CON LAW II OUTLINE
CON LAW II OUTLINE
The Bill of Rights
- Allows a P to bring an action against the US Federal Gov’t
o Begins with rights found in first amendment
- Some sections of the Bill of Rights are incorporated into the states by the 14th amendment
o 14th Amendment Privileges OR Immunities clause
▪ All persons born or naturalized in the US and subject to the jx thereof, are citizens of the US and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…
• “privilege” – grant of substantive rights
• “due process” – grant of procedural rights
• “equal protection” – grant of equality rights
o Barron v. Mayor and City Council of Baltimore (1833) - MARSHALL
▪ B sued city for ruining use of his wharf b/c diverted flow of streams dropped deposits that left wharf unusable; suing the state gov’t
▪ Local gov’ts are subdivisions of state govts and must afford the rights of the state constitution
▪ “The 5th Amdmt must be understood as restraining the power of the general govt, not as applicable to the states”
▪ Thus it is the STATE constitution that puts limits on what the state and local govt can do ( NOT the federal govt
• 14th Amdmt intended to overturn Barron
o What is the 14th Amdmt doing?
▪ Correcting citizenship
▪ Citizenship clause – made people who were not citizens prior to the Civil War able to claim citizenship in the states they moved to
• African Americans had no rights before rights before the civil war, the P/I Clause gives them privileges and immunities that were previously enjoyed by residents of the states that had slave
The Privileges OR Immunities Clause – 14th Amdmt.
- See cases below ( they are applying P OR I clause if they are a citizen of US
o usually a state citizen asserting a fundamental right that has been infringed upon by his home state
- “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states”
o Privileges and Immunities
▪ Fundamental? or
▪ Natural law ( not anymore or
▪ As defined by federal law…such as the BOR
• Bill of rights
o Selected incorporation or
o Total incorporation ( not anymore or ever
o Unenumerated rights?
▪ No right to work ( Slaughterhouse
▪ Right to travel ( Saenz
o Without justification
Difference between 14th Amdmt. P or I clause and Art. IV, § 2 P AND I clause
- Art. 4 § 2 (privileges and immunities against a state on which you are not a resident) and
- 14th Amdt (privileges or immunities against a state to which you are a resident)?
o 14th gives us privileges against state in which we reside
o Art. IV, § 2 ( gives you rights against state in which you are a nonresident
▪ Usually noncitizens trying to get rights akin to state citizens
The Privileges and Immunities Clause – Art. IV, § 2
o Privileges ( a word used to identify types of right and liberties
o GOAL: trying to promote Union – let people move around US with same rights
▪ 2nd purpose: equality clause (Brennan’s view)
- “The Citizens of each State shall be entitled to all Privileges AND Immunities of Citizens in the Several States”
o Citizens
▪ Can be citizens or nonresidents
o Privileges and Immunities
▪ Defined by fundamental rights or
• NOT natural law
• Privileges are rights given elsewhere in the constitution ( B.O.R.
▪ Defined by states***most recent trend
o Several states
▪ Need to grant right unless a threat to state sovereignty
o Shall not be deprive of P/I without justification
▪ Strict scrutiny
▪ Intermediate level
• Comes from Stevens in Saenz case****
▪ Low level
- What is IS included?
o About the rights given between states
o Privileges are given ( but privileges/rights are NOT absolute (can be taken away)
▪ Only right that is absolute ( see establishment clause
- What is NOT included?
o Does not protect corporations
o Cannot be waived by action of congress
o Does not extend to all commercial activities ( just “fundamental rights”
o No market participation exception
- Definition of Privileges and Immunities
o Corfield v. Coryell (1823) – WASHINGTON
▪ P owned ship, hired her out to person for 10 bucks/month. While person had ship, ship seized and condemned for violating a NJ statute that forbid raking oyster beds if you weren’t an NJ resident
▪ Puts a modifier on the constitution
▪ “…citizens of each state shall be entitled to all [FUNDAMENTAL] privileges and immunities of citizens in the several states.”
• Named these fundamental rights: protection by govt, enjoyment of life, liberty, right to acquire/possess property, obtain happiness/safety
• Also acknowledged state law definition
▪ Takeaway: States obligated to treat all of those within their territory equally in most respects, they were not obliged to share those thing they held in trust for their own people
o Bradwell v. State (1873) – WASHINGTON
▪ Married woman not able to practice law in Illinois
▪ 14th Amdmt applied to national citizenship (slaves), not state citizenship
• She files under 14th P or I clause b/c she was not a resident of Ill.
o Can’t file under Art. 4, § 2
▪ Takeaway: can only claims rights that are fundamental to citizens of the UNITED STATES
▪ Takeaway: cannot claim total incorporation by Bill of Rights
▪ CONCURRENCE – BRADLEY
• B/c he dissented in the slaughterhouse case, would he recognize a lawyer’s claim for a right to work
• Concurred even though he would incorporate right to work b/c it is not a married woman’s place to be a lawyer
▪ DISSENT-FIELD
• Purpose of the 14th amendment was to extend the basic protections of the bill of rights to citizens of every state and to prohibit state violation.
• This is where fundamental theory of rights comes from
o Slaughter House Cases (1873) – MILLER
▪ White butchers claiming that Louisiana law deprived them of right to exercise trade ( trying to claim fundamental right to work
▪ Court construes 14th Amdmt VERY NARROWLY
• Defines “privileges” in the 14th Amdmt as totally restricted
o free access to seaports
o the right to demand the care of the federal government while on the high seas
o protection while under the jurisdiction of foreign governments
• The Rights in the 14th Amdmt are created for the citizens of the United States, not the individual states
▪ DISSENT-FIELD
• Would incorporate right to work as broad right under Corfield
▪ ****Slaughterhouse has never been overruled so if we want to incorporate fundamental unenumerated rights, we will have to put pressure on another clause in the 14th other than the P/I clause
▪
o Hague v. CIO (1939) – ROBERTS
▪ Roberts is embracing the narrow list noted by Washington in Corfield, not broad fundamental rights
o Baldwin v. Montana Fish and Game Comm’n (1978) – BLACKMUN
▪ B is Montana resident who takes other people hunting (outfitter). Montana residents pay 7.5xs less than out of state residents to hunt.
▪ Confirms that Justice Washington’s insertion of Fundamental has carried through to modern times and does prevent some P’s from bringing actions
▪ Takeaway: - If you can make the argument that honoring the privilege will promote a stronger Union, then it is a fundamental privilege
▪ DISSENT – BRENNAN
• View P.I clause as more of an equality provision NOT a fundamental provision
• Uses intermediate scrutiny
• Brennan only wants to retain the nonresident provision
• Unequal treatment of nonresidents has to be reasoned and “suitably tailored”
o Supreme Court of NH v. Piper (1985) – POWELL
▪ Piper was VT resident who lived 400 feet from NH border. She passed the bar but could not be admitted b/c of NH restriction requiring residency for bar admission
▪ Right to work is a fundamental privilege
▪ Applied intermediate scrutiny
• Substantial objective – OK (lawyers should know NH law)
• Winds up using what looks like least restrictive means, doesn’t pass
o Majority pushes strict scrutiny
▪ DISSENT-REHNQUIST – 2 major points
• 1) based on laws – since states make laws, should choose lawyers
• 2) disagreement with ct’s least restrictive means analysis
o Saenz v. Roe (1999) – STEVENS
▪ California statute stipulates a residency requirement (1 year) for welfare recipients. Statute requires a cap on benefits for new residents equal to the corresponding limit from the state they moved from.
▪ Right to travel is fundamental right
• 3 components
o The right to enter one state & leave another;
o The right to be treated as a welcome visitor rather than a hostile stranger;
o The right to be treated equally to native born citizens.
• Applied Strict Scrutiny
• Not changing P/I clause but possibly talking about it in a different way in the future
▪ Takeaway: if a fundamental right is found ( Strict Scrutiny
▪ DISSENT – REHNQUIST/THOMAS
• Disagreed that right to travel = fundamental right; parallels to in-state tuition ( focus: Federalism
14th Amdmt Substantive Due Process
Levels of Constitution Scrutiny (Ends/Menas Relationships of Laws
|Strict Scrutiny |Intermediate level Scrutiny |Rational basis scrutiny |
|Compelling State Interest |Important Gov’t Objective |Legit. Gov’t interests |
|Means narrowly tailored? |Means substantially related to ends |Means rationally related to end |
- “No State shall deny any person of life, liberty, or property, without due process of the law”
o Liberty
▪ 1) Fundamental
• Bill or right
o Total incorporation
o Selective Incorporation with due process of law
▪ 2) Unenumerated rights (right to contract Post-Lochner) or
▪ 3) Nonfundamental
o And without justification
▪ Strict scrutiny
• If fundamental right
▪ Low level scrutiny
• If nonfundamental right
- DP clause trying to incorporate bill of rights into 14th Amdmt – How?
o Specifically look at the word liberty as an incorporation tool
▪ What is incorporated?
