the enumerated powers of the national
government.
a. The Court required states to show that legislation infringing upon the
liberties of the people really was a necessary exercise of the state's police
power - a power that it held, quite extensively, to include the protection of
the health, safety, and morals of the general public. Wouldnt just take their
word for it that some restriction on liberty was necessary to accomplish an
appropriate end.
4. Skinner v. Oklahoma (1942):
a. The Court declared unconstitutional the Oklahoma Habitual Criminal
Sterilization Act that allowed courts to order the sterilization of those
convicted two or more times for crimes involving "moral turpitude."
b. Douglas began by stateing: "This case touches a sensitive and important
area of human rights. Oklahoma deprives certain individuals of a right
which is basic to perpetuation of a race - the right to have offspring."
c. Holding: Court found the law violated equal protection and spoke broadly
of the right to procreate as a fundamental right: "We are dealing here with
legislation which involves one of the basic civil rights of man. Marriage and
procreation are fundamental to the very existence and survival of the race.
The power to sterilize, if exercised, may have subtle, far-reaching and
devastating effects. In evil or reckless hands it can cause races or types
which are inimical to the dominant group to wither and disappear. There is
no redemption for the individual whom the law touches He is forever
deprived of a basic liberty."
d. Conclusion: The right to procreate is deemed a fundamental right, and
any attempt by the government to impose involuntary sterilization has to
meet strict scrutiny.
5. Lochner v. NY (1905): a statue enacted by NY containing a myriad of regulation
on the operations of bakeries - from the ceiling height (8 ft.) to the types of floors
("an impermeable floor constructed of cement, or of tiles laid in cement, or an
additional flooring of wood prperly saturated with linseed oil.") to the fact that the
walls must be whitewashed every 3 months. Only one of the many provisions of
this act was examined by the Court for its constitutionality: a provision making it a
criminal offense to employ a worker for more than 60 hours per week. D Joseph
Lochner was indicted and convicted of this offense and sentenced to a fine of
$50 or 50 days in jail.
a. Issue, as in Meyer and Pierce, was whether this prohibition abridged the
liberty protected by the 14th and exceeded the police power of the state.
b. Holding: The Court found that the statute did indeed infringe upon the
liberty of both employer and employee to make and enforce contracts.
i. "The statute necessarily interferes with the right of contract
between the employer and employees, concerning the number of
hours in which the latter may labor in the bakery of the employer.
The general right to make a contract in relation to his business is
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part of the liberty of the individual protected by the 14th Amendment


of the Federal Constitution."
ii. Justice Peckham wrote: "The right to purchase or to sell labor is
part of the liberty protected by this amendment, unless there are
circumstances which exclude the right."
1. Peckham stated that the police powers of the States "relate
to the safety, health, morals, and general welfare of the
public. Both property and liberty are held on such reasonable
conditions as may be imposed by the governing power of the
state in the exercise of those powers, and with such
conditions the 14th was not designed to interfere." He then
listed many cases in which the Court had upheld restrictions
on the freedom of contract that were legitimate exercises of
police power.
2. The Court couldnt, under the DPC, merely take the
legislature's word that it was acting pursuant to its police
powers. For if such a claim was w/o foundation, it "would be
a mere pretext" and "become another and delusive name for
the supreme sovereignty of the State to be exercised free
from constitutional restraint."
a. If the limitations imposed on state powers by 14th are
to be respected, then the Court must ask: "Is this a
fair, reasonable, and appropriate exercise of the
police power of the State, or is it an unreasonable,
unnecessary, and arbitrary interference with the right
of the individual to his personal liberty or to enter into
those contracts in relation to labor which may seem to
him appropriate or necessary for the support of
himself and his family?" --- Is the statute "within the
police power of the state? and that question must be
answered by the court."
iii. Conclusion: NY loses. The Court found no evidence that bakers
were in peculiar need of assistance to look out for their own
interests, not that this prohibition was necessary to respond to
some health and safety concern affecting the general public and
therefore within the state's police power.
1. Of particular significance was the issue of proof and who
was required to present it. The court viewed this, not as an
issue of judicial supremacy, but as involving a clash between
the rights of an individual and the power of the state. "It is a
question of which of 2 powers or rights shall prevail - the
power of the state to legislate or the right of the individual to
liberty of person and freedom of contract."
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iv. Lochner Doctrine: When the liberty of the individual clashes with
the power of the state, the Court wouldnt accept the "mere
assertion" by a legislature that a statue was necessary and proper.
Instead, it required a showing that a restriction of liberty have a
"direct relation, as a means to an end," and that "the end itself must
be appropriate and legitimate."
1. NY offered no such evidence so they lost.
2. Griswold v. Connecticut (1965): Right to Purchase and Use Contraceptives
a. The Court declared unconstitutional a state law that prohibited the use and
distribution of contraceptives.
b. Facts: A Conn. statute criminalize the use of "any drug, medicinal article
or instrument for the purpose of preventing conception." Conn's statute on
accountability also outlawed the actions of any who "assists, abets,
counsels, causes, hires, or commands another" to commit an offense.
Under both these statues, Estelle Griswold, the executive director of the
Planned Parenthood League of Conn., and C. Lee Buxton, a physician at
the Planned Parenthood clinic, were arrested and charged for prescribing
and distributing contraceptive devices. The law was challenged as
unconstitutional under the 14th and the court sustained the challenge.
i. A Connecticut law said: "Any person who uses any drug, medicinal
article, or instrument for the purpose of preventing conception shall
be fined not less than $50 or imprisoned not less than sixty days
nor more than one year or be both fined and imprisoned." The law
also made it a crime to assist, abet, or counsel a violation of the
law.
c. Holding: Justice Douglas took pains to distance himself from Lochner and
to reaffirm the deferential stance he articulated in Williamson (1). "We do
not sit as a super-legislature," he wrote "to determine the wisdom, need,
and propriety of laws that touch economic problems, business affairs, or
social conditions." Nevertheless the Court, citing with approval the 2
Lochner-era cases Meyer v. Nebraska and Pierce v. Society of Sisters,
found that the statute in question violated the right of privacy, a right not
explicitly enumerated in the Constitution. The right to privacy is a
fundamental right.
i. The Court rejected the argument that the right was protected under
the liberty of the DPC, trying to avoid Lochner. Instead, Douglas
found that privacy was implicit in many of the specific provisions of
the Bill of Rights, such as the 1st, 3rd, 4th, and 5th Amendments.
Douglas declared: "The foregoing cases suggest that specific
guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and
substance. Various guarantees create zones of privacy We have
had many controversies over these penumbral rights of privacy and
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repose. These cases bear witness and that the right of privacy
which presses for recognition here is a legitimate one."
ii. Critique: This doesnt get around substantive due process though
b/c the Bill of Rights is applied to the states through the DPC; the
penumbral approach is thus ultimately a due process analysis.
d. Conclusion: The Conn. law violated the right to privacy in prohibiting
married couples from using contraceptives. Douglas said: "Would we allow
the police to search the sacred precincts of the marital bedrooms for tell
tale signs of the use of contraceptives? The very idea is repulsive to the
notions of privacy surrounding the marriage relationship."
e. Analysis: This unenumerated right to privacy was the first right since
Carolene Products to be protected as fundamental that was not "within a
specific prohibition of the Constitution" - the formulation of Footnote Four.
i. Carolene Product's Footnote Four Theory: The modern theory of
constitutional rights that was to apply to both state and federal
restrictions on liberty: Adopt a loose conception of necessity and
presume all acts of legislatures to be valid, except when an
enumerated right listed in the Bill of Rights is infringed (or when
legislation affects the political process or discrete and insular
minorities), in which even the Court will employ a strict conception
of necessity and put the burden on legislatures to show that their
actions were both necessary and proper.
ii. (1) Williamson articulation: Any restriction on liberty will be upheld if
there is any rational basis for its necessity - unless a "fundamental"
enumerated right is at issue, in which even few statutes will withstand the
"strict scrutiny" of both beams and ends that will then be applied.

iii. Douglas was struggling mightily to reconcile the right of privacy with
the theory of Footnote Four by grounding it, not squarely on the 9th
as urged by Justice Goldberg, but on the "penumbras, formed by
emanations" from the "specific guarantees in the Bill of Rights."
1. Douglas's attempt to shoehorn an unenumerated right of
privacy into the confines of Footnote Four, however, satisfied
no one. Consequently, the right of privacy was controversial
from the start, not b/c it ran afoul of the original meaning of
either the initial Constitution or the 14th, but b/c it violated
the post-New Deal jurisprudence of Footnote Four.
iv. Griswold represents a repudiation of the purified Footnote Four. No
longer would the liberty rights that justify reversing the presumption
of constitutionality be strictly limited to those that are specifically
enumerated. Under what we might call Footnote Four-Plus, some
judicially favored unenumerated rights could also be used to shift
the burden to the government to justify its restrictions on liberty.
3. Eisenstadt v. Baird (1972):

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a. The Court declared unconstitutional a Mass. law that prohibited


distributing contraceptives to unmarried individuals and that only allowed
physicians to distribute them to married persons.
b. Facts: An individual was convicted for giving a woman a package of
contraceptive foam at the completion of a lecture on birth control at Boston
University.
c. Holding: The Court found that the Mass. law denied equal protection b/c it
discriminated against non-married individuals.
i. Justice Brennan stated: "if the right of privacy means anything, it is
the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child."
ii. Court said prohibiting the distribution of contraceptives served no
legitimate government purpose. Brennan remarked that "it would be
plainly unreasonable to assume that Mass. has prescribed
pregnancy and the birth of an unwanted child as punishment for
fornication." Nor could prohibiting distribution of contraceptives be
defended as a health measure.
d. Context: Eisenstadt expands on Griswold in recognizing a right to control
reproduction as a fundamental right. Eisenstadt also is significant in
recognizing a right for unmarrieds, as well as marrieds, and in protecting a
right to distribution contraceptives as well as to use them.
4. Carey v. Population Services, International (1977): After Roe
a. The Court declared unconstitutional a NY law that made it a crime to sell
or distribute contraceptives to minors under age 16; for anyone other than
a licensed pharmacist to distribute contraceptives to persons over age 15;
and for anyone to advertise or display contraceptives.
b. Holding: The Court reviewed the cases concerning family and
procreational autonomy and said that "the decisions whether or not to
beget or bear a child is at the very heart of this cluster of constitutionally
protected choices."
i. The Court thus said that strict scrutiny must be met for the
government to justify a law restricting access to contraceptives.
ii. Brennan, writing for the Court, said: "'Compelling' is of course the
key word; where a decision as fundamental as that whether to bear
or beget a child is involved, regulations imposing a burden on it
may be justified only by compelling state interests, and must be
narrowly drawn to express only those interests."
c. Conclusion: The Court found that limiting distribution of contraceptives to
licensed pharmacists unduly restricted access to birth control and
infringed on the right to control procreation. Additionally, the Court found
that the law violated the rights of those under age 16 to have access to
contraceptives.
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i. The Court explained: "Since the State may not impose a blanket
prohibition, or even a blanket requirement of parental consent, on
the choice of a minor to terminate her pregnancy, the
constitutionality of a blanket prohibition of the distribution of
contraceptives to a minor is a fortiori foreclosed."
ii. The Court doubted that prohibiting distribution of contraceptives
would deter teenage sexual activity and, in any event, though it
irrational that the state would want an unwanted pregnancy to be
the punishment for fornication.
d. Context: Ultimately, cases such as Eisenstadt and Carey, and Griswold
before them, force attention to the basic question of how the Court should
interpret the Constitution. These decisions reflect the Court's judgment
that a basic right, such as the ability to control procreation, is
constitutionally protected even though it is nowhere mentioned in the text
of the Constitution and was not considered by its framers. Little is more
basic to autonomy than the decision of whether to become a parent. The
Court's critics maintain that the absence of such a right in the text or the
framers' intent means that the entire matter should be left to the
legislature.
Abortion:
1. Roe v. Wade (1973):
a. Facts: A challenge to a Texas law that prohibited all abortions except
those necessary to save the life of the mother
b. Holding: 7-2 Justice Blackmun focused on the right to privacy. After
reviewing earlier cases dealing with family and reproductive autonomy,
Blackmun concluded: "This right of privacy, whether it be founded in the
14th Amendment's conception of personal liberty and restrictions upon
state action, as we feel it is, or, in the 9th Amendment's reservation of
rights to the people, is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy."
i. Didnt find privacy, as Douglas did in Griswold, in the penumbra of
the Bill of Rights, but instead as part of the liberty protected under
the DPC.
c. Why does prohibiting abortion infringe on a woman's right to
privacy?
i. "maternity, or additional offspring, may force upon the woman a
distressful life and future. Psychological harm may be imminent.
Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted
child."
ii. Forcing a woman to continue a pregnancy against her will obviously
imposes enormous physical and psychological burdens.
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d. Are fetuses persons?


i. Court rejected the state's claim that fetuses are persons and that
there was a compelling interest in protecting potential life.
1. The Court observed that there was no indication that the
term "person" in the Constitution ever was meant to include
fetuses
2. Court noted that there was no consensus as to when human
personhood begins, but rather enormous disagreement
among various religions and philosophies; its not the
judiciary's role to speculate as to the answer.
e. Caveat: The right to abortion is not absolute
i. This right must be balanced against other considerations, such as
the state's interest in protecting "prenatal life."
1. In balancing the competing interests, the Court said the state
had a "compelling interest" in protecting maternal health
after the first trimester b/c it was then that abortions became
more dangerous than childbirth.
2. "Wro the State's important and legitimate interest in potential
life, the 'compelling' point is at viability. This is so b/c the
fetus then presumably has the capability of meaningful life
outside the mother's womb."
3. Court divided pregnancy into 3 trimesters:
a. During the 1st trimester, the govt couldnt prohibit
abortions and could regulate abortions only as it
regulated other medical procedures, such as by
requiring that they be performed by a licensed
physician.
b. During the 2nd trimester, the government also
couldnt not outlaw abortions, but he government
"may, if it chooses, regulate the abortion procedure in
ways that are reasonably related to maternal health.
c. For the stage subsequent to viability, the
government may prohibit abortions except if
necessary to preserve the life or health of the mother
ii. Level of Review: strict scrutiny is to be used in striking the balance
b/c the right to abortion is a fundamental right.
1. Where fundamental rights are involved, regulation limiting
these rights may be justified only by a compelling state
interest and legislative enactments must be narrowly drawn
to express only legitimate state interests at stake.
f. Justice White Dissent, joined by Rehnquist: "As an exercise of raw
judicial power, the Court perhaps has the authority to do what is does
today; but in my view its judgment is an improvident and extravagant
exercise of the power of judicial review."
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i. White said that the issue "should be left with the people and to the
political processes the people have devised to govern their affairs."
g. Justice Rehnquist Dissent:
i. The Court's sweeping invalidation of any restriction on abortion
during the 1st trimester is impossible to justify under the test laid
out in Lee Optical: whether or not a law such as that challenged
has a rational relation to a valid state objective.
ii. Adopting a compelling state interest standard will require the court
to pass on the wisdom of the policies of state legislature in deciding
whether a particular state interest put forward may or may not be
"compelling."
2. Maher v. Roe (1977)
3. Planned Parenthood of Southeastern Pa. v. Casey (1992):
a. Facts: Penn. law regulated abortion by creating a 24-hour waiting period
for abortions, requiring physicians to inform women of the availability of
information about the fetus, requiring parental consent for unmarried
minors' abortions, creating requirements for reporting and record keeping,
and requiring spousal notification before abortions.
i. O'Connor previously said that the Court shouldnt reevaluate Roe
until the Court reviewed a law prohibiting abortion. This law doesnt
not prohibit abortion, but all of the Justices reconsidered Roe here.
b. Holding: The law was stricken. The Court reaffirmed that states cannot
prohibit abortion prior to viability. The joint opinion said that the right to
abortion is constitutionally protected b/c of the importance of the choice
and the intrusion in forcing a woman to remain pregnant against her will.
i. However, the plurality opinion by O'Connor, Kennedy, and Souter
overruled the trimester distinctions used in Roe and also the use of
strict scrutiny for evaluating government regulation of abortions.
Instead, the plurality said that government regulation of
abortions prior to viability should be allowed unless there is
an "undue burden" on access to abortion.
ii. Blackmun and Stevens concurred and would have reaffirmed the
trimester distinctions and the use of strict scrutiny.
Marriage, Family Relationships, and Sexuality:
1. Michael H. v. Gerald D. (1989):
a. The Court held that even an unmarried father who participated actively in
the child's life is not entitled to due process if the mother was married to
someone else. Specifically, the Court ruled that a state may create an
irrebuttable presumption that a married woman's husband is the father of
her child even though it negates all of the biological father's rights.
b. Facts: a married woman conceived a child as a result of an affair. The bio
father was regularly involved in the child's life and sought a court order
granting visitation rights. California law, however, created a presumption
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that a married woman's husband is the father of her child if they were
cohabiting and if the husband is not impotent or sterile. The California law
allowed this presumption to be rebutted only within 2 years after the child's
birth and only if the husband or wife filed a motion in court. The Cali court
relied on this statue to deny the biological father of ll parental rights,
including visitation.
c. Holding: 5-4 held this was constitutional
i. Court said that the biological father didnt have a liberty interest in a
relationship with his child b/c there was no tradition of protecting the
father's rights when the mother is married to someone else.
ii. Scalia, writing for the plurality, remarked: "What counts is whether
the States in fact award substantive parental rights to the natural
father of a child conceived within, and born into, an extant marital
union that wishes to embrace the child. We are not aware of a
single case, old or new, that has done so. This is not the stuff of
which fundamental rights qualifying as liberty interests are made.
iii. Scalia, for himself and Rehnquist, said that the Court should protect
rights under the due process clause only if there is a tradition,
stated at the most specific level of abstraction, for safeguarding the
liberty.
1. His point was that the general tradition of protecting an
unmarried father's rights was irrelevant b/c there was not a
specific tradition of protecting unmarried fathers when the
child was conceived as a result of an adulterous relationship.
iv. Stevens wrote separately to say that he would not foreclose "the
possibility that a natural father might ever have a constitutionally
protected interst in his relationship with a child whose mother was
married to, and cohabitating with, another man at the time of the
child's conception and birth." Stevens upheld the California law and
the denial of custody here b/c the state offered a procedure
whereby the biological father could have established paternity and
preserved his rights.
v. Brennan Dissent: He disagreed with both the majority's
conclusions and its reasoning. He emphasized the Constitution's
protections for parents' rights to custody of the children, including
rights of unmarried fathers. He explained that in a diverse society
parental rights might arise in a wide variety of different types of
family arrangements: "in construing the 14th Amendment to offer
shelter only to those interests specifically protected by historical
practice the plurality ignores the kind of society in which our
Constitution exists. We are not an assimilative, homogenous
society, but a facilitative, pluralistic one, in which we must be willing

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to abide some else's unfamiliar or even repellant practice b/c the


same tolerant impulse protects our own idiosyncrasies."
1. Brennan's point was that family rights should not be narrowly
definied as existing only within certain types of families and
that the Court should not restrictvely define traditions in
determining the scope of constitutional rights
d. Context: The opinions directly focused on the basic question of how the
Court should decide the content of fundamental rights: Is tradition
determinative and, if so, must it be a tradition stated at the most specific
level of abstraction?
e. Context/Significance: Who should be deemed to have a constitutionally
protected interest in a relationship with a child?
i. The plurality believed that society's interest in protecting the family
requires that only the 2 individuals deemed by law to be parents
should have constitutionally safeguarded rights concerning the
children. But in contemporary society, many individuals might have
a relationship with a child: biological parents, stepparents,
grandparents, foster parents, and so on. The issue is whether the
Court should recognize and protect these interests under the
Constitution.
2. Bowers v. Hardwick (1986):
a. Court ruled that the right to privacy doesnt protect a right to engage in
private consensual homosexual activity.
b. Facts: Michael Hardwick was arrested for engaging in homosexual activity
in his bedroom. A police officer came to his apartment on a totally
unrelated matter. A roommate answered the door and directed the officer
to Hardwick's room. The officer said that he witnessed the homosexual
behavior and arrested Hardwick for violating the Georgia sodomy law that
provided: "A person commits the offense of sodomy when he performs or
submits to any sexual act involving the sex organs of one person and the
mouth or anus of another .A person convicted of the offense of sodomy
shall be punished by imprisonment for not less than one nor more than 20
years." After a preliminary hearing, the district attorney decided not to
present the case to the grand jury or pursue criminal charges. Hardwick,
however, filed a suit in federal court challenging the constitutionality of the
Georgia law.
c. Holding: 5-4 upheld the Georgia statute.
i. White, joined by Burger, Rehnquist, Powell, and O'Connor, began
by contending that the earlier decisions protecting privacy pertained
to matters of family and reproduction; homosexual activity, he
argued, did not fit within these rights. He wrote: "We think that
none of the rights announced in those cases bears any
resemblance to the claimed constitutional right of homosexuals to
engage in acts of sodomy that is asserted in this case. No
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connection between family, marriage, or procreation on the one


hand and homosexual activity on the other has been
demonstrated."
ii. White said the Court should protect rights as fundamental only if
they are supported by the Constitution's text, the framers' intent, or
a tradition of being safeguarded. He said: "The Court is most
vulnerable and comes nearest to illegitimacy when it deals with
judge-made constitutional law having little or no cognizable roots in
the language or design of the Constitution."
1. White said that neither the text nor tradition justified finding a
fundamental right to engage in homosexual activity.
3. Lawrence v. Texas (2003):
a. The Court expressly overruled Bowers. Court held that states may not
prohibit private consensual sexual activity between consenting adults of
the same sex. It reaffirms constitutional protection for privacy and applying
it to private, consensual homosexual activity.
b. Facts: Police in Texas received an anonymous tip of a disturbance in an
apartment. They went to investigate and entered the apartment; they
found 2 men engaged in sexual activity. The men were convicted and
fined $200 under a Texas law prohibiting "deviate sexual intercourse,"
defined as sexual activity between same-sex couples.
c. Holding: Kennedy expressly overruled Bowers and spoke of constitutional
protection for all individuals in the most intimate and private aspects of
their lives and in the most private place, their home.
i. The Court didnt articulate the level of scrutiny to be used.
1. However, the Court did rely on privacy cases where strict
scrutiny had been used. Also, Texas justified the law as
advancing its moral judgment and traditionally this is enough
to meet rational basis review. The Court's rejection of this
can be seen as implying heightened scrutiny. But the silence
of the decision about the level of scrutiny leaves this issue
open until the Court returns to it and offers needed
clarification.
d. Significance:
i. (1) Lawrence means that laws in 13 states prohibiting private
consensual homosexual activity are unconstitutional. As Kennedy
pointed out, these statues often are the basis for discrimination
against gays and lesbians.
ii. (2) This is a powerful affirmation of a right to privacy under the
Constitution. Kennedy's majority opinion emphasized that the Court
has safeguarded privacy, even though it is not enumerated in the
Constitution, for almost a century in decisions involving family
autonomy, contraception, and abortion.

