Constitutional Law II Outline – Ancheta



Constitutional Law II Outline – Ancheta (Chemerinsky book)

Equal Protection

I. Introduction

a. Equal Protection Clause: “No state shall…deny to any person within its jurisdiction the equal protection of the laws”

i. Bolling v. Sharpe applies the Equal Protection Clause to the federal government via the Due Process Clause (“discrimination may be so unjustifiable as to be violative of due process”)

b. Framework

i. What is the classification?

1. Classifications on the face of the law

2. Facially-neutral laws with a discriminatory impact to the law or discriminatory effects from its administration

ii. What is the appropriate level of scrutiny (Standard of Review)?

1. Strict: race, national origin, sometimes alienage

2. Intermediate: gender, non-marital children

3. Rational Basis Test: minimum level for all other classes

iii. Does the government action meet the level of scrutiny? Ends/Means analysis

c. Protection of Fundamental Rights under Equal Protection

i. Typically used for discrimination based on classifications, such as race, gender, alienage, legitimacy, age, disability, wealth, sexual orientation

ii. BUT, also used if the government discriminates among people as to the exercise of a fundamental right (see Con Law I), such as right to procreate, voting, access to judicial process, interstate travel

II. Rational Basis Test: minimal level of scrutiny that all government actions challenged under equal protection must meet

a. Requirements

i. Legitimate Purpose

1. What is legitimate?

a. The Court is typically extremely deferential to the government

b. Romer v. Evans: no legitimate purpose for Colorado Amendment that repealed all laws protecting gays, lesbians, and bisexuals from discrimination and prohibited all future government action to protect these individuals from discrimination

2. Actual purpose or any conceivable purpose?

a. Any conceivable interest, even if not the government’s actual purpose, can suffice

b. U.S. Railroad Retirement Board v. Fritz: upheld a federal law designed to prevent retired railroad workers from receiving benefits under both the Social Security system and the railroad retirement system; “irrelevant whether this reasoning in fact underlies the legislative decision because this Court never has insisted that a legislative body articulate its reasons for enacting a statute

c. Federal Communications Commission v. Beach Communications: reaffirmed that any conceivable legislative purpose is sufficient and stated that “those attacking the rationality of the legislative classification have the burden to [negate] every conceivable basis which might support it”

d. Critics argue that the rational basis of review is only meaningful if the Court limits itself to looking at the actual purpose for a law

ii. Reasonable Relationship

1. Deference to the government – laws will be upheld unless the government’s action is “clearly wrong, a display of arbitrary power, not an exercise of judgment”

2. Tolerance of under- and over- inclusive laws

a. Underinclusive laws

i. Laws that don’t regulate all who are similarly situated; raise concern that the government has enacted a law that targets a particular politically powerless group or that exempts those with more political clout

ii. Railway Express Agency, Inc. v. New York: upheld an ordinance that banned all advertising on the sides of trucks unless the ad was for the business of the truck’s owner

b. Overinclusive laws

i. Laws that cover more people than it needs to in order to accomplish its purpose; unfair to those who are unnecessarily regulated and they risk “burden[ing] a politically powerless group which would have been spared if it had enough clout to compel normal attention to the relevant costs and benefits

ii. New York City Transit Authority v. Beazer: upheld law prohibiting those in methadone maintenance programs from working for the NYCTA, but the vast majority of those in programs posed no safety risk

c. “…perfection is by no means required” (Vance v. Bradley)

III. Classifications

a. Race and National Origin Classifications

i. Strict scrutiny standard; justified by the long history of racial discrimination, which make it very likely that racial classifications will be based on prejudices rather than legitimate public concerns, the relative political powerlessness of the groups, and that race is an immutable trait

ii. Classifications on the Face of the Law:

1. Classifications disadvantaging racial minorities

a. Korematsu v. United States: upheld the constitutionality of the evacuation of Japanese-Americans, accepting the government’s claim that they posed a serious risk to national security and that there was no way of screening to identify such individuals; enormously over- and under- inclusive; perhaps best understood as an example of the Court’s deference to the military, especially in wartime

2. Classifications disadvantaging both whites and minorities

a. Loving v. Virginia: declared VA’s miscegenation statute that made is a crime for a white person to marry outside the Caucasian race; statute relied solely on distinctions drawn according to race and the equal application of it does not remove it from the 14th amendment’s proscription

3. Segregation and Desegregation

a. Plessy v. Ferguson: upheld laws that mandated blacks and whites use “separate but equal” facilities, stating that the intention of the 14th amendment was to enforce the equality but not to abolish distinctions based on color and, thus, such laws are not unreasonable

b. Brown v. Board of Education: eliminated the doctrine of “separate but equal” in the field of education, stating that is generates a feeling of inferiority in black children which interferes with their learning; eventually “separate but equal” was invalidated in other contexts

c. Problem of remedies…Brown mandated the desegregation of schools including the reassignment of pupils and teachers, which was met by a massive resistance and was especially difficult because of residential sorting

4. Classifications benefiting racial minorities – Affirmative Action

a. Historically struggled with the standard of review

i. UC Regents v. Bakke: concluded that affirmative action violated Title VI of the 1964 Civil Rights Act, but they didn’t even discuss the level of scrutiny

ii. Fullilove v. Klutznick: majority opinion didn’t concern the appropriate level, but upheld a federal law which required 10% of public works monies to be set aside for minority-owned businesses

iii. United States v. Paradise: upheld mandate that a qualified black be hired every time a white was hired or promoted and the plurality decision found that “the relief ordered survives even strict scrutiny analysis”

iv. Wygant v. Jackson: Court rejected the affirmative action plan as being not sufficiently narrowly tailored (also a plurality)

v. Eventually, strict scrutiny emerged as the standard in Croson

b. In Employment

i. Richmond v. J.A. Croson Co.: Court held that strict scrutiny should be used in evaluating state and local affirmative action programs, invalidating a Richmond, VA plan to set aside 30% of public works monies for minority-owned businesses

1. Compelling interest: remedying societal discrimination is not compelling, remedying present effects of past discrimination by a particular institution can be compelling IF there’s a “strong basis in evidence”

2. Necessary: over-inclusive, race-neutral alternatives must be considered, quotas are problematic

ii. Metro Broadcasting, Inc. v. Federal Communications Commission: Court held that congressionally approved affirmative action programs only need to meet intermediate scrutiny (“to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives”)

iii. Adarand Constructors, Inc. v. Pena: overruled Metro, concluding that federal racial classifications must serve a compelling governmental interest and must be narrowly tailored to further that interest

iv. There still tends to be a split regarding the use of strict scrutiny v. intermediate scrutiny

c. In Higher Education

i. Hopwood v. University of Texas: 5th circuit ruled that diversity is not compelling enough to use race as a factor in admissions decisions

ii. Grutter v. Bollinger: upheld the University of Michigan Law School’s affirmative action program, ruling 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

iii. Gratz v. Bollinger: invalidated an affirmative action program for undergraduate admissions which added 20 points to the applications for minority students, ruling that the program was not sufficiently “narrowly tailored” to meet the strict scrutiny for racial classifications

iv. Thus, diversity is a compelling interest in education and universities may use race as a factor to ensure diversity, BUT quotas or numerical quantification of benefits if impermissible

d. 4 major objectives for affirmative action

i. Remedying past discrimination

ii. Diversity

iii. Providing role models for those in minority communities

iv. Increasing services for minority communities

e. Race-Conscious Redistricting – Gerrymandering

i. Strict scrutiny standard (Shaw v. Reno, and each subsequent case)

ii. 2 ways to demonstrate that race was used in drawing election districts (trigger strict scrutiny)

1. A district has a “bizarre” shape that, in itself, makes clear that race was the basis for drawing the lines (Shaw v. Reno and Shaw v. Hunt)

2. Proof that race was a predominant factor in drawing the lines (Miller v. Johnson and Bush v. Vera)

iii. Justifications to meet strict scrutiny

1. History of race discrimination with regard to voting is not compelling

2. A political goal, such as protecting a safe seat for an incumbent or creating a district which has a majority of one political party, is compelling

3. Easley v. Cromartie: predominance of political party considerations does not trigger strict scrutiny

iii. Facially Neutral Laws with a Discriminatory Impact

1. Proof of a Discriminatory Purpose (v. effect)

a. Washington v. Davis: held that proof of a discriminatory impact is insufficient, by itself, to show the existence of a racial classification (in this case, black applicants for the D.C. police force failed exam more than whites), justified because the purpose of the 14th amendment is “the prevention of official conduct discriminating on the basis of race” and mere impact “would raise serious questions about…a whole range of…statutes that may be more burdensome to the poor and to the average black than to more affluent white”

b. McCleskey v. Kemp: held that proof of discriminatory impact in the administration of the death penalty was insufficient to show an equal protection violation, arguing that defendant “must prove that the decisionmakers in his case acted with discriminatory purpose”

c. However, some civil rights statutes, i.e. Title VII of the 1964 Civil Rights Act, allow proof of discriminatory impact to establish a violation of the law; the Court maintains that under the Constitution, proof of discriminatory impact is insufficient, by itself, to establish a denial of equal protection

d. Issue over the ultimate purpose of the 14th amendment…is it only about equal treatment by the government or should it also be concerned with equal rights?