• Freedom of speech, freedom of religion
• Right to jury trial – harder to claim as liberty interest but see Duncan for criminal cases
• Most criminal procedures incorporated
▪ What is NOT incorporated
• Most civil procedures ≠ incorporated (right to trial by jury under 7th )
• 2nd, 3rd Amdmts not incorporated
- Pre-Warren Court
o Palko v. Connecticut (1937) – CARDOZO
▪ 2nd degree murder conviction set aside by the highest state court and on appeal taken by the state, he was convicted for first degree murder
▪ Talks about selective incorporation b/c 5th amdmt and right to trial by jury not incorporated into states
o Adamson v. California (1947) – REED
▪ Trying to overturn murder conviction by saying that P should not be able to comment on his not taking the stand
▪ Selective incorporation upheld – selective incrimination not applicable to states
▪ DISSENT – BLACK
• Worried about expansion of Ct’s power through vagueness of non-incorporation
o Meyer v. Nebraska (1923) – McREYNOLDS
▪ Teacher convicted for teacher German, violating state law
▪ Right of individuals to K, to engage in any of the common occupations of law
▪ Liberty in the DP/C of 14th A protects
• Right to marry
• Right to establish a home
• Right to bring up children
o Ct has no ability to make this unlawful
• Right to worship God according ot dictates
• Right to K (Lochner era – before its deny)
• Right to engage in occupations
o Pierce v. Society of Sisters (1925) – McREYNOLDS
▪ Overturned Oregon law that required kids to attend public school
▪ Infringes on parents liberty interest in making educational decisions about kids
o Skinner v. Oklahoma (1942) – DOUGLAS
▪ Act called for 3rd time felons to be sterilized
▪ Court does NOT decide this on DP analysis
▪ Marriage and procreation are fundamental to the very existence and survival of the race
▪ ****Brought the STRICT SCRUTINY ANALYSIS to “Fundamental Liberties”
- Post-Warren Court – applied more 14th Amdmt rights to states than ever
o In 1965 ( the Griswold court looks a the Lochner era cases about the right to kids
▪ Building off the Pierce and Meyer idea of the liberty to raise kids and transitioning it to a right to marital privacy
o Pre-Griswold ( right to K = an unenumerated, nonfundamental right
o Griswold v. Connecticut (1965) – DOUGLAS
▪ Law makes distribution of contraception illegal
▪ Distinction between a right to privacy (social right) and between a right to contract (economic rights)
▪ Gets around “Lochnerizing” but talking about “Penumbras” to find zones of privacy
• Does NOT rely on 14th Amdmt, but looks to 1, 3, 4, and 5th Amdmt
▪ Found a fundamental right ( Strict scrutiny applied to overturn law
▪ CONCURRING – GOLDBERG, WARREN, BRENNAN
• The fundamental right of privacy is a combination of the 14th and 9th amdt (14th – dpc, 9th “the enumeration in Constitution of certain rights, shall not be construed to deny or disparage others retained by the people”)
• Defining privileges like Bingham
▪ CONCURRING – HARLAN
• Finds fundamental right to privacy in DPC clause itself ( no real reason to look elsewhere
▪ CONCURRING – WHITE
• Need better fit between means/ends here
▪ DISSENTING – BLACK/STEWART
• Need to have rational basis scrutiny and afford legislature more credit
• No privacy rights found, but mere protection of state from govt
▪ DISSENTING- STEWART/BLACK
• Would be willing to incorporate bill of rights, but since right to privacy is nowhere in bill or rights ( won’t recognize right
▪ Takeaway: Since Griswold, put focus on “LIBERTY” interest
• What does Griwold give us? What kind of rights?
• Spatial – Right to avoid intrusion into the home – has to do with the home itself (Douglas – penumbras)
• Informational – Right to avoid disclosure of personal information
• Marital/Relational – Right to freely engage/protect intimacies of martial relationship
• Autonomy – Right to free from gov’t regulation in Area of Personal Activity that does no harm to others
o Types: reproductive, sexual
▪ Take this liberty interest and expand it for Bowers
o Duncan v. Louisiana (1968) – WHITE
▪ Duncan convicted of Battery, crime hosting up to 2 years of imprisonment and a fine of 300 bucks. argued on appeal that he was denied a jury trial
▪ “Because…trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the 14th Amdmt guarantees a right of jury trial in ALL criminal cases”
• Slaughterhouse cases makes P/I clause too narrow to find this right ( therefore, take Bingham’s original intent of total incorporation and stress it under the DP clause
▪ CONCURRENCE – BLACK
• Believes in total incorporation – tighten constraints on frivolity
▪ DISSENT – HARLAN
• DP only requires fundamental fairness, not total incorporation
o Bowers v. Hardwick (1986) – WHITE
▪ Facial Challenge to Georgia statute that made sodomy a crime, mostly enforced on gay couples (means they want statute stricken)
▪ Heterosexual P’s kicked off case, which meant that it was no longer a general liberty interest at issue
▪ Majority framed issue narrowly: liberty interest to engage in homosexual sodomy?
• Found it was not a liberty interest
• Uses rational basis scrutiny to uphold law
o White focuses on marital bedroom ( precedent about procreation
▪ CONCURRENCE – BURGER
• Emphasis on religious sodomy roots
▪ DISSENT – BLACKMUN, BRENNAN, MARSHALL, STEVENS
• Maj. Opinion too narrow
• Want to define right as “right to be left alone”
▪ DISSENT – STEVENS
• Makes 2 arguments
o 1) Equality
o 2) Liberty issue (look at Lawrence)
▪ Worried about standing issue being used against homosexuals
o Lawrence v. Texas (2003) – KENNEDY
▪ Texas law specifically prohibiting same sex sodomy
▪ Since precedent said right to homosexual sodomy was not a liberty interest, court would have to use low level scrutiny or overturn Bowers
▪ Maj. Defines BROAD liberty interest
• Liberty as self autonomy protects the right to protect sexual liberty – freedom of thought, belief, expression, and certain intimate conduct
o General liberty interest = fundamental liberty interest
• Supposed to use strict scrutiny
o But just says that promotion of public morality is not a legitimate government interest
▪ No mention of compelling state interest
o Kennedy trying to abolish tiers of scurinty****
o Only one DP clause ( only one standard
▪ Must still look to what gov’t purpose is and how the means are related to the end (judicial discretion)
• Reframing Griswold, overturning Bowers
o Viewing Casey as showing that liberty is present in the DPC– the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy…
• Stare Decisis Argument – OK to overrule Bowers b/c there had been an erosion of precedent (bowers now stood on bad case law)
▪ CONCURRENCE – O’CONNOR
• Would only overrule law on EP, not DP standard
• Didn’t want to admit wrongness in Bowers
▪ DISSENT – SCALIA, REHNQUIST
• Believed Bowers should not have been overturned
• Strict construction argument – no liberty under DP
▪ DISSENT – THOMAS
• Similar to dissent in Griswold, no right to privacy in DP
Equal Protection
- “No Gov’t shall deny to any person the equal protection of the laws”
- Gov’t
o 5th Amdmt (fed)
o 14th Amdmt (state)
▪ Will limit gov’t and state action, but not private conduct
• Amdmt 11- 14 can regulate private conduct + Interstate Commerce Clause can regulate private conduct + individuals
▪ Concentrate on what is state action
- Shall Deny
o Deny = burden
▪ Ban OR
▪ Regulation?
- [by an intention classification] of a
o Direct evidence of intent by facial classification
o Circumstantial evidence of intent (see Yick Wo and Gomillion)
• Policy reasons for circumstantial evidence
o Federal govt wants to give more deference to state actors to regulate state activities
o Harder proof burden with facially neutral laws
o Judicial efficiency
▪ Look for discriminatory purpose or effect
▪ 2 ways to find DP/E:
• 1. Stark statistics – data based (99%) or
• 2. Changing of boundaries to intentionally classify
o Malign circumstantial evidence?
o Benign circumstantial evidence?
▪ No Malign/Benign after POWELL’S decision in Bakke
o Class?
▪ Suspect class (SS)
• Race based that hurt minorities (malign)
• TEST – from Frontiero
o 1) history of discrimination
o 2) group historically powerless
o 3) characteristic immutable
o 4) does it have to do with one’s abilities
▪ Quasi-suspect class (IS)
• Race based that help minorities (benign)
• Gender, sexuality, alienage
▪ Non-suspect class (LLS)
• Age, wealth
o Burdens substantive interest?
▪ Fundamental?
• Voting, access to courts
• If fundamental interest being infringed upon, even though it is NOT a suspect class ( still invokes Strict Scrutiny
• For Harlan (dissent) ( fundamental rights can ONLY be found in constitution or deeply rooted in history
▪ Quasi-fundamental?
• education
▪ Non-fundamental?
- To any person
o Race?
o Sex?