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iii. (3) More than any other case in American history, recognizes that
sexual activity is a fundamental aspect of personhood and that it is
entiteld to constitutional protection.
1. Scalia Dissent: He objected that the Court's decision would
put in jeopardy laws prohibiting, among other activities,
"adultery" and "masturbation."
iv. (4) Lawrence is the most important decision up till this date
recognizing the rights of gays and lesbians to equal dignity and
equal treatment under the Constitution.
4. Obergefell v. Hodges (2015):
a. Facts: James Obergefell and John Arthur got married in Baltimore. Arthur
got ALS and died 3 months later. Ohio law doesnt permit Obergefell to be
listed as the surviving spouse on Arthur's death certificate, which he
deems "hurtful for the rest of time."
b. Swivlaky - marriage is a fundamental right
Death:
1. Cruzan v. Director, Missouri Dept. of Health (1990): The right to refuse
medical care
a. Facts: Nancy Cruzan suffered severe head injuries in an auto accident
and was in a persistent vegetative state. There was virtually no chance of
her regaining consciousness. Her parents wished to terminate food and
hydration and thus to end her life. The state intervened to prevent this.
b. Holding:
i. (1) Competent adults have a constitutional right to refuse medical
care
1. All but Scalia recognized this right
2. Rehnquist stated: "The principle that a competent person
has a constitutionally protected liberty interest in refusing
unwanted medical treatment may be inferred from our prior
decisions."
3. "For purposes of this case, we assume that the US
Constitution would grant a competent person a
constitutionally protected right to refuse lifesaving hydration
and nutrition."
a. Although the majority opinion only "assumed" that
there was a right to refuse food and water to bring
about death, 5 Justices said that such a right exists
(O'Connor concurring and the 4 dissenters).
4. 8 justices said that there is a right to refuse treatment under
the liberty of the DPC, and 5 expressly said that this includes
a right to refuse food and water to bring about death. Only
Scalia expressly rejected such a right
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a. Scalia said: "I would have preferred that we


announce, clearly and promptly, that the federal
courts have no business in this field; that American
law has always accorded the State the power to
prevent, by force if necessary, suicide - including
suicide by refusing to take appropriate measures
necessary to preserve one's life."
ii. (2) A state may require clear and convincing evidence that a person
wanted treatment terminated before it is cut off.
1. Majority acknowledged the state's important interest in
protecting life and in ensuring that a person desired the end
of treatment before it is suspended. He said that "the choice
between life and death is a deeply personal decision of
obvious and overwhelming finality. We believe Missouri may
legitimately seek to safeguard the personal elements of this
choice through the imposition of heightened evidentiary
requirements."
iii. (3) A state may prevent family members from terminating treatment
for another
1. The right to end treatment belongs to each individual, and a
state may prevent someone else from making the decision.
Rehnquist said: "We do not think that the DPC requires the
State to repose judgment on these matters with anyone but
the patient herself There is no automatic ensurance that
the view of close family members will necessarily be the
same as the patient's would have been had she been
confronted with the prospect of her situation while
competent."
2. Family members may be in a conflict of interest situation;
they may choose to terminate care to minimize their own
emotional or financial burdens Hence the Court said that "the
State may choose to defer only to the wishes of the patient,
rather than confide the decision to close family members."
c. The Court left unanswered questions:
i. (1) No articulation of a level of scrutiny to be used in evaluating
government regulation of personal decisions concerning refusal of
medical treatment
1. Majority recognized such a right to exist, it did not use the
label "fundamental" or imply that strict scrutiny was
appropriate. Court just didnt say.
ii. (2) Court didnt resolve what is sufficient to constitute clear and
convincing proof of a person's desire to terminate treatment
1. Most states limit the use of "oral testimony entirely in
determining the wishes of parties in transaction which, while
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important, simply do not have the consequences that a


decision to terminate a person's life does." This implies that
a written "living will" would be sufficient to meet the clear and
convincing test, but that a state can entirely prevent oral
testimony
iii. (3) The Court doesnt address the situation where a competent
person designates a surrogate or guardian to make the decision
concerning terminating life-saving treatment.
1. Rehnquist states in a footnote: "We are not faced in this
case with the question whether a State might be required to
defer to the decision of a surrogate if competent and
probative evidence established that the patient herself had
expressed a desire that the decision to terminate lifesustaining treatment be made for her by that individual."
2. Washington v. Glucksberg (1997):
a. Facts: 9th circuit found that terminally ill individuals have a fundamental
liberty interest, protected under the DPC of the 14th, to physician-assisted
death. The 9th declared unconstitutional a Washington law that "a person
is guilty of promoting a suicide attempt when he knowingly causes or aids
another person to commit suicide." The court concluded that "the
Constitution encompasses a due process liberty interest in controlling the
time and manner of one's death - that there is, in short, a constitutionally
recognized 'right to die.'"
b. Holding: The Court rejected the claim that the Washington law prohibiting
assisted suicide violated a fundamental right protected under the DPC.
i. Rehnquist began by observing that a right is protected as
fundamental under the DPC only when supported by history or
tradition; "for over 700 years, the Anglo-American common-law
tradition has punished or otherwise disapproved of both suicide and
attempting suicide."
ii. Rehnquist noted that "in almost every State - indeed, in almost
every western democracy - it is a crime to assist suicide." "Despite
changes in medical technology and notwithstanding an increased
emphasis on the importance of end-of-life decision-making, we
have not retreated from this prohibition of assisting suicide."
1. Court concluded that "to hold for respondents, we would
have to reverse centuries of legal doctrine and practice, and
strike down the considered policy choice of almost every
state."
c. Conclusion: B/c the Court determined that "the asserted 'right' to
assistance in committing suicide is not a fundamental liberty interest
protected by the DPC," the Washington law was to be upheld so long as it
met a rational basis test.
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i. The Court found that the law reasonably served many legitimate
interests. For example, that the state has important interests in the
preservation of life, in protecting the integrity and ethics of the
medical profession, in protecting vulnerable groups, and in stopping
the path to voluntary and even involuntary euthanasia.
ii. Rehnquist said that the experience in the Netherlands indicated
that "regulation of the practice may not have prevented abuses in
cases involving vulnerable persons, including severely disabled
neonates and elderly persons suffering from dementia."
3. Vacco v. Quill (1997):
a. Facts: 2nd Circuit declared unconstitutional a NY law that prohibits aiding
another in committing suicide. Several physicians and gravely ill patients
challenged the NY statute that "a person is guilty of manslaughter in the
second degree when he intentionally causes or aids another person to
commit suicide." The 2nd found that the NY law violated the equal
protection clause of the 14th. The court explained that patients on artificial
life support already have the right to physician-assisted suicide based on
Cruzan; that in light of this decision, those not receiving artificial life
support are discriminated against b/c they do not have a right to physicianassisted suicide. The court concluded that this latter group is denied equal
protection.
b. Holding: The Court held that laws prohibiting physician-assisted suicide no not
violated the equal protection clause
i. Rehnquist stated that the prohibition of assisted suicide neither
discriminated against a suspect class, such as against a racial minority,
nor violated a fundamental right, since Glucksberg had expressly
repudiated that contention. Under equal protection analysis this means
that the law was to be upheld so long as it met a rational basis test.
ii. Court rejected the claim that NY's law discriminated against anyone. The
Court noted that NY's law treated everyone equally: All have the right to
refuse medical care, and all are prohibited from assisting another in
committing a suicide.
1. Court disagreed with the 2nd's conclusion that those not on
artificial life support are discriminated against as compared with
those who can receive physician-assisted suicide by demanding
the termination of a respirator or artificial nutrition or hydration.
The Court said that this "distinction comports with fundamental
legal principles of causation and intent." The Court explained that
"when a patient refuses life-sustaining medical treatment, he dies
from an underlying fatal disease or pathology; but if a patient
ingests lethal medication prescribed by a physician he is killed by
that medication."
2. Intent is important: The Court noted that "in some cases,
painkilling drugs may hasten a patient's death, but the physician's
purpose and intent is, or may be, only to ease his patient's pain. A
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doctor who assists a suicide, however, 'must necessarily and


indubitably, intend that the patient be made dead.'" The law
traditionally has recognized this distinction in distinguishing
between allowing refusal of treatment and prohibiting suicide.
c. Context: Glucksberg and Vacco seem to emphatically reject a constitutional right
to physician-assisted death. Not a single Justice in either case voted to declare
unconstitutional either state law. Yet the cases also left open some doors to
future legal protection of a right to physician-assisted death.
i. (1) States may prohibit or allow physician-assisted suicide largely
unconstrained by the Constitution
ii. (2) 5 Justices in concurring opinions left open the possibility that laws
prohibiting physician-assisted death might be declared unconstitutional as
applied in specific cases
1. O'Connor said that while there "is no generalized right to 'commit
suicide,'" the Court need not address the "narrower question
whether a mentally competent person who is experiencing great
suffering has a constitutionally cognizable interest in controlling
the circumstances of his or her death."
a. She concluded by reiterating that "there is no need to
address the question whether suffering patients have a
constitutionally cognizable interest in obtaining relief from
the suffering that they may experience in the last days of
their lives" Ginsburg and Breyer concurred
2. Stevens concurrence in both opinions, joined by Souter, Ginsburg,
and Breyer, said that although the Court rejected the facial
challenges to the NY and Washington laws, that 'does not
foreclose the possibility that some applications of the statutes
might well be invalid." Stevens explained that in particular cases
an individual's claim of such a right might be strong and the state's
interests much less.
3. Breyer concurrence explained clearer when a constitutional right
to physician-assisted suicide might be recognized in particular
instances.
a. Breyer observed that the core of a person's claim would be
"avoidance of severe physical pain (connected with
death)." He said that the NY and Washington laws were
constitutional b/c they "do not prohibit doctors from
providing patients with drugs sufficient to control pain
despite the risk that those drugs themselves will kill."
b. He concluded that "were the legal circumstances different for example, were state law to prevent the provision of
palliative care, including the administration of drugs a
needed to avoid [ain at the end of life - then the law's
impact upon serious and otherwise unavoidable physical
pain (accompanying death) would be more serious."

Political Rights:
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1. Harper v. Va. State Bd. of Elections (1966): Poll Taxes


a. The Court held that poll taxes are unconstitutional as a denial of equal
protection for all other elections in addition to the 24th's prohibition of poll
taxes in elections for federal offices.
b. Facts: annual poll tax of only $1.50, imposed as a prerequisite for voting.
c. Holding: The Court concluded that limiting voting to those who paid a poll
tax was impermissible discrimination.
i. "Once the franchise is granted to the electorate, lines may not be
drawn which are inconsistent with the Equal Protection Clause."
ii. Douglas explained: "A State violated the EPC whenever it makes
the affluence of the voter or payment of any fee an electoral
standard. Voter qualifications have no relation to wealth nor to
paying or not paying this or any other tax."
iii. Rejected state's argument that the poll tax of $1.50 was minimal
and thus not a significant burden on the right to vote. The Court
said: "To introduce wealth or payment of a fee as a measure of a
voter's qualifications is to introduce a capricious or irrelevant factor.
The degree of the discrimination is irrelevant . As a condition of
obtaining a ballot, the requirement of fee paying causes an
invidious discrimination that runs afoul of the EPC."
d. Black Dissent:
i. Three dissenters in Harper contended that a "mere rationality"
rather than "strict scrutiny" standard should be applied. If this were
done, they argued, the statute should be upheld, since it was
rationally related to several legitimate state objectives, including
promotion of civic responsibility (on the theory that "people with
some property have a deeper stake in community affairs ... ") .
e. Harlan Dissent, joined by Stewart:
2. Kramer v. Union Free Sch. Dist. (1969): Property Ownership Reqs
a. The Court declared unconstitutional a state law that restricted voting in
school district elections to those who owned taxable real property in the
district or who had custody of children enrolled in the local public schools.
b. The Court said that strict scrutiny was appropriate b/c the law kept some
citizens from voting in school elections.
c. The state's primary justification for the restrictions was to limit participation
to those who were "primarily interested in school affairs." The Court found
that it was not permissible for the government to measure interest by
property ownership or the presence of children in the school system.
Thus, the Court said that the "requirements are not sufficiently tailored
to limiting the franchise to those 'primarily interested in school affairs to
justify the denial of the franchise."
d. Stewart Dissent, joined by Black, Harlan:
e. Notes/Context:
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i. Kramer was followed in other cases that invalidated laws limiting


voting to property owners.
1. Cipriano v. City of Houma: The Court declared
unconstitutional a statute that provided that only property
owners could vote on whether a municipal utility could issue
municipal bonds.
2. City of Phoenix v. Kolodziejski: extended this to prevent
states from limiting the vote to real property owners in
elections to approve the issuance of general obligation
bonds.
a. In both Cipriano and Kolodziejski the Court
emphasized that all citizens in the cities had an
interest in the availability of municipal services, and
thus all should be able to participate in the elections.
Constitution doesnt permit weighted voting or the
exclusion of otherwise qualified citizens from the
franchise when all citizens are affected in important
ways by a governmental decision subject to a
referendum, presumptively.
ii. However, Kramer doesnt meant that all property ownership
requirements for voting are invalid
1. Sylar Land Co. v. Tulare Lake Basin Water Storage
District: The Court upheld state laws that limited voting in
water storage district elections to property owners and that
apportioned votes according to assessed valuation of land
within the districts.
a. The Court emphasized that landowners had a far
greater interest in the outcome of the election than
other citizens. The Court explained: "Landowners as a
class were to bear the entire burden of the district's
costs, and the State could rationally conclude that
they, to the exclusion of residents, should be charged
with responsibility for its operation."
b. The Court also noted that although the water district
has some governmental authority, it doesnt provide
general public services ordinarily attributed to a
governing body. Thus, it concluded "that nothing in
the EPC precluded California from limiting the voting
for directors of appellee district by totally excluding
those who merely reside within the district."
iii. Once a person has been convicted of a felony, a state may
permanently deny the individual of the righ to vote

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1. Richardson v. Ramirez: The Court relied on the language of


s2 of the 14th to uphold the ability to states to disenfranchise
felons and ex-felons. .
3. Crawford v. Marion County Election Board (2008): Req for Photo ID
a. Facts: Indiana state law required photo ID in order to vote
b. Holding: The Court, w/o a majority opinion, upheld the facial
constitutionality of the Indiana law requiring voter ID.
i. Stevens announced the judgment, joined by Roberts and Kennedy.
ii. Quoting Anderson v. Celebrezze, Stevens said that the general rule
is that "evenhanded restrictions that protect the integrity and
reliability of the electoral process itself are not invidious. Rather
than applying any 'litmus test' that would neatly separate valid from
invalid restrictions, we concluded that a court must identify and
evaluate the interets put forward by the State as justifications for
the burden imposed by its rule, and then make the 'hard judgment'
that our adversary system demands."
iii. Stevens then proceeded to balance the burden on the right to vote
against the state's interest in preventing fraud.
1. Burden on RtV: He found a minimal burden especially b/c
most people have some form of picture ID and those that
dont can cast a provisional ballot and later verify their
identity.
2. State's Interest: Stevens said that there was an important
state interest in preventing voter fraud and preserving
confidence in the election system. He wrote: "There is no
question about the legitimacy or importance of the State's
interest in counting only the votes of eligible voters.
Moreover, the interest in orderly administration and accurate
recordkeeping provides a sufficient justification for carefully
identifying all voters participating in the election process.
While the most effective method of preventing election fraud
may well be debatable, the propriety of doing so is perfectly
clear."
a. Stevens was clear that the Court was rejecting af
facial challenge to the law, but there is still the
possibility of an "as applied" challenge if it can be
shown that in operation the law unduly burdens the
right to vote.
c. Scalia Concurrence, joined by Thomas, Alito: He said that strict
scrutiny is appropriate when it comes to regulation of voting only if the
burden is "severe."
i. He argued that the Indiana law should be allowed b/c it is
reasonable: "The universally applicable requirements of Indiana's
voter-ID law are eminently reasonable. The burden of acquiring,
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possessing, and showing a free photo ID is simply not sever, b/c it


doesnt 'even represent a significant increase over the usual
burdens of voting.' And the State's interests are sufficient to sustain
that minimal burden. That should end the matter."
1. It should be noted that 6 justices rejected Scalia's approach
that only "severe" burdens on the right to vote trigger strict
scrutiny.
d. Souter Dissent, joined by Ginsburg: He explained that: "Indiana's 'Voter
ID Law' threatens to impose nontrivial burdens on the voting right of tens
of thousands of the State's citizens, and a significant percentage of those
individuals are likely to be deterred from voting."
i. "The statute is unconstitutional under the balancing standard; a
State may not burden the right to vote merely by invoking abstract
interests, be they legitimate, or even compelling, but must make a
particular, factual showing that threats to its interests outweigh the
particular impediments it has imposed. The State has made no
such justification here, and as to some aspects of its law, it has
hardly even tried."
ii. Souter argued that there is no evidence of voter fraud that would be
cured by photo ID and that it would cause many individuals to be
unable to vote.
e. Breyer Dissent:
f. Context: The case is important in prescribing a balancing test rather than
strict scrutiny for such laws regulating the right to vote. Also, the Court
expresses a strong aversion to facial challenges but leaves open the
possibility of an applied challenge.
4. Reynolds v. Sims (1964):
a. Facts: challenge to the apportionment of the Alabama legislature.
b. Holding: Reynolds Court struck down the Alabama apportionment (or
rather, malapportionment) scheme. It did so upon an equal protection
theory: the Equal Protection Clause "requires that the seats in both
houses of a bicameral state legislature must be apportioned on a
population basis . ... An individual's right to vote for state legislators is
unconstitutionally impaired when its weight is in a substantial fashion
diluted when compared with votes of citizens in other parts of the
State."

i. i. Rationale: The Court observed that equal protection generally


requires "the uniform treatment of persons standing in the same
relation to the governmental action questioned or challenged."
Since "legislators represent people, not trees or acres," there
was no apparent reason for making one person's vote worth
more than another's in the election of those legislators.

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ii. ii. Some deviations allowed: The Court in Reynolds did not
require strict mathematical equality. "Some deviations" from the
equal-population rule would be permissible, if they were directed
towards the carrying out of a "rational state policy." But
"neither history alone, nor economic or other sorts of
group interests, are permissible factors .... "Furthermore,
even pursuit of a "clearly rational state policy" (e.g., "according
some legislative representation to political subdivisions") by an
apportionment scheme would not be valid if "population is
submerged as the controlling consideration .. "

5. Davis v. Bandemer (1986):


a. The Court considered a more difficult form of gerrymandering: Where the
incumbent party controlling the legislature draws distrcits to help it remain
in control.
b. Facts: Republicans had a majority in the INdiana legislature and created a
committee composed exclusively of Republicans to draw the new election
districts. Under the plan, Democratic house candidateswon 51.9% of the
statewide vote, but only 43/100 seats. Democratic Senate candidates won
53.1% of the statewide vote and 13 of 25 seats up for election.
c. Holding:
i. The Court initially said that challenges to such gerrymandering are
justiciable. Although the Court recognized that the issue was
different from that in the malapportionment cases, it said
"neverheless, the issue is one of representation, and we decline to
hold that such claims are never justiciable."
ii. The plurality by White said that inorder for a group to prove a
violatoin of equal protection it must prove "both intentional
discrimination against an identifiable political group and an actual
discriminatory effect on that group." The plurality stated, however,
that the Constitution does not require that there be proportional
representation in the legislature based on political party strength in
the state or that seats be allocated to the contending parties in
proportion to their likely strength in statewide elections. The plurality
said that "mere lack of proportional representation will not be
sufficient to prove unconstitutional discrimination.
iii. They concluded that "unconstitutional discrimination occurs only
when the electoral system is arranged in a manner that will
consistently degrade a voter's or a group of voters' influence on the
political process as a whole."
1. In other words, gerrymandering is unconstitutional "only
where the electoral system substantially disadvantages
certain voters in their opportunity to influence the
political process effectively Such a finding of
unconstitutionality must be supported by evidence of
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continued frustration of the will of a majority of the voters or


effective denial to a minority of voters of a fair chance to
influence the political process." Thus, the results of a single
election are not sufficient to prove impermissible
gerrymandering.
iv. The plurality found no constitutional violation with regard to the
districting of the Indiana legislature. O'Connor, Rehnquist, and
Burger would have dismissed the case on justiciability gournds and
thus concurred in the judgment. Powell and Stevens agreed with
the plurality that the case was justiciable, but would have found that
the districting in Indiana denied equal protection.
Access to Justice; "Non-Fundamental" Rights:
1. Griffin v. Illinois (1956): The Right to Appeal
a. The Court concluded that the government must provide transcripts on
appeal for indigent criminal Ds.
b. Facts: Illinois law created a right to appeal criminal convictions, but direct
appellate review was available only if the D provided the appellate court
with a bill of exceptions or a report of the trial proceedings certified by the
trial judge. It sometimes was impossible to prepare such documents w/o a
stenographic transcript of the trial proceedings. Under state law these
were provided free of charge only to Ds who had been sentenced to
death. The D here had been sentenced for armed robbery and was kept
from appealing solely b/c he lacked the funds to pay for a transcript.
c. Holding: The Court didnt hold that there is a constitutional right to appeal,
but did say that if state law creates such a right, the state may not "deny
the poor an adequate appellate review accorded to all who have enough
money to pay the costs in advance."
i. The Court concluded that the state must purchase a stenographic
transcript if the D could not afford one. Frankfurter, concurring, went
further and declared: "The right to an appeal from a conviction for
crimes today is so established that this leads to the easy
assumption that it is fundamental to the protection of life and liberty
and therefore a necessary ingredient of due process of law."
2. Douglas v. California (1963): The Right to Appeal
a. The Court rules that the government must provide indigent criminal Ds
free counsel on appeal, at least for their initial appeal which state law
requires the court of appeals to hear.
b. The Court explained: "There is lacking that equality demanded by the 14 th
Amendment where the rich man, who appeals as of right, enjoys the
benefit of counsel's examination into the record, research of the law, and
marshalling of arguments on his behalf, while the indigent, already
burdened by a preliminary declaration that his case is w/o merit is forced
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to shift for himself. The indigent, where the record is unclear or errors are
hidden, has only the right to a meaningless ritual, while the righ man has a
meaningful appeal."
c. Ross v. Moffitt (1974): The Court subsequently limited this right to initial
appeals that are created as a matter of right by state law, that is, appeals
that state appellate courts are obligated to hear and decide.
i. The Court held that the government is not required to appoint
counsel for an indigent D's discretionary appeal to the highest state
court or to the US Supreme Court.
ii. Facts: Ross involved a criminal D who was provided with an
attorney for his initial appeal to the state court of appeals, but was
denied an attorney to seek discretionary review in the North
Carolina Supreme Court or to file a petition for writ of certiorari in
the US Supreme Court.
iii. Holding: Court acknowledged that the lack of an attorney is a
significant disadvantage in seeking such review, but it nonetheless
found no constitutional violation in the government's refusing to pay
for a lawyer at these stages for indigent Ds.
1. The Court explained: "The duty of the State under our cases
is not to duplicate the legal arsenal that may be privately
retained by a criminal D in a continuing effort to reverse his
conviction, but only to assure the indigent D an adequate
opportunity to present his claims fairly in the context of
State's appellate process. We think respondent was given
hat opportunity under the existing North Carolina system."
3. Boddie v. Connecticut (1971): Filing Fees
a. The Court found that it was unconstitutional to deny indigent individuals
access to the courts for filing a divorce petition b/c of their inability to pay a
filing fee.
b. Facts: Connecticut law required the payment of a $60 fee in order to file a
petition for divorce. The Boddies were welfare recipients who were denied
the ability to file divorce papers b/c of their inability to afford the filing fee.
c. Holding: The Court held that this was unconstitutional and said that "a
State may not, consistent with the obligations imposed on it by the DPC of
the 14th Amendment, preempt the right to dissolve this legal relationship
w/o affording all citizens access to the means it has prescribed for doing
so."
i. The Court emphasized that only the courts could grant divorce and
that the Ds therefore were "faced with exclusion from the only
forum effectively empower to settle their disputes. Resort to the
judicial process by these Ps is no more voluntary in a realistic
sense than that of the D called upon to defend his interest in court."
ii. Court spoke extensively of how "'within the limits of practicability,' a
State must afford to all individuals a meaningful opportunity to be
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heard if it is to fulfill the promise of DPC." Thus, it held that the


government was constitutionally obligated to waive filing fees for
indigent individuals seeking divorce.
d. Context: The Court has refused to extend Boddie to require a waiver of
filing fees in other civil proceedings.
i. US v. Kras: The Court held that the government was not required
to waive filing fees for indigents seeking to file for bankruptcy.
1. Facts: Robert Kras was unemployed and lived in a 2.5 room
apartment with his wife, his 2 young children, his mother,
and her child. Kras's sole assets were $50 worth of clothing
and essential household goods. He and his family were
receiving public assistance. He sought to file for bankruptcy
for relief from $6k in debts. He submitted an affidavit that he
could not afford the $60 filing fee or promise that he could
afford to pay it in installments
2. Holding: The Court concluded that the Constitution didnt
require that the government waive its filing fee for
bankruptcy. The Court distinguished Boddie on 2 grounds:
a. (1) Divorces relate to the constitutional right to marry;
a person only could exercise that right if he or she
received a divorce from an existing spouse.
i. The Court said that "the denial of access to the
judicial forum in Boddie touched directly on
the marital relationship and on the
associational interests that surround the
establishment and dissolution of that
relationship .... The Boddie appellants' inability
to dissolve their marriages seriously impaired
their freedom to pursue other protected
associational activities. Kras's alleged interest
in the elimination of his debt burden, and in
obtaining his desired new start in life, although
important and so recognized by enactment of
the Bankruptcy Act, doesnt rise to the same
constitutional level."
b. (2) The Court emphasized that the state has a
monopoly in granting divorces. A person wishing a
divorce has no other way to get one than through the
courts. But, the Court said, there are alternative ways
for a person to solve the problem of debts.
i. The Court remarked: "In contrast with divorce,
bankruptcy is not the only method available to
a debtor for the adjustment of his legal
relationship with his creditors . However
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unrealistic the remedy may be in a particular


situation, a debtor, in theory, and often in
actuality, may adjust his debts by negotiated
agreement with his creditors.... Resort to the
court, therefore, is not Kras' sole path to relief.
Boddie's emphasis on exclusivity finds no
counterpart in the bankrupt's situation."
c. The Court emphasized that the law allows a person to
pay the filing fee in installments of as little as $1.28 a
week. The Court said that "this is a sum less than the
payments Kras makes on his couch of negligible
value in storage, and less than the price of a movie
and little more than the cost of a pack or two of
cigarettes."
ii. Ortwein v. Schwab (1973): The Court followed the reasoning in
Kras and held that the government was not obligated to waive filing
fees for judicial review of adverse welfare decisions.
1. Facts: An individual sought judicial review of a reduction in
his welfare benefits, but he could not afford the $25 filing fee
2. Holding: The Court found no violation of due process or
equal protection in precluding judicial review b/c of the
inability to pay the fee.The Court relied on Kras and again
distinguished Boddie on the ground that a denial or reduction
in welfare benefits did not implicate constitutional rights.
3. Interestingly, in Ortwein, like in Boddie, the state had a
monopoly for resolving disputes: only judicial review could
reverse the denial of welfare benefits. Nonetheless, the
Court found no constitutional violation in denying judicial
review b/c of an inability to pay the filing fee.
iii. Little v. Streater (1981): The Court held that the government must
pay for blood tests for indigent Ds in paternity cases
1. The Court explained that a D unable to afford the cost of the
blood tests would lack a "meaningful opportunity to be
heard" b/c there was no other way to refue the allegation of
paternity. The Court explained that "a cost requirement, valid
on its face, amy offend due process b/c it operates to
foreclose a particular party's opportuintyto be heard
2. On the other hand, the Courh has held that
4. MLB v. SLJ (1996):
a. The Court declared unconstitutional a state requirement that parents pay a
fee for preparation of the trial record in order to appeal a termination of
custody.
b. Facts: A Mississippi court entered an order permanently terminating a
mother's custody of her child. The mother sought to appeal from the
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termination decree, but Mississippi required that she pay in advance


record preparation fees estimated at $2,352.36. B/c she lacked funds to
pay the fees, her appeal was dismissed.
c. Holding: Ginsburg found this constitutional.
i. She began by stressing the fundamental rights involved: "Choices
about marriage, family life, and the upbringing of children are
among associational rights this Court has ranked as 'of basic
importance in our society,' rights sheltered by the 14 th Amendment
against the State's unwarranted usurpation, disregard, or
disrespect."
ii. The Court noted access to the courts, as reflected in prior
decisions, embodied "both equal protection and due process
concerns." The Court said that generally access fees only have to
meet rational basis review, but that there is an exception in that
"access to judicial processes in cases criminal or 'quai criminal in
nature,' may not turn on ability to pay."
1. The Court said that proceedings to permanently terminate
parental custody fit into the latter category b/c "termination
adjudications involve the awesome authority of the State 'to
destroy permanently all legal recognition of the parental
relationship.'" Thus, the imposition of costs for the record
preparation was declared unconstitutional.
d. Context: Even after MLB, it is unlikely that the Court will find such a right
in many other instances; if there is not a right to fee waivers for indigents
seeking bankruptcy or appealing a denial of welfare benefits, Boddie has
been narrowly construed to create a right to fee waivers only in cases
raising issues related to constitutional rights. Kras and Ortweiv therefore
are powerful precedents casting doubt on any general right of access to
the courts.