2. Difficulty in proving a discriminatory purpose

a. Personnel Administrator of Massachusetts v. Feeney: Court provided a narrow definition of intent (this case involved a challenge to a city’s refusal to rezone a parcel of land to allow construction of low and moderate income housing); “‘Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker…selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

b. Village of Arlington Heights v. Metropolitan Housing Development Corp.: ruled that the plaintiff must prove that a discriminatory purpose has been a motivating factor in the decision, which can be proved by such evidence as

i. Being so clearly discriminatory as to allow no other explanation than that it was adopted for impermissible purposes

ii. The history surrounding the government’s actions

iii. The legislative or administrative history of the law,

and then the burden shifts to the government to prove that it would have taken the same action without the discriminatory motivation

b. Alien Classifications

i. Introductions

1. Different from National Origin Classifications because this refers to discrimination against noncitizens, not targeted against a specific country that a person, or his ancestors, comes from

2. “No person,” as stated in the 14th amendment has been interpreted to not be specific to citizens (Yick Wo v. Hopkins)

3. State and local laws can be challenged based on equal protection AND preemption (federal immigration laws wholly occupy the field and preempt state efforts to regulate immigration)

ii. Strict scrutiny standard

1. Prior to Graham, the Court had been extremely deferential, so long as discrimination related to a “special public interest”

2. Graham v. Richardson: Court applied strict scrutiny and declared unconstitutional a PA law that made noncitizens ineligible to receive public assistance and a AZ law that limited receipt of benefits to citizens or 15 year residents; Court stated that “aliens as a class are a prime example of a ‘discrete and insular minority for whom heightened judicial solicitude is appropriate’”

3. Later applied Graham to Sugarman v. Dougall (invalidated a NY law that prevented aliens from holding civil service jobs) and In re Griffiths (invalidated a state law that excluded aliens from being licensed as attorneys)

iii. Exceptions to strict scrutiny standard

1. “Governmental function”

a. Rational review standard used when classification is related to self-government and the democratic process

b. Foley v. Connelie: applied rational basis test to uphold a state law that required citizenship in order for a person to be a police officer, emphasizing that police officers are integral to self-government and enforce the laws that are the product of the democratic process; a state may “confine the performance of this important public responsibility to citizens of the U.S.”

c. Ambach v. Norwick: upheld a state law that required citizenship for a person to be an elementary or secondary school teacher, stating that teachers are integral to self-government because they are responsible for inculcating democratic values in youth; states thus have a legitimate interest in excluding aliens from elementary and secondary school classrooms

d. Cabell v. Chavez-Salido: applied Foley and Ambach to hold that a state may require citizenship for probation officers because they serve as both law enforcement officers and also as teachers

e. Bernal v. Fainter: Court did not apply rational basis test to a state law that created a citizenship requirement in order for a person to be a notary public, emphasizing that this is a narrow exception that applies only if it is specifically tailored to those who “participate directly in the formulation, execution, or review of broad public policy, and hence perform functions that go to the heard of representative government”

f. Overview of “Government Function” exception:

|Classifications Upheld under Rational Basis |Classifications Overturned under Strict |

|Test |Scrutiny |

|Voting |Attorney license |

|Public Office |Engineering |

|Jury Service |Notary Public |

|Government Jobs (police officer, public |Government Jobs (state and local civil |

|school teacher, probation officer) |service |

| |Higher Education Financial Aid |

2. Congressionally approved discrimination

a. Generally, the Court has ruled that the federal government’s plenary power to control immigration requires judicial deference and that therefore only rational basis review is used if Congress or a presidential order has created the alien classification

b. Mathews v. Diaz: upheld a federal statute that denied Medicaid benefits to aliens unless they are LPRs and have resided at least 5 years in the U.S because it was not “wholly irrational” and served the “legitimate” interests of the federal government in preserving the fiscal integrity of the program; since decisions in matters between the U.S. and alien visitors implicate relations with foreign powers and must be defined in light of the changing political and economic circumstances, “such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary”

c. Hampton v. Wong: invalidated a federal civil service regulation that denied employment to aliens because it was adopted by the Civil Service Commission which had no involvement in making decisions concerning immigration or foreign policy nor was there anything to “indicate that the Commission actually made any considered evaluation of the relative desirability of a simple exclusionary rule…or the value…of enlarging the pool of qualified employees”; thus the exception cannot be used for decisions by federal administrative agencies, only Congress and the president

iv. Undocumented aliens

1. Plyer v. Doe: overturned a Texas law that provided a free public education for children of citizens and of documented aliens, but required that undocumented aliens pay for their schooling by using a more intermediate scrutiny analysis in evaluating the discrimination against undocumented alien children with regard to education; “it hardly can be argued rationally that anyone benefits from the creation within our borders of a sub-class of illiterate persons many of whom will remain in the State, adding to the problems and costs of both State and National Governments attendant upon unemployment, welfare, and crime”

2. However, Courts will likely have the opportunity to reconsider Plyer as states continue to adopt broad laws discriminating against undocumented aliens, i.e. CA Prop 187

c. Gender Classifications

i. Like race classification, laws can be facially discriminatory or facially-neutral (where you must show intent and effect by applying Feeney)

ii. Intermediate scrutiny standard for both gender classifications discriminating against women and those discriminating against men

1. In 1971, in Reed v. Reed, the Court for the first time invalidated a gender classification, applying only rational basis review, stating “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”

2. Frontiero v. Richardson: level of scrutiny remained uncertain, as there was no majority; the plurality argued for strict scrutiny, stating that gender, like race, alienage, or national origin, are inherently suspect; one of the concurrences argued that the Court should wait for the passage of the Equal Rights Amendment, which ended up being 3 states short

3. Stanton v. Stanton: overturned a Utah law that required parents to support their female children until 18, but male children until 21, stating that the law was unconstitutional under any test because it was based on “old notions” about social roles

4. Craig v. Boren: overturned an OK law that allowed women to buy 3.2% alcohol beer at 18, but men at 21, stating that while traffic safety is an important government objective, gender discrimination is not substantially related to that objective

5. United States v. Virginia: applied intermediate scrutiny (women were excluded from the VA Military Institute and provided the VA Women’s Institute for Leadership at Mary Baldwin College as an alternative) and stated that there must be an “exceedingly persuasive justification” for gender classifications with the burden resting entirely on the State and the justification must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females, emphasizing the successful gender integration of the federal military academies

6. “Substantial relationship” often considers the

a. Reliance on stereotypes and overbroad generalizations

b. Use of gender as a proxy

c. Availability of gender-neutral alternatives

iii. But, when is gender classification discrimination?

1. Geduldig v. Aiello: upheld CA’s disability insurance system policy of excluding pregnancy-related disabilities but including disabilities affecting only men and applied the rational basis test (state has a legitimate interest in maintaining the fiscal integrity of its program and making choices in allocating its funds) because the program divides recipients into two groups, pregnant women and non-pregnant persons, both of which included women; this was effectively overruled by the passage of the Pregnancy Discrimination Act

2. Bray v. Alexandria Women’s Health Clinic: invoked Geduldig when evaluating is those blocking access to abortion clinics were engaged in a form of gender discrimination, stating that the two categories were persons protesting and persons receiving abortions and women were in both categories

iv. Gender classifications benefiting women

1. Laws based on role stereotypes are generally NOT OKAY

a. Stereotype of economically dependent women and economically independent men

i. Orr v. Orr: overturned AL law that allowed women, but not men, to receive alimony, explaining that needy males could be helped along with needy females with little if any additional burden

ii. Weinberger v. Wiesenfeld: overturned a provision of the Social Security Act that allowed a widowed mother, but not a widowed father, to receive benefits based on the earning of the deceased spouse, stating that the law was based on the stereotype “that male workers’ earnings are vital to the support of their families, while the earnings of female wage earners do not significantsly contribute to their families’ support”

iii. Califano v. Goldfarb: overturned a provision in the Federal Old-Age, Survivors and Disability Insurance Benefits program whereby a woman automatically would receive benefits based on the earnings of her husband, but a man would receive such benefits only if he could prove that he received at least half of his support from his wife, stating that the law presumes that wives are usually dependent

iv. Wengler v. Druggists Mutual Insurance Co.: overturned a state law that automatically allowed widows benefits, but only allowed widowers benefits if they proved that they were dependent on their wives’ income or were physically incapacitated

b. Stereotype about women and their roles in the family and the economy

i. Mississippi University for Women v. Hogan: applying intermediate scrutiny, the Court declared unconstitutional a state nursing school that was available only to women, stating that here the classification was on designed to remedy past discrimination, but based on an occupational stereotype

ii. Michael M. v. Superior Court of Sonoma County: upheld CA’s statutory rape law that made men alone criminally liable for the act of sexual intercourse, by stating that the legislature acts well within its authority when it elects to punish only the participant who suffers few of the consequences of his conduct, unlike young females who have the natural deterrence of pregnancy

iii. Rostker v. Goldberg: upheld male-only draft registration, premised on the fact that women, unlike men, are not eligible for combat and that Congress and the president had evidenced an intent to retain that policy in the future

iv. These cases forced consideration of when biological differences between men and women justify gender discrimination

2. Gender classifications benefiting women as a remedy are OKAY

a. Califano v. Webster: upheld a provision in the Social Security Act that calculated benefits for women in a more advantageous way than was used for men, stating that the difference was not based on stereotypes, but rather the permissible goal “of redressing our society’s longstanding disparate treatment of women”

b. Thus, gender classification is okay when it operates “directly to compensate women for past economic discrimination” and the Court has yet to consider a constitutional challenge to an affirmative action program designed to benefit women, which would likely include a similar analysis as race-based affirmative action

3. Gender classifications benefiting women because of biological differences are OKAY

a. Nguyen v. Immigration and Naturalization Service: allowed a difference in INS rules favoring mothers over fathers because of the government’s interest in being certainty that there is a biological relationship between the parent and child and the greater opportunity that mothers have in establishing a relationship with their children (case involved how children can become citizens when born outside the U.S. to unmarried parents and one of their parents is a citizen and one is not, with greater requirements if the citizen parent if the father)

b. Allowed gender classification based on biological difference, but there remains an issue as to whether these differences are real or social constructs and whether they should matter (Nguyen dissent)

d. Other types of Classification

i. Non-Marital Children Classification

1. Intermediate scrutiny standard

a. Clark v. Jeter: expressly stated that intermediate scrutiny is used for discrimination based on illegitimacy, justified by the unfairness of penalizing children because their parents were not married, and overturned a state law that required a nonmarital child to establish paternity within 6 years in order to seek support from his father

2. Laws denying benefits to all nonmarital children

a. Court consistently found such laws as violating equal protection

b. Levy v. Louisiana: overturned a state law that prevented nonmarital children from suing under a wrongful death statute for losses because of a mother’s death

c. Glona v. American Guarantee & Liability Insurance Co.: overturned a state law that prevented parents from suing for the wrongful death of their nonmarital children

d. New Jersey Welfare Rights Organization v. Cahill: overturned a state law that limited receipt of public assistance to families with two married adults and a child

e. Gomez v. Perez: overturned a TX law that created a legal obligation for fathers to support their marital children, but no similar duty with regard to nonmarital children

f. Trimble v. Gordon: overturned a IL law that allowed marital children to inherit from either parent who died intestate, but nonmarital children from inheriting only from their mothers