- The Equal Protection of the Laws
- [without justification]
o Strict scrutiny
▪ Compelling state interest
▪ Means narrowly tailored to ends
• Race, voting, access to courts
• Classroom diversity v student body diversity (25 years post-Bakke)
o Intermediate level scrutiny
▪ Important governmental objective
▪ Means substantially related to ends
• Gender, alienage, education
o Low level scrutiny
▪ Legitimate governmental object
▪ Means rationally related to end
• Age, disability
▪ 2 types of low level:
• Deferential – burden of proof on challenger
o Used with Economic Regulation
o 2 ways to uphold Deferential low level scrutiny:
▪ 1) Ct listens to legit gov’t objectives and if Ct doesn’t like them, the Ct can make some hypothetical objectives up
▪ 2) Mantra of “one step at a time” – legislature does not have to obtain every goal all at once
• “With Bite” – burden of proof on Gov’t (Moreno/Romer/Lawrence)
- EP Clause ( zeroing in on classifications
o Looking for a classification
o DP – looking for fundamental rights
- Classifications typically described as:
o Suspect – strict scrutiny
o Quasi-suspect – intermediate level scrutiny
o Non-suspect – low level scrutiny
- Strauder v. West Virginia (1880) – STRONG
o D gets convicted by all white jury, Claim under 14th is that he didn’t get fair trial b/c state law denied black men to sit on juries
▪ State Gov’t (5ht)
▪ Intentional Classification – RACE
▪ Suspect Classification – RACE
o Sort of applies what looks like strict scrutiny, but can’t tell b/c this came before we tiered scrutiny
o Specifically states that race is a suspect class b/c it’s a brand affixed upon them
o Found that race is suspect class, but gender is NOT
- Plessy v. Ferguson (1896) – BROWN
o Separate RR cars for blacks and whites
▪ State Gov’t – Louisiana law
▪ Intentional Classification – based on race
▪ Suspect – Race based on Strauder
▪ Denial? – has more than one meaning – to place burden
• Benefit – pure whites get to sit on cars
• Burden – all black and mixed race peoples
o Court finds that purpose of EPC is to get rid of inferiority
o However, finds that since both classes have the same rights, the law stands
▪ Cannot protect black people from social inferiority, just legal inferiority
o DISSENT – HARLAN
▪ Said that this is just a guise, like slavery, to create a system that consistently places white people above everyone else
▪ Social inferiority IS inferiority
- Civil Rights Cases (1883) - BRADLEY
o Consolidation of five cases from Kansa, CA, Missouri, NY, and Tennessee – 4 cases were criminal indictments, 5th action for the civil penalties – cases grew out of African American exclusion from hotels, theaters, and RR
o Question was whether Congress has power to pass Civil Rights Act
o State action that is the subject of 14th Amdmt, not private conduct
▪ Congress only has ability to regulate states not business
▪ Maj. Opinion calling for a State ACTION REQUIREMENT to 14th Amdt
o DISSENT – HARLAN
▪ Worried about blurring between state action and private conduct
▪ Believes instead of state action, should use the public function doctrine
▪ Takeaway from dissent: Public function doctrine used to regulate some private actors performing public functions
• Marsh v. Alabama (1946) – a company town may not limit speech through restrictions that would violate the first amdmt
o Clearest public f(x) case b/c company IS govt actor
• Amalgamated Food Employers Union v. Logan Valley Plaza Inc (1968)– a shopping center was clearly the functional equivalent to the business district involved in Marsh
• Lloyd Corp v Tanner (1972)– narrowing view of state action by not viewing a shopping center as a state actor
• Evans v. Newton (1966) – INVALID to operate a Georgia park for whites only pursuant to a trust of Senator Bacon’s will – a park is in the public domain
o Park state actor – probably b/c race classification here
o Shows that state action is mutable
▪ More likely to find state action where racial classification is at issue!!!!!!
• Nixon v Herdon (1927)– exclusion of blacks from Democratic primaries expressed on the face of a Texas law is INVALID
• Smith v Allwright (1944) – the white primary established by the state violated the 15th amdmt; primaries involve state action
• Terry v Adams (1953)– Exclusion of black voters from a pre primary elections of the Jaybird Democratic association – a voluntary club – violated the 15th Amdmt (even if this is a club, an election in which public officials are chosen are involved with state action)
• Jackson v. Metropolitan Edison Co. (1974) – found NO state action present in the exercise by a private entity of powers traditionally EXCLUSIVELY reserved to the State- the supplying of utility service is not traditionally the exclusive prerogative of the State
o State merely regulating, not acting, just so happens state action had monopoly
o REHNQUIST – less likely to find state action
- Shelley v. Kraemer (1948) – VINSON
o Decision arose from challenges to judicial enforcement in Missouri and Michigan of agreements among property owners to exclude persons of designated races
▪ State action = enforcement of contract provisions (bears imprimatur of state)
• State action b/c the contractors were looking for an AFFIRMATIVE remedy from the court (the court had to do something)
• If they had asked for an out-of-court remedy, probably no state action found
▪ Denial – burden on Blacks b/c they couldn’t find housing
▪ Intentional classification? – RACE
▪ Violation of EP found
o DISSENT- HARLAN
▪ Focused on the blurring of state action (see above cases for blurring reference)
- Post-Shelley
o Evans v. Abney (1970)
▪ Shelley had not barred all state involvement in enforcing racial restrictions on private propery
o Pennsylvania v. Board of Directors of Trusts (1957)
▪ State action found in the denial of admission to nonwhite students b/c the board was the one making the decisions
o Burton v. Wilmington Parking Authority (1961) – CLARK
▪ Private restaurant’s exclusion of an African American customer under a provision of state law – parking building owned and operated by the Wilmington party authority is an agency of the state of Delaware and the restaurant is that authority’s lessee.
• State actor: parking authority,
o However, the state is leasing lot and land to private actor and state gets profits ( state action found b/c state allowed discriminatory treatment (merger of private/public actor)
• Denial? ( yes, customer denied service
• Intentional classification ( yes, based on race
▪ CONCURRENCE – STEWART
• If you look at the statute itself that allowed denial of service b/c of race ( that is obviously a racial classification made by state legislature
• Wants to avoid following the maj’s money trail, but stick to legislatures actions
• Takeaway: 2 places to find state action in this case
o Moose Lodge No. 107 v. Irvis (1972) – REHNQUIST
▪ Private club’s discrimination of service to black P on basis of race; arg. For state action is that they have liquor license as given by state
• State action? – no leasor/leasee relationship like Burton
o State not significantly involved here
o Wants to see more intertwining between state and private owner
• No EPC violation fond
• DISSENT – DOUGLAS/BRENNAN
o Do not like to see state action doctrine shrunken
o Reitman v. Mulkey (1967) – WHITE **** IMPT case
▪ CA’s repeal of fair housing laws, which CA voters then adopting in proposition 14, which permitted discrim. w/ private housing
• State action? ( the people passed a law, which was then adopted by CA ( STATE action where group of individuals perform legislative function
• Also found that text of amdmt violated federal EPC clause as well as state
- Strict scrutiny of facially racially discriminatory laws
o Korematsu v. United States (1944) - BLACK
▪ Japanese internment camps in context of WWII
▪ Maj. Notes that racial classifications are an inherently suspect class
• State action? – 5th Amdmt – FEDERAL action (Congress)
• Denial – of freedom.
• Intentional classification – race based classification
o First time we see the words “suspect class”
▪ States that suspect classes deserve STRICT SCRUTINY
• However, doesn’t’ want to limit Congressional power during war
▪ DISSENT - MURPHY
• The threat is not as immediate or as pressing as the govt proclaims, even under a reasonableness standard
• This is the legalization of racism
▪ DISSENT - JACKSON
• Military orders are fleeting, but Court decisions last so shouldn’t make ruling that expands racism
- Pre-Brown
o Missouri Ex Rel. Gaines v. Canada (1938)- HUGES
▪ Missouri segregate state and had an all white law school. Missouri did not want to pay money for black P’s tuition at all white school
• State action? – state govt refusing admission – YES
• Denial? – burden is that he could not go to law school
• Intentional classification ? – yes, only b/c he was black
▪ Found that this did not satisfy Plessy b/c there was no separate school
o Sweatt v. Painter (1950) – VINSON
▪ P denied admission to U, Texas law school b/c he was black. State given extra time to make facilities equal. U.T. created new school and said it satisfied Plessy
• State Action – Texas is denying admission
• Denial? – denied opportunity at grad school
• Intention classification? – because of his race
▪ Found that the inequalities in the new school were so bad as to undermine “separate but equal” ( EPC violation
o McLaurin v. Oklahoma State Regents for Higher Education (1950) - VINSON
▪ Black Oklahoma resident wanted PhD at State university and denied admission b/c of race; “equal” facilities constructed where he had to sit on different floor etc
• State action? ( Oklahoma denying him admission
• Denial? ( can’t get PhD, burden on him/black students
• Intentional Classification ( by race
▪ EPC violation b/c denial of separate but equal
o Take away from precedent: looking at tangible denials of education – law school more tangible in effect b/c these are JUDGES
▪ To get past Plessy ( first must find difference in tangible factors (school facilities, etc)
▪ Then must find difference in Intangible factors (where Brown picks up)
- Brown v. Board of Education [Brown I) (1954) – WARREN
o State action ( now that education was MANDATORY by state rule, and the schools were funded by state ( state action
o Deny?