Unit II: Equal Protection:


Brown and It's Legacy:
1. Plessy v. Ferguson (1896): Separate but Equal
a. The Court upheld laws that mandated that blacks and whites use
"separate, but equal facilities."
b. Facts: a Louisiana law adopted in 1890 required RR companies to provide
separate but equal accommodations for whites and blacks; the law
required there to be separate coaches, divided by a partition, for each
race. In 1892, LA prosecuted Homer Adolph Plessy, a man who was
7/8ths Caucasian, for refusing to leave the RR car assigned to whites.
c. Holding: The Court concluded that laws requiring "separate, but equal"
facilities are constitutional and declared: "We cannot say that a law which
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authorizes or even requires the separation of the two races in public


conveyances is unreasonable, or more obnoxious to the 14 th Amendment
than the acts of Congress requiring separate schools for colored children
in [DC], the constitutionality of which does not seem to have been
questioned, or the corresponding acts of state legislatures."
i. The Court explicitly addressed the claim that such laws are based
on an assumption of the inferiority of blacks and thus they
stigmatize them with a second-class status. The Court replied: "We
consider the underlying fallacy of the P's argument to consist in the
assumption that the enforced separation of the two races stamps
the colored race with a badge of inferiority. If this be so, it is not by
reason of anything found in the act, but solely b/c the colored race
chooses to put that construction upon it." -- They chose to be
offended
d. Harlan Dissent: "everyone knows that the statute in question had its
origin in the purpose, not so much to exclude white persons from RR cars
occupied by blacks, as to exclude colored people from coaches occupied
by or assigned to white persons."
i. "Our Constitution is color blind, and neither knows nor tolerates
classes among citizens. In respect of civil rights, all citizens are
equal before the law."
ii. He predicted that this case will be viewed as pernicious as the
Dredd Scott holding.
e. Context: "Separate but equal" became the law of the land even though
separate was anything but equal
2. The Initial Attack on "Separate but Equal"
a. Missouri ex rel. Gaines v. Canada (1938): The Court held that it was
unconstitutional for Missouri to refuse to admit blacks to its law school, but
instead to pay for blacks to attend out of state law schools.
i. The Court explained that the "basic consideration is not as to what
sort of opportunities other States provide, but as to what
opportunities Missouri itself furnishes to white students and denies
to negores solely upon the ground of color."
ii. In response, Missouri did not admit blacks to its law school, but
instead created a new law school for blacks.
b. Sweatt v. Painter (1950): The Court for the first time ordered that a white
university admit a black student. The University of Texas Law School had
denied Herman Sweatt admission on the ground that he could attend the
recently created Prairie View Law School. Although the Court was urged
to reconsider Plessy v. Ferguson, it refused and instead found that the
schools obviously were not equal. The University of Texas law School had
16 full time faculty members and substantial facilities. Prairie View Law
School opened in 1947 with no full time faculty and no library, though by
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the time the Court decided the case there were five full time professors
and a small library.
i. The Court concluded: "We cannot find substantial equality in the
educational opportunities offered white and Negro law students by
the State . It is difficult to believe that one who had a free choice
between these law schools would consider the question close."
c. McLaurin v. Oklahoma State Regents (1950): The Court held that once
blacks were admitted to a previously all-white school, the university
couldnt force them to sit in segregated areas of classrooms, libraries, and
cafeterias.
i. The Court ruled that such segregation hindered the student's
"ability to study, to engage in discussions, and exchange views with
other students, and, in general, to learn his profession."
3. Brown v. Board of Education of Topeka (1954):
a. Facts: One of the five cases decided together, involved a challenge to the
segregation of the Topeka, Kansas, public schools.
b. Holding:
i. Warren began by explaining that the constitutionality of segregation
in education could not be resolved based on the framers' intent.
1. The Court said that the historical sources of the 14 th
Amendment "at best are inconclusive" and that the
enormous changes in the nature of education made history
of little use in resolving the issue. The Court thus concluded
that "in approaching this problem, we cannot turn the clock
back to 1868 when the Amendment was adopted, or even to
1896 when Plessy v. Ferguson was written. We must
consider public education in the light of its full development
and its present place in American life throughout the Nation."
ii. Inequality? The Court didnt focus on the obvious inequalities
between the black and white schools in many of the cases before it.
Rather, the Court said that "there are findings below that the Negro
and white schools involved have been equalized, or are being
equalized, with respect to buildings, curricula, qualifications and
salaries of teachers, and other 'tangible factors.' Our decision,
therefore, cannot turn on merely a comparison of those tangible
factors in the Negro and white schools involved in each of the
cases. We must look instead to the effect of segregation itself on
public education."
1. The Court probably characterized the issue this way, in party,
b/c there had been factual findings by some of the district
courts of equalization between the black and white schools
and, in party, to reach the basic question: Is separate but
equal constitutional in public education?
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2. Indeed, the Court stated the issue presented as: "Does


segregation of children in public schools solely on the basis
of race, even though the physical facilities and other
'tangible' factors may be equal, deprive the children on the
minority group of equal educational opportunities?"
iii. The Court answered this question (above) by declaring that statemandated segregation inherently stamps black children as inferior
and impairs their educational opportunities.
1. Warren wrote: "To separate them from others of similar age
and qualifications solely b/c of their race generates a feeling
of inferiority as to their status in the community that may
affect their hearts and minds in a away unlikely ever to be
undone."
2. The Court supported this conclusion with a citation to
psychology literature that purported to show that segregation
causes black children to feel inferior and interferes with their
learning."
iv. The Court ended this short opinion by declaring: "We conclude that
in the field of public education the doctrine of 'separate but equal'
has no place. Separate educational facilities are inherently
unequal."
1. The Court didnt prescribe a remedy, but asked for
reargument in the next Term on that issue. A year later, in
Brown II, the Court remanded the cases to the lower courts
to use traditional equity principles to fashion remedies "to
admit to public schools on a racially nondiscriminatory basis
with all deliberate speed the parties to these cases."
4. Post-Brown Remedial Cases:
Race as a Suspect Classification, and the "Discriminatory Intent" Requirement:
1. Loving v. Virginia (1967):
a. Supreme Court declared unconstitutional a state's miscegenation statute
that made it a crime for a white person to marry outside the Caucasian
race.
b. The Court expressly repudiated the state's argument that the law was
permissible b/c it burdened both whites and minorities. The Court said that
"we reject the notion that the mere equal application of a statute
concerning racial classifications is enough to remove the classifications
from the 14th Amendment's proscription of all invidious racial
discriminations."
i. The Court explained: "There can be no question but that Virginia's
miscegenation statutes rest solely upon distinctions drawn
according to race. The statute proscribe generally accepted
conduct if engaged in by members of different races . There can
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be no doubt that restricting the freedom to marry solely b/c of racial


classifications violates the central meaning of the Equal Protection
Clause.
2. Palmore v. Sidoti (1984):
a. The Court deemed unconstitutional a state court's denying a mother custody
of a child b/c she had married a person of a different race.
b. Facts: A State court denies a mother custody of her child b/c she had married a
person of a different race.The State court had concluded that the child's best

interests would be served by awarding custody to the father b/c the child
might be taunted and stigmatized for living in a biracial household
c. Holding: The Court unanimously declared this unconstitutional and
concluded: "The Constitution cannot control such prejudices but neither
can it tolerate them. Private biases may be outside the reach of the law,
but the law cannot, directly or indirectly, give them effect.... The effects of
racial prejudice, however real cannot justify a racial classification removing
an infant child from the custody of its natural mother found to be an
appropriate person to have such custody.
i. Remand and find the best interests of the child without turning to
race.
3. Johnson v. California (2005):
a. Court held that strict scrutiny must be used in evaluating the routine racial
segregation of prisoners.
b. Facts: In Cali, when a male prison enters a new institution - whether at the
start of a sentence or as a result of a transfer to a different prison - the
inmate is placed in a reception center for up to 60 days. During this time,
the prisoner is evaluated for purposes of determining the inmate's
placement within the institution. Most prisoners are "double celled" during
this time, with two inmates being housed together in a cell. Although
several factors are considered in assigning prisoners during this period,
race is very much taken into account. In fact, prison officials conceded tht
there is virtually a "zero percent" chance that inmates of different races will
be housed together.
i. Prison officials argue that such racial segregation was necessary to
prevent violence. Prison gangs are endemic in Cali prisons and
they are organized along racial lines. Prison officials expressed
their belief that violence and conflict would result if prisoners were
not segregated.
c. Holding: The Court, in a 5-3 decision, stressed that all racial
classifications must meet strict scrutiny; that is, they will be upheld only if
the govt can prove that its action is necessary to achieve a compelling
purpose.
i. Govt Argues: The govt claimed that segregation of prisoner didnt
constitute discrimination b/c all prisoner were treated the same:
Every prisoner, regardless of race, was placed in a cell with an
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inmate of the same race. Black prisoners were treated no differently


than white or Latino or Asian inmates.
ii. Court Counter: But the Court noted that Brown v. Board of
Education rejected that argument 50 years ago and clearly held
that segregation based on race constitutes a racial classification
and must meet strict scrutiny under equal protection.
iii. Standard of Review: The Court expressly rejected applying the
rational basis test that is usually used for constitutional claims by
prisoners. The Court was clear and emphatic that strict scrutiny
must be used in evaluating claims of racial discrimination by
prisoners
1. O'Connor stated: "B/c the CDC's policy is an express racial
classification, it is immediately suspect.' We therefore hold
that the Court of Appeals erred when it failed to apply strict
scrutiny to the CDC's policy and to require the CDC to
demonstrate that its policy is narrowly tailored to serve a
compelling state interest."
2. The Court remanded the case for application of strict
scrutiny.
4. Korematsu v. US (1944):
a. Holding: The Court upheld the constitutionality of the evacuation of
Japanese Americans. The Court accepted the govt's claim that there was
a serious risk to national security from Japanese Americans who were
disloyal to the US and that there was no way of screening to identify such
individuals.
i. Black, writing for the court, said: "Like curfew, exclusion of those of
Japanese origin was deemed necessary b/c of the presence of an
unascertained number of disloyal members of the group, most of
whom we have no doubt were loyal to this country. It was b/c we
could not reject the finding of the military authorities that it was
impossible to bring about an immediate segregation of the disloyal
from the loyal that we sustained the validity of the curfew order as
applying to the whole group. In the instant case, temporary
exclusion of the entire group was rested by the military on the same
ground."
b. Critique: This case is objectionable b/c the government used race alone
as the basis for predicting who was a threat to national security and who
would remain free.
i. The racial classification was enormously overinclusive: All
Japanese Americans were evacuated and interned b/c of few might
be disloyal.
ii. In fact, there was no evidence of a threat from any Japanese
Americans, and subsequent research by Professor Peter Irons has
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shown that govt attorney intentionally exaggerated the risk to


persuade the Court to accept the evacuation order.
iii. The racial classification also was enormously underinclusive: Those
of other races who posed a threat of disloyalty were not interned
and evacuated. Even though winning the war undoubtedly was a
compelling purpose, the means was not necessary to attaining that
end.
iv. As Justice Murphy lamented in dissent, the evacuation of Japanese
American was "one of the most sweeping and complete
deprivations of constitutional rights in the history of this nation."
5. Washington v. Davis (1976): Racially Neutral Law with Discriminatory Impact
a. Facts: Applicants for the police force in DC were required to take a test,
and statistics revealed that blacks failed the examination much more often
than whites.
b. Holding: The Court held that proof of a discriminatory impact is
insufficient, by itself, to show the existence of a racial classification
i. Justice White said that the Court never had held that "a law or other
official act, without regard to whether it reflects a racially
discriminatory purpose, is unconstitutional solely b/c it has a racially
disproportionate impact."
ii. The Court explained that discriminatory impact, "standing alone,
does not trigger the rule that racial classifications are to be
subjected to the strictest scrutiny and are justifiable only by the
weightiest of considerations."
iii. Thus, laws that are facially neutral as to race and national origin will
receive more than rational basis review only if there is proof of a
discriminatory purpose.
1. The Court justified this conclusion, in part, based on its view
that the purpose of the equal protection clause "is the
prevention of official conduct discriminating on the basis of
race."
2. The Court also emphasized that allowing discriminatory
impact to suffice in proving a racial classification "would raise
serious questions about, and perhaps invalidate, a whole
range of tax, welfare, public service, regulatory, and licensing
statutes that may be more burdensome to the poor and to
the average black than to the more affluent white."
c. Stevens Concurrence:
d. Context:
i. Palmer v. Thompson (1971): The Court found that equal
protection was not violated when a city closed down its previously
segregated swimming pool rather than allow it to be integrated.

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1. The Court said that "no case in this Court has held that a
legislative act may violate equal protection solely b/c of the
motivations of the men who voted for it."
2. The Court said that "there is an element of utility in a judicial
attempt to invalidate a law /b of the bad motives of its
supporters. If the law is struck down for this reason, rather
than b/c of its facial content or effect, it would presumably be
valid as soon as the legislature or relevant governing body
repassed it for different reasons."
ii. Palmer thus suggests that discriminatory purpose, alone, is
insufficient to prove that a facially neutral law constitutes a race or
national origin classification. Together with Washington v. Davis and
its progney, it appears that a facially neutral law will be regarded as
creating a race or national origin classification only if there is proof
of both a discriminatory impact to the law and a discriminatory
purpose behind Iit.
6. Arlington Heights v. Metropolitan Housing Corp. (1977): Mixed Motives
a. The Court explained the different ways in which discriminatory purpose
can be proved.
b. Facts: a challenged to a city's refusal to rezone a parcel of land to allow
construction of low and moderate income housing. The Ps alleged tht this
had a discriminatory effect in excluding blacks from the city. The Court
identified several ways in which a discriminatory purpose can be
demonstrated
c. White Dissent:
Sex Discrimination and the Emergence of "Intermediate Scrutiny":
1. Bradwell v. State (1873):
a. The Court first addressed a gender discrimination issue in 1871 here
where the Court upheld an Illinois law that prohibited women from being
licensed to practice law.
b. Holding: The majority ruled against Myra Bradwell w/o considering gender
discrimination. Justice Miller, writing for the Court, rejected the argument
that practicing law was a "privilege" of citizenship protected under the PIC
of the 14th.
c. Bradley Concurrence: He directly addressed the claim of sex
discrimination and opined that the state was justified in excluding women
from the practice of law: "The paramount destiny and mission of women
are to fulfill the noble and benign offices of wife and mother. This is the law
of the creator. And the rules of civil society must be adapted in the general
constitutional of things, and cannot be based on exceptional cases." He
concluded that "in view of the peculiar characteristics, destiny, and mission
of woman, it is within the province of the Legislature to ordain what offices,
positions and callings shall be filled and discharged by men."
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2. Context:
a. Minor v. Happersett (1874): The Court upheld the constitutionality of
excluding women from voting. Although recognizing that women are
citizens under the Constitution, the Court said that denying women the
right to vote is permissible b/c voting is not a "privilege or immunity" of US
citizenship. The 19th Amendment overruled this decision and declared that
"the right of citizens of the US to vote shall not be denied or abridged by
the US or by any State on account of sex."
b. Goesaert v. Cleary (1948): The Court upheld a Michigan law that
prevented the licensing of women as bartenders unless the owman was
the wife or daughter of a male who owned the bar where she would work.
Justice Frankfurter declared that "Michigan could, beyond question, forbid
all women from working behind a bar." He said that "the vast changes in
the social and legal position of women do not preclude States from
drawing a sharp line between the sexes, certainly in matters such as the
regulation of the liquor traffic."
i. The Court said that the law's discrimination among women was
permissible b/c "the line they have drawn is not w/o a basis in
reason"; "the oversight assured through ownership of bar by a
barmaid's husband or father minimizes hazards that may confront a
barmaid w/o such protecting oversight."
3. Reed v. Reed (1971): The Emergence of Intermediate Scrutiny
a. The Court, for the first time, invalidated a gender classification, but the
Court professed to apply only rational basis review.
b. Facts: An Idaho law specified the hierarchy of persons to be appointed as
administrators of an estate when a person died intestate. Specifically, the
law created 11 categories in rank order parents were first, children
second, and so on and said that if there were 2 competing applicants in
the same category, the male was to be preferred over the female.
c. Holding:
i. Standard of Review: The Court articulated the standard of review in
traditional rational basis terms. Is said: "A classification must be
reasonable, not arbitrary and must rest upon some ground of
difference having a fair and substantial relation to that object of the
legislation, so that all persons similarly circumstanced shall be
treated alike."
1. Although the Court purported to be using just the rational
basis test and did not express the view that gender was a
suspect classification, its reasoning was not characteristic of
rational basis review. If the law had said, "when there are
two people in a category who are equally qualfied, one will
be chosen by random selection," that surely would have
been permissible under rational basis review. Therefore, the
use of gender had to have been regarded by the Court as
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worse than random selection and an inappropriate ground to


use to simplify administration. In other words, the Court
implicitly had to regard gender as an impermissible
basis for government decisions.
ii. Gender is Irrelevant: The Court said that the issue was whether
gender had a rational relationship to the ability to administer the
estate. Obviously, gender is irrelevant, and the Court held the law
unconstitutional, concluding: "To give a mandatory preference to
members of either sex over members of the other, merely to
accomplish the elimination of hearings on the merits, is to make the
very kind of arbitrary legislative choice forbidden by the EPC of the
14th; and whatever may be said as to the positive values of avoiding
intrafamily controversy, the choice in this context may not lawfully
be mandated solely on the basis of sex.
4. Frontiero v. Richardson (1973):
a. Facts: A federal law allowed a man soldier to automatically claim his wife
as a dependent and thereby receive a greater allowance for quarters and
for medical benefits. A woman soldier, however, only could gain these
benefits if she could prove that her spouse was dependent on her for over
half of his support.
b. Holding: Brennan writing for a plurality that included Douglas, White,
and Marshall - said that "classifications based on sex, like classifications
based upon race, alienage or national origin, are inherently suspect, and
must therefore be subjected to strict judicial scrutiny."
i. Brennan explained: "There can be no doubt that our Nation has had
a long and unfortunate history of sex discrimination.Traditionally
such discrimination was rationalized by an attitude of 'romantic
paternalism' which, in practical effect, put women, not on a
pedestal, but in a cage."
ii. Brennan argued that the characteristics that justify strict scrutiny of
racial classifications also are present as to gender discrimination:
"Women still face pervasive, although at time more subtle,
discrimination in our educational institutions, in the job market, and
perhaps most conspicuously, in the political arena. Moreover, since
sex, like race and national origin, is an immutable characteristic
determined solely by birth, the imposition of special disabilities
upon members of a particular sex would seem to violate the basic
concept of our system that legal burdens should bear some
relationship of individual responsibility."
c. Powell Concurrence, joined by Burger, Blackmun: They disagreed with
the application of strict scrutiny to gender. They explicitly noted that the
Court should wait and see whether the Equal Rights Amendment was
ratified.
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i. The ERA, which in all likelihood would have meant strict scrutiny for
gender classifications, fell 3 states short of the 38 needed for
ratification.
d. Stewart Concurrence: He would fine the law unconstitutional based on
the reasoning used in Reed. He thought the court should wait until the
decision on the ERA to apply strict scrutiny to gender discrimination.
e. Context: B/c there was not a majority supporting strict scrutiny here, the
level of scrutiny for gender classifications remained uncertain. In the 2
years after Frontiero, the Court decided several gender cases w/o
articulating a level of scrutiny; some of the cases sustained gender
classifications while others invalidated them.
5. Craig v. Boren (1976):
a. The Court agreed upon intermediate scrutiny as to the appropriate level of
review for gender classifications and declared: "To withstand constitutional
challenge, previous cases establish that classifications by gender must
serve important governmental objectives and must be substantially related
to those objectives."
b. Facts: OK law that allowed women to buy low alcohol, 3.2% beer, at age
18, but men could not buy such beer until age 21.
c. Holding: Unconstitutional. Although traffic safety is undoubtedly an
"important" government interest, the Court concluded that gender
discrimination was not substantially related to that objective.
i. The Court observed that "the statistics broadly establish that .18%
of females and 2% of males between ages 18 and 21 were arrested
for drunk driving. While such a disparity is not trivial in a statistical
sense, it hardly can form the basis for employment of a gender line
as a classifying device A correlation of 2% must be considered
an unduly tenuous 'fit.' Indeed, prior cases have consistently
rejected the use of sex as a decision making factor even though the
statutes in question certainly rested on far more predictive empirical
relationships than this."
d. Context: Since Craig, the Court, on many occaisions, has reaffirmed and
applied intermediate scrutiny for gender classifications. The Court has
held that intermediate scrutiny is to be used for both gender classifications
iscriminating against women and those discrimination against men.
i. Mississippi University for Women v. Hogan (1982): The Court
applied intermediate scrutiny to declare unconstitutional a state
nursing school that was available only to women.
ii. US v. Virginia (1996): The court declared unconstitutional the
exclusion of women by the Virginia Military Institute.
1. Ginsburg applied intermediate scrutiny and said that "parties
who seek to defend gender-based govt action must
demonstrate an exceedingly persuasive justification for that
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action.... The burden of justification is demanding and it rests


entirely on the State."
2. She said that the justification "must not rely on overbroad
generalizations about the different talents, capacities, or
preferences of males and females.
3. VMI's exclusion of women was found unconstitutional b/c it
was based entirely on gender stereotypes. The Court
emphasized that successful gender integration of the federal
military academies belied any claims of a need to exclude
women from VMI
6. Personnel Administrator of Mass. v. Feeney (1979):
a. The Court upheld a state law that gave a preference in hiring to veterans
even though it had a substantial discriminatory impact against women.
b. Facts: Helen Feeney repeatedly took civil service examinations for
particular positions and received among the highest scores in the state but
was placed below lists of veterans with lower scores. At the time the
litigation was commenced, "over 98% of the veterans in Massachusetts
were male; only 1.8% were female. And over 25% of the Massachusetts
population were veterans."
c. Holding: The court rejected the claim of gender discrimination.
i. The Court said that the law providing a preference for veterans was
gender-neutral and that discriminatory impact is not sufficient to
prove the existence of sex-based classification; there also must be
proof of a discriminatory purpose.
ii. The Court concluded that "nothing in the record demonstrates that
this preference for veterans was originally devised or subsequently
re-enacted b/c it would accomplish the collateral goal of keeping
women in a stereotypic and predefined place in the Massachusetts
civil service."
d. Stevens Concurrence, joined by White: The number of males and
females disadvantaged by the law are sufficitnely close, thus the claim
that the rule was intended to benefit males as a class over females is
refuted.
e. Marshall Dissent, joined by Brennan:
f. Context: The ways of proving a discriminatory purpose based on gender
are identical to the ways of proving a discriminatory racial purpose
Race-Based Preferences in Employment and Admissions:
1. Richmond v. JA Croson (1989):
a. The Court expressly held that strict scrutiny should be used in evaluating
state and local affirmative action programs.
b. Facts: a Richmond, Virginia plan to set aside 30% of public works monies
for minority-owned businesses.