3. Laws that provide a benefit to some nonmarital children while denying the benefit to other nonmarital children

a. Court applies intermediate scrutiny on a case-by-case basis

b. Lalli v. Lalli: upheld a state law that provided that a nonmarital child could inherit from his or her father only if paternity was established during the father’s lifetime, stating that the state had an important interest in preventing fraud and that requiring paternity to be established during the father’s lifetime was substantially related to that objective

c. Labine v. Vincent: upheld a state law that denied inheritance from a nonmarital father unless the child had been formally acknowledged by the father during the father’s life, accepting the state’s argument that is the same as in Lalli

d. Mathews v. Lucas: upheld a provision of the Social Security Act that allowed children to receive survivors’ benefits only if they could establish both paternity and that the father was providing financial support (which presumed that all marital children were dependent, but not all nonmarital children were), finding that the law did not preclude any child from receiving benefits and because it allowed the government to reduce its administrative burdens

e. Jiminez v. Weinberger: overturned a provision of the Social Security Act that allowed intestate inheritance of disability benefits by all martial children and by nonmarital children who had been “legitimated,” i.e. living with or supported by the father, explaining that “it would discriminate between two sub-classes of afterborn illegitimates without any basis for the distinction since the potential for spurious claims is exactly the same as to both subclasses”

ii. Age Classifications

1. Rational basis test standard

a. Massachussetts Board of Retirement v. Murgia: applied rational basis test, stating 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”, to uphold a state law that required police officers to retire at 50, finding that the fitness for uniformed work presumptively has diminished with age and is thus rationally related to the State’s objective

b. Vance v. Bradley: upheld a federal law that mandated retirement at 60 for participants in the Foreign Service Retirement System, stating that the federal government had a legitimate interest in having a vigorous foreign service and that a mandatory retirement age was rationally related to that end

2. Both Murgia and Vance were significantly over- and under- inclusive because each required retirement for many who were still capable of performing competently and had no effect on those younger who had already declined in mental and physical reliability, but, again, the Court said “perfection is by no means required”; the dissent in Murgia also argues that the existing testing is adequate to determine the fitness of an older officer

3. Although rational basis test makes it very difficult to challenge age classifications under the Constitution, the federal Age Discrimination in Employment Act prohibits age discrimination and specifically outlaw mandatory retirement ages

iii. Discrimination based on Disability

1. Rational basis test standard

a. City of Cleburne, Texas v. Cleburne Living Center, Inc.: overturned a city ordinance that required a special permit for the operation of a group home for the mentally disabled, finding that the potential harassment of occupants by junior high students, its location on a 5oo hundred year old plain, and the concern over the number who would live in the home were not legitimate government purposes

b. Heller v. Doe: upheld a state law that allowed mentally retarded individuals to be civilly committed if there was clear and convincing evidence justifying institutionalization, but required that there be proof beyond a reasonable doubt before an individual could be committed because of mental illness by concluding that there were reasonable distinctions between the mentally retarded and the mentally ill

2. The Americans with Disabilities Act broadly prohibits discrimination based on disability beyond what is covered by the application of rational basis review

iv. Wealth Discrimination

1. Rational basis test standard

a. Although it appeared that the Court would use heightened scrutiny (Griffin v. Illinois and Harper v. Virginia Board of Elections), it has since held that only rational basis review should be used for wealth classifications

b. Dandridge v. Williams: upheld a law that put a cap on welfare benefits to families regardless of their size, stating that rational basis review was appropriate because the law related to “economics and social welfare” and accepting the state’s interest in allocating scarce public benefits as sufficient to justify the law

c. San Antonio School District v. Rodriguez: upheld a TX system of relying heavily on local property taxes to pay for education by rejecting the claim that the poor should be a suspect class and finding that there is no basis for assuming that the poorest people are concentrated in the poorest districts and that the lack of personal resources has not occasioned an absolute deprivation of the desired benefit

d. Maher v. Roe: rejected an argument that the government violated equal protection when it refused to fund abortions, even though it was paying for childbirth and other medical care costs, stating that poverty is not immutable and that most discrimination against the poor is a result of the effects of the law, rather than a product of intentional discrimination

v. Sexual Orientation Classifications

1. Rational basis standard – Goodridge v. Department of Public Health: MA Supreme Court ruled that the state may not deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry, applying rational basis test standard and concluding that the government’s interests of providing a "favorable setting for procreation," ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex," and preserving scarce State and private financial resources did not serve a legitimate public purpose

2. Strict scrutiny standard – In re Marriage Cases: CA Supreme Court ruled that the state laws limiting marriage to opposite-sex couples violate the rights of same-sex couples and may not be used to preclude them from marriage, applying the strict scrutiny standard (because the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — a constitutionally suspect basis upon which to impose differential treatment and the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple) and concluding that the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples

3. Intermediate scrutiny standard – Kerrigan v. Commissioner of Public Health: CT Supreme Court ruled that the state’s statutory prohibition against same sex marriage violates their rights to substantive due process and equal protection, applying the intermediate scrutiny standard of review (because the history of pernicious discrimination faced by gay men and lesbians and the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm AND because the state scheme discriminates on the basis of sexual orientation and sexual orientation is semi-suspect class just like gender) and concluding that the state failed to provide sufficient justification for excluding same sex couples from the institution of marriage

4. Varnum v. Brien: IA Supreme Court overturned a state statute that defined marriage only as a union between a man and a woman, applying intermediate scrutiny to find that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective

IV. Fundamental Rights (see Con Law I)

a. Equal protection clause is applied for fundamental rights

b. Right to vote

i. Strict scrutiny standard

1. For restrictions such as poll taxes, property ownership requirements, durational residency requirements, literacy tests

2. For vote dilution, i.e. malapportionment

ii. Exception: Salyer Land Co. v. Tulare Lake Basin Water Storage District and Ball v. James where the Court applied rational basis test standard to allow property ownership requirement for voting in a water district election

Freedom of Expression

I. Introduction

a. Although the 1st amendment is written in absolute language that Congress shall make “no law,” the Court has never accepted the view that it prohibits all government regulation of expression; as such, the Court inevitably must make value choices as to what speech is protected, under what circumstances, and when and how the government may regulate

b. Theories of Free Speech

i. Self-governance

ii. Discovering truth

iii. Advancing autonomy

iv. Promoting Tolerance

II. Methodology

a. Distinction between Content-Based and Content-Neutral Laws

i. Importance

1. Turner Broadcasting System, Inc. v. Federal Communications Commission: established the general rule that content-based restrictions on speech must meet strict scrutiny, while content-neutral regulation only need meet intermediate scrutiny

2. “Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion”

3. Hence, the Court endorsed a two-tier system of review

a. Content-based generally has a strict scrutiny review

b. Content-neutral generally has an alternate intermediate scrutiny review

ii. Determining whether a law is content-based

1. Viewpoint neutral: government cannot regulate speech based on the ideology of the message

a. Boos v. Berry: overturned a D.C. ordinance that prohibited the display of signs critical of a foreign government within 500 feet of that government’s embassy, as it drew a distinction among speech based on the viewpoint expressed

2. Subject-matter neutral: government cannot regulate speech based on the topic of the speech

a. Carey v. Brown: overturned a Chicago ordinance prohibiting all picketing in residential neighborhoods unless it was labor picketing connected to a place of employment, as the kind of speech was being regulated

3. Republican Party of Minnesota v. White: overturned a MN law that prohibited candidates for elected judicial office from making statements about disputed legal or political issues, stating that the content-based restriction failed to meet strict scrutiny, rejecting the argument that such statements would undermine judicial impartiality

iii. Applying the distinction

1. Does a permissible purpose for a law prevent it from being deemed content-based, even if a content restriction is on the face of the law?

a. City of Renton v. Playtime Theaters, Inc.: treated the law (zoning ordinance prohibited adult motion picture theaters from locating within 1000 feet of any residential zone, single or multifamily dwelling, church, park or school) as content neutral because it said that the law was motivated by a desire to control the secondary effects of adult movie theaters, such as crime, and not to restrict the speech

b. Renton adds the question of whether a law is justified by a sufficient purpose to the question of whether a law is content-based or content-neutral

c. The Court has been inconsistent in applying Renton

i. In Boos, the Court distinguished Renton because the ordinance was justified only be reference to the content of the speech

ii. In City of Cincinnati v. Discovery Network, the Court articulates that “there are no secondary effects attributable to…newsracks [containing commercial handbills] that distinguish them from the newsracks Cincinnati permits to remain on its sidewalks

iii. In contrast, in City of Erie v. Pap’s AM, the Court concluded that the city’s goal of preventing the secondary effects of nude dancing were sufficient to make the law content-neutral

2. When can the government make choices based on the content of the speech?

a. In certain situations, this is inevitable, but the government must still remain viewpoint neutral

b. National Endowment for the Arts v. Finley: statute was amended in 1990 to provide that the NEA should “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public”; the Court states that any content-based considerations that may be taken into account in the grant-making process are of the nature of arts funding and that the legislation was aimed at reforming procedures rather than precluding speech

c. United States v. American Library Association, Inc.: upheld a federal law requiring libraries receiving federal funds to install filters to block sexually explicit material, stressing that libraries need not buy all materials or allow access to all materials on the Internet and emphasizing that under the law, patrons may request librarians to lift filters

b. Vagueness/Overbreadth: facial challenges

i. Vagueness: a reasonable person cannot tell what speech is prohibited and what speech is permitted

1. Coates v. City of Cincinnati: Cincinnati ordinance which made it criminal for “three or more persons to assemble…on any of the sidewalks…and there conduct themselves in a manner annoying to persons passing by…” was found unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct

2. Baggett v. Bullitt: overturned a state’s loyalty oath that prevented any “subversive” person from being employed in the state and required a person to swear that he was not such an individual or a part of any subversive organization because the ambiguities inherent in the term “subversive” and in the language of the statute gave individuals little guidance as to what speech and associational activities were proscribed