▪ Nature of intangible inequalities affecting BLACK students
• Ability of students to study, retard development, looking at psychological factors
• “…generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”
o Intentional Classification – obviously race
o 2 ways to read opinion
▪ 1) this conclusion follows from psych data about kids or
▪ 2) Ct is taking Harlan’s Plessy dissent
• Any race-based classification is inherently UNEQUAL
- Implementing Brown & its implications
o Bolling v. Sharpe (1954) – WARREN
▪ Reaffirms that race is an extremely suspect class
o Brown v. Board of Ed [Brown II] (1955) – WARREN
▪ Full implementation of desegregation requires local courts to help
▪ Local courts best suited for judging constitutionality of implementation
o Green v. County School Board (1968) – BRENNAN
▪ School district had “freedom of choice” to comply with Brown
▪ As segregation still existed, no affirmative efforts to comply found
o Swann v. Charlotte Mecklenburg Board of Ed (1971)- BURGER
▪ Found that desegregation plan wasn’t working
▪ Court could use drastic measures like implementing busing to help desegregate
o Keyes v. School District (1973) – BRENNAN
▪ So long as only part of a school district practiced systematic segregation, the whole school district was in violation and had to be remedied
o Milliken v. Bradley (1974) – BURGER
▪ De jure segregation not enough to warrant gerrymandering (just have to prevent de facto segregation by state, not by private choice of house)
o Missouri v. Jenkins (1990) - WHITE
▪ Ct limited fed. power in implementing desegregation
• Context: REHNQUIST court, deference to states
o Missouri v. Jenkins II (1995) – REHNQUIST
▪ Fed ct could ≠ order salary increases and remedial education programs on the ground that student achievement levels were below national norms
• Ct scaled back rationale of Brown remedies
o Board of Ed of Oklahoma City v. Dowell (1991) - REHNQUIST
▪ District Ct ordered system-wide busing of Ok., which produced integration in 1972, Ok. Stopped busing in 1984
▪ Ct said that local systems know how to help local needs best so school district can decide when to stop bussing
▪ DISSENT – MARSHALL
• Ignores stigmatic harm stipulated in Brown
• Dispute between dissent and maj. = when do you have full remedy
- Other types of segregation
o Loving v. Virginia (1967) – WARREN
▪ Facially symmetrical statute banned interracial marriage
▪ State action? – yes, it’s a Virginia state law
▪ Denial?
• Benefit
o White, White; black, black, yellow yellow couples
• Burden
o Interracial couples
▪ Intentional classification
• Yes, solely based on race
▪ Decision can be read in two ways:
• 1) equal application of law doesn’t matter b/c this is a race-based classification and this fails Strict Scrutiny
• 2) Real purpose of statute = discrimination – look at equal app.
o Palmore v. Sidoti (1984) – BURGER
▪ When ex-wife remarries black guy, custody given to ex-husband
▪ Ct reverses custody b/c this is a racial classification (fails SS)
o Johnson v. California (2005)- O’CONNOR
▪ Cal. Dept Correction separated prisoners for fear of gang violence
▪ “All racial classifications imposed by government…must be analyzed by a reviewing court under strict scrutiny”
- Racially discriminatory Purpose and Effect (how to show law is classifying based on race or others…)
o Yick Wo v. Hopkins (1886) – MATTHEWS
▪ SF ordinance prohibited operation of laundry unless in brick building; law administered to that it prevented Chinese laundry owners from operating
• State action? ( obvious state law
• Denied?
o Burden: Chinese immigrants who owned laundries
• Intentional classification?
o Statute neutral on its face
o So ct looked to statistics and found that more than 200 Chinese were excluded
o ADMINSTRATION of the law = discriminatory to a class of people
o Gomillion v. Lightfoot (1960) – FRANKFURTER
▪ Alabama law (state action) redefined city boundaries of Tuskegee that segregate white and black voters (effect of discrimination = voting difference)
o Griffin v. County School Board of Prince Edward County (1964)
▪ Public school (state action) gave grants of public funds to white children attending private school (administration of law discriminatory)
o Washington v. Davis (1976) – WHITE
▪ Test for DC police officer (administered by state = action); test passed more by whites and failed more by blacks
• Statistics of passage rates not as high as in Yick Wo so not enough to warrant finding of discrimination
- Affirmative Action
o Big takeaway with affirmative action: only strict scrutiny applies with racial classifications, even if racial objectives are “benign”
o Regents of University of California v. Bakke (1978) – POWELL
▪ Powell is the only one writing on EPC grounds, other 4 justices writing on statutory grounds
▪ Found UC Davis’ numerical set aside of 16 slots of med school admission for minority students (out of 100) permissible
• State action ( UC (run by California ( state)
• Denial?
o Benefit ( racial minorities
o Burden ( minorities who don’t get in, non-minorities (bakke) who feel they were put aside
• Classifications?
o Intentionally setting aside quota for minorities
o Argument about whether classifications is “malign” or “benign”
▪ Arg for malign ( possible framer’s argument b/c framer’s never though discrimination used against white people
▪ Arg for benign ( this is remedial
• If benign ( would argue that no strict scrutiny b/c SS would be “fatal in fact”
▪ Because race deemed suspect ( SS applies
▪ CONCURRING – BRENNAN, WHITE, MARSHALL, BLACKMUN
• Like gender, use of inter-level scrutiny appropriate for remedial measures
• Goes back to “stigma” of Brown ( no stigma here
▪ CONCUR/DISSENT – STEVENS, REHNQUIST, STEWART, BURGER
• State schools should be able to decide what program stands
• Statutory interpretation of Title VI – race cannot be basis for ANY exclusion
- Racial preferences in public employment
o Wygant v. Jackson Board of Education (1986) - POWELL
▪ Minority preferences in teacher layoffs – collective bargaining agreement kept teachers with most seniority would be retained, but a stable majority of minority personnel had to remain, thus some whit teaches could not
▪ State action: public school
▪ Deny:
• Benefit ( minority teachers with less experience
• Burden ( non-minority teachers with more experience
▪ Intentional classification?
• Facially retaining minorities to “promote role models”
▪ Racial classification ( SS
• Compelling state interest ( compelling
• But not narrowly tailored enough
▪ CONCURRENCE – O’CONNOR
• Remedial justification only should be read where there has been a contemporaneous wrong committed in the community
o Fullilove v. Klutznick (1980) – BURGER
▪ Congressional spending program (5th) requiring 10% public work monies to be set aside for minority business owners (LAW UPHELD)
▪ Facial classification = minorities; minorities get benefit
▪ Takes up O’CONNORS view in Wygant that affirmative action is OK where a long history of discrimination has been found
▪ Using “quasi-strict scrutiny”
▪ This case is now questionable precedent after City of Richmond
• Idea that we should give any special deference to congress disappears
▪ CONCURRENCE – POWELL
• Wants to use same strict scrutiny analysis as in Bakke
▪ CONCURRENCE – MARSHALL
• Used Bakke analysis to show that racial classification OK here
▪ DISSENT – STEWART
• No discrimination allowed by gov’t at all
▪ DISSENT – STEVENS
• Objected to 10% of monies (arbitrary limitation)
o Richmond v. J.A. Croson Co (1989) – O’CONNOR
▪ Affirmative action program made by Richmond law set aside 30% of public works monies for minority owned businesses
• State actor: City of Richmond
• Denial:
o Benefit: ALL minorities (not just limited to African Americans)
o Burden – white people
• Intentional classification? Was an affirmative action program
o Direct evidence
• Suspect class – race
• Strict Scrutiny applied
o Compelling state interest
▪ CSI met when remedying past discrimination
o Narrowly tailored
▪ NOT met b/c the statute is overly inclusive
▪ Includes races who do not have a history of past discrimination (need empirical evidence)
▪ CONCURRENCE – STEVENS
• Racial classifications can be valid for other reasons rather than just remedying past wrongs
▪ CONCURRENCE – KENEEDY
• Rejects automatic invalidity for all racial preferences
▪ CONCURRENCE – SCALIA
• State and local gov’t should be able to discriminate in order to remedy past harms
▪ DISSENT – MARSHALL, BRENNA, BLACKMUN
• Believe that Fullilove set a precedent brining in intermediate level scrutiny
• Under Intermediate level scrutiny ( would have passed (like his dissent in Bakke)
▪ DISSENT – BLACKMUN
• Constitution being used to help continue discrimination
o Adarand Constructor v. Pena (1995) – O’CONNOR
▪ Federal funds given to general contractors on gov’t projects used as incentives to hire minority businesses and subcontractors
▪ Fed govt (5th)
▪ Deny? Benefit = minority business owners
▪ Intentional classification? – direct evidence of intent
▪ Class? – race based
▪ Strict scrutiny applied
• Ct overrules Fullilove ( no more quasi strict scrutiny b/c race is ALWAYS suspect and ALWAYS should have SS applied to it
• Strict scrutiny is “not fatal in fact”
o Message she’s sending: congress could formulate affirmative action program in this context
▪ CONCURRENCE – SCALIA
• No reform policies letting govt discriminate should be allowed
▪ CONCURRENCE – THOMAS
• Reformatory discrimination = paternalism, which reinforces racial superiority/inferiority
▪ DISSENT – STEVENS/GINSBURG
• Strict scrutiny IS fatal to minority groups, still bias today
- Affirmative action 25 years after Bakke – rethinking A.A. post Richmond & Adarand
o Grutter v. Bollinger (2003) – O’CONNOR
▪ U. Michigan law using quotas to give sets to minority applicants
▪ State action ( U. Michigan (run by state)
▪ Denial: burden on whites, benefit on minorities
▪ Intentional classification: program facially classifying minorities through numerical quotas
▪ Suspect class ( Race
▪ SS applied
• Compelling state interest
o Student diversity considered to meet CSI
• Narrowly tailored?