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c. Holding: 5-4 wrote or joined in opinions declaring that strict scrutiny was
the appropriate test in evaluating such affirmative action plans.
d. Marshall Dissent: "Today, for the first time, a majority of the Court has
adopted strict scrutiny as its standard of EPC review of race-conscious
remedial measures."
2. Grutter v. Bollinger (2003): Holistic Review
a. Court ruled that colleges and universities have a compelling interest in
creating a diverse student body and that they may use race as one factor,
among many, to benefit minorities and enhance diversity. The Court said
that the "benefits of diversity are substantial" and diversity "promotes
cross-racial understanding, helps to break down racial stereotypes, and
enables students to better understand persons of different races."
i. The Court accepted the university's argument that the education of
all students is enhanced with a diverse student body. The dissent,
though, strongly challenged the basis for this conclusion,
contending that the Court's deference to the universty wasnt
appropriate under strict scrutiny and that diversity was not a
suffiecient interst to justify the use of racial classifications.
3. Gratz v. Bollinger (2003):
a. The Court, 6-3, invalidated an affirmative action program that
undergraduate admissions which added 20 points to the applications for
minority students. The University of Michigan undergraduate admissions
office assigned points to various features in an applicant's profile;
additional points were added to those who were from minority races.
i. Rehnquist ruled that the undergraduate program was not
sufficiently "narrowly tailored" to meet the strict scrutiny used for
govt racial classifications
4. Parents Involved in Community Schools v. Seattle School District (2007):
a. Facts: public school system in Louisville, Kentucky and Seattle,
Washington that had adopted plans which used race as one factor in
assigning students to schools to achieve greater racial diversity. Louisville,
which had a program that included all students from kindergarten through
12th grade, had previously been a system segregated by law and had
been subject to a judicial desegregation order, which had been lifted not
long before it adopted its own desegregation plan. Seattle never had been
segregated by law and had a plan that used race as a factor in assigning
students to high schools to achieve greater racial diversity.
b. Holding: The Court, 5-4, found both plans to be unconstitutional. Roberts'
opinion was joined by its entirety only by Scalia, Thomas, and Alito.
Kennedy concurred in part, but also concurred only in the judgment in
part, and his separate opinion is thus crucial to determining the scope and
impact of the decision.
i. Strict Scrutiny: All 5 in the majority agreed that the govt must meet
strict scrutiny its actions must be necessary to achieve a
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compelling purpose even if it is using race to achieve school


desegregation.
1. Roberts declared: "It is well established that when the govt
distributes burdens or benefits on the basis of individual
racial classifications, that action is reviewed under strict
scrutiny."
2. Roberts, writing for a plurality of 4, found that Seattle and
Louisville lacked a compelling interest for their
desegregation efforts. Roberts stressed that the school
systems were not seeking to remedy constitutional violations
and he rejected the argument that diversity in classrooms
was an interest sufficient to meet strict scrutiny. He stated:
"However closely related race-based assignments may be to
achieving racial balance, that itself cannot be the goal,
whether labeled 'racial diversity' or anything else. To the
extent the objective is sufficient diversity so that students see
fellow students as individuals rather than solely as members
of a racial group, using means that treat students solely as
members of a racial group is fundamentally at crosspurposes with that end."
3. Kennedy and the 4 dissenters said that desegregating
schools is a compelling government interest. Kennedy
stated: "In the administration of public schools by the state
and local authorities it is permissible to consider the racial
makeup of schools and to adopt general policies to
encourage a diverse student body, one aspect of which is its
racial composition."
4. All 5 majority Justices agreed that the school districts
failed to show that race-neutral means cannot achieve
desegregation. Kennedy, like the 4 in the plurality, said that
race can be used in assigning students only if there is
no other way of achieving desegregation.
a. Kennedy identified several alternatives which school
systems can use to achieve greater racial diversity in
their schools: "School boards may pursue the goal of
bringing together students of diverse backgrounds
and races through other means, including strategic
site selection of new schools; drawing attendance
zones with general recognition of the demographics of
neighborhoods; allocating resources for special
programs; recruiting students and faculty in a targeted
fashion; and tracking enrollments, performance, and
other statistics by race. These mechanisms are race
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conscious but do not lead to different treatment based


on a classification that tells each student he or she is
to be defined by race, so it is unlikely any of them
would demand strict scrutiny to be found permissible."
c. Breyer Dissent, joined by Stevens, Souter, Ginsburg:
i. He described how American public schools are increasingly racially
segregated and lamented that the Court's decision will have the
effect of placing many effective desegregation plans in jeopardy.
Breyer attached an appendix to his dissent which listed the many
voluntary desegregation plans that will be in jeopardy in light of the
invalidation of the Louisville and Seattle programs. The dissent
questioned whether these efforts can be in achieving meaningful
desegregation.
d. Context: The majority and the dissent have dramatically different views
about the importance of diversity in public schools and the meaning of
Brown v. Board:
i. Roberts sees in the Constitution a command for color-blindness
and concluded his opinion by declaring: "Before Brown, school
children were told where they could and could not go to school
based on the color of their skin. The school districts in these cases
have not carried the heavy burden of demonstrating that we should
allow this once again-even for very different reasons. For schools
that never segregated on the basis of race, such as Seattle, or that
have removed the vestiges of past segregation, such as Jefferson
County, the way to achieve a system of determining admission to
the public schools on a nonracial basis, is to stop assigning
students on a racial basis. The way to stop discrimination on the
basis of race is to stop discriminating on the basis of race."
ii. Breyer and the dissent express the need for deference to school
board in desegregating schools and see the majority as
abandoning the promise of Brown v. Board. Breyer concludes his
dissent by stating: "The last half century has witnessed great
strides toward racial equality, but we have not yet realized the
promise of Brown. To invalidate the plans under review is to
threaten the promise of Brown. The plurality's position, I fear, would
break that promise. This is a decision that the Court and the Nation
will come to regret."
5. Note: Board of Regents v. Bakke (1978): the Court confronted a UC Davis
medical school admissions program that reserved 16 out of 100 places in the
entering class for "minority groups."Four members of the Court (Stevens, J.,
joined by Burger, C.J., and Stewart and Rehnquist, J.J.) found that the program
was preempted by Title VI of the Civil Rights Act of 1964.Because the other
five Justices disagreed, they reached the equal protection issue.Applying
intermediate scrutiny, four of these Justices (Brennan, White, Marshall, and
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Blackmun, J.J.) would have upheld the program.Writing only for himself,
however, Justice Powell applied strict scrutiny.He went on to conclude that
"attainment of a diverse student body"--but not remediation of past societal
discrimination--constituted a compelling state interest.He also was ready to
uphold admissions programs under which "race or ethnic background may be
deemed a 'plus' in a particular applicant's file, yet does not insulate the
individual from comparison with all other candidates for the available
seats."In his view, however, the Davis "fixed number of places" program was
not a proper means for achieving "genuine" diversity.

Education, Pregnancy, and Other Issues:


1. United States v. Virginia (1996):
a. The Court declared unconstitutional the exclusion of women by the Virginia
Military Institute (VMI).
b. Facts: Virginia, in response to an order from the 4th Cir, had created the Virginia
Women's Institute for Leadership at Mary Baldwin College. The Court found this
insufficient to excuse VMI's gender discrimination; women still were denied an
opportunity available only for men.
c. Holding: Unconstitutional
i. Exceedingly Persuasive Justification: Can't Use Gender
Stereotypes. Ginsburg applied intermediate scrutiny and said that
"parties who seek to defend gender-based govt action must demonstrate
an exceedingly persuasive justification for that action.... The burden of
justification is demanding and it rests entirely on the State." Justice
Ginsburg said that the justification "must not rely on overbroad
generalizations about the different talents, capacities, or
preferences of males and females."
ii. VMI's exclusion of women was found unconstitutional b/c it was based
entirely on gender stereotypes. Indeed, the Court emphasized that
successful gender integration of the federal military academies belied any
claims of a need to exclude women from VMI.
2. Geduldig v. Aiello (1974):
a. The Court held that it was not a denial of equal protection for a state's disability
insurance system to exclude pregnancy-related disabilities, but include
disabilities affecting only men.
b. Facts: Cali's disability law provided payments for disabilities lasting more than 8
days and less than 26 weeks, but denied any coverage for disabilities caused by
pregnancy.
c. Holding: Constitutional
i. Pregnancy Discrimination =/ Sex Discrimination = Rational Basis.
The Court held that this was not a gender classification warranting more
than rational basis review. The Court explained: "There is no risk from
which men are protected and women are not. Likewise, there is no risk
from which women are protected and men are not." In a footnote, the
Court elaborated: "The lack of identity between the excluded disability
and gender as such under this insurance program becomes clear upon
the most cursory analysis. The program divides potential recipients into 2
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groups: pregnant women and non pregnant persons. While the first group
is exclusively female, the second includes members of both sexes." The
Court said that the exclusion of pregnancy met rational basis review b/c
the state has a legitimate interest in maintaining the fiscal integrity of its
program and making choices in allocating its funds.
ii. Criticism: The Court's reasoning can be criticized b/c it appears that it is
saying that pregnancy is not a sex-based characteristic. The entire
burden from the exclusion of pregnancy is borne by women, making the
discriminatory nature of the exclusion obvious. California's exclusion of
pregnancy from coverage would impact not only currently pregnant
persons, but also all capable of becoming pregnant; women might choose
to delay or forgo a pregnancy b/c of the inability to receive payments
under the disability program. Thus, the law distinguished between
persons capable of becoming pregnant and those not capable of
becoming pregnant. It is hard to imagine a clearer sex-based distinction.
d. Statutorily Overruled: Congress, by statute, effectively overruled Geduldig
when it enacted the PDA, which prohibits discrimination on that basis.
Subsequently, the Court held that its not a violation of this law if a state requires
that ERs provide all EEs a specified amount of time for maternity leave.
3. Michael M. v. Superior Ct. (1981):
a. The Court upheld a state's statutory rape law that punished men for having sex
with a woman under age 18, but did not punish a woman for having sex with a
man under 18.
b. Facts: 17 year old boy was convicted under the law for having sex with a 16 year
old girl. The girl was not prosecuted b/c the statute "makes men alone criminally
liable for the act of sexual intercourse."
c. Holding: Constitutional
i. The Court upheld the gender-based statutory rape law. Rehnquist, writing
for the plurality, said that the state could attack the problem of teenage
pregnancy and sexual activity by regulating and punishing men, but
not women. He explained: "B/c virtually all of the significant harmful and
inescapably identifiable consequences of teenage pregnancy fall on the
young female, a legislature acts well within its authority when it elects to
punish only the participant who, by nature, suffers few of the
consequences of his conduct. It is hardly unreasonable for a legislature
acting to protect minor females to exclude them from punishment.
Moreover, the risk of pregnancy itself constitutes a substantial deterrence
to young females. No similar natural sanctions deter males."
ii. The Court concluded that a gender-neutral law was less likely to be
effective b/c girls would be less likely to file complaints or be witnesses if
they, too, faced potential criminal liability.
d. Context: There is no doubt that preventing teenage pregnancy is an important
govt interest; the issue is whether a gender-based law is substantially related to
that goal. Steves in dissent argued that "the fact that a female confronts greater
risk of harm than a male is a reason for applying the prohibition to her, not a
reason for granting her a license to use her own judgment on whether or not to
assume the risk.... Would a rational parent making rules for the conduct of twin
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children simultaneously forbid the son and authorize the daughter to engage in
conduct that is especially harmful to the daughter?"
e. No level of Scrutiny Was Articulated but great deference to the govt.
4. Rostker v. Goldberg (1981):
a. Upheld male-only draft registration based on stereotypes
b. Facts: The Military Selective Service Act requires every male between the ages
of 18-26 to register for possible conscription.
c. Holding: Constitutional
i. The court expressed the need for "healthy deference to legislative and
executive judgments in the area of military affairs.
ii. The Court premised its holding on the fact that women, unlike men, are
not eligible for combat and that Congress and the president had evidence
an intent to retain that policy in the future. The Court said that the
exclusion of women from combat justifies Congress's decision to have
only men register for possible conscription. Rehnquist, for the Court,
recognized that women could serve in noncombat roles, but said that
"Congress simply did not consider it worth the added burdens of including
women in draft and registration plans.... Most significantly, Congress
determined that staffing noncombat positions with women would be
positively detrimental to the important goal of military flexibility."
d. Dissent: Argued that the law was founded on sex-based stereotypes and that
male-only registration is unconstitutional even assuming that it is constitutional to
exclude women from serving in combat. "The Court today places its imprimatur
on one of the most potent remaining public expressions of 'ancient canards'
about the proper role of women." The dissent aruged that registering women
could be useful in the event that it became desirable to draft women for
noncomabt positions in the armed forces.
e. Context.: Ultimately, cases like Michael M. and Goldberg force consideration of
when biological differences between men and women justify gender
discrimination. To ignore physical differences between men and women leads to
absurd results such as in Geduldig where the Court essentially said that
pregnancy is not a sex-based classification. Yet allowing laws to be based on
perceived physical differences between men and women risks upholding laws
that are really based on stereotypes.
5. Nguyen v. INS (2001):
a. The Court allowed a 3rd type of gender classification: gender classifications
benefiting women b/c of biological differences between men and women The
Court allowed a difference in INS rules favoring mothers over fathers b/c of the
greater certainty as to the identity of the mother as compared to the father and
the greater opportunity that mothers have in establishing a relationship with their
children.
b. Facts; involved how children can become citizens when they are born outside
the US to unmarried parents and one of their parents is a US citizen and one it
not. The relevant federal statute imposed different and greater requirements for
the child's acquisition of citizenship if the citizen parent is the father as opposed
to the mother. Specifically, the statute required one of 3 affirmative steps to be
taken if the citizen parent is the father, but not if the citizen parent is the mother:
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legitimation, a declaration of paternity under oath by father, or a court order of


paternity.
c. Holding:
i. The Court upheld this and said that "Congress' decision to impose
requirements on unmarried fathers that differ from those on unmarried
mothers is based on the significant difference between their respective
relationships to the potential citizen at the time of birth."
ii. (1) Biological Certainty. The Court said that the difference in the rule
serves the govt's interest in being sure that there is a biological
relationship between the parent and the child.
1. The Court explained that there, of course, is no doubt as to the
relationship between the mother and the child, but paternity is not
so certain.
iii. (2) Genuine Relationship. The Court said that another governmental
interest furthered in a substantial manner by the law "is the determination
to ensure that the child and the citizen parent have some demonstrated
opportunity or potential to develop not just a relationship that is
recognized, as a formal matter, by the law, but one that consists of the
real, everyday ties that provide a connection between child and citizen
parent and, in turn, the US."
1. The Court said that "in the case of a citizen mother and a child
born overseas, the opportunity for a meaningful relationship
between citizen parent and child inheres in the very event of birth."
"The same opportunity does not result from the event of birth, as a
matter of biological inevitability, in the case of the unwed father.
Given the 9-month interval between conception and birth, it is not
always certain that a father will know that a child was conceived,
nor is it always clear that even the mother will be sure of the
father's identity."
d. Breyer Dissent: Argued that with DNA testing paternity can be established to a
virtual certainty. Disagreed that mothers should be preumed inherently to have
more of a relationship with a child than the father; a mother could have no
contact after birth, while the father could raise the child
e. Context: Nguyen's significant is in allowing a gender classification benefiting
women based on biological differences between men and women. The issues,
however, whenever the Court purports to rely on biological differences as a
justification for differences in treatment, are whether these differences are real or
social constructs and whether they should matter. The majority and dissent in
Nguyen disagree over exactly these questions.

"Non-Suspect Classifications" Classifications: Alienage, Disability, Age, and


Wealth:
1. Alienage Cases Discrimination against Noncitizens
a. Aliens are protected from discrim b/c the EPC explicitly says that no "person"
shall be denied equal protection of the laws. The clause doesnt mention the
world "citizen," although it is used in the PIC, which also is found in S1 of the 14th

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i. Equal protection is applied to the federal govt through the DPC of the 5th,
which also speaks of persons, and the Court has held that it protects
aliens from unjustified discrimination (Mathews v. Diaz).
b. Graham v. Richardson (1971): The Court used strict scrutiny in declaring
unconstitutional a Penn law that made noncitizens ineligible to receive public
assistance and an Az law that limited receipt of benefits to those who are citizens
or had resided in the state for at least 15 years. The Court found both that it
violated equal protection and that it was preempted by federal control over the
field of immigration law.
i. Standard of Review: Strict Scrutiny. The Court held that strict scrutiny was
to be applied to discrimination against aliens.
1. Prior to this decision the Court had been extremely deferential to
discrimination against aliens so long as it related to a "special
public interest."
2. The Court said that "classifications based on alienage, like those
based on nationality or race, are inherently suspect and subject to
cose judicial scrutiny. Aliens as a class are a prime example of a
'discrete and insular minority for whom heightened judicial
solicitude is appropriate.'"
ii. The Court stated: "a State's desire to preserve limited welfare benefits for
its own citizens is inadequate to justify" the discrimination against aliens
iii. Preemption: The Court emphasized that state laws which restrict the
eligibility of aliens for welfare benefits conflict with federal immigration
policy; once the federal govt has decided to admit aliens, state cannot
discriminate against those present.
c. Applying Graham:
i. In re Griffiths (1973): The invalidated, as violating equal protection, a
state law that excluded aliens from being licensed as attorneys.
1. The Court reaffirmed that strict scrutiny was the appropriate test
for discrimination against aliens and held that it was impermissible
for states to require citizenship as a condition for practicing law.
ii. Sugarman v. Dougall (1973): The Court declared unconstitutional a NY
law that prevented aliens from holding civil service jobs.
1. The Court said that excluding aliens denied equal protection and
that a "flat ban on the employment of aliens in positions that have
little, if any, relation to a State's legitimate interest, cannot
withstand scrutiny under the 14th Amendment."
d. The Exception to Strict Scrutiny: Alienage Classifications Related to SelfGovt and the Democratic Process
i. Foley v. Connelie (1978): The Court used rational basis to uphold a state
law that required citizenship in order for a person to be a police officer.
The Court emphasized that police officers are integral to self-government;
they enforce the laws that are the product of the democratic process.
1. The Court concluded: "it would be anomalous to conclude tht
citizens may be subjected to the broad discretionary powers of
non citizen police officers.... It is not surprising, therefore, that
most States expressly confine the employment of police officers to

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citizens, whom the State may reasonably presume to be more


familiar with and sympathetic to American traditions."
2. The Court said that a state may "confine the performance of this
important public responsibility to citizens of the US."
3. The Court said that when the discrimination is against aliens in
these areas, "the State need only justify its classification by
showing some rational relationship between the interst sought to
be protected and the limiting classification."
ii. Ambach v. Norwick (1979): The Court upheld a state law that required
citizenship for a person to be an elementary or secondary school teacher.
1. The Court said that teachers are integral to self-government b/c
they are responsible for inculcating democratic values in youth.
The Court explained that a "teacher has an opportunity to
influence the attitudes of students toward government, the political
process, and a citizen's social responsibilities. This influence is
crucial to the continued good health of a democracy."
2. Therefore, the Court applied Foley and said that only rational
basis review was appropriate in scrutinizing the state law.
3. The Court found that a state had a legitimate interest in excluding
aliens from elementary and secondary school classrooms.
iii. Bernal v. Fainter (1984): The Court refused to apply this exception to a
state law that created a citizenship requirement in order for a person to be
a notary public.
1. The Court reaffirmed that "as a general matter, a state law that
discriminates on the basis of alienage can be sustained only if it
can withstand strict judicial scrutiny." The Court emphasized that
this is a "narrow" exception that applies only if it is specifically
tailored to those who "participate directly in the formulation,
execution, or review of broad public policy, and hence perform
function that go to the heart of representative government."
2. The Court said that notary publics do not perform responsibilities
that go to the heart of representative government. Therefore, strict
scrutiny was applied and the state law was deemed to violate
equal protection.
e. Toll v. Moreno (1982): The Court used preemption analysis to invalidate a state
law denying resident aliens in-state tuition at the University of Maryland.
i. Often state and local laws that discriminate against aliens can be
challenged on preemption grounds as well as for violating equal
protection. The cour has held that federal immigration laws wholly occupy
the field and preempt state efforts to regulate immigration.
f. Exception: Congressionally Approved Discrimination
i. Hampton v. Mow Sun Wong (1976):
ii. Mathews v. Diaz (1976):
2. Cleburne v. Cleburne Living Center (1985):
a. The Court used the rational basis test to declare unconstitutional a city ordinance
that required a special permit for the operation of a group home for the mentally
disabled.

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i. The Court declared that "to withstand equal protection review, legislation
that distinguishes between the mentally retarded and others must be
rationally related to a legitimate governmental purpose."
b. The Court rejected the city's justifications for discriminating against the mentally
disabled, finding either that each was not a "legitimate purpose" or that the law
was not "rational" as a way to achieve the goal.
i. City Argue: For example, the city argued that students from a junior high
school across the street might harass occupants of a group home. The
court said that this argument was based on prejudices against the
mentally disabled and that indulging such private biases is not a
legitimate government purpose.
ii. City Argue: The city also contended that the home was located on a "five
hundred year flood plain." But the Court said that the city's professed
concern was belied by its allowing in the area facilities such as nursing
homes, homes for convalescents and the aged, hospitals, and
sanitariums. Also, the court rejected the city's concern over the number
who would live in the home b/c no similar restrictions on size existed for
nursing homes, boarding houses, fraternities, or others.
c. Critique: The Court's review was more rigorous than usual for rational basis
analysis. Traditionally it would allow for significant underinclusiveness and the
government may proceed one step at a time. Thus, the govt would be able to
regulate homes for the mentally disabled, but not apply the standards to hospitals
or nursing homes.
3. Mass. Bd. of Retirement v. Murgia (1976): Age Discrim
a. The Court upheld a state law that required police officers to retire at age 50. The
Courg gave several reasons for choosing rational bais review for age
classifications.
i. The Court said: "While the treatment of the aged in this Nation has not
been wholly free of discrimination, such persons, unlike, say, those who
have been discriminated against on the basis of race or national origin,
have not experienced a history of purposeful unequal treatment or been
subjected to unique disabilities on the basis of stereotyped characteristics
not truly indicative of their abilities." Moreover, the Court said that "even
old age does not define a "discrete and insular' group in need of
extraordinary protection from the political process. Instead it marks a
stage that each of us will reach if we live our normal span
4. San Antonio Indep. Sch. Dist. v. Rodriguez (): Wealth Discrim
a. The Court expressly held that poverty is not a suspect classification and that
discrimination against the poor should only receive rational basis review.
b. Facts: There was a challenge to Texas's system of relying heavily on local
property taxes to pay for public education. The result was that poor areas were
taxed at high rates, but still had little to spend on education. Wealthy areas could
tax at low rates and had a great deal to spend on schooling. The Ps argued, in
part, that the disparity in funding discriminated against the poor in violation of the
EPC.
c. Holding: The Court, 5-4, held that discrimination against the poor doesnt
warrant heightened scrutiny. The Court also rejected the claim that the law
should be regarded as discriminating against the poor as a group.
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i. Justice Powell stated: "A cursory examination, however, demonstrates


that neither of the two distinguishing characteristics of wealth
classifications can be found here. First, in support of their charge that the
system discriminates against the 'poor,' appellees have made no effort to
demonstrate that it operates to the peculiar disadvantage of any class
fairly definable as indigent.... There is no basis on the record in this case
for assuming that the poorest people, defined by reference to any level of
absolute impecunity, are concentrated in the poorest districts. Second,
lack of personal resources had not occasioned an absolute deprivation of
the desired benefit."
ii. The Court clearly wanted to avoid creating a constitutional right to
government benefits such as welfare, food, shelter, or medical care.
5. Plyler v. Doe ():

Unit III: The Free Speech Clause of the First


Amendment:
Unprotected Speech Part I:
1. Abrams v. United States (1919):
a. Facts: A group of Russian immigrants had circulated leaflets, in English and in
Yiddish, objecting to America sending troops to Eastern Europe after the Russian
revolution. Although the D's speech had nothing to do with WWI or the draft, they
were convicted of encouraging resistance and conspiracy to urge curtailment of
the production of war materials and sentenced to 20 years in prison

b. Holding: The Court affirmed the convictions of the Russians relying on Schenck
and Frohwerk

c. Holmes Dissent: He articulated the marketplace of ideas metaphor for the First
Amendment.

i. He said that he never had seen any reason to doubt that Schenck,
Frohwerk, and Debs were rightly decided: "I do not doubt for a moment
that by the same reasoning that would justify punishing persuasion to
murder, the US constitutionally may punish speech that produces or is
intended to produce a clear and imminent danger that it will bring about
forthwith certain substantive evils that the US constitutionally may seek to
prevent. The power undoubtedly is greater in time of war than in time of
peach b/c war opens dangers that do not exist at other times."

ii. He though that the clear and present danger test was not met in Abrams.
He said: "Now nobody can suppose that the surreptitious publishing of a
silly leaflet by an unknown man, w/o more, would present any immediate
danger that its opinions would hinder the success of the government arms
or have any appreciable tendency to do so."
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1. It can be asked, however, whether the same description might not


have been used in Schenck: a silly leaflet, circulated by an
unknown man, w/o more.

2. Dennis v. United States (1951):


a. Facts: Individuals were convicted and sentenced to long prison terms for
teaching four books written by Stalin, Marx and Engels, and Lenin. Although
there was no accusation that they had done anything other than teach these
works, they were convicted of violating the Smith Act. Section 2 of the Smith Act
made it unlawful for any person "to knowingly or willfully advocate, abet, advise,
or teach the duty, necessity, desirability, or propriety of overthrowing or
destroying any government in the US by force or violence, or by the
assassination of any officer of such government." Section 3 made it "unlawful for
any person to attempt to commit, or to conspire to commit, any of the acts"
prohibited in section 2.

i. The Ds were convicted of conspiring to organize the Communist Party of


the US, which was described as a group that taught and advocated the
overthrow of the US government.

b. Holding:
i. Clear and Present Danger Test: Vinson's Plurality opinion said that the
appropriate test was the clear and present danger approach articulated in
Schenk and not the reasonableness test of Gitlow or Whitney.

1. Measure of the Test: Vinson said that the measure of the clear and
present danger test is the formula announced by Judge Learned
Hand: "In each case courts must ask whether the gravity of the
'evil,' discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid the danger."

ii. Excteption: Great Harm Possibility. The plurality concluded that the harms
of an overthrow of the government are so enormous that the government
need not show that the danger is imminent or probable in order to punish
speech.

1. Vinson said: "Obviously, the words cannot mean that before the
Government may act, it must wait until the putsch is about to be
executed, the plans have been laid and the signal is awaited....
The damage which such attempts create both physically and
politically to a nation makes it impossible to measure the validity in
terms of, the probability of success, or the immediacy of a
successful attempt."

2. The approach taken by the plurality here makes probability and


imminence 2 seeming requirements of a clear and present
danger test irrelevant
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a. If the harm is great enough, such as the overthrow of the


government, then speech advocating it can be punished
w/o any showing of likelihood or imminence. Indeed, the
plurality acknowledged that its approach was different from
that advocated by Justices Holmes and Brandeis in their
opinions in Gitlow and Whitney. But Vinson said that
Holmes and Brandeis "were not confronted with any
situation comparable to the instant one the development
of an apparatus designed and dedicated to the overthrow
of the Government, in the context of world crisis after
crisis."

c. Frankfurter Concurrence: He urged the application of the reasonableness test


as in Gitlow and Whitney. He urged deference to the legislature: "Primary
responsibility for adjusting the interests which compete in the situation before us
of necessity belongs to the Congress."

i. He said that "free speech cases are not an exception to the principle that
we are not legislators, that direct policy making is not our province.... It is
not for us to decide how we would adjust the clash of interests which this
case presents were the primary responsibility for reconciling it ours.
Congress had determined that the danger created by advocacy of
overthrow justifies the ensuing restriction on freedom of speech."

d. Jackson Concurrence: He argued against the application of the clear and


present danger test on the ground that it was too protective of speech. He said
that "the authors of the clear and present danger test never applied it ot a case
like this, nor would I. If applied as it is proposed here, it means that the
Communist plotting is protected during its period of incubation; its preliminary
stages of organization and preparation are immune from the law; the
Government can move only after imminent action is manifest, when it would, of
course, be too late.

e. Black and Douglas Dissent: Each emphasized that the convictions were solely
for engaging in speech. Black lamented that the Ds were "not charged with an
attempt to overthrow the Government.They were not charged with overt acts of
any kind designed to overthrow the Government. They were not even charged
with saying anything or writing anything designed to overthrow the Government.
The charge was that they agreed to assemble and to talk and publish certain
ideas at a later date."

i. Douglas said that to punish expression "there must be some immediate


injury to society that is likely if speech is allowed." He said: "How it can be
said that there is a clear and present danger that this advocacy will
succeed is a mystery.... In America, the Communists are miserable
merchants of unwanted ideas; their wares remain unsold.