3. Additionally, unduly vague laws violate due process whether or not speech is regulated

ii. Overbreadth: a law regulates substantially more speech than the Constitution allows to be regulated and a person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others

1. Schad v. Borough of Mount Ephraim: an adult bookstore challenged a city ordinance prohibited all live entertainment because the law prohibited much more than the nude dancers at the bookstore

2. Thus, there are two major aspects to the overbreadth doctrine:

a. A law must restrict significantly more speech than the Constitution allows to be controlled

i. Broadrick v. Oklahoma: upheld an OK law that prohibited political activities by government employees because it was not substantially overbroad but that particular applications of the law could be declared unconstitutional in future cases

ii. City Council v. Taxpayers for Vincent: upheld a municipal ordinance that prohibited the posting of sign on public property, emphasizing that there must be a realistic danger that the statute itself will significantly compromise recognized 1st amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds (substantial overbreadth)

iii. Houston v. Hill: overturned an ordinance that made it unlawful to interrupt police officers in the performance of their duties, stating that the law criminalizes a substantial amount of constitutionally protected speech and accords the police unconstitutional discretion in enforcement

iv. New York v. Ferber: upheld a state law prohibiting child pornography, although it acknowledged that the law could be applied to material with serious literary, scientific, or educational value, because these applications would not “amount to more than a tiny fraction of the materials within the statute’s reach”

v. So, sometimes the Court will uphold substantially overbroad laws because applications could be dealt with on a case-by-case basis, rather than by declaring the entire law unconstitutional

b. A person to whom the law constitutionally may be applied can argue that it would be unconstitutional as applied to others (an exception to the general standing principle)

i. Secretary of State v. J. H. Munson Co.: granted standing to a professional fundraiser whose clients were not charities party to the lawsuit brought against a MD statute prohibiting charitable organizations from soliciting funds unless at least 75% of their revenue was used for charitable purposes, articulating that the overbreadth doctrine is “strong medicine” because it permits individuals standing to raise the claims of others not before the Court, which is necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression

ii. This rationale explains why overbreadth does not apply to commercial speech (see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.)

iii. Because the doctrine is perceived as “strong medicine” the Court avoids invalidating laws by allowing courts to construe statutes narrowly and thus avoid overbreadth

1. Osborne v. Ohio: upheld an OH law prohibiting private possession of child pornography and outlawing possession of nude photographs because the OH Supreme Court adopted a narrowing construction so that it avoided penalizing persons for viewing or possessing innocuous photographs of naked children

2. Gooding v. Wilson: overturned a GA law making it a crime for any person who uses opprobrious words or abusive language tending to cause a breach of the peace, stating that it found no limiting construction by GA courts to apply it only to speech not protected by the 1st and 14th amendments

iii. Relationship between vagueness and overbreadth

1. Laws are often challenged under both doctrines, but they are best understood as overlapping, not identical

2. Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.: overturned an ordinance prohibiting any person to engage in 1st amendment activities within the Central Terminal area at LAX, finding that the law was impermissibly overbroad because it prohibited all protected expression, but not vague

3. Whereas in Coates, the ordinance was vague because it subjects the exercise of the right of assembly to an unascertainable standard AND overbroad because it authorizes the punishment of constitutionally protected conduct

III. Types of Unprotected and Less Protected Speech

a. Introduction

i. These categories are based on the subject matter of the speech and thus represent an exception to the usual rule that content-based regulation must meet strict scrutiny

ii. Until recently, the conventional view was that laws in these area would be upheld so long as they met the rational basis test

b. Incitement of Illegal Activity (speech advocating illegal acts or the overthrow of the government)

i. Poses a basic value questions of how should society balance its need for social order against its desire to protect freedom of speech

ii. The “Clear and Present Danger” test

1. Schenck v. United States: ruled that the circulation of a leaflet advocating repealing the draft law was indeed violative of the 13th amendment, stating that although in “many place s and in ordinary times” the speech would be protected, the wartime circumstances were crucial and that the “question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”

2. Frohwerk v. United States: affirmed convictions, under the 1917 Act, of two individuals who published a German language newspaper criticizing the war, acknowledging that while there was no evidence that the articles had any adverse effect on the war effort, but that this was relied upon by those who sent the paper out

3. Debs v. United States: affirmed conviction of Socialist Party leader who advocated socialism and mildly criticized the draft in a speech, stating that the speech was not protected if “one purpose of the speech, whether incidental or not does not matter, was to oppose…this war, and if, in all the circumstances, that would be its probably effect”

4. Abrams v. United States: affirmed the convictions of a group of Russian immigrants who circulated leaflets objecting to America sending troops to Eastern Europe after the Russian Revolution, stating that they were convicted of encouraging resistance and conspiracy to urge curtailment of the production of war materials; Holmes’s dissent articulated the marketplace of ideas metaphor for the 1st amendments, stating that “it is only the present danger of immediate evil or an intent to bring it that warrants Congress in setting a limit to the expression of opinion” and that the “power undoubtedly is great in time of war than in time of peace” but that Abrams did not pose such a danger

5. So, the clear and danger test poses three requirements:

a. Likelihood of

b. Imminent

c. Significant harm

iii. The Reasonableness approach

1. During the 1920s and 30s, the Court appeared to use the reasonableness approach; it upheld laws and their applications so long as the government’s law and prosecution were reasonable

2. Gitlow v. New York: affirmed a conviction of an individual for published the “Left Wing Manifesto” and violating the NY statute prohibiting advocating overthrowing and overturning organized government by force, violence, and unlawful means, stating that by enacting the statute, the state legislature had determined that such utterances were so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of political power; Holmes’ dissent urged the use of the clear and present danger test

3. Whitney v. California: affirmed the conviction of an individual for attending a meeting to organize a branch of the Communist Labor Party again proclaiming the need for deference to the legislature and stating that a state in the exercise of its police power may punish those who abuse freedom of speech to involve danger to the public peace and security; Brandeis and Holmes’ concurrence again argued for the clear and present danger approach

4. The Court did overturn some convictions on the rationale that they were unreasonable (Fiske v. Kansas, where there were no declarations by the defendant, or his organization, urging unlawful acts, and DeJonge v. Oregon, where no one at the meeting advocated illegal acts or the overthrow of the government)

iv. The Risk Formula approach

1. Dennis v. United States: articulated, in a plurality decision, that the appropriate test was the clear and present danger approach and that “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,” stating that the teaching of four books written by Stalin, Marx and Engels, and Lenin was a great enough harm (instead of probability and imminence) to warrant the limitation of speech; concurrences argued the other two tests; Black and Douglas’s dissents each emphasized that the convictions were solely for engaging in speech

2. Yates v. United States: overturned the convictions of several individuals for conspiracy to violate the Smith Act, distinguishing Dennis by stating that there was a crucial “distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action”

3. Scales v. United States: upheld a conviction for being a member of an organization that advocates the overthrow of the government, stressing that there must be proof that an individual actively affiliated with the group, knowing of its illegal objectives, and with the specific intent of furthering those goals

4. Noto v. United States: reversed a conviction under the Smith Act for conspiracy because of inadequate evidence to meet these requirements

v. The Brandenburg Test

1. By the 1960s, the Court appeared to be much more protective of speech (Bond v. Floyd, where Court held that an assembly seat could not be refused because of Bond’s support for a statement strongly critical of the Vietnam War and the draft, and Watts v. United States, where the Court reversed conviction of a man for violating the law that made it illegal to threaten the President, stating that Watts’s statement was a political hyperbole and not a real theat)

2. Brandenburg v. Ohio: overturned a conviction of a Ku Klux Klan leader based on a film of a rally, which included racist and anti-Semitic speech and a number of firearms, stating that Dennis and the subsequent cases “do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”

3. So, the Brandenburg test poses three requirements:

a. Imminent harm

b. A likelihood of producing illegal action

c. An intent to cause imminent illegality

4. Hess v. Indiana: overturned the conviction of a man for disorderly conduct who declared “We’ll take the fucking street later” after the police had cleared a demonstration, stating that there was no evidence that his words were intended to produce, and likely to produce, imminent disorder

5. NAACP v. Claiborne Hardware: overturned a judgment against the NAACP for a boycott of white-owned businesses that it alleged engaged in racial discrimination, explaining that the emotionally charged rhetoric of Charles Evers’ speeches did not transcend the bounds of protected speech set forth in Brandenburg

6. However, the Court has still held that there is no 1st amendment protection for a “true” threat, but there’s a circuit split as to the definition of a “true threat”; some say it is determined from the perspective of the listener (9th), while others have said that it is from the perspective of the reasonable speaker (2nd)

c. Fighting Words (speech directed at another and likely to provoke a violent response)

i. Chaplinsky v. New Hampshire: upheld a man’s conviction for giving a speech denouncing other religions as a “racket”, stating that the right to free speech is not absolute at all times and certain classes, including insulting or fighting words, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace, are not protected by the 1st amendment and that “such utterances are no essential part of any exposition of ideas” and any benefit is clearly outweighed by the social interest in order and morality

ii. Thus, Chaplinsky seems to recognize two situations where speech constituted fighting words:

1. Where it is likely to case a violent response against the speaker

2. Where it is an insult likely to inflict immediate emotional harm

iii. But, the Court has never upheld a fighting words conviction since, using three techniques to overturn them

1. Narrowing the interpretation of the fighting words doctrine

a. Street v. New York: reversed the conviction of a man who burned an American flag after learning that James Meredith had been shot, stating that while some might have found the speech inherently inflammatory, it was not fighting words, which are only a “small class” of words

b. Cohen v. California: reversed the conviction of a man who had disturbed the peace for having in a courthouse a jacket that had on its back the words, “Fuck the draft,” holding that unprotected fighting words only occur if the speech is directed to a specific person and likely to provoke violent response and elaborating that “it was clearly not directed to the person of the hearer” and that “no individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult”

c. Texas v. Johnson: again held that flag burning was constitutionally protected, as it is not directed at a particular person and no reasonable onlooker would take it as “a direct personal insult or an invitation to exchange fisticuffs”

