Professional Documents
Culture Documents
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
3
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)
2. Operative Clause: "the right of the people to keep and bear Arms,
shall not be infringed."
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.
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.
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.
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
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.
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.
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
9
10
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
11
11
12
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
13
13
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):
14
14
15
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.
16
16
17
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
18
18
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
19
19
20
21
21
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
22
22
23
24
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
25
25
Political Rights:
26
26
27
28
28
29
30
30
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 .. "
31
32
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
33
33
34
35
36
37
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?
38
38
39
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
40
40
41
42
42
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."
43
43
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
44
44
45
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
46
46
47
47
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
48
48
49
50
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.
51
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
52
52
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:
53
53
54
54
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
55
55
56
56
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.
57
57
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."
58
58
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."
59
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."
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."
60
60
61
62
63
64
65
66
67
67
68
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
69
69
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.
70
70
71
71
72
73
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
74
74
75
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."
76
76
77
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
78
78
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.
79
79
80
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
81
82
83
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
84
84
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.
85
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
86
86
87
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
88
88
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
89
89
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.
90
90
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
91
91
92
92
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
93
93
94
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
95
95
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 ():
96
97
98
99
100
100
101
ii.
iii.
iv.
v.
102
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
103
103
104
105
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?
106
107
107