o “narrow tailoring does not require exhaustion of every conceivable race-neutral alternative”
o Just need to give a holistic, individualized evaluation
o Using POWELL’s language; race is just one factor (Bakke)
▪ Maj. Makes historical observation that affirmative action is on temp’ry
• If affirmative action is remedial ( one day, it will be remedied
▪ CONCURRENCE – GINSBURG/BREYER
• Ginsburg & O’Connor tag-teaming by stating that affirmative action can disappear when racial discrimination no longer occurs
▪ DISSENT- SCALIA/THOMAS (concurring in Adarand)
• Constitution is colorblind – no discrimination allowed period
• Does not believe this passes strict scrutiny (Adarand SS was tougher)
▪ DISSENT – THOMAS/SCALIA
• Argues that all racial classifications should be banned
• Harped on back empirical evidence in this case
o Embracing the inherent inequality of affirmative action (Adarand paternalism) and inferiority (Brown)
o Gratz v. Bollinger (2003) – REHNQUIST
▪ U.Mich undergrad used point scale for admission and gave extra 20 pts to ethnic groups
▪ State action ( University run by State
▪ Denial ( benefit to ethnic minorities, burden on whites
▪ Intentional classification ( facially give them extra pts
▪ Suspect class? ( Race
▪ SS applied
• CSI ( classroom diversity meets CSI
• Means narrowly tailored?
o Looks at statistic and correlation of applicants to find that 20 pt system award is not narrow enough
o Wanted to see “individual” consideration not just pt system awarded
▪ CONCURRENCE – O’CONNOR
• Wants more nuanced individual judgment like in Grutter
▪ CONCURRENCE – THOMAS
• Same as in Grutter – no racial discrimination anywhere
▪ DISSENT – SOUTER
• This is not a Bakke quota but a point system
• It IS individualized b/c it is a 100 pt scale
• This is like Grutter
o DISSENT – GINSBURG/SOUTER
▪ Same position as Grutter
▪ As long as there is race discrimination in world ( not time to strike down affirmative action plans (uphold soft strict scrutiny like Grutter)
- Takeaway from Grutter and Gratz – Bakke is still good law
o Parents Involved in Community Schools v. Seattle School District (2007) – ROBERTS - PLURALITY
▪ School districts assigned students to public school based on race to achieve racial diversity
▪ State action ( public schools (state)
▪ Denial? ( benefit/burden? ( questionable here?
▪ Intentional classification ( yes – facially choosing minority students
▪ Suspect class ( race = yes
▪ SS applied
• Compelling state interest
o Racial balancing is NOT a CSI
o Diversity in education is, but this is different b/c people choose where they want to live (not like college, law school where you choose school)
o Invalid law
▪ CONCURRENCE – THOMAS
• Does not know whether racial balance or diversity actually has any positive education effects
▪ CONCURRENCE – KENNEDY (kind of dissenting)
• Diversity is a state interest ( school has longstanding legal right to undue racial discrimination
▪ DISSENT – STEVENS
• Overturning massive precedent and re-reading history
• Not respectful to ruling in Brown
▪ DISSENT – BREYER
• Radical step from established law that would resegregate
▪ Takeaway: look how Roberts/alito changed court
- OTHER suspect classifications!
o Gender – a history of Equal protection (EP)
▪ Bradwell v. State (lady lawyer) – specifically stated that gender discrimination OK
• EPC traditionally only applied to slaves ( race
▪ 19th Amdmt gives women right to vote, but doesn’t guarantee EP
▪ ERA (equal rights amendment)
• Failed in 1982
▪ Goesaert v. Cleary (1948) – FRANKFURTER
• Michigan law (state) said that No woman (burden on women; facial classification; intentional) could obtain bartender’s license unless she was wife/daughter of male owner
• Classification ( of sex ( nonsuspect
• Low level scrutiny uses = law upheld
▪ Reed v. Reed (1971) – BURGER
• State Cts (state actors) sustained preference for men over women in appt of administrators in estates
o Deny – women (burden on women)
o Intentional – yes
o Facial classification
o Suspect class? – argument lies here
▪ Argument that sex was suspect
▪ However, question narrowly framed
▪ Found that sex preference bears no rational relationship to state objectives (arbitrary)
o Court applies low-level scrutiny to overturn law
▪ Frontiero v. Richardson (1973) – BRENNAN
• Fed law (state action) afforded male members of armed forces automatic dependency allowance for wives but not vise versa
• Denial: women’s husbands = burden of proving dependency
• Intentional classification – specifically treated women diff.
• Gender = suspect?
o Brennan says it is b/c women treated badly like blacks and that gender is immutable (see Korematsu)
• Brennan applies SS but never gets 5th vote
• Sets our CRITERIA for suspect classification
o 1) Has there been a history of discrimination against the relevant group? (suspect if yes)
o 2) Was the group historically powerless?
▪ Women not a technical minority but brennan looked at current discrimination
o 3) Issue of Immutability?
▪ Suspect if it discriminatory criteria immutable
o 4) Ability
▪ Four criteria fleshing out Carolene products foots bout what it takes to be a “discrete and insular minority”
▪ Craig v. Boren (1976) – BRENNAN
• Oklahoma statute (state action) prohibited beer sales to males under 21 and women under 18
• Denial: burden on males under 21 from buying beer
• Intentional classification ( facial
• Suspect class ( gender
o Applied 4 part test from Frontiero
▪ 1. No historical precedent of young men being discriminated against
▪ (need to meet all 4)
▪ But not totally non-suspect
• Brennan needed 5 judges ( applied INTERMEDIATE SCRUTINY
o Important Governmental objective
▪ Traffic safety = impt
o Means substantially related to END
▪ No stats to back up objective ( I/S not met
▪ EPC violation found
• CONCURRENCE – STEVENS
o Only one EP Clause so should one standard of evaluating EPC violations – SS for everything; large judicial discretion to eval. On case by case basis
• CONCURRENCE – POWELL
o Rational basis fine
• DISSENT – REHNQUIST
o State’s objective were substantial
o Men should not be able to invoke stricter standard
▪ Post-Boren
▪ Mississippi University for Women v. Hogan (1982) – O’CONNOR
• Univ. was made specifically for woman, denied male nurse adm.
• State axn = university
• Denial of male = burden, intentional class based on gender
• Applying Brennan Frontiero test to see if suspect
o No real history of discrimination against men
o State trying to argue that men in nurse should be like affirmative action
o Ct doesn’t by remedial discrimination arg.
• Reaffirms intermediate scrutiny for gender, but does not apply intermediate scrutiny at all – School’s policy U/C
• DISSENT – POWELL
o Rejection of higher standard
▪ JEB v. Alabama (1994) – BLACKMUN
• State used preemptory challenges to strike male jurors on a case trying to award mother child support
• State action = court
• Circumstantial evidence of discrim.
• Use of Inter. Scrutiny
▪ US v. Virginia (1996) – GINSBURG
• Virginia military institute is male-only and denied women adm.