2. Finding laws to be unconstitutionally vague or overbroad

a. Gooding v. Wilson: (see analysis under vagueness/overbreadth)

b. Rosenfeld v. New Jersey, Lewis v. City of New Orleans, and Brown v. Oklahoma: all involved the angry use of profanity in a manner likely to provoke an audience; Court applied Gooding and overturned convictions, making it clear that speech is protected even if it is uttered in anger, filled with profanities, and likely to anger the audience

c. These cases indicate that a fighting words law will be upheld only if it is narrowly tailored to apply just to speech that is not protected by the 1st amendment

3. Finding laws to be impermissible content-based restrictions of speech

a. R.A.V. v. City of St. Paul, Minnesota:

i. 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 ground to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender”

ii. MN Supreme Court narrowly constructed it so that it applied only to fighting words or incitement not protected by the 1st amendment

iii. Court stated that there was not an absolute prohibition of content-based discrimination within categories of unprotected speech; such distinctions will have to meet strict scrutiny, subject to two exceptions:

1. If it directly advances the reason why the category of speech is unprotected, i.e. an obscenity law could prohibit the most sexually explicit material without having to ban everything that is obscene

2. If it is directed at remedying secondary effects of speech and is justified without respect to content

iv. Thus, the Court invalidated the ordinance because it drew a distinction among expressions of hate; it prohibited hate speech based on race, religion, or gender, but not based on political affiliation or sexual orientation

v. Concurrences also argued overbreadth or that the government should have latitude to draw distinctions within categories of unprotected speech

b. R.A.V. can be appraised on many levels

i. Fighting words law will be upheld only if it does not draw content-based distinctions among types of speech (very difficult to meet, as it would likely then be invalid for vagueness or overbreadth)

ii. There is a strong presumption against content-based discrimination within categories of unprotected speech

d. Hostile Audience

i. In some cases, the Court applied the clear and present danger test in dealing with the issue of when the government may punish individuals for a speech that provokes a hostile audience reaction

1. Terminiello v. Chicago: overturned a conviction for disturbing the peace because it was not shown that the speech, in which Terminiello attacked his opponents as “slimy scum,” “snakes,” and “bedbugs,” posed a clear and present danger of lawlessness

2. Cantwell v. Connecticut: overturned a conviction for disturbing the peace because playing a phonograph record on a street corned that attacked the Roman Catholic religion did not pose “such clear and present menace to public peace and order”

ii. Feiner v. New York: an individual was convicted for a speech that he gave that sharply criticized the president and local political officials for their inadequate record on civil rights; Fiener was arrested after refusing police’s request to leave when the crowd seemed angered by the speech

1. Majority: upheld the conviction for disturbing the peace, applying the clear and present danger test and concluding that “here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot,” rendering the police powerless to prevent a breach of the peace

2. Dissent: rejected the opinion that the police had no obligation to protect petitioner’s right to talk and that, in the name of preserving order, must first make all reasonable efforts to protect a lawful public speaker

iii. Edwards v. South Carolina: overturned a conviction for civil rights protestors ho had staged a march to the SC capitol, emphasizing that “police protection…was at all times sufficient to meet any foreseeable possibility of disorder” and distinguishing Feiner based on the absence on any violence or threats of violence

iv. Cox v. Louisiana: overturned a conviction of an individual who gave a speech objecting to the racial segregation of lunch counters and urged a sit-in, which some found inflammatory, on the grounds that the police had the ability to control the crowd

v. Gregory v. City of Chicago: overturned convictions for disturbing the peace for a group of civil rights demonstrators who had been arrested when an angry group threatened the marchers because the law did not limit convictions to instances where there was a threat of imminent violence, the police have made all reasonable efforts to protect the demonstrators, and the police have requested that the demonstration be stopped

e. Racist Speech

i. Beauharnais v. Illinois: upheld a state law that prohibited any publication that portrayed “depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed, or religion [which exposes such citizens] to contempt, derision, or obloquy or which is productive of breach of the peace or riots,” stating that just as a state could punish defamation, so may a state “punish the same utterance directed at a defined group” (group libel)

1. Based on the assumption that defamation liability is unlimited by the 1st amendment, which has since been rejected by New York Time v. Sullivan

2. Additionally, R.A.V. indicates that expression of hate is not a category of speech entirely outside protection

ii. Virginia v. Black: VA law prohibited cross burning “with an intent to intimidate a person or group of persons” and provided that an act of cross burning was “prima facie evidence of an intent to intimidate a person or a group of persons”; Court held that:

1. Government cannot prohibit all cross burning because it’s a symbolic expression and the government cannot ban symbols just because they are powerful and offensive; dissent argued that cross burning is conduct, not speech, and is inherently threatening and intimidating

2. Cross burning done with the intent to threaten or intimidate – that constitutes a “true threat”, which is a statement when the speaker means to communicate a serious intent to commit an act of unlawful violence to a particular individual or group of individuals, but need not actually intend to carry out the threat – is not protected by the 1st amendment;

3. There must be proof in the individual case that the speech was a true threat

f. Obscenity

i. Unprotected by the 1st amendment

1. Roth v. United States: held that obscene material, which is material that deals with sex in a manner appealing to the prurient interest, is a category of unprotected speech because it is utterly without redeeming social importance

2. Paris Adult Theatre I v. Slaton: reaffirmed Roth and elaborated that a community should be able to determine its moral environment and that obscenity causes antisocial behavior, like crime

ii. But what is considered “obscene”?

1. Miller v. California: reaffirmed Roth and formulated the test for obscenity

a. The material must appeal to the prurient interest (that which excites lustful or lascivious thoughts) for the average person, applying contemporary community standards

b. The material must be patently offensive under the law prohibiting obscenity, applying community standards

c. The material must, taken as a whole, lack serious redeeming artistic, literary, political, or scientific value, applying national standards of whether a reasonable person would find such value in the material

g. Child Pornography

i. New York v. Ferber: upheld the conviction of a man who sold two films showing young boys masturbating, stating that the government may prohibit the exhibition, sale, or distribution of child pornography even if it does not meet the test for obscenity

ii. United States v. Williams: upheld the provision in the PROTECT Act that proscribed the pandering of material that is believed to be, or claimed to be, illegal child pornography, stating that the statute was not overbroad and noting that illegal actions are excluded from 1st amendment protections and that child pornography is an unprotected class of speech

h. Non-Obscene Sexual Expression

i. Protected but Low-Value Sexual Speech

1. Zoning ordinances

a. Young v. American Mini Theatres, Inc.: upheld a city’s ordinance that limited the number of adult theaters that could be on any block and that prevented such enterprises from being in residential areas, stating that the sexually explicit material should be regarded as “low value” speech and thus more susceptible to government regulation and “that the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures”

b. City of Renton v. Playtime Theatres, Inc.: applying Young, upheld a zoning ordinance that excluded adult motion picture theaters from being within 1000 feet of any residential zone, church, park, or school, effectively excluding such theaters from about 95% of the land in the city

c. City of Los Angeles v. Alameda Book, Inc.: upheld an ordinance that prohibits “the establishment or maintenance of more than one adult entertainment business in the same building, structure, or portion thereof,” stating that the city could rely on a 1977 study showing that a concentration of adult businesses increases crime

2. Nude dancing

a. Barnes v. Glen Theatre, Inc.: ruled that an IN statute that prohibited public dancing could be used to require that female dancers must, at a minimum, wear “pasties” and a “G-string” when they dance, in the plurality noting that nude dancing is expressive conduct within the outer perimeters of the 1st amendment and holding that the prohibition of nude dancing served the goal of protecting societal order and morality”; concurrences argued that conduct is not the subject of the 1st amendment or focused on the secondary effects of nude dancing; the dissent emphasized that stopping nude dancing was suppressing a message

b. City of Erie v. Pap’s AM: reaffirmed Barnes, but based on the plurality’s reasoning that the city was justified in prohibiting nude dancing so as to stop the undesirable secondary effect, such as crime; dissent stressed the absence of any proof that nude dancing causes the secondary effects

c. Thus, the government may prohibit nude dancing and may rely on the experience of other cities and their own observations to reasonably conclude that nude dancing causes secondary effects

3. The Court has never defined the content of this category of low-value sexually-oriented speech, but it has made clear that nudity alone is not enough to place speech in this category

ii. Government Techniques for Controlling Obscenity and Child Pornography

1. Stanley v. Georgia: held that “the mere private possession of obscene matter cannot constitutionally be made a crime,” emphasizing that a person in his own home has the right to choose what to read of watch

2. U.S. v. Reidel: held that Stanley did not protect the right to receive obscene materials

3. Osborne v. Ohio: held that the government may prohibit and punish the private possession of child pornography, emphasizing that the government has an important interest in attempting to dry up the market for child pornography so as to protect children and therefore punish even private possession

4. Thus, the government can prohibit the sale, distribution, and exhibition of obscene materials even to willing recipients, but cannot prohibit private possession, with the exception of child pornography

iii. Profanity and “Indecent” Speech

1. Cohen v. California: reversed the conviction of a man who had disturbed the peace for having in a courthouse a jacket that had on its back the words, “Fuck the draft,” stating that the government may not prohibit or punish speech simply because others might find it offensive

2. However, there are some media-based exceptions where the government can prohibit profane and “indecent” speech

a. Broadcast Media

i. FCC v. Pacifica Foundation: upheld the ability of the FCC to prohibit and punish indecent language over the television and radio because the broadcast media are uniquely pervasive and intrusive into the home and that warnings were insufficient because people might tune in during the middle of a broadcast

ii. FCC v. Fox Television Stations: pending case, No. 07-582

iii. FCC Broadcast Restrictions:

1. “Indecency” is “language or material that, in context, depicts of describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities”

2. “Profanity” includes language “so grossly offensive to members of the public who actually hear it as to amount to a nuisance”

3. Indecent language and profanity is prohibited from 6am to 10pm

b. Cable Television

i. Denver Area Educational Telecommunications Consortium, Inc. v. FCC

1. Upheld the first provision of the Cable Television Consumer Protection and Competition Act of 1992, which allowed cable systems to refuse to carry sexually explicit broadcasting, because it serves an extremely important justification – the need to protect children from exposure to patently offensive sex-related material

2. Overturned the second part, which required that sexual material be segregated and available only on request, stating that less restrictive alternatives could protect children, such as a system where parents could receive blocking by telephone or employ lockboxes