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f. Context: Dennis, especially from perspective of hindsight, seems terribly


misguided; individuals were punished for doing no more than reading and talking
about 4 books that are now regular party of many college courses.
3. Brandenburg v. Ohio (1969):
a. Facts: A leader of a KKK group was convicted under the Ohio criminal
syndicalism law. Evidence of his incitement ws a film of the events at a Klan rally,
which included racist and anti-Semitic speech, and several items that appeared
in the film, including a number of firearms.
b. Holding: In a per curiam opinion, the Court acknowledged that Whitney had
upheld the California criminal syndicalism law, but the Court cited Dennis as
discrediting Whitney's reasoning. The Court said that these later decisions,
referring to Dennis, "have fashioned the principle that the constitutional
guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely
to incite or produce such action."
c. Context: Brandenburg clearly seems to be the Court's most speech protective
formulation of an incitement test.
i. A conviction for incitement under Brandenburg only is constitutional if
several requirements are met:
1. imminent harm,
2. a likelihood of producing illegal action, and
3. an intent to cause imminent illegality.
ii. None of the earlier tests had contained an intent requirement. Also, none
ever had so clearly stated a requirement for a likelihood of imminent harm
iii. Its puzzling that the Court presented this test as if it followd from the
Dennis formulation, rather than that it was a substantial expansion in the
protection of speech. In Dennis, the court expressly denied that there was
a requirement for proof of an imminent danger of likely harm
iv. Unresolved by the Court: Brandenburg doesn't answer how imminence
and likelihood are to be appraised or what must be proved to establish
"intent."
4. NAACP v. Claiborne Hardware Co. (1982):
a. The Court overturned a judgment against the NAACP for a boycott of whiteowned businesses that it alleged engaged in racial discrimination. "If we catch
any of you going in any of them racist stores, were gonna break your damn
neck."
b. Facts: involved efforts by black citizens in a Mississippi county to
boycott white merchants until certain demands for racial equality were
satisfied. One of the defendants was Charles Evers, an NAACP leader,
who in speaking in favor of the boycott said that blacks who violated
the boycott would be "disciplined" by their own people.
c. Holding: Not Incitement
i. The Supreme Court reversed a lower court verdict against Evers
and others for the lost earnings of the white merchants. In so
doing, it concluded that Evers speech did not constitute
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incitement, and was therefore protected by the First


Amendment. Evers used "strong language," but, the Court held,
"[a]n advocate must be free to stimulate his audience
with spontaneous and emotional appeals for unity and
action in a common cause." Evers' language did not cross
over the line into incitement of imminent violence.
ii. Result taken into account: No Unlawful Acts Actually
Occurred. In reaching this conclusion, the Court also relied on
the fact that unlawful acts did not in fact result from Evers'
speech. The Court implied that when speech is followed by
violent or otherwise illegal acts, the requisite "intent to incite" is
more likely to be found, than where no such acts follow.
5. Chaplinsky v. New Hampshire (1942): Fighting Words
a. The Court expressly held that "fighting words" are a category of speech
unprotected by the 1A
b. Facts: Chaplinsky, a Jehovah's Witness, was distributing literature for his religion
on a street corner on a Saturday afternoon and gave a speech denouncing other
religions as a "racket." In addition, he said at one point to a listener, "You are a
God damned racketeer" and "a damned Fascist and the whole government of
Rochester are Fascists or agents of Fascists." He was convicted for this speech
c. Holding: Conviction Upheld
i. The Court said that "allowing the broadest scope to the language and
purpose of the 14th, it is well understood that the right of free speech is not
absolute at all times and under all circumstances. There are certain welldefined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any constitutional
problem. These include the lewd and obscene, the profane, the libelous,
and the insulting or fighting words those which by their very
utterance inflict injury or tend to incite an immediate breach of the
peace."
ii. The Court said that "such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality. Resort to epithets or personal
abuse is not in any proper sense communication of information or opinion
safeguarded by the Constitution."
iii. 2 Situations Recognized Where Speech Constitutes Fighting Words:
1. Provocation to Fight. Where it is likely to cause a violent
response against the speaker; and
2. Emotional Injury. Where it is an insult likely to inflict immediate
emotional harm.
d. Context: Practically Overruled. Chaplinsky hasnt been overturned, fighting
words remain a category of speech unprotected, but in the more than half
century since Chaplinsky, the Court has never again upheld a fighting words
conviction.Every time the Court has reviewed a case involving fighting words, the
Court has reversed the conviction, but w/o overruling Chaplinsky.
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6. Cohen v. California (1971): Narrowing the Fighting Words Doctrine


a. The Court held that unprotected fighting words occur only if the speech is
directed to a specific person and likely to provoke violent response.
b. Facts: Cohen was convicted for disturbing the peace for having in a courthouse
a jacket that had on its back the words, "Fuck the Draft." The state argued, in
part, that the inscription on the jacket constituted fighting words b/c of the
possible violent response from people who saw and wre angered by the
message.
c. Holding: Not Fighting Words
i. The Court stated: "While the four-letter word displayed by Cohen in
relation to the draft is not uncommonly employed in a personally
provocative fashion, in this instance it was clearly not directed to the
person of the hearer. No individual actually or likely to be present could
reasonably have regarded the words on appellant's jack as a direct
personal insult.
d. Context: Texas v. Johnson Flag Burning Case.
i. The applied this requirement in Texas v. Johnson where it held that flag
burning was a form of speech protected by the 1A. One argument made
by the govt was that the flag destruction was likely to provoke a violent
response from the audience and thus was a form of fighting words. The
Court rejected this contention for the reason given in Cohen: The speech
was not directed at a particular person - "No reasonable onlooker would
have regarded the generalized expression of dissatisfaction with the
policies of the Federal Govt as a direct personal insult or an invitation to
exchange fisticuffs."
Unprotected Speech Part II:
1. New York Times v. Sullivan (1964):
a. Facts: Plaintiff in New York Times was a public official one of whose
duties was supervising the Montgomery, Alabama Police Department.
He alleged that the Times had libeled him by printing an advertisement
that stated that the Montgomery police had attempted to terrorize
Martin Luther King and his followers. (Plaintiff was not even named in
the advertisement; but under Alabama libel law, criticism of the
department of which he was in charge was deemed to reflect on his
reputation.)
b. Holding: Reversed the Damage Award
i. A unanimous Supreme Court reversed the damage award. In so
doing, the Court for the first time established that state
defamation rules are limited by First Amendment
principles.
ii. Robust debate on Public Issues: The Court viewed this case
as one involving criticism of government policy, not merely
factual statements about an individual. Debate on public issues
must be "uninhibited, robust, and wide open," and may often
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include "vehement, caustic, and sometimes unpleasantly sharp


attacks on government and public officials." Requiring critics of
official conduct to guarantee the truth of all their factual
assertions would lead to self-censorship, rather than free
debate.
iii. Actual Malice for Public Officials. The Court was not content
merely to strike the libel judgment as a disguised ban on
criticizing the government. Instead, it articulated a formal rule,
so that future speakers would not have to worry about liability
for libel in similar circumstances: the First Amendment
prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct
unless he proves that the statement was made with
"actual malice"- that is, "with knowledge that it was false
or with reckless disregard of whether it was false or not."
The case thus establishes a "constitutional privilege for good
faith critics of government officials."
iv. 4 Reqs Under NYT:
1. (1) P must be a public official or running for public office:
2. (2) the P must prove his or her case with clear and
convincing evidence;
3. (3) the P must prove falsity of the statement; and
4. (4) the P must prove actual malice that the D knew the
statement was false or acted with reckless disregard of
the truth.
2. Gertz v. Robert Welch Inc. (1974):
a. Facts: The plaintiff, Gertz, was a locally well-known lawyer who
represented the family of a youth who was killed by a policeman.
Defendant, publisher of a John Birch Society magazine, falsely attacked
Gertz as having helped "frame" the policeman and as being a
communist.
b. Holding:
i. The Supreme Court held, 5-4, that in libel actions brought by
private figures, the First Amendment does not forbid use of a
simple negligence standard. The states are free to decide
whether they wish to establish negligence, recklessness or
knowing falsity as the standard (but they may not impose strict
liability). A.
1. Reasoning: Private are More Vulnerable and
Deserving of Damages. The majority reasoned that
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private individuals are both more vulnerable, as well as


more deserving of recovery for defamation, than public
figures. They are more vulnerable because public figures
generally have "significantly greater access" to the media,
and can use that access to counteract false statements.
They are deserving of extensive protection against
defamation, because public figures have generally
"voluntarily exposed themselves to increased risk of injury
from defamatory falsehoods," unlike private persons.
ii. Who is private figure: In holding that Gertz himself was a
private figure, the Court implicitly took a narrow view of the
term "public figure." Gertz was a well-known lawyer locally, and
had agreed to take a case which he knew would attract
substantial publicity. Nonetheless, Gertz had not achieved
"general fame or notoriety in the community" (so that he was
not public figure for all purposes); similarly, he was not a public
figure for the limited purposes of this case, because he had
played only a "minimal role" in it.
3. Dun & Bradstreet v. Greenmoss Builder (1985):
a. The Court said that a distinction must be drawn in suits against private figures
between speech that involves matters of public concern and that which does
not."
b. Facts: involved a confidential report prepared by a credit reporting agency for
subscribers that falsely said that a company had filed a petition for bankruptcy.
c. Holding:
i. The Court said that "not all speech if of equal First Amendment
importance. It is speech on 'matters of public concern' that is 'at the heart
of the 1A's protection.' In contrast, speech on matters of purely private
concern is of less 1A concern."
ii. Private P = Actual Malice Only Needed for Extra Damages Wro
Matters of Public Concern. The plurality thus said that the Gertz
requirement that presumed and punitive damages require proof of actual
malice only applies in suits involving private figures and matters of public
concern.
iii. Credit reports did not involve a matter of public concern b/c it was
circulated only to 5 subscribers, was required to be kept confidential, and
was thus of interest only to its "specific business audience."
4. Hustler Magazine v. Fallwell (1988): IIED
a. The Court held that recovery for the tort of IIED had to meet the NYTs standards.
Specifically, the Court ruled that public officials and public figures who are targets
of parody cannot recover for IIED unless there is proof of actual malice.
b. Facts: Hustler Magazine published a parody in which it depicted Jerry Falwell, a
nationally famous minister and founder of the Moral Majority, as having his first
sexual experience with his mother in an outhouse. In small print at the bottom
there was a disclaimer, "ad parody not to be taken seriously."
c. Holding:
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i. The Court unanimously emphasized the importance of 1A protection for


parody and satire. The Court said that the motive behind the ad was
irrelevant. It explained: "While such a bad motive may be deemed
controlling for purposes of tort liability in other areas of the law, we think
that the 1A prohibits such a result in the area of public debate about
public figures. Were we to hold otherwise, there can be little doubt that
political cartoonists and satirists would be subjected to damage awardes
w/o any showing that their work falsely defamed its subject."
ii. The Court thus held that the NYTs standard of actual malice had to be
met in suits by public officials and public figures for intentional torts. The
court wrote: "We Conclude that public figures and public officials may not
recover for the tort of IIED by reason of publications such as the one here
at issue w/o showing in addition that the publication contains a false
statement of fact which was made with 'actual malice,' ie, with knowledge
that the statement was false or with reckless disregard as to whether or
not it was true."
iii. Context:
1. Any other result here would have meant that defamation Ps could
circumvent the rigorous NYTs standard simply by suing for IIED.
Moreover, the decision reflects the strong 1A protection for speech
about public officials and public figures, even when it is caustic
and offensive."
5. Snyder v. Phelps (2011):
a. Facts: Involves members of the Westboro Baptist Church, a small church in
Kansas, who go to funerals of those who died in military service and use them as
the occasion for expressing strong antigay and antilesbian messages. The
members of the church did so at the funeral of Matthew Snyder, who died in
military service in Iraq. Snyder's father sued and prevailed on several tort
theories, most notably IIED. The federal district court upheld a $10m judgment
against the Ds, but the 5th Circuit reversed and concluded that the liability
violated the 1A.
b. Holding:
i. Public Concern: Political, Social, Community, Newsworthiness. In
determining whether a matter is of public concern, the Court considers if
the speech at issue pertains to a matter of political, social, or other
concern to the community and, similarly, if the speech is newsworthy or of
general interest to the community. These are not "bright-line tests, but
instead require a consideration of the "content, form, and context" of the
speech in question.
1. The Court said that the signs stating "Thank God for Dead
Soldiers," "God Hates Fags," and "Fags Doom Nations," address
a moral issue with obvious political, social, and cultural
dimensions with a particular viewpoint. Offensiveness plays no
role in determining whether it involves a matter of public concern.
2. Context of the speech was picketing, a traditional form of
conveying info to the public in a public arena and the context of
the speech activity, a military funeral, doesnt in any manner alter
the public nature of the speech.
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ii. Content Based Restriction: The father's understandable emotional


distress is a direct product of the viewpoint expressed by the picketers.
His lawsuit seeks redress for the consequences that resulted from the
expression of that viewpoint. Hence, the damage award is a contentbased restriction, as it flows directly from the particular viewpoint
expressed by the church members.
1. Location is Irrelevant to Content Based Determination. The
fact that the speech took place at a particular location (the funeral)
does not alter the content-based nature of the restriction.
Regardless of the location, the message triggered the harm and
the message was the focal point of the remedy sought.
6. United States v. Alvarez (2012): Stolen Valor Act Case.
Vagueness, Overbreadth, Prior Restraints:
Overbreadth: A law is constitutionally overbroad, if it regulates substantially more speech than
the Constitution allows to be regulated, and a person to whom the law constitutionally can be
applied can argue that it would be unconstitutional as applied to others.
In an area where the govt can regulate speech, such as obscenity, a law that regulates much
more expression than the Constitution allows to be restricted will be declared unconstitutional
on overbreadth grounds. An individual whose speech is unprotected by the First Amendment
and who could constitutionally be punished under a more narrow statute may argue that the law
is unconstitutional b/c of how it might be applied to third parties not before the Court.
1. Broadrick v. Oklahoma:
a. The Court said that "particularly where conduct and not merely speech is
involved, we believe that the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep."
b. Facts: There was an Ok law that prohibited political activities by governmental
employees. The challengers argued that the law was overbroad b/c it prohibited
constitutionally protected activity such as the wearing of political buttons or the
displaying of bumper stickers.
c. Holding: The Court acknowledged some overbreadty, but upheld the law b/c it
was "not substantially overbroad and that whatever oberbreadty may exist should
be cured through case-by-case analysis of the fact situations to which it
sanctions, assertedly, may not be applied."
i. AKA The Court said that the law shouldnt be declared unconstitutional on
its fact b/c it was not substantially overbroad, but that particular
applications of the law could be declared unconstitutional in future cases.
Relationship Between Vagueness and Overbreadth:
Both vagueness and overbreadth involve facial challenges to laws. They are overlapping, but
not identical
Often laws that are vulnerable to vagueness challenges also can be objected to on overbreadth
grounds.
2. Coates v. Cincinnati (1971):

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a. Facts: The Court declared unconstitutional an ordinance that made it a criminal


offense for "three or more persons to assemble on any of the sidewalks
and there conduct themselves in a manner annoying to persons passing by."
b. Holding: The Court said that the law "is unconstitutionally vague b/c it subjects
the exercise of the right of assembly to an unascertainable standard, and
unconstitutionally broad b/c it authorizes the punishment of constitutionally
protected conduct."
i. The law was vague b/c "conduct that annoys some people does not
annoy others" and people would have to guess as to what behavior would
be punished
ii. The law was overbroad in that political demonstrations would be
prohibited if spectators found them annoying.
Vagueness: A law is unconstitutionally vague if a reasonable person cannot tell what speech is
prohibited and what is permitted.
Unduly vague laws violate due process whether or not speech is regulated
Rationale. In part, the vagueness doctrine is about fairness; it is unjust to punish a person w/o
providing clear notice as to what conduct was prohibited. Vague laws also risk selective
prosecution; under vague statutes and ordinances the govt can choose who to prosecute based
on their views or politics. The Court explained that "A conviction fails to comport with due
process if the statute under which it is obtained fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.
Chilling Effect. Courts are particularly troubles about vague laws restricting speech out of
concern that they will chill constitutionally protected speech. The court has observed that
freedom of speech is "delicate and vulnerable, as well as supremely precious in our society
and the threat of sanctions may deter their exercise almost as potently as theactual application
of sanctions." "Because First Amendment freedoms need breathing space to survive, govt may
regulate in the area only with narrow specificity." -- thus statutes will be invalidated if a judge
concludes that they provide inadequate notice as to what speech is prohibited and what is
allowed
The Void-for-Vagueness doctrine is a powerful tool in First Amendment litigation b/c it allows
facial challenges to laws even by those whose speech otherwise would be unprotected by the
First Amendment.
3. NEA v. Finley (1998):
a. Facts: The National Endowment for the Arts (NEA) provides grants to artists.
Since. 1965, when it was created, it has disbursed over $3b in funds to
individuals and organizations. The federal statutes creating the NEA gives it
substantial discretion in awarding funds; it is empowered to give money based on
"artistic and cultural significance, giving emphasis to American creativity and
cultural diversity," "professional excellence," and encouragement of public
knowledge, education, understanding, and appreciation of the arts." In 1990, the
statute was amended to provide that the NEA also should "take into
consideration general standards of decency and respect for the diverse beliefs
and values of the American public."
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b. Holding: Constitutional
i. O'Connor emphasized that the federal law did not required that the NEA
consider decency and respect for values; rather, the statutes permitted
such consideration.
ii. Vagueness. The Court rejected the vagueness challenge and noted that
"when the Govt is acting as patron rather than as sovereign, the
consequences of imprecision are not constitutionally severe." In other
words, when the govt is giving subsidies, imprecise criteria are permitted,
even if they would not be tolerated in a regulatory scheme.
iii. Viewpoint Discrimination. O'Connor also rejected the claim that the law
was impermissible viewpoint discrimination. The Court stressed that the
govt must make choices among applicants, and it said that the statute's
language does "not engender the kind of directed viewpoint discrimination
that would prompt this Court to invalidate a statutes on its face." The court
said that there was no allegation of viewpoint discrimination in the
application of the law and that facially the law was constitutional.
1. Integral to the Courts decision was its conclusion that it was
viewpoint neutral for the federal law to authorize the NEA to
consider "decency and respect" for values. Yet these terms
inherently focus attention on viewpoint. What is decent or indecent
depends entirely on the evaluator's views. Likewise, determining
whether art shows respect for values requires a viewpoint-based
assessment. However, all but Souter saw the law as viewpoint
neutral and as employing permissible criteria for the govt to use in
disbursing funds
a. How is this consistent with Coates and annoyance?
iv. Context: The government may make content-based choices, such as
when subsidizing speech, as long as it is viewpoint neutral
Prior Restraint: Court has declared that "prior restraints on speech and publications are the
most serious and least tolerable infringement on First Amendment rights." It has a "heavy
presumption against its constitutional validity.
Definition. An administrative system or a judicial order that prevents speech from occurring.
EG some form of license or permit required before one may engage in expression, or a
judicial order directing an individual not to engage in expression, on pain of contempt.
4. Near v. Minnesota: Court Orders as a Prior Restraint
a. Facts: A MN law provided for the abatement, as a public nuisance, of a
"malicious, scandalous, and defamatory newspaper, magazine or other
periodical." The statute was applied to the Saturday Press that published a series
of articles that made defamatory and anti-Semitic accusations. A trial court issued
an injunction that perpetually enjoined the Saturday Press from publishing or
circulating "any publication whatsoever containing a malicious, scandalous
and defamatory matter."
b. Holding: The Court declared the injunction unconstitutional and said that "it has
been generally, if not universally, considered that it is the chief purpose of the
guaranty to prevent previous restraints upon publication.... The fact that for
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approximately 1050 years there has been almost an entire absence of attempts
to impose previous restraints upon publications is significant of the deepseated conviction that such restraints would violate constitutional right."
i. After the Fact Punishment. The Court emphasized that the appropriate
ways of dealing with unprotected speech was after the fact punishment,
not a prior restraint. "The fact that liberty of the press may be abused by
miscreant purveyors of scandal doesnt make any the less necessary the
immunity of the press from previous restraint in dealing with official
misconduct. Subsequent punishment for such abuses as may exist is the
appropriate remedy."
ii. Exceptional Cases. The Court here did not say that all court orders
stopping speech are unconstitutional, but said that such injunctions would
be allowed "only in exceptional cases."
1. The Court then outlined the situation where it envisioned allowing
such prior restraints: "No one would question but that a
government might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of transports or the
number and location of troops. On similar grounds, the primary
requirements of decency may be enforced against obscene
publications. The security of the community life may be protected
against incitements to acts of violence and the overthrow by force
of orderly government."
Content-Based and Content-Neutral Restrictions:
1. Police Dept v. Mosley (1972):
a. The Court said: "Above all else, the First Amendment means that government
has no power to restrict expression b/c of its message, its ideas, its subject
matter or its content."
b. Facts: A Chicago ordinance that prohibited picketing or demonstrations within
150 ft of a school building while the school was in session, except for peaceful
picketing in connection with a labor dispute. Earl Mosley frequently picketed the
school, usually by himself, to protest what he perceived as race discrimination by
the school. The protests were conceded by the city to be always peaceful,
orderly, and quiet.
c. Holding: Unconstitutional
i. EPC. The Court expressly used equal protection for analyzing the
Chicago ordinance.
1. Marshall said: "B/c Chicago treats some picketing differently from
others, we analyze this ordinance in terms of the EPC of the 14th
Amendment."
2. The Court also recognized that the law restricted speech that was
clearly protected by the First Amendment.
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ii. Impermissible Subject Matter Restriction. The Court concluded that


the law was unconstitutional b/c it was an impermissible subject matter
restriction on speech.
1. Marshall declared: "The central problem with Chicago's ordinance
is that it describes permissible picketing in terms of its subject
matter. Peaceful picketing on the subject of a school's labormanagement dispute is permitted, but all other peaceful picketing
is prohibited. The operative distinction is the message on a picket
sign. But, above all else, the First Amendment means that
government has no power to restrict expression b/c of its
message, its ideas, its subject matter, or its content."
d. Context:
i. Carey v. Brown (1980):
1. Facts: The Court declared unconstitutional an Ill. Statute that
prohibited picketing or demonstrations around a person's
residence unless the dwelling is used as a place of business or is
a place of employment involved in a labor dispute. In other words,
under the law, picketing in residential neighborhoods was allowed
if it was a labor dispute connected to a place of employment, but
otherwise generally speech was prohibited
2. Holding: The Court again applied equal protection and found the
law unconstitutional.
a. The Court applied Mosley and concluded: "The Act
accords preferential treatment to the expression of views
on one particular subject; information about labor disputes
may be freely disseminated, but discussion f all other
issues is restricted.... When government discriminates
among speech-related activities in a public forum, the EPC
mandates that the legislation be finely tailored to serve
substantial interests, and the justification offered for
distinctions it draws must be carefully scrutinized."
2. Simon & Schuster, Inc. v. Members of NY State Crime Victims Board:
a. Facts: a NY state law that prevented an accused or convicted criminal from
profiting from selling the story of his or her crime to any media. The so called
"Son of Sam Law" placed any funds received from works describing the crime
into an escrow account that was used for restitution to victims of the crime and
for paying the criminal's other creditors. The NY law did not prohibit any speech;
it only prevented individuals from keeping profits from selling the tales of their
criminal activity.
b. Holding: Unconstitutional
i. Content Based Financial Burden. Nonetheless, the Court found the law
to violate the First Amendment. The Court said that "a statute is