• After 1st round of trials, VMI set up separate facilities for females but they were not equal
o State action ( school run by State (VA)
o Denial – women bear burden of non-military education
o Intentional classification – direct evidence of denial
o Suspect class – Gender
▪ Gender = quasi suspect class
o Intermediate scrutiny applied
• Maj. Says they apply I/S, but uses term “exceeding persuasive justification for action” ( sounds like SS
o Discusses differences in schools
o New “women’s military” academy is separate but NOT equal (Sweatt v. Painter analogy)
▪ Separate but equal analysis off the table
o For I/S asserted justifications of single sex ed and method of training were not enough
• CONCURRENCE – REHNQUIST
o Believes that separate but equal institutions would have been OK
• DISSENT- SCALIA
o Dissenting based on scrutiny use, believes maj. Used SS
▪ Would prefer rational basis scrutiny
o Does Frontiero analysis
▪ Finds that women not politically powerless b/c of #’s in electorate and
▪ Women get legislation that favors them
▪ Gedulig v. Aiello (1974) – STEWART
• CA disability law denied coverage for pregnancies
• State action = CA
• Denial? – of disability benefits
o Benefit – non-pregnant men, non-pregnant women
o Burden – pregnant –women denied benefits
• Intentionally classification ( facial classification based on PREGNANCY
o Circumstantial evidence used to show only women
• Pregnancy as suspect class? ( nonsuspect
o Maj. Says pregnancy is NOT a gender classification
• Rational basis scrutiny applies ( upholds law
o Never overruled but Title VII barred this
• DISSENT – BRENNAN
o This is an obvious gender class ( look at circ. Evidence
▪ Caban v. Mohammad (1979) – POWELL
• NY law grated mom but not dad of illegit child right to block kid’s adoption by withholding consent
• State action – NY law
• Denial? – benefit goes to moms, not to dads
• Intentional classification – based on which parent
• Suspect class? – gender based – therefore quasi suspect
• Intermediate scrutiny invoked
o Impt Gov’t objective? ( yes, wanted parents to have relationship with child
o Substantially related to ends? ( no, just an overbroad gender classification based on gender stereotypes
• DISSENT –STEVENS
o Believed that gender differences real so that means would be substantially related to end
▪ Nguyen v. INS (2001) – KENNEDY
• Treated kids born out of wedlock to citizen parent differently depending on if citizen parent was mother or father
• State action: INS = fed. govt action letting kids in
• Denial:
o Benefit = mother who had out of wedlock kid
o Burden = father with kid b/c he had to prove blood relationship, promise of $ support, and paternity
• Intentional classification ( based on parents
• Suspect class ( gender = quasi suspect
• Intermediate scrutiny applied
o Impt gov’t objectives ( 2
▪ 1) assuring biological parent/child relationship exists
▪ 2) child + citizen parent have relationship
o Means Substantially tailored? – YES
• DISSENT – O’CONOR
o Could use gender-neutral alternative to achieve same ends
• Takeaway: can take into account biological differences
▪ Kahn v. Shevin (1974) – DOUGLAS
• Law provided property tax exemption for widows, not widowers
• Case resolved under low lever scrutiny
• Decided PRIOR to Boren
• DISSENT-BRENNAN
o SS should have been applied (foreshadowing for his future cases)
▪ Orr v. Orr (1979) – BRENNAN (applying Boren standard)
• Alabama (state axn) law allowed women, but not men (intentional classification based on gender- quasi suspect) to get alimony
• Using heightened scrutiny
o Alienage
▪ EPC is one way to invalidate these laws, also look at Preemption
▪ Graham v. Richardson (1971) – BLACKMUN
• Lawfully admitted resident aliens denied welfare benefits
o Makes it EPC opinion by concentrating on govt benefits
• State action: fed. benefits
• Denial:
o Burden: LPRs
• Intentional classification: yes, based on origin
• Suspect class?
o Are immigrants “discrete and insular minority”
o Goes through Frontiero 4-prong analysis
▪ Historically discriminated against? ( yes
▪ Historically powerless ( yes b/c they are prohibited from voting
▪ Immutable? ( possibly, unless you naturalize
▪ Has nothing to do with immigrant abilities
o What goes against finding them suspect?
▪ Citizenship not immediately identifiable like in Carolene Products
▪ Can be mutable
▪ Other ways to participate in politics than just voting
• Maj. Decides non-citizens ARE a suspect class ( applies SS
• Overturns law
▪ In Re Griffiths (1973) – POWELL
• Used SS to invalidate Con. Law excluding LPRs from lawyering based on Graham
▪ Sugarman v. Dougall (1973) – BLACKMUN
• NY law gave only citizens right to hold civil servant jobs
• Ct used strict scrutiny, however, in DICTA, states
o Lesser scrutiny would be used if jobs go to the “heart of state functioning”
• DISSENT – REHNQUIST – alienage not immutable trait so doesn’t fit “discrete and insular minority”
▪ Foley v. Connelie (1978) – BURGER
• Law that state troopers could only be citizens
o Sugarman dictum becomes law
• Upheld law using low level scrutiny with heart of state f(x)
▪ Ambach v. Norwick (1989) – POWELL
• Using Foley reasoning, upheld law limiting public teachers to citizens
• Called it the “public function exception”
• “less demanding scrutiny required with jobs that were “bound up with operation of State as a gov’t entity”
▪ Bernal v. Fainter (1984) – MARSHALL
• Notary publics do not fall into public interest exception
• Public interest exception has to be narrowly construed
▪ Toll v. Moreno (1982) – BRENNAN
• Maryland law did not allow non-LPRs who were domiciled in state in-state tuition
• Overturned state law b/c of PREEMPTION (state law clashed with US law about diplomatic status/tax breaks)
▪ Hampton v. Mow Sun Wong (1976) – STEVENS
• Civil Service comm’n barred LPRs from fed. civil service jobs
• Not allowed to discriminate b/c they found that national interest not good enough justification
• DISSENT – REQHNUIST
o National interest substantial
▪ Matthew v. Diaz (1976) – STEVENS
• Fed. Law - LPRs not allowed Medicare b/c they had not been here for 5 yrs
• Used extremely deferential legislation b/c this was Congress’ law
• Doesn’t make sense to change scrutiny based on who is legislating
o Disability, Age, and Poverty
▪ Cleburne v. Cleburne Living Center, Inc. (1985) – WHITE
• City did not allow group home to be opened b/c the intellectually disabled would be living there
• State action = city affirmatively shut them down
• Denial: not allowed to open group home
• Intentional classification: mental disability
• Suspect class?
o Use 4 step test from Frontiero as taken from Carolene
▪ History of discrimination: Yes
▪ Is mental retardation an immutable characteristic?
• Yes, but it ranges (light to severe)
▪ Politically powerless? – not really b/c there has been lots of legislating to get fair treatment
▪ Does it have to with their ability? – yes in a social function
• Only really meets three out of four ( not politically powerless
o If you cannot meet all four factors, but meet three ( look at quasi-suspect class!
• Maj. Makes them non-suspects and purports to use low-level scrutiny, but really uses intermediate b/c they analyze the gov’t interest asserted and then strikes them down
• Called: Low-Level Scrutiny with “Bite” to overturn law
• CONCURRENCE – STEVENS/BURGER
o Only should use one tier of scrutiny ( low level/rational
o Just look at neutrality of law to come to same result (this law not neutral)
• DISSENT – MARSHALL/BRENNAN
o Would have used intermediate scrutiny
▪ Massachusetts Bd. Of Retirement v. Murgia (1976)
• Mandatory retirement law for police officers OK
• Age is not a suspect classification
o Immutable, but only for a year( when you get older
• Rational basis review to sustain law
• DISSENT – MARSHALL
o Elderly = discrete and insular minority
▪ James v. Valtierra (1971) – BLACK
• Wealth is not a suspect class = entirely non-suspect
▪ US Dept of Agriculture v. Moreno (1973) – BRENNAN
• Statute classified that households had to be groups of related people in order to get aid
• Maj. Strikes down law
• Supposed to be doing low-level scrutiny, but doesn’t
o Sexual Orientation
▪ Romer v. Evans (1996) – KENNEDY
• CO. amdt stripped protections away from those were discriminated against b/c of their sexuality
• State axn? ( Colorado Amdmt
• Deny ( protections (burden on homosexuals)
• Intentional classification – sexuality (in general)
o However ( confined by Bowers ( b/c is this a conduct or a status-based classification?