3. Overturned the third provision, which permitted cable systems to prohibit sexually explicit material over public access channels, finding that there was not proof of “a compelling need, nationally, to protect children from significantly harmful material” on there channels

ii. United States v. Playboy Entertainment Group: applied strict scrutiny to declare unconstitutional a provision of the Cable Act that had a time blocking regulation on sexual speech, emphasizing that the law is a content-based restriction on speech and that the government had a less restrictive alternative to achieve these goals, such as signal control and selective blocking by subscribers

c. Telephones

i. Sable Communications v. FCC: overturned a federal statute prohibiting obscene or indecent telephone conversations, i.e. “dial-a-porn,” noting that “there in no ‘captive audience’ problem here; callers will generally not be unwilling listeners”

d. Internet

i. Reno v. ACLU: invalidated certain provisions of the Communications Decency Act of 1996 which made it a federal crime to transmit obscene or indecent material over the internet, stressing the vagueness of the statute, distinguishing it from Pacifica because this Act applied at all hours, and recognizing that, while the government has a compelling interest in protecting children from exposure to sexual material, it cannot restrict speech available to adults for this end

ii. Ashcroft v. ACLU: affirmed and concluded that the Child Online Protection Act would be declared unconstitutional, stating that the law was a content-based restriction and thus must meet strict scrutiny and this law was not the least restrictive alternative because filters were more likely to be effective than the statute

3. Underlying issues

a. Should there be a category of “indecent” speech? Some cases emphasize the vagueness of “indecent,” others seem untroubled by it

b. What level of scrutiny should be used in evaluating government restrictions? Most cases do not articulate a standard of review, while some use strict scrutiny on the grounds that the laws are content-based restrictions

c. Should the Court analyze each medium separately, especially as people today often receive all of these media through a single source?

i. Commercial Speech

i. Constitutional protection

1. Initially, the Court refused to protect commercial speech (Valentine v. Chrestensen and Breard v. City of Alexandria)

2. Bigelow v. Virginia: declared unconstitutional a state law that made it a crime to encourage or prompt the procuring of abortions, holding that just because a particular advertisement had commercial aspects or reflected the advertiser’s commercial interests did not negate all 1st amendment guarantees

3. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.: declared unconstitutional a VA law that prohibited pharmacists from advertising the prices of prescription drugs, holding that speech that “does no more than propose a commercial transaction is protected and that the economic interests of the speaker should not matter, nor should it matter that the speech is factual rather than opinions or ideas, but that advertising illegal activities or false and deceptive advertising would not be protected

4. Critics argue that the expression is not worthy of protection because it does not directly concern the political process and self-government

ii. What is commercial speech?

1. Bolger v. Youngs Drug Products: held that brochures were a form of commercial speech, stating that commercial speech has three characteristics

a. It is an advertisement of some sort

b. It refers to a specific product

c. The speaker has an economic motivation for the speech

2. Central Hudson Gas v. Public Service Commission: the state prohibited an electrical utility from advertising because of the need for conservation of fuels and because the utility had a monopoly and therefore didn’t need to advertise to succeed relative to competitors; Court declared that the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, articulating a four-part analysis for analyzing government regulation of commercial speech:

a. At least must concern lawful activity and not be misleading

b. Have a substantial government interest

c. The regulation directly advances the governmental interest asserted

d. Not be more extensive than is necessary to serve that interest (Board of Trustees of the State University of New York v. Fox replaced this “least restrictive means” test with “narrowly tailored”)

3. The government has the burden of proving that the restriction is justified

iii. What commercial speech is not protected?

1. Advertising of Illegal Activities

a. Not protected by the 1st amendment, without needing to meet the test for incitement

b. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations: upheld a decision that a newspaper violated a city’s ordinance by placing help-wanted advertisements in columns captions “Jobs-Male Interest,” “Jobs-Female Interest,” and “Male-Female,” emphasizing that discrimination is illegal commercial activity

2. False and Deceptive Advertising

a. Unprotected within the realm of commercial speech, but “erroneous statements are inevitable in free debate and it must be protected if the freedoms of expression are to have the breathing space that they need to survive (New York Times v. Sullivan)

3. Advertising that Inherently Risks Deception

a. Laws that prohibit professional from advertising or practicing under trade names

i. Friedman v. Rogers: upheld a state law that prohibited optometrists from advertising and practicing under trade names, concluding that trade names are nothing more than commercial speech and that it’s a significant possibility that they will be used to mislead the public

b. Restrictions on the ability of professional to solicit prospective clients

i. Solicitation by attorneys

1. The government may not prohibit attorneys from engaging in truthful, non-deceptive advertising of their services

2. BUT, they may prohibit attorney in-person solicitation of prospective clients for profit because such speech inherently risks becoming deceptive and thus even truthful solicitations can be forbidden when they are conducted in person and where the attorney would profit from the representation (Ohralik v. Ohio State Bar Association, In re Primus, Shapero v. Kentucky Bar Association)

3. Conversely, solicitation where the attorney would not profit directly from the client or solicitation by mail is generally protected

4. Cal State Bar Rule 1-400 (

ii. Solicitation by accountants

1. The government may not prohibit accountants from engaging in in-person solicitation of clients for profit because, unlike an attorney who is “professionally trained in the art of persuasion,” a CPA’s training emphasizes independence and objectivity, not advocacy (Edenfirled v. Fane, distinguishing Ohralik)

j. Symbolic Speech – Expressive Conduct

i. When is conduct communicative?

1. Spence v. Washington: reversed the conviction of an individual for flag desecration, who taped a peace sign on an American flag after the killing of students at Kent State, stating that it was a pointed expression of anguish about the then-current domestic and foreign affairs of his government; established a test for when conduct should be regarded as communicative

a. Intent to convey a particularized message

b. There is a substantial likelihood that the message would be understood by those receiving it

ii. When may the government regulate conduct that communicates?

1. United States v. O’Brien: upheld a federal law making it a crime to “knowingly destroy” or “knowingly mutilate” draft cards, identifying several justifications, including that requiring the presence of draft cards facilitates emergency military mobilization, aids communication with a person’s draft board, and reminds individuals to notify their draft board of any changes, and stating that the motive to prevent political protest was irrelevant; formulated a test for evaluating the constitutional protection for conduct that communicates

a. Within the constitutional power of the government

b. Furthers an important or substantial government interest

c. The governmental interest is unrelated to the suppression of free expression

d. The incidental restriction on 1st amendment freedoms is no greater that essential to the furtherance of the interest

2. Nude dancing

a. In Barnes (discussed above), the Court characterized nude dancing as conduct that communicates and expressly applied O’Brien, finding that it is within a state’s police power to prohibit public nudity, that there is an important interest unrelated to suppression of the message because of the state’s interest in morality, and that the impact on communication was no greater than necessary because the dancers could still express their message (with clothes); this is troubling because the state’s moral justification was not really unrelated to the suppression of free expression

b. The Court also reaffirmed the power of local governments to ban nude dancing in Erie (discussed above), but on different grounds

3. Flag desecration

a. Texas v. Johnson: overturned a state law prohibiting any person to “deface, damage, or otherwise mistreat” a flag “in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action”; here, a man was arrested for burning a flag as part of a protest at the RNC; the Court emphasized that the law’s purpose was to keep the flag from being used to communicate protest or dissent and that the government may not prohibit the expression of an idea simply because it finds the idea itself offensive or disagreeable; dissent argued that whatever message was transmitted could have been conveyed in a dozen different ways

b. To avoid any amendments to the Constitution to prohibit flag burning, Congress adopted the Flag Protection Act of 1989 that made it a crime to knowingly mutilate, deface, defile, burn, or trample upon the flag

c. In United States v. Eichman, the Court declared this law unconstitutional as well, stating that it had the same fundamental flaws at the TX statute, even if it wasn’t limited to situations where the conduct would offend another

4. Campaign finance

a. Political speech is at the very core of the 1st amendment; in Eu v. San Francisco County Democratic Central Committee, the Court declared that the 1st amendment “has its ‘fullest and most urgent application’ to speech uttered during a campaign for public office”

b. Buckley v. Valeo: involved a challenge to the 1974 amendments to the FEC Act of 1971; the Court refused to apply O’Brien, thereby clearly treating spending money in a political campaign as a form of political speech, not conduct that communicates,

i. Drawing a distinction between contribution limits by individuals, groups, or PACs and campaign expenditure limits, upholding the former and invalidating the latter, stating that expenditure limits restricted the nature and quality of speech, unlike contribution limits, which also had weaker justifications

ii. Upholding disclosure requirements because they provide important information to the electorate, they deter corruption or the appearance of corruption, and they provide crucial information for enforcing the contribution limits in the law

iii. Upholding the provisions that provided for public funding of presidential elections, stating that such funding increases expression in connection with election campaigns

IV. Forums of Expression

a. The Court initially rejected any claim of a right to use government property for speech purposes (Davis v. Massachusetts)

b. But, for the last half-century, the Court has recognized a right to use at least some government property under some circumstances for speech (Hague v. Committee for Industrial Organization and Schneider v. New Jersey)

c. Perry Education Association v. Perry Local Educators’ Association: classified the different types of government property and articulated varying rules for when speech in each can be regulated (see below)

d. Government Properties

i. Public Forums: government property that they are constitutionally obligated to make available for speech, i.e. sidewalks and parks

1. The regulation must be content-neutral, unless the government can justify a content-based restriction by meeting strict scrutiny

a. Police Department of the City of Chicago v. Mosley: overturned a law that prohibited picketing or demonstrations within 150 feet of a school building while the school was in session, except for peaceful picketing in connection with a labor dispute, declaring that it was an impermissible subject matter restriction on speech and expressly using equal protections for analyzing the law by stating that special treatment was given to one particular subject, similar to Carey v. Brown (see facts above)

b. Frisby v. Schultz: sustained an ordinance that prohibited picketing “before or about” any residence, concluding that the law was content-neutral and was narrowly tailored to protect people’s tranquility and repose in their homes, as ordinance allowed picking in the are and even on the street

c. Thus, regardless of whether analysis is under equal protection or solely under 1st amendment, the government cannot regulate speech in a public forum based on the viewpoint or subject matter of the speech unless strict scrutiny is met