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presumptively inconsistent with the First Amendment if it imposes a


financial burden on speakers b/c of the content of their speech."
1. The Court stressed that the state law was content-based: "it
singles out income derived from expressive activity for a burden
the State places on no other income, and it is directed only at
works with a specified content."
ii. Strict Scrutiny. The Court thus applied strict scrutiny and concluded that
while compensating crime victims was a compelling interest, the state
could achieve its goal through a means less restrictive of speech.
c. Context: Restrictions on payments for speech whether content-based or
content-neutral (National Treasury Employees Union) are infringements on
expression and must meet First Amendment scrutiny.
i. Just as potential civil liability can deter speech, so can preventing
monetary compensation decrease speech by eliminating an economic
incentive for First Amendment activity.
3. Burson v. Freeman:
a. Facts: a TN state law prohibited either the soliciting of votes or the display or
distribution of campaign materials within 100 ft of the entrance of a polling place.
b. Holding: Constitutional
i. Content-Based Restriction = Strict Scrutiny Applies. The plurality said
that strict scrutiny was appropriate b/c the law was a content-based
restriction on speech and a restriction of political speech.
ii. Strict Scrutiny Met. But the plurality concluded that this was the "rare
case" in which strict scrutiny was satisfied. Blackmun explained that "a
long history, a substantial consensus, and simply common sense show
that some restricted zone around polling places is necessary to protect
the fundamental right to vote. Given the conflict between those two rights
[speech and voting], we hold that requiring solicitors to stand 100 feet
from the entrances to polling places does not constitute an
unconstitutional compromise."
1. The Court said that the history of campaign workers intimidating
voters around polling places created a compelling interest
sufficient to justify the content-based restriction of speech.
4. United States v. O'Brien (1968):
a. The Court formulated a test for evaluating the constitutional protection for
conduct that communicates
b. Facts: Individuals burned their draft cards to protest the Vietnam War in violation
of a federal law, amended in 1965, to make it a crime to knowingly "destroy" or
"knowingly mutilate" draft registration certificates.
c. Holding: Constitutional
i. The Court said that "when 'speech' and 'nonspeech' elements are
combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify
incidental limits on First Amendment freedoms."
ii. Communicatory Conduct Regulation Test. The Court articulated a test
for evaluating conduct that communicates under the First Amendment
1. Warren said: "A governmental regulation is sufficiently justified if it
is within the constitutional power of the Government; if it furthers
an important or substantial governmental interest; if the
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governmental interest is unrelated to the suppression of free


expression; and if the incidental restriction on First Amendment
freedoms is no greater than is essential to the furtherance of that
interest."
2. "Intermediate Scrutiny" for Content-Neutral Regulation. AKA,
the government can regulate conduct that communicates if it has
an important interest unrelated to suppression of the message and
if the impact on communication is no more than necessary to
achieve the government's purpose.
a. The test is thus very similar, if not identical, to intermediate
scrutiny
b. Test Met. The Court found this test was met in the
government's prohibition of draft card burning. The Court
identified several justifications, unrelated to suppression of
speech, for the prohibition of draft card destruction or
mutilation.
i. For example, that requiring the presence of draft
cards facilitates emergency military mobilization,
aids communication with a person's draft board b/c
the address is listed on the card, and reminds
individuals to notify their draft board of any change
in address or changes related to draft status.
ii. Critique. All of these justifications can be
questioned. It seems highly unlikely that the military
ever would induct people by pulling them over,
inspecting draft cards, and conscripting those who
were draft eligible. Moreover, people can
communicate with their draft boards or remember
to notify them of a change of address w/o carrying
their draft card.
iii. Communicatorily Restrictive Motive
Irrelevant.The clear purpose of the amendment to
the Selective Service Act was to stop draft card
burning as a form of political protest. Yet, the Court
said that his motive was irrelevant. The Court said
that "it is a familiar principle of constitutional law
that this Court will not strike down an otherwise
constitutional statute on the basis of an alleged
illicit legislative motive."
1. The court explained that "inquiries into
congressional motives or purposes are a
hazardous matter."
2. Court frequently engages in exactly such
inquiry into movies though.
5. Texas v. Johnson (1989):
a. Facts: a state law prohibited any person to "deface, damage or otherwise
physically mistreat" a flag in a way that the actor know "will seriously offend one
or more persons likely to observe or discover his actions." An individual was
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convicted of violating the law and sentenced to a year in prison for burning a flag
as part of a protest at the Republican National Convention
b. Holding: Unconstitutional
i. Primary Purpose of Prohibiting Speech. 5-4 the Court held that the
Texas law was unconstitutional. Brennan emphasized that unlike O'Brien,
the government's interest was not unrelated to suppression of the
message; to the contrary, the law's purpose was to keep the flag from
being used to communicate protest or dissent.
ii. Offensiveness is Irrelevant. He also stressed that the Texas law did not
prevent all flag destruction, but rather applied only when there would be
offensive to others. The Court said that "if there is a bedrock principle
underlying the First Amendment, it is that the Government may not
prohibit the expression of an idea simply b/c it finds the idea itself
offensive or disagreeable."
c. Rehnquist Dissent, joined by White, O'Connor: He emphasized the
importance of the flag as a national symbol and maintained that flag burning is
"no essential part of any exposition of ideas" and whatever message was
transmitted by the D's flag burning could have "been conveyed in a dozen
different ways." He said that "flag burning is the equivalent of an inarticulate grunt
or roar that is most likely to be indulged in not to express any particular idea, but
to antagonize others.
6. United States v. Eichman (1990):
a. The Court declared this law unconstitutional. The split was identical to that in
Johnson
b. Facts: The statute prohibited all acts of flag burning except those for disposing of
a used or worn out flag. It was facially neutral as to protests.
c. Holding: Court says it's clearly motivated by a desire to stamp out protests that
involved the burning of flags. Most acts of flag burning are done to show a
particular political viewpoint
i. In O'Brien the Court was hesitant to look into Congressional purpose and
effects of the content neutral law but here the Court jumped right in. WDK
exactly where we are now with respect to this.
d. Primary Purpose of Prohibiting Speech. Brennan again wrote the opinion for
the Court and said that the statute had the "same fundamental flaw" as the Texas
law that had been invalidated a year earlier. The law's primary purpose was to
keep the flag from being used to communicate protest or dissent. The Court said
that this was a purpose directly focused on the message and that therefore strict
scrutiny was the appropriate test
i. Critique. Nationhood and Unity: These decisions can be criticized for
failing to recognize that the flag is a unique symbol and deserving of
protection. As Rehnquist expressed in an earlier case, the "true nature of
the State's interest is preserving the flag as an important symbol of
nationhood and unity."
1. Counter. Flag as a Symbol: It is precisely the strong emotional
attachment to the flag that makes its desecration a uniquely
powerful form of expression. Also, laws that prohibit flag burning
or defacement are inherently content-based: The govt is trying to
preserve the flag as a symbol that communicates patriotism, but
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not of protest or dissent. Such a content-based restriction of


speech only can be justified if strict scrutiny is met. The govt's
claim that flag destruction must be prohibited to preserve the flag
as a symbol of national unity assumes that flag burning
undermines the ability of the flag to serve as such a symbol. No
such evidence exists. In fact, the more flag burning is met by
intense reaction, the more the flag as a symbol is reinforced.
Content Discrimination and Unprotected Speech:
1. Holder v. Humanitarian Law Project (2010):
a. The Court considered an issue that raises many of the same issues presented in
the incitement cases, but the Court did not apply the Brandenburg test.
b. Facts: Federal law prohibits providing "material assistance" to a "foreign terrorist
organization." Material assistance is defined to include such activities as
"training," "personnel," and "expert advice or assistance." Two groups of
Americans brought a lawsuit seeking to establish First Amendment protection for
their assistance for groups that had been designated by the Department of State
as foreign terrorist organizations. One group of Americans sought to help a
Kurdish group, which sought to form a separate country, use international law
and the United Nations to peacefully resolve disputes. The other group of
Americans sought to help a group in Sri Lanka, which also sought to form a
separate nation, apply for humanitarian assistance.
c. Holding: Constitutionally Punishable
i. 6-3 the Court ruled that this speech could constitutionally be punished.
Initially, the Court rejected the vagueness challenge to the law, concluding
that most of the activities of the Ps were clearly within the statute's
prohibition of expert advice, assistance, and training. The Court then
concluded that the speech could be punished so long as it was done in
coordination with a foreign terrorist organization.
ii. Speech in Concert with Foreign Terrorists is Prohibited. Roberts,
writing for the Court, stressed that the Ps could speak out on any topic
they wished, but if the speech was done in concert with a foreign terrorist
organization, it was not protected by the First Amendment: "Under the
material-support statute, Ps may say anything they wish on any topic.
They may speak and write freely about the PKK and LTTE, the
governments of Turkey and Sri Lanka, human rights, and international
law. They may advocate before the United Nations .... Congress has not,
therefore, sought to suppress ideas or opinions in the form of 'pure
political speech.' Rather, Congress has prohibited 'material support,'
which most often does not take the form of speech at all. And when it
does, the statute is carefully drawn to cover only a narrow category of
speech to, under the direction of, or in coordination with foreign groups
that the speaker knows to be terrorist organizations."
iii. Breyer Dissent, joined by Ginsburg, Sotomayor: He criticized the
majority for allowing the punishment of speech w/o any proof that it was
likely to cause harms. Breyer reviewed the Court's decisions concerning
incitement, especially Brandenburg, and said that they do not justify
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allowing punishment of the speech of the sort the Ps sought to engage in.
He explained that prior "cases have permitted pure advocacy of even the
most unlawful activity as long as the advocacy is not directed to inciting
or producing imminent lawless action and likely to incite or produce
such action."
2. Barnes v. Glen Theatre Inc. (1991):
a. The court held that the govt may completely ban nude dancing
b. Facts: an IN statute prohibited public nudity and required that female dancers
must, at a minimum, wear "pasties" and a "G-string" when they dance.
c. Holding: Constitutional.
i. There was no majority opinion for the Court in its 5-4 decision. Rehnquist
wrote the plurality opinion joined by O'Connor and Kennedy and initially
noted that "nude dancing of the kind sought to be performed here is
expressive conduct within the outer perimeter of the First Amendment,
though we view it as only marginally so."
ii. Nude Dancing is Symbolic Speech. The plurality said nude dancing as
a form of conduct that communicates and applied the test used for
regulating symbolic speech: A government regulation is sufficiently
justified if it is within the constitutional power of the Government; if it
furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest."
iii. Prohibition Upheld: Message Conveyed wasn't the Aim of the
Prohibition: The plurality upheld the prohibition of nude dancing b/c it
served the goal of "protecting societal order and morality." The Court said
that his was the goal of laws outlawing public nudity and that the
prohibition of nude dancing was not directed at the message conveyed.
Rehnquist said that "the requirement that the dancers don pasties and Gstrings does not deprive the dance of whatever erotic message it
conveys; it simply makes the message slightly less graphic. The
perceived evil that IN seeks to address is not erotic dancing, but public
nudity.
d. Scalia Concurrence:
i. Non-expressive Conduct doesnt get First Am Scrutiny. He argued:
"The challenged regulation must be upheld, not b/c it survives some lower
level of First Amendment scrutiny, but b/c as a general law regulating
conduct and not specifically directed at expression, it is not subject to
First Amendment scrutiny at all."
ii. Purpose is the Prohibit Immorality, not Offense. Scalia also expressly
rejected the dissent's argument that public nudity laws exist only to
protect unwilling viewers from offense. He wrote: "The purpose of
Indiana's nudity law would be violated, I think, if 60,000 fully consenting
adults crowded into the Hoosier Dome to display their genitals to one
another, even if there were not an offended innocent in the crowd. Our
society prohitis, and all human societies have prohibited, certain activities
not b/c they harm others, but b/c they are considered, in the traditional
phrase, immoral."
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e. Souter Concurrence: He focused on the secondary effects of nude dancing


i. Negative Secondary Effects: Nip the Problem in the Bud. He said
"that legislation seeking to combat the secondary effects of adult
entertainment need not await localized proof of those effects and that the
State of Indiana could reasonably conclude that forbidding nude
entertainment of the type offered at the Kitty Kat Lounge furthers its
interests in preventing prostitution, sexual assault, and associated
crimes."
f. White Dissent, joined by Brennan, Marshall, Blackmun:
i. He emphasized that stopping nude dancing was suppressing a message.
White said: "The nudity of the dancer is an integral part of the emotions
and thoughts that a nude dancing performance evokes. The sight of a
fully clothed, or even partially clothed, dancer generally will have a far
different impact on a spectator than that of a nude dancer, even if the
same dance is performed. The nudity itself is itself an expressive
component of the dance, not merely incidental 'conduct.'"
3. City of Erie v. Pap's A.M. (2000):
a. The Court reaffirmed Barnes, though under different reasoning
b. Facts: The City adopted an ordinance prohibiting public nudity, with the clear
objective of shutting down Kandyland, a nude dancing club.
c. Holding: Constitutional
i. 6-3, w/o a majority like in Barnes, the Court upheld the ordinance.
ii. Souter's Negative Secondary Effects. O'Connor, writing for the plurality,
emphasized that the city was justified in prohibiting nude dancing so as to
stop the undesirable secondary effects, such as crime, associated with
the activity. She declared: "We conclude that Erie's asserted interest in
combating the negative secondary effects associated with adult
entertainment establishments like Kandyland is unrelated to the
suppression of the erotic message conveyed by nude dancing. The
asserted interests of regulating conduct through a public nudity ban and
of combating the harmful secondary effects associated with nude dancing
are undeniably important."
d. Stevens and Souter Dissents: They stressed the absence of any proof that
nude dancing increases crime or causes undesirable secondary effects.
i. Souter said that "I do not believe, however, that the current record allows
us to say that the city has made a sufficient evidentiary showing to sustain
its regulation," and admitted that he had erred in Barnes in not demanding
such proof.
ii. Evidentiary Requirement. Stevens indicated the lack of an adequate
evidentiary basis for the alw in more pointed terms. He noted that the
ordinance allowed dancers wearing pasties and a G-string. He said that
there was no evidence that fully nude dancers cause any more crime that
those minimally clothed.
1. Plurality: It's Unnecessary. O'Connor's plurality opinion said that
such proof is unnecessary. She said the City Council members
could rely on the experience of other cities and their own
observations to reasonably conclude that nude dancing increases
crime.
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e. Context: City of Erie may have its greatest significance in allowing local
governments to regulate sexually oriented speech, like nude dancing, w/o
needing evidence to prove its harms. But the decision also is most vulnerable to
criticism for allowing the government to regulate speech that the plurality
concedes to be constitutionally protected w/o requiring any proof of the harms
that justified the law.
4. R.A.V. v. City of St. Paul (1992):
a. A very narrow fighting words law likely will be declared unconstitutional as
impermissibly drawing content-based distinctions as to what speech is prohibited
and what is allowed.
b. Facts: A St. Paul ordinance prohibited placing "on public or private property
symbols, objects, characterizations, or graffiti, including, but not limited to, a
burning cross or Nazi swastika, which one knows or has reasonable grounds to
know arouses anger, alarm or resentment in others on the basis of race, color,
creed, religion or gender." The Minnesota Supreme Court gave the ordinance a
narrowing construction so that it applied only to fighting words or incitement not
protected by the First Amendment.
c. Holding: Unconstitutional
i. Unanimous decision to overturn the conviction of a man who burned a
cross on a black family's lawn and hold that ordinance unconstitutional.
ii. Scalia, writing for the majority, began by explaining that even within
categories of unprotected speech, the government is limited in its ability
to draw content-based distinctions.
1. See quote
iii. The Court then addressed fighting words as a category of unprotected
speech. Scalia wrote: "it is not true that 'fighting words' have at most a 'de
minimis' expressive content or that their content is in all respects
'worthless and undeserving of constitutional protection; sometimes they
are quite expressive indeed. We have not said that they constitute 'no
part of the expression of ideas,' but only that they constitute 'no essential
part of any exposition of ideas.'"
1. The Court said that "the exclusion of fighting words from First
Amendment protections means that they are regarded as
essentially a 'nonspeech; element of communication. Fighting
words are thus analogous to a noisy sound truck: Each is a
mode of speech; both can be used to convey an idea; but neither
has, in and of itself, a claim upon the First Amendment. As with
the sound truck, however, so also with fighting words: The
government may not regulate use based on hostility or
favoritism towards the underlying message expressed."
d. Context: This opinion indicates that content-based distinctions within a category
of unprotected speech will have to mee SS, subject to two exceptions.
i. (1) Special Virulence Exception: Content-based distinction is
permissible if it directly advances the reason why the category of speech
is unprotected; for example, an obscenity law could prohibit the most
sexually explicit material w/o have to ban everything that is obscene.
1. This May Have Applied Here: The law seemingly was based on
a judgment that fighting words based on race, religion, or gender
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are most likely to cause the harms that the fighting words doctrine
meant to prevent.
ii. (2) Secondary Effects Exception: a law will not be deemed to be
content-based if it s directed at remedying secondary effects of speech
and is justified w/o respect to content.
1. This May Have Applied Here: The ordinance is written
specifically in terms of secondary effects; it proscribes speech that
would "anger, alarm, or cause resentment." The problem is in
deciding whether these are "secondary effects" or are to be
viewed as a content-based regulation of speech.
iii. Cohen Application: The St. Paul ordinance drew a distinction among
expression of hate: It prohibited hate speech based on race, religion, or
gender, but not based on political affiliation or sexual orientation for
example. This is a content based distinction that cannot be tolerated.
5. Wisconsin v. Mitchell (1993):
a. Govt may provide for penalty enhancements for hate motivated crimes.
b. The Court upheld a state law that imposed greater punishments if it could be
proved that a victim was chosen b/c of his or her race.
c. Conduct, Not Speech. The court emphasized that such penalty enhancements
are directed at conduct, not at speech.
d. Justification: Hate Motivated Crimes Cause Greater Societal Harm. The
Court said that greater punishment for hate motivated crimes was justified b/c of
their harms to society. Bias motivated crimes are more likely to provoke
retaliatory crimes, inflict distinct emotional harms on their victims, and incite
community unrest. The State's desire to redress these perceived harms provides
an adequate explanation for its penalty-enhancement provision over and above
mere disagreement with offenders' beliefs or bias.
6. Virginia v. Black (2003):
a. The Court held that govts may prohibit cross burning done with the intent to
intimidate, but that this intent must be proved in the particular case.
b. Facts: A Virginia law prohibited cross burning "with an intent to intimidate a
person or group of persons." The law also provided that an act of cross burning
was "prima facie evidence of an intent to intimidate a person or group of
persons." Before the Court were two Virginia cases involving individuals
convicted under the law. One involved Klan members who were convicted for
burning a cross at a rally on a relatively isolated farm; the other involved 2 men
who were convicted for burning a cross on the lawn of a home recently
purchased by an African-American family.
c. Holding
i. (1) Cross Burning = Symbolic Speech. The Court ruled that the govt
cannot prohibit all cross burning.
1. The Court explained that burning a cross is symbolic expression
and the govt cannot ban symbols just b/c they are powerful and
offensive
ii. (2) True Threat: Intentionally Intimidating/Threatening Cross Burning
Isn't Protected by the 1A. The Court concluded that cross burning done
with the intent to threaten or intimidate that constitutes a "true threat" is not protected by the A1.
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1. The Court said that "true threats' encompass those statements


when the speaker means to communicate a serious intent to
commit an act of unlawful violence to a particular individual or
group of individuals. The speaker need not actually intend to carry
out the threat." -- sorta like scaring them.
iii. (3) Absence of On-Lookers = Not a True Threat. The Court concluded
that the Klan members could not be punished for burning a cross on a
relatively isolated farm. The absence of on-lookers meant that the action
could not reasonably be seen as a true threat.
1. But the Court remanded the convictions of the men who had
burned a cross on the law of a home owned by an African
American family. He Court clearly signaled that this was obviously
a true threat.
"Public Forum" Analysis: Missed Makeup
1. Clark v. Community for Creative Non-Violence ()
a. The low level of scrutiny given to content-neutral regulations that
affect symbolic expression was again demonstrated here.
b. Court held that a National Parks Service ban on sleeping in public parks
did not violate the First Amendment rights of demonstrators who
wished to sleep in tents in two Washington D.C. national parks in order
to dramatize the plight of the homeless. (The Court assumed, without
deciding, that sleeping in connection with the demonstration
constituted symbolic expression.) a.
i. Application of test: O'Brien. The Court found that the
regulation was valid under the four tests of US. v. 0 'Brien,
supra, p. 543. Most significantly, the Court found a substantial
governmental interest in "maintaining the parks in the
heart of our capital in an attractive and intact condition,"
and concluded that the ban on sleeping furthered this interest
by limiting the extent and duration of demonstrations like the
one involved here.
ii. Multiple Alternatives: The demonstrators could "feign" sleep
in the tents, just not actually sleep there. Like burning a mock
draft card in O'Brien instead of the real thing.
2. Postal Service v. Council of Greenburgh Civic Assns ():
a. Court upheld a federal statute which prohibited depositing unstamped
materials in home mailboxes
b. several civic groups argued that they had a constitutional right to
deliver messages to local residents by placing llllStarnped pamphlets
and notices in such mailboxes. But the Court held that home mailboxes
do not constitute a "public forum," even though they are in effect
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controlled by the government; therefore, any reasonable, contentneutral, regulation of their use was permissible.
3. Perry Education Assn v. Perry Local Educators' Assn ():
a. A school system's internal mail system, including teachers' mailboxes,
has been held to fall into this non-public-forum category.
b.

The fact that the official teachers' union, as well as a number of other
outside organizations (e.g., YMCA and Cub Scouts) were permitted to
use the mail system was not enough to convert the system into a
public forum. Therefore, the school district's rule that no "school
employee organization" except the official union could use the system
was valid

4. ISKCON v. Lee ():


a. The Court ruled that airports are nonpublic forum.
b. Rehnquist, writing for the court, state "precedents foreclose the conclusion that
airport terminals are public for a. Reflecting the general growth of the air travel
industry, airport terminals have only recently achieved their contemporary size
and character. But given the lateness with which the modern air terminal has
made its appearance, it hardly qualifies for the description of having
'immemorially ... time out of mind' been held Iin the public trust and used for
purposes of expressive activity."
i. The Court rejected the argument that the appropriate inquiry was the
general openness of transportation facilities for speech; the issue,
according to the Court, was solely about how airports should be
characterized.
c. Commercial Venture, No Primary Purpose to Promote Free Speech. The
Court emphasized tht airports are a commercial venture and that they obviously
do not have as a "principal purpose promoting 'the free exchange of ideas.'"
i. Non-Public Forum = Reasonableness Standard Prevention of
Fraud. Thus, the Court concluded that airports are a nonpublic forum,
and regulations would be upheld so long as they are reasonable. The
Court, 5-4, decided that the prohibition of solicitation of funds in airports is
reasonable. The Court said that the govt has an important interest in
preventing fraud, but b/c travelers are frequently on a tight schedule, "the
airport faces considerable difficulty in achieving its legitimate interest in
monitoring solicitation activity to assure that travelers are not interfered
with unduly."
5. CLS v. Martinez (2011):
a. The requirement of viewpoint-neutrality is so strict that it applies even
to activities that are funded by the government. Thus government may
not choose to fund some third-party activities and not others, based on
the viewpoints expressed. But when government gives a subsidy to
certain organizations, it may require as a condition of the subsidy
that the organizations themselves not discriminate against
certain viewpoints. When government pursues such an "all-comers"
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policy, the Court has held, government is not engaging in forbidden


viewpoint-based discrimination.
b. Facts: The University of California's Hastings College of Law gives
official recognition and some funding only to those organizations
("Registered Student Organizations," or RSOs) that comply with the
school's nondiscrimination rules (the "all-comers" policy). The allcomers policy requires any RSO to accept all students who apply, and
also forbids RSOs from discriminating on the basis of various specified
criteria, one of which is sexual orientation. P (the Christian Legal
Society) refuses to accept any student who engages in "unrepentant
homosexual conduct," or who holds religious convictions different from
those contained in a "Statement of Faith" the Society has adopted.
Hastings refuses to grant P the RSO status because of these limits on
who may join. P claims that the all-comers policy violates the First
Amendment requirement that when government restricts access to
limited public forums (i.e., nonpublic forums) the restriction must be
both reasonable and viewpoint neutral.
c. Holding: for Hastings; The All-Comers Policy is Constitutional
i. The policy is viewpoint neutral: ALL Comers. "[It is] hard to
imagine a more viewpoint-neutral policy than one requiring all
student groups to accept all comers." The requirement that
student groups accept all applicants is " 'justified without
reference to the content [or viewpoint] of the regulated speech.'
" (Also, the all-comers requirement is reasonable for several
reasons, including that Hastings could reasonably conclude that
(1) an equal-access policy promotes the educational experience,
and (2) in light of the fact that RSOs get school funding, no
Hastings student should be forced to fund a group that would
reject her as a member.) (The four dissenters argue that the
policy is not in fact viewpoint neutral because it "single[ s] out
one category of expressive associations for disfavored
treatment: groups formed to express a religious message. Only
religious groups [are] required to admit students who [do] not
share their views.")
Compelled Speech & Free Association:
1. Minersville School Dist. v. Gobitis ():
a. Courts says its fine for the govt to require kids say pledge
2. West Va. Board of Educ. v. Barnette (1943):
a. Declared unconstitutional a state law that required that children salute the flag.
b. Justice Jackson, writing for the court, said: "The compulsory flag salute and
pledge requires affirmation of a belief and an attitude of mind.... If there I any
fixed star in our constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion or other matters
of opinion or force citizens to confess by word or act their faith therein."
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3. Wooley v. Maynard (1977):