▪ Status-based classifications get heightened scrutiny
▪ Conduct based do not
• This is a MIX
• Maj. Settles on Status based
o Different than Bowers b/c this is an EPC, not a DP case
• Suspect class? – Frontiero 4 prong
• However, Kennedy doesn’t DO the 4 prong test but uses Moreno precedent
o He hints that the class is suspect, but does not apply SS
• Applies Low Level Scrutiny “with bite”
o When using LLS w/ bite ( look for ANIMUS
▪ See if Gov’t is exercising bias, motive, prejudice
• DISSENT – SCALIA/THOMAS
o This should be decided on the Bowers precedent
o State’s should be able to make these decisions
• Takeaway: look to O’Connor’s opinion in Lawrence – she makes sure that sexuality is ALWAYS a status-based classification
o Using “animus” approach – states that promotion of public morality and desire to harm a particular group can NEVER be an interest
o Economic Regulations (Minimum Rationality Review)
▪ Railway Express Agency v. NY (1949) – DOUGLAS
• NY law prohibits operation of advertising vehicles except for vehicles engaged in usual course of business (like buses)
• State action – NY law
• Deny: burden on advertisers not in regular business
• Intentional classification: non-regular course ads
• Suspect? – non suspect class
• Rationality review
o Legit gov’t objective = traffic safety, public policing purposes (yes, promoting public safety always legit)
o Means rationally related to end:
▪ Not all evils of same genus have to be eradicated
▪ Uses “One Step at a Time” approach from Lee Optical
• Upheld law b/c legislature could move slowly to help safety issues
▪ Williamson v. Lee Optical Co. (1955) – DOUGLAS
• Ok. Law that made it illegal for anyone other than optometrist to fit eyeglasses
• Upheld under deferential low level b/c Ct emphasized public health
▪ New Orleans v. Dukes (1976)
• La. Law said no pushcart vendors, only those that had been there for 8 years or longer (upheld)
▪ Takeaway: Economic Legislation = big deference to states
o Fundamental Interests – Given HEIGHTENED SCRUTINY
▪ Only two interest have been identified:
• 1) voting 2) access to courts
▪ Voting
▪ Harper v. Virginia State Board of Elections (1966) – DOUGLAS
• Va. Poll tax req’d before people could vote
• Frontiero test inapplicable
• Maj. Looks at historical analysis: voting is given to electorate
o Fee = individuous discrimination
o Note: equal treatment = individuous discrimination
• DISSENT – BLACK
o Does not want to expand the scope of substantive EP
▪ Remember, in Griswold – did not want to recognize fundamental DP interest in privacy
o Asserts 2 justifications for why poll tax is ok: 1) state’s desire to collect revenue and ) belief that voters who pay tax have more interested in furthering state welfare
▪ Justifications make law OK, voting not fundamental
• DISSENT – HARLAN/STEWART
o Relying on tradition to say that poll tax is traditional
o In Griswold, DP clause designed to protect basic values implicit in liberty ( with respect to TRADITION
▪ Griswold could be grounded in tradition
▪ Here, poll tax = tradition too!
o Harlan worried about opening pandora’s box of rights
▪ Indiana v. Crawford County ID Board (2007)
• State law requiring voter ID to vote at polls
• This is a REGULATION, not a BAN on voting
o Therefore, not subject to SS b/c not a total infringement on fundamental rights
• Takeaway: Strict Scrutiny only used when there is a BAN on a fundamental right
▪ Kramer v. Union Free School District (1969) – WARREN
• NY law that only people who could vote in school dis’t elections were those who owned taxable real property
o State axn (NY law
o Deny? ( burden on non-land owning ppl
o Intentional classification ( non-land owning
o Suspect? -( no
o Fundamental right? ( voting
o Ban or regulation ( BAN (some ppl could not vote)
• SS applied to overturn law
▪ Cipriano v. City of Houma (1969)
• Statute provided that only property owners could vote on whether a municipal utility could issue municipal bonds (Ct = U/C) = ban
▪ City of Phoenix v. Kolodziejski (1970)
• Extended Cipriano to prevent states from limiting the vote to real property owners in elections to approve the issuance of bonds
▪ Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973) – REHNQUIST
• State law limited voting in water storage district elections to property owners and that apportioned votes according to assessed valuation of land within districts
• As landowner bore entire burden of cost ( greater interest in outcome of election
• Upheld law (beginning to overturn SS for these cases)
▪ Richardson v. Ramirez (1974) – REHNQUIST
• No voting for felons even if they finished sentence & parole
• Upheld law
▪ Takeaway: With voting ( some laws survive strict scrutiny
o Access Courts – Fundamental Right Cont.
▪ Griffin v. Illinois (1956) – BLACK (plurality)
• Illinois law gave right to appeal criminal conviction but only with transcript of record ( cost money; so some D’s couldn’t appeal
• State axn ( Illinois Law
• Deny ( burden on criminal D’s (regulation)
• Intentional class ( those that could not afford transcripts
o Like a wealth-based classification
o Traditionally non-suspect
• Fundamental right? ( yes, to access criminal courts that have appellate review
• Burdening fundamental right ( yes
• Applied SS to overturn law
• CONCURRENCE – FRANKFURTER
o Right to appeal = right to liberty ( fundamental right under DP
• DISSENT – HARLAN
o No EPC action b/c no state axn and no classification
o Thinks majority just voted on fundamental fairness
▪ Boddie v. Connecticut (1971) – HARLAN
• CT law required filing fee to process divorce; P’s ≠ afford fee
• NOT decided under EPC, but under DP clause
o Found that DPC means that all people should be allowed to dissolve legal relationship
o Involved access to CIVIL courts
• Case sets stage for MLB v. SLJ
• CONCURRENCE – DOUGLAS
o Would have decided via EPC, not DPC
• DISSENT – BLACK
o Argued that opinion in Griffin was narrowly tailored to access to criminal courts, not civil courts
▪ MLB v. SLJ (1996) – GINSBURG
• Mississippi Ct terminated mother’s custody of child; to appeal she had to pay fine and record prep fee which she could not afford
• Both an EPC and DPC argument here
o DPC = fairness to pay
o EPC = denying applicants who can’t pay v. those who can
• Need to combine Griffin (criminal) and Boddie to create a similar fundamental right under EPC
o “Fundamental Family Relationship” = fundamental right
▪ Like Boddie ( marriage/divorce similar to parent/child relationship
▪ Like Griffin (criminal) ( this is quasi-criminal b/c it destroys a legal relationship
o Makes it more like Griffin (stronger precedent)
• Used Heightened scrutiny to overturn law
• CONCURRENCE – KENNEDY
o This should rest on DPC, not EPC
o Kennedy = modern Harlan (not expanding rights)
• DISSENT – THOMAS, SCALIA, REHNQUIST
o Too much burden on state-related activities (deference!)
o DP was given b/c P had hearing; no valid EP claim b/c no discrete and insular minority
▪ San Antonio Indp’t School Dist. V. Rodriguez (1973) – POWELL
• Parents alleged that their kids were getting diff’t educations based on where they lived; alleged that education = fundamental right
• Suspect class? ( wealth classification (that they allege based on tax = traditionally nonsuspect)
o Why nonsuspect?
▪ No reason to believe poorest families are clustered in one area
▪ 2) not having the best education is different than not having an education
▪ 3) wealth = traditionally nonsuspect
• Fundamental right?
o Do not have to decide if there is a fundamental right b/c P is complaining about the QUALITY of education ( not lack of education entirely
• Low level scrutiny applied – law upheld (however, state constitutional challenges sustained)
• CONCURRING - STEWART
o EPC confers no substantive right to education, creates no substantive liberties, just look at validity of classifications
• DISSENT – WHITE, DOUGLAS, BRENNAN
o EPC is made empty gesture b/c equal treatment not established
• DISSENT – MARSHALL, DOUGLAS
o EPC should be a spectrum – sliding scale of rights based on Constitution
o Poverty has social stigma, like Brown
• Takeaway: this case has profound effect on development of fundamental rights b/c if education is not a fundamental right, what is?
▪ Plyer v. Doe (1982) – BRENNAN
• Texas Law provided free public education for children of citizens and of documented aliens, but required undoc.’d aliens to pay
• State action = texas is a state law
• Denial: burden on undocumented aliens only
o Ban or Reg? ( ban on undoc. Aliens who cant pay
• Intentional classification? On undocumented aliens (facial)
o Previous aliens held as quasi-suspect
o 4 prong test
▪ History of discrimination ( yes
▪ Immutable? ( not if they naturalize
▪ Political powerless ( can’t vote, yes
▪ Has to do with their ability ( no
o If you can’t get four ( go for quasi-fundamental with 3
• Fundamental right?
o Education based on San Antonio is not fundamental
o However, needed BLACKMUN to see that this was a ban on education for some people who couldn’t afford to pay for school
o Needed POWELL to see that these kids were innocent victims and were thus a quasi-suspect classification
o Diff’t from San Antonio – quality of ed. v. ban on ed.
o Found this to be at least a quasi-fundamental right with a BAN
• Using Inter-Level Scrutiny to overturn law
• CONCURRENCE – BLACKMUN
o Education is at least a quasi-fundamental interest
• CONCURRENCE - POWELL
o Children singled out for a life-long penalty and stigma by nothing they choose to do (makes them suspect/quasi suspect)
• DISSENT – BURGER
o Court is to in the place to set a nation’s social policy
o Stepping into the f(x) of legislative branches
• Takeaway: Plyer is hard precedent to invoke b/c BRENNAN had to cobble majority together; can be challenged by saying that Ct moved away from fundamental interest strain of cases
FREE SPEECH –FIRST AMENDMENT
- Gov’t shall make no law abridging the freedom of speech”
o Three ideas free speech serves:
▪ 1. Advances knowledge/truth in “marketplace of ideas”
▪ 2. Facilitating representative democracy and self-gov’t
▪ 3. Promoting individual autonomy and self-fulfillment
- Gov’t
o 5th
o 14th
▪ 1st Amdmt incorporated into 14th via “Incorporation Doctrine”
▪ If something is a “liberty interest,” it is incorporated
• Speech = liberty interest, but not absolute right
• Whitney v. California
- Shall make no law
o With a content-based or viewpoint-based classification
▪ Can only look to content/viewpoint-based classifications if the words fall within the first amdmt [words need to be protected a little bit] (RAV)
▪ Use SS if find content or viewpoint based classification
- abridging
o ban v. regulation
▪ Time, Place, Manner Restrictions OK if narrow enough
▪ Intermediate level scrutiny (Heffron/Ward)
- the freedom of Speech – classified through categorization process
▪ Pure Speech
• High Value - SS
o Political
▪ Speech becomes high level by default
o Sexually Explicit but not Obscene??