2. It must be a reasonable time, place, or manner restriction that serves (1) an important government interest and (2) leaves open adequate alternative places for speech

a. Heffron v. International Society for Krishna Consciousness: upheld a regulation of speech at the MN state fair that prohibited the distribution of literature or the soliciting of funds except at booths, accepting the argument that the rule was justified by the important interest of regulating the flow of pedestrian traffic as “sufficient to satisfy the requirement that a place or manner restriction must serve a substantial state interest” and stating that the regulation was content neutral because it applied to all literature

b. Hill v. Colorado: upheld a regulation on protests outside abortion clinics, stating it was content-neutral because it’s not a regulation of speech but a regulation of where speech may occur, it was not adopted because of disagreement with the message it conveys, and the state’s interest in protecting access and privacy are unrelated to the content and also stressing that this was a time, place, and manner restriction on speech that served the important interest of protecting patients and health care workers

c. Kovacs v. Cooper: upheld a restriction on the use of sound amplification devices, such as loudspeakers on trucks

d. Grayned v. Rockford: upheld a city’s ordinance that prohibited any person to make any noise or diversion which disturbs or tends to disturb the peace or good order of a school, finding that the restriction was based on the city’s important interest in ensuring order sufficient for schooling and, thus, a reasonable time, place, and manner restriction

e. Clark v. Community for Creative Non-Violence: approved a federal regulation and Park Service decision to keep a group protesting the plight of the homeless from sleeping in the park, accepting that it was symbolic purpose, but emphasizing that the content-neutral regulation left adequate alternative ways of expressing the message

f. Brown v. Louisiana: reversed the conviction of a group of blacks who had conducted a silent sit-in as a protest at a racially segregated public library, stressing that a silent protest did not interfere with the operation of the library

g. United States v. Grace: declared unconstitutional a broad restriction of speech on the public sidewalks surrounding the Supreme Court’s building, finding that a total ban on all speech was unnecessary to preserve order and prevent disruption of Court proceedings

3. A licensing or permit system for the use of public forums (1) must serve an important purpose, (2) give clear criteria to the licensing authority that leaves almost no discretion, and (3) provide procedural safeguards such as a requirement for prompt determination of license request and judicial review of license denials

a. Cox v. New Hampshire: upheld an ordinance that required that those wishing to hold a parade or demonstration obtain a permit and that allowed a permit to be denied only if the area already was in use by another group, finding that it was an important interest in having only one demonstration at a time and that the “licensing board was not vested with arbitrary power or an unfettered discretion”

b. Lovell v. Griffin: overturned a city ordinance that prohibited the distribution of leaflets, literature, or advertising without the written permission of the city manager, stating that the restraint strikes at the very foundation of the freedom of the press because that freedom was primarily directed against the power of the licensor

c. Forsyth County, Georgia v. Nationalist Movement: overturned an ordinance that required a permit in order for a demonstration to occur and that allowed government officials to charge a permit fee of up to $1000, concluding that there are no articulated standards and that the 1st amendment prohibits the vesting of such unbridled discretion in a government official

4. Need not use the least restrictive alternative, although they must be narrowly tailored to achieve the government’s purpose

a. Ward v. Rock Against Racism: upheld a requirement in NYC that any concert using the Bandshell had to use city sound engineers and city sound equipment, concluding that “so long as the means chosen are not substantially broader than necessary to achieve the government’s interest, the regulation will not be invalid simply because … the government’s interest could be adequately served by some less-speech-restrictive alternative”

ii. Designated (Limited) Public Forums: places that the government could close to speech, but that the government voluntarily and affirmatively opens to speech

1. Widmar v. Vincent: ruled that a university that allowed student groups to use school buildings could not exclude religious student groups from access

2. Lambs Shelter v. Center Moriches Union Free School District: held that once a school district allowed community groups to use facilities during evenings and weekends, religious groups could not be excluded

3. Good News Club v. Milford Central School: considered the constitutionality of an elementary school’s exclusion of a group’s using school property after school for religious activities including prayer and Bible study, holding

a. That excluding the group violated the protection of free speech, stating that, although a state may be justified in reserving its forum for certain groups or for the discussion of certain topics, it cannot discriminate on the basis of viewpoint and the restriction must be reasonable in light of the purpose served by the forum

b. That allowing the religious group to use the property on the same terms as other community groups would not violate the establishment clause

iii. Non-Public Forums: government properties that they can close to all speech activities, so long as the regulation is reasonable (not “arbitrary, capricious, or invidious”) and viewpoint neutral

1. Adderley v. Florida: held that the government could prohibit speech in the areas outside prisons and jails, emphasizing the government’s security interests and the ability of the government to “preserve the property under its control for the use to which it is lawfully dedicated”

2. Greer v. Spock: held that military bases, even parts of bases usually open to the public, are a nonpublic forum, stating that the government could exclude speech like demonstrations, picketing, sit-ins, protest marches, and political speeches to insulate the military from political activities

3. Lehman v. City of Shaker Heights: upheld a content-based restriction (city sold advertising space on its buses, but refused to accept advertising on behalf of a candidate for public office), stating that the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a 1st amendment violation…weird.

4. United States v. Kokinda: upheld a restriction on solicitations on post office properties, stating that postal sidewalks do not “have the characteristics of public sidewalks traditionally open to expressive activity”

5. International Society for Krishna Consciousness, Inc. v. Lee: concluded that airports are a nonpublic forum and regulations would be upheld so long as they are reasonable, stating that the government has an important interest in preventing fraud with regard to solicitation of funds, but that the distribution of literature is permissible

6. Arkansas Educational Television Commission v. Forbes: held that a candidate debate sponsored by a government-owned television station is a non-public forum and that the exclusion of minor party candidates is not viewpoint discrimination, stating that a broadcaster’s choice of content and selection of speakers is itself expressive activity protected by the 1st amendment and that the selection of speakers was based on the level of popular support, not the viewpoint expressed

7. So, some possible criteria…

a. Whether the places it traditionally available to speech, i.e. sidewalks v. airports

b. Whether speech is incompatible with usual functions of the place

c. Whether the primary purpose of the place is for speech or non-speech

e. Authoritarian Environments

i. Military

ii. Prisons

iii. Schools

1. Tinker v. Des Moines Independent Community School District: ruled that students in a high school could wear black armbands to protest the Vietnam War, stating that “state-operated schools may not be enclaves of totalitarianism,” that the speech was protected absent a showing that is would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” and that armbands were a silent protest that did not disrupt education within the schools

2. Morse v. Frederick: held that confiscating a banner stating “Bong Hits 4 Jesus” at a school-sanction and school-supervised event and suspending the student who brought the banner did not violate the 1st amendment because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use

V. Freedom of Association

a. Laws Prohibiting and Punishing Membership

i. Government may punish membership only if it proves

1. That a person actively affiliated with a group

2. Knew of the group’s illegal objectives

3. Had the specific intent to further those illegal objectives (see Scales and Noto, above)

ii. Elfbrandt v. Russell: applied Scales test to a state’s loyalty oath and law that prohibited anyone from holding office if they were a member of a group such as the Communist Party, stating that it was impermissible for the government to punish individuals for being a member of a group without proof that the individual join knowing of its illegal objectives and with the specific intent to further them (same holding as in Keyishian v. Board of Regents and United States v. Robel)

b. Laws Requiring Disclosure of Membership

i. NAACP v. State of Alabama: overturned an AL law which required that out-of-state corporations meet certain disclosure requirements, including the disclosure of NCAAP membership lists, stating that the inviolability of privacy in group association may in many circumstances be indispensible to preservation of freedom of association, particularly where a group espouses dissident beliefs (reaffirmed in Shelton v. Tucker, where state law required all teachers disclose their group memberships on an annual basis)

ii. Campaign disclosure (see Buckley, above)

c. Compelled Association

i. Abood v. Detroit Board of Education: upheld a state law that required all local government employees to pay a union service charge, stating that the non-members could be forced to pay a charge to subsidize the collective bargaining activities of the union, but that it was unconstitutional to use the charges to pay for ideological causes (reaffirmed in Keller v. State Bar of California, stating that bar dues could be collected from all members to pay for bar-related activities)

ii. Board of Regents of the University of Wisconsin System v. Southworth: rejected a 1st amendment challenge by students who objected to being forced to subsidize causes that opposed, stating that the mandatory student activity fees helped to facilitate a diversity of ideas on campus and were permissible so long as they were administered in a viewpoint neutral manner

d. Laws Prohibiting Discrimination

i. Roberts v. United States Jaycees: reaffirmed freedom of association as a fundamental right, but stated that it is not absolute and that infringements on that right may be justified by regulations adopted to serve compelling state interests, such as prohibiting discrimination, unrelated to the suppression of ideas, that can not be achieved through means significantly less restrictive of associational freedoms (reaffirmed in Board of Directors of Rotary International v. Rotary Club of Duarte)

ii. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston: held that a private group that organized a St. Patrick’s Day Parade could exclude a gay, lesbian, and bisexual group from participation, stating that organizing a parade is an inherently expressive activity and those doing so have a right to exclude messages inimical to their own

iii. Boy Scouts of America v. Dale: held that freedom of association protects the right of the Boy Scouts to exclude gays in violation of a state’s antidiscrimination statute because of the group’s expressive message, which was based on the Boy Scouts’ interpretation of its own words and from the position it had taken during litigation

Freedom of Religion

I. Introduction

a. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

b. What is religion? Has been considered in 3 contexts:

i. Under the Selective Service Act

1. United States v. Seeger: broadly defined religion to include nontheistic views, stating that “the test of belief ‘in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption (reaffirmed in Welsh v. United States)

ii. Requirement for Sincerely Held Beliefs

1. United States v. Ballard: indicated that the judiciary can determine only if the individuals sincerely held their beliefs as religious views, not whether they are true or false (here, the leaders of the “I Am” religion were indicted for mail fraud because they asked people to send them donations in exchange for offering to cure them of diseases); dissent stated that sincerity is not likely to be ascertained by a jury or a court

iii. The Relevance of Religious Dogma and Shared Beliefs

1. Thomas v. Review Board of the Indiana Employment Security Division: ruled that an individual could claim a religious belief even though it was inconsistent with the doctrines of his or her religion, stating that it “is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith” (reaffirmed in Frazee v. Illinois Employment Security Department)