a. The Court followed the principle of Barnette and ruled that an individual could not
be punished for blocking out the portion of his automobile license plate that
contained the New Hampshire state motto, "Live Free or Die."
b. The Court said that "the right of freedom of thought protected by the First
Amendment includes both the right to speak freely and the right to refrain from
speaking at all.... The right to speak and the right to refrain from speaking are
complementary components of the broader concept of 'individual freedom of
mind.'"
Compelled Use of Private Property for Speech Purposes:
4. Whether the govt impermissibly compels expression when it forces people to use their
property for speech by others
5. Miami Herald Pub. Co. v. Tornillo (1974):
a. The Court unanimously invalidated a state law the required newspapers to
provide space to political candidates who had been verbally attacked in print.
b. The Court emphasized that freedom of the press gave to the newspaper the right
to decide what was included or excluded.
6. PruneYard Shopping v. Robins (1980):
a. Facts: Shopping center owners argued that their First Amendment rights were
violated by a California Supreme court ruling that protesters had a right to use
their property for speech under the state constitution. The shopping center
owners specifically invoked Wooley v. Maynard and said that forcing them to
allow speech was impermissible coerced expression.
b. Holding: Upheld.
i. The Court disagreed and found no violation of the First Amendment from
a state constitutional rule that created a right of access to shopping
centers for speech purposes.
ii. Open to the Public = Views Not Attached to the Owner = OK. The
Court expressly distinguished Wooley and explained that the shopping
center is "not limited to the personal use of appellants, but is instead a
business establishment that is open to the public to come and go as they
please. The views expressed by members of the public in passing out
pamphlets or seeking signatures for a petition thus will not likely be
identified with those of the owner."
1. Moreover, the Court said that "no specific message is dictated by
the State to be displayed on appellants' property and appellants
can expressly disavow any connection with the message by
simply posting signs in the area where the speakers or handbillers
stand."
7. PG&E v. Public Utilities Commission of California (PUC) (1986):
a. The Court declared unconstitutional a utility commission regulation that required
that a private utility company include in its billing envelopes materials prepared
by a public interest group.
b. The utility commission sought to provide a more balanced presentation of views
on energy issues; the public interest group's statements were to be a
counterpoint to the statements by the utility companies. But the Court found that
such compelled access violated the First Amendment.
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c. Justice Powell, writing for the Court, said that "compelled access like that ordered
in this case both penalizes the expression of particular points of view and forces
speakers to alter their speech to conform with an agenda they do not set."
8. Context:
a. The distinction between PruneYard and Tornillo is that the latter concerned
freedom of the press and the ability of editors to determine what to publish.
b. It is more difficult though to reconcile PruneYard with PG&E. The Court's
distinction that the owners in PruneYard had not objected to the particular
message being conveyed, as they had in PG&E, seems very questionable. The
shopping center owners very much wanted to exclude the speakers from using
their property. If there is a right of private property owners to avoid compelled use
of their property, their right to do this should not depend on the content of their
views relative to the demonstrators.
9. Rumsfeld v. Forum for Academic and institutional Rights (FAIR) (2006):
a. The Court rejected a claim that requiring universities to allow military recruiters
equal access to campus interviewing as a condition for receipt of federal funds
was impermissible compelled speech.
b. Facts: Most law schools refused to allow the US military to use campus facilities
for recruiting b/c of the military's policy of excluding gays and lesbians. The
Solomon Amendment denied federal funding to universities that denied the
military equal access to campus facilities.
c. Procedural Posture: The US Court of Appeals for the 3rd Circuit found that the
Solomon Amendment impermissibly forced colleges and universities to express
support for a policy which they disapproved.
d. Holding: The Court unanimously rejected this argument and stated: "The
Solomon Amendment neither limits what law schools may say nor requires them
to say anything. Law schools remain free under the statute to express whatever
views they may have on the military's congressionally mandated employment
policy, all the while retaining eligibility for federal funds. As a general matter, the
Solomon Amendment regulates conduct, not speech. It affects what law schools
must do-afford equal access to military recruiters-not what they may or may not
say."
Freedom of Association: Laws Prohibiting Discrimination Generally Does Not Protect
Discrimination:
1. Rumsfeld v. FAIR ():
2. Boy Scouts of America v. Dale (2000):
a. The Court held, 5-4, that freedom of association protects the right of the Boy
Scouts to exclude gays in violation of a state's antidiscrimination statute.
b. Facts: Dale was a lifelong Scout who had reached the rank of Eagle Scout and
had become an assistant scoutmaster. While in college he became involved in
gay rights activities. Dale was quoted in a newspaper article after attending a
seminar on the psychological needs of gay and lesbian teenagers and was
identified in the article as the co-president of the Gay/Lesbian Alliance at Rutgers
University. A scout official saw this article and then sent Dale a letter excluding
him from further participation in the Scouts.
i. Dale sued under the NJ law that prohibits discrimination by places of
public accommodation. The NJ Supreme Court found that the Boy Scouts
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are a "public accommodation" within the meaning of the law and rejected
the Boy Scouts claim that freedom of association protected their right to
discrimination based on sexual orientation.
c. Issue: Whether the Boy Scouts' desire to exclude gays fit within either the
exceptions recognized in Jaycees.
i. Since the Boy Scouts are a large national organization, they could not
realistically claim to be "intimate association."
ii. Communicative Antigay Goal. Instead, their central argument was that
they had an expressive message that was antigay and that forcing them
to include homosexuals undermined this communicative goal.
1. How to determine the expressive message of the Boy Scouts and
whether forced inclusion harms this First Amendment right?
a. The Court held that a group gets to determine its own
expressive message, including during litigation, and that
forced association undermines the expressive message of
the group.
d. Stevens Dissent: There is virtually nothing in the organization's literature
communicating this. Not in its mission statement, Handbook, or other
publications is there a message expressing an antigay message. There is one
line stating that Boy Scouts should be "morally straight." But this obviously had
nothing to do with sexual orientation when it was written. In fact, the Boy Scouts'
literature instructs scout leaders and their assistants to refrain from discussing
matters of sexuality.

Unit IV: The Religion Clause of the First


Amendment:
Free Exercise, Part I - Neutral Rules of General Applicability:

"Congress shall make no law respecting an establishment of religion, or prohibiting the


free exercise thereof"

Religious Beliefs and Actions:


1. The Court repeatedly has stated that the govt may not compel or punish religious beliefs;
people may think and believe anything that they want
a. The Court has said that the free exercise clause "embraces two concepts
freedom to believe and freedom to act. The first is absolute but, in the nature of
things, the second cannot be."
Justice Waite in Reynolds v. US: "Congress was deprived of all legislative power
over mere opinion, but was left free to reach actions which were in violation of
social duties or subversive of good order."
i. Mormon polygamy case free exercise claim struck down, would make
religious belief superior to the law of the land and in effect permit every
citizen to become a law unto himself. Govt would exist only in name.
2. Examples of When the Free Exercise Clause is Invoked:
a. Govt prohibits behavior that a person's religion requires(Reynolds v. US
Mormon Polygamy Case)
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b. Govt requires conduct that a person's religion prohibits (US v. Lee Amish Social
Security Case)
c. Individuals claim that laws burden or make more difficult religious observance
(govt denies benefits to individuals who quit their jobs for religious reasons,
impossible burdens religion Sherbert v. Verner)
Challenges to Laws Regulating or Burdening Religious Conduct:
1. Protection of Religion under Other Constitutional Provisions
a. DPC of 14th - Pierce v. Society of Sisters
b. Court fist applied the FEC to the states in 1940 in Cantwell v. Connecticut
2. Restrictions on Religious Solicitations:
Strict Scrutiny, at Least in Theory: The Cases from 1960-1990
1. Sherbert v. Verner (1963):
a. The Court expressly held that SS should be used in evaluating laws burdening
free exercise of religion and declared unconstitutional the denial of
unemployment benefits to a woman who was discharged from her job rather than
work for her Saturday Sabbath.
b. Facts: A state denied unemployment benefits to a woman, a member of the 7thday Adventist Church, who quit her job rather than work on her Saturday
Sabbath.
c. Holding: Unconstitutional
i. Substantial Burden: Income v. Faith. The Court concluded that the
denial of benefits imposed a substantial burden on religion; the woman
had to choose between an income and her faith.
ii. Issue: Compelling State Interest = No. The Court said the issue was
"whether some compelling state interest enforced in the eligibility
provisions of the statutes justifies the substantial infringement of
appellant's 1A right."
1. The Court found no such compelling interest and ruled that the
denial of benefits constituted a violation of the free exercise
clause.
d. Context: SS? Jk. Although Sherbert clearly stated that SS was to be used in
evaluating laws infringing on free exercise of religion, following Sherbert, the
Court rarely struck down laws on this basis. In fact, there were only 2 areas
where the Court invalidated laws for violating free exercise:
i. laws that denied benefits to those who quit their jobs for religious reasons
(like in Sherbert); and
ii. the application of a compulsory school law to the Amish.
iii. (x) In all other free exercise clause cases between 1960 and 1990, the
Court upheld the laws.
Employment Division v. Smith and Its Application:
1. Employment Division Dept. of Human Resources v. Smith (1990):
a. The Court expressly changed the law of the free exercise clause.
b. Facts: The case involved a challenge by Native Americans to an Oregon law
prohibiting use of peyote, a hallucinogenic substance. Specifically, individuals
challenged the state's determination that their religious use of peyote, which
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resulted in their dismissal from employment, was misconduct disqualifying them


from receipt of unemployment compensation benefits.
c. Holding: Constitutional
i. Valid and Neutral Law of General Applicability: Scalia, writing for the
court, rejected the claim that free exercise of religion required an
exemption from an otherwise valid law. Scalia said that "we have never
held that an individual's religious beliefs excuse him from compliance with
an otherwise valid law prohibiting conduct that the State is free to
regulate. On the contrary, the record of more than a century of our free
exercise jurisprudence contradicts that proposition."
1. Scalia thus declared "that the right of free exercise does not
relieve an individual of the obligation to comply with a 'valid and
neutral law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).
ii. Need Hybrid Constitutional Claims: Scalia then reviewed the cases
where free exercise clause challenges had been upheld such as
Cantwell, Murdock, Follett, Pierce, and Yoder and said that none
involved free exercise clause claims alone. All involved "the Free Exercise
Clause in conjunction with other constitutional protections, such as
freedom of speech and of the press, or the right of parents to direct the
education of their children."
1. The Court said that Smith was distinguishable b/c it did not involve
such a "hybrid situation," but was a free exercise claim
"unconnected with any communicative activity or parental right."
iii. Sherbert Limited to Unemployment Benefits. Scalia said the Sherbert
line of cases applied only in the context of the denial of unemployment
benefits; it did not create a basis for an exemption from criminal laws. He
wrote that "even if we were inclined to breathe into Sherbert some life
beyond the unemployment compensation field, we would not apply it to
require exemptions from a generally applicable criminal law."
iv. SS Rejected for Neutral Laws of General Applicability. The Court
expressly rejected the use of SS for challenges to neutral laws of general
applicability that burden religion.
1. Scalia said that "precisely b/c 'we are a cosmopolitan nation made
up of people of almost every conceivable religious preference,'
and precisely b/c we value and protect that religious divergence,
we cannot afford the luxury of deeming presumptively invalid, as
applied to the religious objector, every regulation of conduct that
does not protect an interest of the highest order."
d. O'Connor Concurrence:
Free Exercise Part II RFRA:
1. Burwell v. Hobby Lobby (2014):
a. RFRA: The Religious Freedom Restoration Act of 1993 (RFRA) was adopted to
negate the Smith test and require SS for free exercise clause claims. Indeed, the
finding section of the Act notes that Smith "virtually eliminated the requirement
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that the govt justify burdens on religious exercise imposed by laws neutral toward
religion."
i. The Act declares its purpose is "to restore the compelling interest test as
set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee
its application in all cases where free exercise of religion is substantially
burdened; and to provide a claim or defense to persons whose religious
exercise is substantially burdened by government."
ii. "Govt shall not substantially burden person's exercise of religion even if
the burden results from a rule of general applicability, except
government may substantially burden a person's exercise of religion only
if it demonstrates that application of the burden to the person:
1. (1) is in furtherance of a compelling governmental interest;
2. (2) is the least restrictive means of furthering that compelling
governmental interest."
iii. City of Boerne v. Flores (1997) found the Act unconstitutional in that
Congress exceed the scope of its power under S5 of the 14th Amendment
in enacting the law. The case clearly invalidated the Act as applied to
state and local governments, but its reasoning doesnt speak to the
constitutionality of the law as applied to the federal government. =
1. State Govt: Smith/Rational Basis for Neutral. For state and
local governments, Smith is controlling, and the FEC cannot be
used to challenge neutral laws of general applicability, except that
decisions burdening religion concerning land use and
institutionalized persons hae to meet SS.
2. Fed Govt: SS. As to the federal govt, although Smith defines the
FEC, the RFRA requires that federal actions burdening religion
meet SS.
iv. As amended by the Religious Land Use and Institutionalized Persons Act
of 2000 (RLUIPA), RFRA covers any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.
b. Facts: The Green family owns and operates Hobby Lobby Stores, Inc., a national
arts and crafts chain with over 500 stores and over 13,000 employees. The
Green family has organized the business around the principles of the Christian
faith and has explicitly expressed the desire to run the company according to
Biblical precepts, one of which is the belief that the use of contraception is
immoral. Under the Patient Protection and Affordable Care Act (ACA),
employment-based group health care plans must provide certain types of
preventative care, such as FDA-approved contraceptive methods. While there
are exemptions available for religious employers and non-profit religious
institutions, there are no exemptions available for for-profit institutions such as
Hobby Lobby Stores, Inc.
c. On September 12, 2012, the Greens, as representatives of Hobby Lobby Stores,
Inc., sued Kathleen Sebelius, the Secretary of the Department of Health and
Human Services, and challenged the contraception requirement. The plaintiffs
argued that the requirement that the employment-based group health care plan
cover contraception violated the Free Exercise Clause of the First Amendment
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and the Religious Freedom Restoration Act of 1993 (RFRA). The plaintiffs sought
a preliminary injunction to prevent the enforcement of tax penalties, which the
district court denied and a two-judge panel of the U.S. Court of Appeals for the
Tenth Circuit affirmed. The Supreme Court also denied relief, and the plaintiffs
filed for an en banc hearing of the Court of Appeals. The en banc panel of the
Court of Appeals reversed and held that corporations were "persons" for the
purposes of RFRA and had protected rights under the Free Exercise Clause of
the First Amendment.
d. Issue: Does the Religious Freedom Restoration Act of 1993 allow a for-profit
company to deny its employees health coverage of contraception to which the
employees would otherwise be entitled based on the religious objections of the
company's owners? Yes
e. Holding: HHS Regs are Unconstitutional
i. RFRA Applies to For-Profit Corporations: Dont have to choose
between Making Money and Religious Freedom. "The plain terms of
RFRA make it perfectly clear that Congress did not discriminate [against
those] who wish to run their businesses as for-profit corporations in the
manner required by their religious beliefs."
1. Corporations are composed of individuals who use them to
achieve desired ends.
ii. Substantial Burden on the Free Exercise of Religion. "If the owners
comply with the HHS mandate, they believe they will be facilitating
abortions, and if they do not comply, they will pay a very heavy priceas
much as $1.3 million per day, or about $475 million per year, in the case
of one of the companies. If these consequences do not amount to a
substantial burden, it is hard to see what would."
1. Compelling Governmental Interest. The Court assumes the
HHS regs meet this requirement.
2. Least Restrictive Means of Serving the Interest. "There are
other ways in which Congress or HHS could equally ensure that
every woman has cost-free access to the particular contraceptives
at issue here and, indeed, to all FDA-approved contraceptives."
a. For-Profit Exemption. A less restrictive method exists in
the form of the Department of Health and Human Services'
exemption for non-profit religious organizations, which the
Court held can and should be applied to for-profit
corporations such as Hobby Lobby.
b. "Although HHS has made this system available to religious
nonprofits that have religious objections to the
contraceptive mandate, HHS has provided no reason why
the same system cannot be made available when the
owners of for-profit corporations have similar religious
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objections. We therefore conclude that this system


constitutes an alternative that achieves all of the
Governments aims while providing greater respect for
religious liberty. And under RFRA, that conclusion means
that enforcement of the HHS contraceptive mandate
against the objecting parties in these cases is unlawful."
f.

Kennedy Concurrence: government had not met its burden to show that there
was a meaningful difference between non-profit religious institutions and for-profit
religious corporations under the RFRA. Because the contraception requirement
accommodates the former while imposing a more restrictive requirement on the
later without showing proper cause, the requirement violates the RFRA.

g. Ginsburg Dissent, joined by Sotomayor, Breyer, Kagan: The majority's


decision was precluded by the Court's decision in Smith in which the Court held
that there is no violation of the freedom of religion when an infringement on that
right is merely an incidental consequence of an otherwise valid statute.
i. 3rd Party Rights Infringement. Additionally, judicial precedent states that
religious beliefs or observances must not impinge on the rights of third
parties, as the sought-after exemption would do to women seeking
contraception in this case.
ii. Overbroad Read of RFRA: For-Profit Cannot be Religious. Justice
Ginsburg also wrote that the majority opinion misconstrued the RFRA as
a bold legislative statement with sweeping consequences. Because forprofit corporations cannot be considered religious entities, the burden the
respondents claim is not substantial, and the government has shown a
sufficiently compelling interest, Justice Ginsburg argued that the
contraception mandate does not violate the RFRA. Justice Sonia
Sotomayor, Justice Stephen G. Breyer, and Justice Elena Kagan joined in
the dissent.
h. Breyer Dissent, joined by Kagan: The Court need not decide whether for-profit
corporations or their owners may sue under the RFRA.
Establishment Clause, Part I: Government Subsidies:
1. Everson v. Board of Education (1983):
a. The Court upheld the government providing buses to take children to and from
parochial schools
b. This is the initial case concerning govt aid to parochial schools. The court upheld
the constitutionality of the govt's reimbursing parents for the costs of bus
transportation to and from parochial school. The Court recognized that "there is
even a possibility that some of the children might not be sent to the church
schools if the parents were compelled to pay their children's bus fares out of
their own pockets when transportation to a public school would have been
paid for by the State."
2. Mueller v. Allen (1983):

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a. The Court upheld a program of tax credits that were available to all students at
both public and parochial schools.
b. Facts: A Minnesota law allowed taxpayer to deduct certain expenses incurred in
providing education to their children from their state income taxes. The deduction
was limited to actual expenses for tuition, textbooks, and transportation and
could not exceed $500/dependent for grades kindergarten through 6, and
$700/student in grades 7-12.
c. Holding: 5-4 Constitutional
i. Lemon Test Applied. The Court applied the Lemon Test and upheld the
income tax credits as constitutional.
1. Secular Purpose: Affordable Education. As to the first part of
the Lemon test, the Court said that "a State's decision to defray
the cost of educational expenses incurred by parents regardless
of the type of schools their children attend evidences a purpose
that is both secular and understandable. An educated populace is
essential to the political and economic health of any community,
and a State's efforts to assist parents in meeting the rising cost of
educational expenses plainly serves this secular purpose of
ensuring that the State's citizenry is well educated."
2. Primary Effect of Neutrality: Deference to State Legislature.
For the second prong of the Lemon test, the Court emphasized
that the tax credits were one of many deductions available and
were limited in size. The Court said that the "legislature's judgment
that a deduction for educational expenses fairly equalizes the tax
burden of its citizens and encourages desirable expenditures for
educational purposes is entitled to substantial deference."
a. Deduction Available to ALL. Most important, the Court
stressed that the "deduction is available for educational
expenses incurred by all parents, including those whose
children attend public schools and those whose children
attend nonsectarian private schools or sectarian private
schools." The Court saw this as the key distinction with
Nyquist where the aid was available only to students
attending nonpublic schools.
3. Excessive Government Entanglement: No. The Court
concluded that allowing the tax credits did not entail government
entanglement with religion. No government monitoring was
involved in the program; the government was not required by the
law to oversee any aspect of the parochial schools.
ii. Marshall Dissent, joined by Brennan, Blackmun, Stevens: Marshall
contended that the establishment clause prohibits the government from
subsidizing parochial schools, even if it is providing the same assistance
to public school students.
1. Marshall said: "The Establishment Clause of the First Amendment
prohibits a State from subsidizing religious education, whether it
does so directly or indirectly. In my view, this principle of neutrality
forbids not only the tax benefits struck down in Committee for
Public Education v. Nyquist, but any tax benefit, including the tax
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deduction at issue here, which subsidizes tuition payments to


sectarian schools."
iii. Context: Neutrality Accepted. The majority of the Court has drawn a
distinction between programs that benefit all students and those just
available for nonpublic school students. An assistance program benefiting
only non public school students violates the EC. But a program available
to all students is permissible unless it violates the other criteria discussed
below.
3. Zelman v. Simmons-Harris (2002): Clarification of the Distinction of Neutrality
a. The Court upheld voucher programs that allowed use of the aid in religious
schools.
b. Facts: Ohio created a voucher program for students in the Cleveland schools.
First, the program provides tuition aid (? Gives em their taxes back, not aid?) in
the form of a voucher for students in kindergarten through 8th grade. Students
could use the vouchers to attend a participating school of their parent's choosing.
By the terms of the program, students could use the vouchers in any private
school, secular, or religious. Second, the program provides tutorial aid for
students who choose to remain enrolled in public school.
i. Tuition aid was distributed on a financial need basis, with the government
paying a greater amount for poorer students. Vouchers were for $2,250
and for the poorest students, the government paid 90% of that amount.
ii. Almost all of the vouchers were used in religious schools. 96% of all of
the vouchers were used in parochial schools and 82% of the schools
receiving vouchers were religiously affiliated.
c. Holding: 5-4 Constitutional
i. Free to Choose. Rehnquist, writing for the Court, said that prior decisions
"make clear that where a government aid program is neutral with respect
to religion, and provides assistance directly to a broad class of citizens
who, in turn, direct government aid to religious schools wholly as a result
of their own genuine and independent private choice, the program is not
readily subject to challenge under the EC."
1. Neutrality. Rehnquist stressed the program's neutrality: "Program
benefits are available to participating families on neutral terms,
with no reference to religion. The only preference stated anywhere
in the program is a preference for low-income families, who
receive greater assistance and are given priority for admission at
participating schools. There are no 'financial incentives' that 'skew'
the program toward religious schools. Such incentives are not
present where the aid is allocated on the basis of neutral,
secular criteria that neither favor nor disfavor religion, and is made
available to both religious and secular beneficiaries on a non
discriminatory basis.
ii. Secular Purpose: Improving Education. The Court explained that the
govt was acting out of the important secular purpose of improving
education for children in Cleveland and that if the aid ends up being spent
in religious schools, it is b/c of parent choices not govt decisions.

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d. O'Connor Concurrence: She emphasized that she did not see the decision as
departing from precedent and to explain that parents had a range of choices in
Cleveland that made the voucher program acceptable.
e. Thomas Concurrence: He discussed the need to improve education for innercity children from minority races. He also questioned whether the EC should
apply to the states at all.
f. Stevens Dissent: He argued that none of the characteristics of the program,
such as the educational need of the students or the range of choices available,
excused the government in providing such aid to parochial schools.
g. Souter Dissent: He criticized what he saw as an unprecedented transfer of
government funds to religious coffers.
h. Breyer Dissent: He emphasized the inherent divisiveness of the govt giving
such aid to religion.
i. Context: The 5-4 decision in Zelman reflects very different views between the
majority and the dissent over the need for restrictions on government aid to
religious schools. As a descriptive matter, Zelman largely resolves the
constitutional issues concerning vouchers under the 1A. There still might be
litigation, for example, over what types of choices must be available for voucher
programs to be constitutional. In all likelihood, though, serious challenges to the
constitutionality of voucher programs will be under state constitutions, many of
which contain provisions preventing any direct or indirect aid to religion.
Establishment Clause, Part II: Public Prayer:
Accommodation/Equality Approach to EC:
The Court should interpret the EC to recognize the importance of religion in society and
accommodate its presence in govt. Govt should accommodate religion by treating it the same
as nonreligious beliefs and groups; the govt violates the EC only if it establishes a church,
coerces religious participation, or favors some religions over others.
Defense: Those who defend the accommodation approach argue that it best reflects the
importance and prevalence of religion in American society. It makes religion a welcome element
in the mix of beliefs and associations present in the community. Under this vieww, the emphasis
is placed on freedom of choice and diversity among religious opinion. The nation is understood
not as secular but as pluralistic.
Opponents: Little ever will violate the EC. Nothing except the govt creating its own church or by
force of law requiring religious practices will offend the provision
The EC should serve to prevent the govt from making those of other religions feel
unwelcome and to keep the govt from using its power and influence to advance religion
or a particular religion
1. Lee v. Weisman (1992): What Constitutes Govt "Coercion"
a. The Court declared unconstitutional clergy-delivered prayers at public school
graduations.
b. Holding: Unconstitutional
i. Great [Indirect] Pressure = Coercive. Kennedy, writing for the Court,
found that such prayers are inherently coercive b/c there is great pressure
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on students to attend their graduation ceremonies and to not leave during


the prayers.
1. He stressed the inherent coercion in allowing prayer at
graduations. Although no student was required to attend
graduation, it is an important event in a person's life and students
likely feel psychological pressure not to absent themselves during
the prayer.
2. School Context: State Enforced Religious Orthodoxy. He
wrote that there "are heightened concerns with protecting freedom
of conscience from subtle coercive pressure in the elementary
secondary public schools. What to most believers may seem
nothing more than a reasonable request that the nonbeliever
respect their religious practices, in a school context may appear to
the nonbeliever or dissenter to be an attempt to employ the
machinery of the State to enforce a religious orthodoxy.
c. Blackmun Concurrence, joined by Stevens, O'Connor: He wrote to
emphasize that the EC can be violated even w/o coercison. He remarked that it
"is not enough that the govt refrain from compelling religious practices; it must
not engage in them either."
i. Rejects the Accommodation approach, coercion not needed to violate the
EC
d. Souter Concurrence, joined by Stevens, O'Connor: He stressed that coercion
is sufficient for a finding of the EC, but it is not necessary; EC violations exist w/o
coercion if there is symbolic government endorsement for religion.
i. Rejects the Accommodation approach, coercion not needed to violate the
EC
e. Scalia Dissent, joined by Rehnquist, White, Thomas: He advocated the
accommodation approach, but defined coercion much more narrowly than
Kennedy. Scalia said that "coercion that was a hallmark of historical
establishments of religion was coercion of religious orthodoxy and of financial
support by force of law and threat of penalty."
i. Coercion exists only if the law requires and punishes the failure to engage
in religious practices.
2. Santa Fe Independent Sch. Dist. v. Doe (2000):
a. The Court, 6-3, held that student-delivered prayers at high school football games
violate the EC.
b. Facts: A public high school in Texas had a tradition of having a student deliver a
prayer before varsity football games. After this was challenged in litigation, the
school adopted a policy where students would hold 2 elections; one was to
decide whether to have invocations before football games and, if so, the second
was to select the student to give the invocation.
c. Holding: Unconstitutional
i. Govt Policy/On Govt Prop/Govt School Event = Not Private Speech.
Stevens, writing for the Court, emphasized that the school had
encouraged and facilitated the prayer at an official school event. The
school claimed that the student prayers were private speech, but the
Court emphatically disagreed. Stevens explained: "We are not persuaded
tht the pregame invocations should be regarded as 'private speech.'
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These invocations are authorized by a govt policy and take place on govt
property at govt-sponsored school-related events."
1. Policy and Tradition = Actual and Perceived Endorsement for
Religion. The Court noted how the school encouraged the
delivery of prayers, both in its official policies and it its traditional
support for prayer at football games. The result is both actual and
likely perceived government endorsement for religion. Stevens
stated: "The actual or perceived endorsement of the message,
moreover, is established by factors beyond just the text of the
policy. Once the student speaker is selected and the message
composed, the invocation is then delivered to a large audience
assembled as part of a regularly scheduled, school-sponsored
function conducted on school property. The message is broadcase
over the school's public address system, which remains subject ot
the control of school officials."
ii. Coercive Aspects. Stevens also noted the coercive aspects of the
school's policy in that many students football players, band members,
cheerleaders were required to be present in order to receive academic
credit, as well as the benefits from participating in an extracurricular
activity. The Court said that forcing sutdents to choose between attending
the game and avoiding religion itself vioalted the EC: "The constitution,
moreover, demands that the school may not force this difficult choice
upon these students for it is a tenet of the First Amendment that the State
cannot reuqire one of its citizens to forfeit his or her rights and benefits as
the price of resisting conformance to state-sponsored religious practice."
d. Rehnquist Dissent: He saw the exclusion of prayer as undue hostility to
religion. He wrote: "But even more disturbing than its holding is the tone of the
Court's opinion; it bristles with hostility to all things religious in public life. Neither
the holding nor the tone of the opinion is faithful to the meaning of the EC, when
it is recalled that George Washington himself, at the request of the very Congress
which passed the Bill of Rights, proclaimed a day of 'public Thanksgiving and
prayer,' to be observed by acknowledging with grateful hearts the many and
signal favors of Almighty God." The Court was wrongly ignoring the interests of
those who want prayer.
e. Context: Engel, Schempp, Wallace, Lee, and Doe establish that prayer even if
voluntary, non denominational, or silent is impermissible in public schools
i. Exc: student conducted noncurricular use of school facilities Widmar
Religion as a Part of Govt Activities: Legislative Chaplains
3. Marsh v. Chambers (1983):
a. The Court upheld the constitutionality of a state legislature employing a
Presbyterian minister for 18 years to begin each session with a prayer.
b. Facts: The Nebraska legislature had employed Robert E. Palmer, a Presbyterian
minister, since 1965 to open each legislative day with a prayer.
c. Holding: Constitutional