II. Free Exercise Clause

a. Introduction

i. Embraces two concepts

1. Freedom to believe, which is absolute

2. Freedom to act, which was some limitations

ii. Prior to the 1960s, the Court did not formulate a test for the free exercise clause, although it did invalidate laws that precluded solicitation for religious purposes (Cantwell v. Connecticut) or that taxed such activity as infringing freedom of speech and religion (Murdock v. Pennsylvania and Follett v. McCormick)

b. Sherbert v. Verner: held that strict scrutiny 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 on her Saturday Sabbath

c. While Sherbert established a strict scrutiny standard, the Court has rarely struck down laws on this basis, except in two areas

i. Laws that denied benefits to those who quit their jobs for religious reasons (Thomas v. Review Board, Hobbie v. Unemployment Appeals Commission of Florida, and Frazee v. Illinois Department of Income Security, all holding that employment benefits must be given to people who quit jobs for religious reasons)

ii. Compulsory schooling laws (Wisconsin v. Yoder, where the Court held that free exercise of religion required that Amish parents be granted an exemption from compulsory school laws for their 14- and 15-year-old children)

d. Employment Division v. Smith: involved a challenge by Native Americans to an OR law prohibiting use of peyote, a hallucinogenic substance, challenging the state’s determination that their religious use of peyote, which resulted in their dismissal from employment, was misconduct disqualifying them from receipt of unemployment compensation benefits; the Court rejected the use of strict scrutiny for challenges to neutral laws of general applicability that burden religion, stating that free exercise “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)’”

i. Neutral law of general applicability

1. Rational basis test standard

a. With the exception of cases that involve “the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents to direct the education of their children,” which use strict scrutiny

ii. Not neutral or not of general applicability

1. Strict scrutiny standard

2. Church of the Lukumi Babalu Aye, Inc. v. Hialeah: overturned a city ordinance that prohibited ritual sacrifice of animals, stating that the law was not neutral because its clear object was to prohibit a religious practice and that it was not of general applicability because the law was drafted only to forbid killing occasioned by religious sacrifice and not in generally preventing cruelty to animals

e. The Law after Smith

i. Religious Freedom Restoration Act (RFRA) of 1993: purpose “to restore the compelling interest test as set forth in Sherbert and Yoder, and to guarantee its application in all cases where free exercise is substantially burdened; and to provide a claim or defense to persons whose religious exercise is substantially burdened by the government”

1. City of Boerne v. Flores: held RFRA as unconstitutional as applied to state and local governments because Congress lacked the authority under §5 of the 14th amendment to expand the scope of rights

ii. Religious Land Use and Institutionalized Persons Act (RLUIPA): government lands use decisions and treatment of prisoners that significantly burden religion must meet strict scrutiny

f. Can the government deny funding for religious education?

i. Locke v. Davis: held that a state government can restrict its college scholarships so as to prevent them from being used by those studying for the ministry, emphasizing that while the government may constitutionally allow such scholarships, it is not required to do so and stating that the denial of scholarship money does not interfere with free exercise of a religion because an individual can still receive training to be a pastor

III. Establishment Clause

a. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter: concerned two holiday displays—one was a crèche and one was a large Christmas tree, menorah, and a sign saying that the city salutes liberty during the holiday season; the Court deemed the display as unconstitutional, but with three different approaches:

i. Three justices took a strict separation approach, stating that the Establishment Clause should be construed to create a strong presumption against the display of religious symbols on public property

ii. Four justices took an accommodation approach, stating that “the principles of the Establishment Clause and our Nation’s historic traditions of diversity and pluralism allow communities to make reasonable judgments respecting the accommodation or acknowledgment of holidays with both cultural and religious aspects

iii. Two justices took a neutrality approach, specifically applying the symbolic endorsement test, and found that the menorah was constitutional, but the nativity scene was unconstitutional

b. Government Discrimination Among Religions

i. It is firmly established that the government violates the Establishment Clause if it discriminates among religious groups

ii. Such discrimination will be allowed only if strict scrutiny is met

iii. Larson v. Valente: overturned a MN law that imposed registration and reporting requirements on charitable organizations, but exempted religious institutions that received more than half of their financial support from members’ contributions, stating that the “fifty percent rule sets up precisely the sort of official denominational preference that the Framers of the First Amendment forbade”

iv. Board of Education of Kiryas Joel Village School District v. Grumet: overturned a state law that created a separate school district for a small village that was inhabited by Hasidic Jews, stating that the government created a school district specifically to help one religion so that it could provide special education without its children having to attend school with those outside the faith and also stating that the law impermissibly delegated government authority to a religious entity

c. Theories of the Establishment Clause

i. Strict Separation: to the greatest extent possible government and religion should be separated

1. If the law is not discriminatory, then use Lemon

2. Lemon v. Kurtzman Test requires that

a. There must be a secular purpose for a law

i. Stone v. Graham: overturned a state law that required the Ten Commandments posted in public school classrooms because it has “no s

ii. ecular legislative purpose”

iii. Edwards v. Aguillard: overturned a state law that required the teaching of “creation science” because the law’s primary purpose was to endorse a particular religious doctrine

iv. McGowan v. Maryland: upheld state laws that required businesses to close on Sundays because the “purpose and effect…is to provide a uniform day of rest for all citizens”

b. Its principal or primary effect must be one that neither advances nor inhibits religion

i. Estate of Thornton v. Caldor: overturned a law that provided that no person may be required by an employer to work on his Sabbath because the law had a primary effect that impermissibly advanced a particular religious practice over all other interests

ii. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos: upheld an exemption for religious organizations from Title VII’s prohibition against discrimination in employment based on religion because its purpose was “to alleviate significant government interference with the ability of religious organizations to define and carry out their religious missions”

c. The statute must not foster an excessive government entanglement with religion

ii. Neutrality Theory: government cannot favor religion over secularism or one religion over others

1. Endorsement Test: the government violates the Establishment Clause if it symbolically endorses a particular religion or if it generally endorses either religion or secularism

a. Capitol Square Review and Advisory Board v. Pinette: issue of whether the government could preclude the Ku Klux Klan from from erecting a large Latin cross in the park across from the Ohio Statehouse; the Court held that excluding the cross violated free speech and allowing it to be present did not violate the Establishment Clause

b. Several approaches to the endorsement test, discussed in Capitol Square:

i. Rejected the use of the test where the issue is private speech on government property (plurality)

ii. Should be applied from the perspective of the perceptions of a well-educated and well-informed observer (concurrence)

iii. Should look to the perceptions of the reasonable passerby (dissent)

iii. Accommodation: government violates the Establishment Clause only if it literally establishes a church or coerces religious participation, i.e. the Court should interpret the Establishment Clause to recognize the importance of religion in society and accommodate its presence in government

1. Coercion Test (applied in Lee, see below)

a. A government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which established a state religion or religious faith, or tends to

b. But there tends to be violations of the Establishment Clause even without coercion…

d. When Can Religion Become a Part of Government Activities?

i. Release Time

1. McCollum v. Board of Education: declared unconstitutional a school policy of allowing students to be released to religious instruction classes conducted during regular school hours in the school building by outside teachers, stating that it violated the “wall of separation between church and state” and explained that here the state’s tax-supported public school buildings were being used for dissemination of religious doctrine and it afforded sectarian groups an invaluable aid by providing pupils with religious classes through use of the State’s compulsory public school machinery

2. Zorach v. Clauson: upheld a school board policy that allowed students to be released during the school day for religious instruction outside the school, concluding that allowing students to receive religious instruction during school hours was simply accommodating religion and not a violation of the Establishment Clause since government funds and facilities were not used

ii. School Prayers and Bible Reading

1. Santa Fe Independent School District v. Doe: declared unconstitutional student-delivered prayers at high school football games and expressly rejected that argument that this was impermissible discrimination against religious speech, emphasizing that the school had not created a forum where student could say anything they wanted

2. Engel v. Vitale: invalidated a school policy of having a “non-denominational prayer,” composed by the state’s Board of Regents, recited at the beginning of each school day, emphasizing that neither the fact that the prayer may be denominationally neutral nor that its observance is voluntary can free it from the limitations of the Establishment Clause

3. Abington School District v. Schempp: declared unconstitutional a state’s law and a city’s rule that required the reading, without comment, at the beginning of each school day of verses from the Bible and the recitation of the Lord’s Prayer by student in unison, emphasizing that these religious exercises were prescribed as part of the curricular activities of the students, conducted in school buildings, and supervised by teachers and distinguished studying the Bible in a literature or comparative religion course, which would be permissible

4. Wallace v. Jaffree: overturned an AL law that authorized a moment of silence in public schools for “meditation or voluntary prayer,” stating that the record was “unambiguous” that the law “was not motivated by any clearly secular purpose –indeed the statute had no secular purpose”

5. Lee v. Weisman: declared unconstitutional clergy-delivered players at public school graduations, stressing the inherent coercion in allowing prayer at graduation because it was an important event and students likely feel psychological pressure not be absent during the prayer; the concurrence emphasized that prayers in public schools are unconstitutional even absent coercion because the government mush not engage in religious practices either (here, the school decided that there should be a religious invocation and benediction, chose a clergy member to perform the prayers, and gave instructions concerning them); the dissent disagreed that the prayer was coercive and further argued that the prohibition of prayer was impermissibly hostile to religion

iii. McCreary County v. American Civil Liberties Union of Kentucky: held that posting large readily visible copies of the Ten Commandments in their courthouses violated the Establishment Clause, applying the Lemon test and finding that the purpose was not secular

iv. Van Orden v. Perry: held that the 6-foot monolith inscribed with the Ten Commandments surrounding the TX State Capital, along with 21 historical markers and 17 monuments, did not violate the Establishment Clause, stating that the Lemon test was inappropriate and that the Court instead the analysis should be driven by both the monument’s nature and the Nation’s history, elaborating that the 40 years the monument went unchallenged suggest more strongly than can any set of formulaic tests that few individuals, whatever their belief systems, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to establish religion and that the public visiting the capitol grounds is more likely to have considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage (essentially it still satisfied the secular purpose test)

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download