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i. History and Tradition. The Court upheld this as constitutional b/c of the
long history and tradition of religious invocations before legislative
sessions.
1. Burger, writing for the Court, said that "the opening of sessions of
legislative and other deliberative public bodies with prayer is
deeply embedded in the history and tradition of this country. From
colonial times through the founding of the Republic and ever
since, the practice of legislative prayer has coexisted with the
principles of disestablishment and religious freedom." -- "This
unique history leads us to accept the interpretation of the First
Amendment draftsmen who saw no real threat to the EC arising
from a practice of prayer similar to that now challenged."
2. Its notable that the Court decided the issue solely on the basis of
historical practice and did not apply the Lemon test in evaluating
the constitutionality of legislative prayers and state employment of
a minister for almost 20 years. The Court said: "In light of the
unambiguous and unbroken history of more than 200 years, there
can be no doubt that the practice of opening legislative session
with prayer has become part of the fabric of our society . Nor is
the compensation of the chaplain from public funds a reasona to
invalidate the Nebraska Legislature's chaplaincy: Remuneration is
grounded in historic practice initiated by the same Congress
that drafted the EC of the First Amendment."
3. Lemon Exception: Strong Historical Support. Marsh thus
indicates that a court need not apply the Lemon test if there is
strong historical support for a particular govt practice of supporting
religion. Yet it is unclear why history should be decisive and
preclude analysis under the Lemon test. The purpose of legislative
prayers and paying a minister seems obviously to advance
religion. Paying a minister, from one faith, for 18 years from public
funds clearly seems to have the effect of advancing the religion
and of entaglining govt with religion. Yet by focusing exclusively on
history, the Court avoided thses issues.
4. Town of Greece v. Galloway ():

Unit V: Enforcing the Reconstruction


Amendments:
State Action:
1. The Civil Rights Cases ():
2. Shelley v. Kraemer (1948): Enforcement Theory
a. Court held that the courts cannot enforce racially restrictive covenants.
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b. Issue: whether courts could enforce contracts whereby members of a


neighborhood agreed not to sell their property to blacks.
i. The arguments was that private contractual agreements need not
comply with the Constitution and that court enforcement was simply
implementing private choices. The Court disagreed and held the
courts that courts may not enforce racially restrictive covenants.
c. Holding: No
i. The Court explained that court enforcement has the govt, through
its judicial branch, facilitating discrimination. The "participation of
the State consists in the enforcement of the restrictions."
ii. Courts = State Actors. Judges are Govt Actors and their
Judicial Remedies are State Action. The Court thus concluded
that the "action of state courts and judicial officers in their official
capacities is to be regard as action of the State within the meaning
of the 14th." It is govt-employed judges enforcing the contract law of
the state, which does not forbid racial discrimination, that
implements discrimination by enforcing a racially restrictive
covenant.
d. Context: NYT v. Sullivan, 15 years after Shelley, held that the common
law of libel is state action and that must comply with the 1A. The Court
said that although the defamation action was a "civil lawsuit between
private parties, the Alabama courts have applied a state rule of law which
allegedly imposes invalid restriction on their constitutional freedoms .
It matters not that the law has been applied in a civil action and that it is
common law only The test is not the form In which state power has
been applied but, whether such power has in fact been exercised."
i. A branch of govt, the judiciary, was enforcing the law of the
state, albeit the common law, to enforce racial discrimination
by enforcing the discriminatory covenants.
e. Controversial: All Action is State Action. This ruling is controversial b/c
ultimately everything can be made state action under it. If any decision
by a state court represents state action, then ultimately all private
actions must comply with the Constitution. Anyone who believes that
his or her rights have been violated can sue in state court. If the court
dismisses the case b/c the state law does not forbid the violation, there is
state action sustaining the infringement of the right, just as there would
have been state action had the court dismissed the case in Shelley. All
private violations of rights exist b/c state law allows them. It is difficult to
imagine anything that cannot potentially be transformed into state action
under this reasoning. --- The court has never taken it this far though.
Govt Licensing and Regulation: In general, govt licensing or regulation is insufficient
for a finding of state action, unless there is other govt encouraging or facilitating of
unconstitutional conduct. Burton says its sufficient, Moose Lodge says its not.
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3. Burton v. Wilmington Parking Authority (1961): Entwinement Theory


a. Govt licensing and regulation was deemed sufficient for state action.
b. Facts: Wilmington, Delaware, operated a parking authority that leased
space to a private restaurant, the Eagle Coffee Shoppe, that denied a
person service solely b/c he was black. EPC
c. Holding: State Action
i. Entwinement/Entanglement = Symbiotic Relationship = State
Action. The Court found that the govt was so entangled with the
restaurant that there was a "symbiotic relationship" sufficient to
create state action.
1. For example, the govt had responsibility for upkeep and
maintenance of the building, and this was done with public
funds.
2. The parking facility was used by the restaurant's customers.
At the same time, the govt benefited from revenues from the
restaurant and its customers.
3. So Entwined the State is Behind the Discrimination: The
Court thus concluded that the parking "Authority, and
through it the State, has not only made itself a party to the
refusal of service, but has elected to place its power,
property, and prestige behind the admitted discrimination.
The state has so far insinuated itself into a position of
interdependence with Eagle that it must be recognized as a
joint participation in the challenged activity."
ii. Possible Prevention: Preconditioning Lease Clause Preventing
Discrimination. The Court emphasized that the govt could have
prevented discrimination by placing a clause in the lease prohibiting
it. The Court said: "but no state may effectively abdicate its
responsibilities by either ignoring them or by merely failing to
discharge them whatever the motive may be. It is of no consolation
to an individual denied the equal protection of the laws that it was
done in GF."
1. Counter: Too Broad: Everything Would be State Action.
By this reasoning, however, virtually everything is state
action. All corporations are chartered by a state government.
The state always could insist, as a condition for
incorporation, that the corporation comply with the
Constitution. All who receive govt money could be required,
as a condition of receipt, to comply with the Constitution. All
who are regulated by the govt could have, as one condition
of regulation, a mandate to comply with the Constitution.
4. Moose Lodge No. 107 v. Irvis (1972): Entwinement. Compare to Burton
a. The Court held that the state grant of a liquor license to a private club was
not sufficient govt entanglement for the Constitution to apply.
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b. Facts: The Moose lodge restricted membership to whites and refused to


allow guests to bring blacks into the dining room and bar.
c. Holding: No State Action.
i. Licensor Had No Role in Making Lodge Guest Policies. The
Court emphasized that the Pennsylvania Liquor Control Board
played no role in establishing or enforcing the membership or guest
policies of the lodge. The Court concluded that "there is nothing
approaching the symbiotic relationship between lessor and lessee
that was present in Burton."
ii. Inconsistent Reasoning with Burton: Conditioning. Yet following
the reasoning of Burton, the state certainly could have prevented
discrimination by making that a condition of the liquor license, and
the state was conferring a substantial benefit on the private club by
granting it the license. The Court, however, felt that this was
insufficient for state action.
Encouragement/Initiative Encouraging Violations of Rights:
5. Reitman v. Mulkey (1967):
a. The Court found unconstitutional a voter initiative that repealed open
housing laws and prevented the enactment of such future anti
discrimination laws.
b. Facts: A ballot initiative adopted by the voters declared: "Neither the State
nor any subdivision or agency thereof shall deny, limit or abridge, directly
or indirectly, the right of any person, who is willing or desires to sell, lease
or rent any part of all of his real property, to decline to sell, lease or rent
such property to such person or persons as he, in his absolute discretion,
chooses." Free association law wro selling, leasing, or renting housing.
c. Holding: Unconstitutional.
i. Encourages and Involves the State in Racial Discrimination.
The Court concluded that the provision "would encourage and
significantly involve the State in private racial discrimination
contrary to the 14th." The Court observed that no longer was
discrimination solely a matter of private choice. Rather, "the right to
discriminate, including the right to discriminate on racial grounds,
was now embodied in the State's basic charter, immune from
legislative, executive, or judicial regulation at any level of the state
govt."
ii. Because the initiative was intended to authorize discrimination in
housing, and b/c it does authorize such discrimination, the Court
found that it was unconstitutional.
iii. Counter: Again, Makes Anything State Action: Does this mean
that any repeal of an anti discrimination law is impermissible
encouragement of discrimination? If so, then isn't the failure to
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adopt anti discrimination laws also encouragement of


discrimination? And then , isn't the same true about the failure to
adopt laws that prohibit all violations of constitutional rights? Again,
it would seem that Reitman, like Shelley and Burton, could make
anything state action.
Public Policy Exception
6. Jackson v. Metropolitan Edison Co. (1974): Public Policy Exception to the
State Action Doctrine.
a. Public Policy Exception: The Court held that there is state action "in the
exercise by a private entity of powers traditionally exclusively reserved to
the state.
b. The Court held that govt regulation of a private utility was not sufficient to
create state action.
c. Facts: The Court held that a private utility company did not have to
provide due process before it terminated a customer's service. The Court
has ruled that a govt-owned utility must provide notice and a hearing
before cutting off service. The argument was that a private utility, with a
state-granted monopoly, performs a public function and should also have
to provide due process. But the Court rejected this argument and
explained that running utility is "not traditionally the exclusive prerogative
of the State" and therefore the Constitution was inapplicable.
i. In other words, since there long have been private utility
companies, running a utility is not regarded as a public function to
which the Constitution always applies.
d. Public Policy Exception: When Applicable. Jackson says that a private
entity should be regarded as performing a public function when performing
a task that has been traditionally, exclusively done by the govt.
7. Flagg Bros. Inc. v. Brooks (1978):
a. The Court held that a private creditor's self-help repossession did not
constitute state action, and thus due process was not required prior to the
sale of her belongings.
b. Facts: After an individual was evicted from her home, the sheriff arranged
for storage of her possession in a warehouse. The warehouse demanded
that she pay the storage fees or it would sell her property. The customer
claimed a right to due process before the sale, but the Court concluded
that since the warehouse company was privately owned, the Constitution
did not apply.
i. The customer's primary contention was that the State of NY
"delegated" to the company " a power 'traditionally exclusively
reserved to the State.'" The customer argued that resolving
disputes is a traditional function of govt and that the govt had

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delegated this task to the creditor by giving it the authority to sell


the goods to pay the debt.
1. The Court expressly rejected this argument and said that
there were many ways in which the dispute could have been
resolved: The debtor could have sought a waiver of the
creditor's rights to sell her goods; the debtor could have
sought to replevy her goods under state law; the debtor had
a statutory damages action available for violations of the law.
The Court said that in light of all these options, it could not
be said that the govt delegated to the creditor "an exclusive
prerogative of the sovereign."
2. Counter: State Action. The state provided the procedures
for the bebtors' action. The state law provided for the selfhelp action. Involvement of the sheriff was unnecessary
precisely b/c the state's law allowed the repossession action
w/o assistanceo f the sheriff.
Inaction? When is the Govt's Failure or Inaction to Protect a Person from
Privately Inflicted Harms a Deprivation?
Bottom Line. The govt generally has no duty to provide protection from private inflicted
harms. Only if the govt literally creates the danger or a person is in govt custody, is
there any constitutional duty for the govt to provide protection. State and local govts
may create duties and remedies under their law, but they do not exist under the
Constitution.
8. Deshaney v. Winnebago County Social Services Department (1989):
a. The Court broadly held that the govt generally has no duty to protect
individuals from privately inflicted harms.
b. A state's failure to act, or inaction, does not constitution state action, thus
the state action requirement is not met (2 exceptions below). The main
actor was the child's private father, not the state.
c. Facts: the guardians of a four year old child sued the Department of
Social Services for its failure to protect the child from beatings his father
inflicted that ultimately resulted in irreversible brain damage. The Ps
maintained that the dept was informed of the abuse over a 26-mo period,
but failed to act.
d. Holding: No Constitutional Violation
i. The Court held that there was no constitutional violation b/c the
child was not in the custody of the govt and b/c the abuse occurred
in the hands of a private party. Rehnquist, writing for the Court,
state: Nothing in the language of the DPC itself requires the State
to protect the life, liberty, and property of its citizens against
invasion by private actors. The Clause is phrased as a limitation on
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ii.

iii.

iv.

v.

the State's power to act, not as a guarantee of certain minimal


levels of safety and security.
State Has No Duty to Protect Individuals from Private Harms
Under the DPC. The Court expansively declared that "as a general
matter a State's failure to protect an individual against private
violence simply doesnt constitute a violation of the DPC."
2 Exceptions: The Court recognized 2 narrow situation where the
govt has a duty to provide protection from privately inflicted harms
1. (1)The Govt Limited the Person's Self-Protectability.
Where the govt has limited the ability of a person to protect
himself or herself, such as when there is incarceration or
institutionalization.
2. (2) Govt Placed the Person in Danger: Where there is a
special relationship between the govt and the injured
individual, such as when the govt took an affirmative step to
place the person in danger.
Negative Liberties: This case reflects a deeply entrenched belief
that the Constitution is a charter of negative liberties rights that
restrain the govt and not a creator of affirmative rights to
government services.
Counter: Action v. Inaction: Reckless Management. The Court
could have described the govt's failure to protect DeShaney as the
"active, if reckless, management of a case in which it was deeply
involved," instead of making an artificial distinction between action
and inaction. Once the govt began to investigate the case,
especially b/c the child had not other protections, it had the
obligation to do so carefully and competently.

The Enforcement Powers:


1. Scope of Congress's Power:
a. Is Congress limited to providing remedies for violations of constitutional
rights recognized by the Court; or may Congress use its power under
these amendments to adopt an independent interpretation of the
Constitution, even overruling Supreme Court decisions?
b. Alternative Views
i. Nationalist View: Congress may use its S5 authority to expand the
scope of rights Katzenbach v. Morgan adopted this approach
ii. Federalist View: Congress under S5 of the 14 th cannot create new
rights or expand the scope of rights; Congress can act only to
prevent or remedy violations of rights, and such laws must be
narrowly tailored. This approached was adopted in City of Boerne v.
Flores in 1997 and has been reaffirmed several times.
2. City of Boerne v. Flores (1997):
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a. The Court expressly rejected the nationalist view of S5 and shifted to the
federalist perspective that Congress ay not use its S5 powers to expand
the scope of rights or to create new rights.
b. Background: The Court, 6-3, declared the RFRA unconstitutional as
exceeding the scope of Congress's S5 powers. The Act was adopted in
1993 to overturn a recent Court decision that had narrowly interpreted the
FEC of the 1A which made neutral laws of general applicability, but which
burdened religion, subject only to rational basis instead of SS as under
prior precedent (Smith). RFRA returned the standard of review for neutral
laws of general applicability that burden religion to SS.
c. Facts: The case involved a church in Tx that was prevented from
constructing a new facility b/c its building was classified a historic
landmark. The church sued under the RFRA, and the city challenged the
constitutionality of the law.
d. Holding: Unconstitutional
i. The Court held that Congress under S5 of the 14 th may not create
new rights or expand the scope of rights; rather Congress is limited
to laws that prevent or remedy violations of rights recognized by the
Supreme Court, and these must be narrowly tailored "proportionate" and "congruent" - to the constitutional violation.
ii. Congress has the Power To Enforce, Not the Power to
Determine What Constitutes a Violation. Kennedy explained that
S5 gives Congress the power to enact laws "to enforce" the
provision of the 14th. He stated: "Legislation which alters the
meaning of the FEC cannot be said to be enforcing the Clause.
Congress does not enforce a constitutional right by changing what
the right is. It has been given the power 'to enforce,' not the power
to determine what constitutes a constitutional violation. Were it not
so, what Congress would be enforcing would no longer be, in any
meaningful sense, the 'provisions of the 14th Amendment.'"
iii. Congruence and Proportionality in the Means to Ends:
Congress thus is limited to enacting laws that prevent or remedy
violations of rights already recognized by the Court. Moreover, the
Court said that "there must be a congruence and proportionality
between the injury to be prevented or remedied and the means
adopted to that end."
1. Kennedy defended this conclusion by invoking the need to
preserve the Court as the authoritative interpreter of the
Constitution. He quoted Marbury v. Madison and wrote: "If
Congress could define its own power by altering the 14 th's
meaning, no longer would the Constitution by 'superior
paramount law unchangeable by ordinary means.' It would
be 'on a level with ordinary legislative acts, and like other
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acts, alterable when the legislature shall please to alter


it.'"
2. "Shifting legislative majorities could change the Constitution
and effectively circumvent the difficult and detailed
amendment process contained in Article V."
e. Conclusion: RFRA is unconstitutional on the grounds that it impermissibly
expanded the scope of rights and that it was not proportionate or
congruent as a preventive or remedial measure
i. "A law is subject to challenge at any time by any individual who
alleges a substantial burden on his or her free exercise of religion...
The stringent test RFRA demands of state laws reflects a lack of
proportionality or congruence between the means adopted and the
legitimate end to be achieved."
ii. RFRA prohibits much that would not violate the Constitution and
thus was deemed to exceed the scope of Congress's S5 powers.
f. Context:
i. Pro City of Boerne/Federalist View of Congress's S5 powers:
1. Supremacy of the Court. It has the virtue of protecting the
Court's role as the authoritative interpreter of the
Constitution. The Court alone determines the meaning of
substantive constitutional provisions; Congress is limited to
enacting laws to enforce these rights. This avoids the risk
expressed by Harlan in his dissent in Katzenbach that
Congress might try to use S5 to dilute or negate
constitutional rights.
2. Limited Govt. The narrow definition of Congress's S5
powers, like the recent restrictive interpretation of the
commerce power, is consistent with the basic constitutional
premise of a federal govt with limited legislative authority and
most governance left to the states.
ii. Anti:
1. The Courts interpretive judgment that a particular right is not
constitutionally protected is in no way incompatible with a
legislature's statutory recognition and safeguarding of the
liberty.
3. United States v. Morrison (2000):
a. The Court reaffirmed the Civil Rights Cases.
b. A constitutional challenge to the civil damages provision of the Violence
Against Women Act, which authorized victims of gender-motivated
violence to sue under federal law.
c. Facts: A suit was brought by a woman who allegedly was raped by
football players at Virginia Tech University; the Ds were not criminally
prosecuted and ultimately avoided even university discipline. The victim
sued under the Violence Against Women Act, a law adopted by Congress
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after extensive hearings concerning the magnitude of gender-motivated


violence, the great costs in economic losses and personal suffering, and
the inadequacy of state laws and state courts.
i. The US govt intervened to defend the law, and it and the P argued
that the civil damages provision was constitutional as an exercise of
both Congress's commerce clause power and its authority under S5
of the 14th.
d. Holding: 5-4 Unconstitutional
i. The court held that the law exceeded the scope of the commerce
power b/c Congress cannot regulate non economic activity based
on a cumulative impact on interstate commerce.
ii. 14th Prohibits Only State Action, Not Private Conduct =
Congress can't regulate Private Conduct Under S5. The Court
held that the law is not constitutional as an exercise of Congress's
S5 power. Rehnquist, writing for the court, said that Congress
under this authority may regulate only state and local governments,
not private conduct. He relied on "the time-honored principle that
the 14th, by its very terms, prohibits only state action."
1. The Act is Aimed At Persons Conduct the 14th Itself
Cannot Proscribe, Thus Congress Cannot Proscribe
Through Legislation Pursuant to It. He said that the
opinions in US v. Guest, indicating congressional power to
regulate private conduct, were only dicta. Thus, the civil
damages provision of the Violence Against Women Act was
deemed to exceed the scope of Congress's S5 powers b/c it
"is not aimed at proscribing discrimination by officials which
the 14th might not itself proscribe; it is directed not at any
State or state actor, but at individuals who have committed
criminal acts motivated by gender bias."
e. Context: Morrison is thus an important limit on Congress's powers under
S5 of the 14th. The Court's holding can be defended as being consistent
with the long-standing principle that the Amendment applies only to
government conduct. But the decision can be criticized as an unduly
narrow interpretation of a constitutional provision that was intended to
have broad scope. The Violence Against Women Act was adopted b/c of
perceived inadequacies in state courts and state laws. Critics of Morrison
argue that S5 should be read as authorizing congressional action under
such circumstances.
4. Shelby County v. Holder (2013):
a. Facts: The Fourteenth Amendment protects every person's right to due
process of law. The Fifteenth Amendment protects citizens from having
their right to vote abridged or denied due to "race, color, or previous
condition of servitude." The Tenth Amendment reserves all rights not
expressly granted to the federal government to the individual states.
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Article Four of the Constitution guarantees the right of self-government


for each state.

b. The Civil Rights Act of 1965 was enacted as a response to the nearly
century-long history of voting discrimination. Section 5 prohibits
eligible districts from enacting changes to their election laws and
procedures without gaining official authorization. Section 4(b) defines
the eligible districts as ones that had a voting test in place as of
November 1, 1964 and less than 50% turnout for the 1964 presidential
election. Such districts must prove to the Attorney General or a threejudge panel of a Washington, D.C. district court that the change
"neither has the purpose nor will have the effect" of negatively
impacting any individual's right to vote based on race or minority
status. Section 5 was originally enacted for five years, but has been
continually renewed since that time.

c. Shelby County, Alabama, filed suit in district court and sought both a
declaratory judgment that Section 5 and Section 4(b) are
unconstitutional and a permanent injunction against their enforcement.
The district court upheld the constitutionality of the Sections and
granted summary judgment for the Attorney General. The U.S. Court of
Appeals for the District of Columbia Circuit held that Congress did not
exceed its powers by reauthorizing Section 5 and that Section 4(b) is
still relevant to the issue of voting discrimination.

d. Issue: Does the renewal of Section 5 of the Voter Rights Act under the
constraints of Section 4(b) exceed Congress' authority under the
Fourteenth and Fifteenth Amendments, and therefore violate the Tenth
Amendment and Article Four of the Constitution?

e. Holding: Yes. Equal Sovereignties.


i. Yes, Section 4 of the Voting Rights Act is unconstitutional. Chief
Justice John G. Roberts, Jr. delivered the opinion of the 5-4
majority. The Court held that Section 4 of the Voting Rights Act
imposes current burdens that are no longer responsive to the
current conditions in the voting districts in question. Although
the constraints this section places on specific states made sense
in the 1960s and 1970s, they do not any longer and now
represent an unconstitutional violation of the power to regulate
elections that the Constitution reserves for the states. The Court
also held that the formula for determining whether changes to a
state's voting procedure should be federally reviewed is now
outdated and does not reflect the changes that have occurred in
the last 50 years in narrowing the voting turnout gap in the
states in question.

f. Thomas Concurrence: In his concurring opinion, Justice Clarence


Thomas argued that Section 5 of the Voting Rights Act is
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unconstitutional in addition to Section 4. He wrote that the blatant


discrimination against certain voters that Section 5 was intended to
prohibit is no longer evident. Without such extraordinary
circumstances, Congress cannot constitutionally justify placing the
burden of Section 5 on the states in question.

g. Ginsburg Dissent, joined by Breyer, Sotomayor, Kagan. Justice


Ruth Bader Ginsburg wrote a dissent in which she argued that
Congress' power to enforce the Fourteenth and Fifteenth Amendments
encompasses legislative action such as the Voting Rights Act. The
legislative history and text of the Amendments as well as previous
judicial precedent support Congress' authority to enact legislation that
specifically targets potential state abuses. However, Congress does not
have unlimited authority but must show that the means taken
rationally advance a legitimate objective, as is the case with the Voting
Rights Act. The evidence Congress gathered to determine whether to
renew the Voting Rights Act sufficiently proved that there was still a
current need to justify the burdens placed on the states in question.
She also argued that, by holding Section 4 unconstitutional, the
majority's opinion makes it impossible to effectively enforce Section 5.

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