▪ Courts have generally found that such restrictions on sexual expression are OK as long as they do not wind up being de facto prohibition on dissemination
▪ But not totally core political speech
• Inter-value – Intermediate Level Scrutiny
o Indecent words broadcasted
o Commercial speech
▪ Analyzed through CONTEXT
▪ Overbreadth not used with commercial speech
▪ TEST:
• To be called commercial speech: need speech that is about a lawful activity AND is not fraudulent
• 2)whether government interest is SUBSTANTIAL and whether means Directly advances governmental interest AND whether means are reasonably related to end (Hudson as modified by Fox)
o DIFFERENT that EPC
▪ Here – substantial govt interest & means reasonably related to end (commercial) v.
▪ Need Important Government Objective AND Means substantially related to end (EPC)
• Low value – Low level scrutiny
o 1) Inciting speech (inciting misconduct in others)
▪ Have intent to speak words that will stir up breach of peace
▪ Justification is that gov’t is regulating the CONDUCT that inciting speech causes
o 2) Fighting (inciting misconduct towards speaker)
▪ 2 DEFINITIONS
▪ 1. Words that tend to incite immediate breach of speech towards speaker (Brandenburg – tight connection between speech + conduct)
• Needs to be directed at the hearer
• Need intent
▪ 2. Words that inflict injury by their very utterance (Chaplinsky definition in dictum)
• Cts have not embraced the 2nd def.
o 3) True Threat/Intimidating words
▪ Intending to place victim in fear of bodily harm/death (Virginia)
o 4) Obscenity
▪ 4a) Obscenity as to minors
▪ 4b) Child pornography
o If Speech is low level ( it is subject to regulation
o Low value speech only slightly protected after RAV
▪ Pre-RAV – low value speech was not speech
o Can regulate low-value speech if:
▪ Regulation is broad enough to cover entire “low value” box (RAV)
▪ Regulation predominately regulates conduct (Wisconsin)
▪ Regulation targets core of box (Virginia v. Black)
• Thus can regulate “subset” of box if it is core (hardest core pornography v. just pornography)
• What is the “core” of the low level speech box?
o Ask what ct is getting at by creating box?
o Then ask – what is the worst kind of behavior that could fit in this box
▪ If statute neutrally targets core ( OK
▪ Conduct
• O’Brien: Is this Suppression of Expression?
o Expressive Conduct (like Pure Speech)
▪ High
▪ Intermediate
▪ Low level Scrutiny
• If you have expressive conduct, then next step is to figure out what category of speech the gov’t is suppressing
• Then apply that level of scrutiny
o Conduct with incidental impact on speech
▪ Intermediate level scrutiny
▪ See O’Brien/Ward
o Pure Conduct
▪ NOT protected
- [without justification]
o Strict
▪ Compelling state interest
▪ Means narrowly tailored to end
o Intermediate
▪ 3 TYPES
• Commercial Speech intermediate (Central Hudson/Fox)
o Substantive Gov’t interest
o Directly advance the ends?
o Means reasonably related to ends?
• Conduct w/ incidental impact on speech (O’Brien/Ward)
o Substantive gov’t interest
o Means reasonably related to ends?
• Time, Place, manner Restrictions (Heffron/Ward)
o Significant gov’t interest
o Means reasonably related to end (Ward)
o Leave open ample alternative channels (heffron)
▪ Makes sure this is t,p,m and not a ban
o Low
▪ Legitimate gov’t interest
▪ Means rationally related to ends
- [or without overbreadth]
o 1. Standing – gives person standing to claim that a 3rd party right was violated
o 2. Statute’s facially invalid – no need to challenge “as applied”
▪ Overturns whole statute
o Require “Substantial Overbreadth” to invalidate a law
o Only applicable to first amdmt (not commercial speech)
- First go through steps to see what type of speech is it
- If it is low level, go back to see if it is content/viewpoint based to get heightened scrutiny
- Inciting Words
o Schenk v. United States (1919) – HOLMES
▪ Espionage Act of 1917, P’s charge with conspiracy to commit insubordination against military/navy during WWII b/c P circulated document that argued that draft violated 13th Amdmt
▪ 5th v. 14th? ( 5th b/c it’s a federal act
▪ What kind of speech?
• Says this is “INCITING speech”
• Articulates “Clear and Present Danger Test” to see if speech is protected
o Clear & Present Danger = matter of proximity and degree
▪ Maj. States the conduct that creates a clear & present anger of conduct that Congress tries to prevent is NOT speech
▪ Found this was the type of speech here
▪ Upheld Espionage Act
▪ Takeaway: at this point, inciting speech is not protected AT ALL
o Abrams v. United States (1919) – CLARK
▪ Russian immigrants circulating leaflets objecting to US sending troops to Eastern Europe after Russian Rev & advocating a strike in ammo factories
▪ Maj. Uses clear and present danger test to show that people have to be responsible for effects that their speech are LIKELY to produce
▪ Upheld conviction
▪ DISSENT – HOLMES
• Reframed C&P danger test
• Congress can regulate speech that is an immediate threat of imminent harm
• Distinguishes from Schenk b/c threat not met with “silly pamphlet”
o Whitney v. California (1927) – SANFORD
▪ Woman convicted under CA syndicalism act, she was part of Commie party that advocated violence, even though she wanted a peaceful political process
▪ She challenged the statute as APPLIED (to her)
▪ Law upheld as applied to her however
▪ If she had challenged the statute on its face (facial challenge), it would have been a different story
▪ CONCURRENCE – BRANDEIS, HOLMES
• Really dissenting b/c they think statute should be U/C
• Hinting towards overbroad statute b/c it bars high value political speech
▪ Takeaway: Set space for doctrine of overbreadth
o Dennis v. US (1951) – VINSON
▪ Narrows Clear and Present Danger yet
▪ Violation ins only when speech is directed at inciting/producing IMMINENT LAWLESS ACTION
o Takeaway: Dennis and Whitney set precedent for Brandenburg
o Brandenburg v. Ohio (1969) – PER CURIAM
▪ Leader of KKK convicted under Ohio syndicalism act, evidence of “incitement” videotaped at rally; supposed march on Washington
▪ Court uses precedent to fashion NEW test:
• Incitement only if:
o 1. Advocating/producing lawless action that is
o 2. Likely to produce imminent lawless action
▪ Different than C&P danger b/c of imminence requirement
▪ No incitement here b/c D’s were advocating FUTURE (not imminent) action
▪ Law did not distinguish between advocating violence for political reform and imminent violence
• Thus, law is also OVERBROAD
▪ CONCURRENCE – BLACK
• C & P danger doctrine should have no place in 1st amdmt jurisprudence
▪ CONCURRENCE – DOUGLAS
• 1st amdmt should not be subject to C&P danger test in times of peace
o Cohen v. California (1971) – HARLAN
▪ Man w/ jacket walked around Ct house with “Fuck the Draft” written on back; during Vietnam era
▪ Analyzed as both an “inciting words” and “fighting words” case
• Inciting Words:
o Not advocating lawless action, just using vulgarity
o Not likely to produce lawless action
▪ Unwilling views not enough to curtail speech
• Fighting Words
o Analyzed under Chaplinsky
▪ Is it a personally abusive epithet is inherently likely to provoke a violent reaction?
• Not a personal threat
• No evidence anyone had violent reaction
o Or was there intent to incite disobedience?
▪ No
o Was it directed at the hearer? ( No
• If not fighting words/inciting words ( high level speech by default
• SS applied
o No compelling state interest
o “one man’s vulgarity is another man’s lyrics”
• Overturned Conviction
• DISSENT – BLACKMUN, BURGER, BLACK
o Jacket is not speech
- Fighting Words
o Cantwell v. Connecticut (1940) – ROBERTS
▪ Jehovah’s witness arrested for proselytizing for breaching peace
▪ Fighting words test:
• Need indecent/abusive language to cause breach of peace or
• Personal abuse inflicting immediate injury
▪ Passersby were somewhat offended, but no one acted violently and he backed down when people asked him to move
• NOT fighting words if you back down
▪ Invalidate conviction
o Chaplinsky v. New Hampshire (1942) – MURPHY
▪ Jehovah’s witness engaged in distributing literature on side of streets, when arrested he told city marshal that he was a “damned fascist”
▪ Began categorizing speech that was NOT protected under 1st amdmt
• Included: lewd, obscene, profane, libelous, insulting, or fighting words
• Defined fighting words as: words that by their very utterance inflict injury
▪ Since lower court’s question was narrow: just whether gov’t could regulate fighting words
▪ Thus, SCOTUS did not have to consider whether offensive speech was low-level speech (last SCOTUS case on fighting words)
▪ Upheld Conviction
- Hate Speech
o The Skokie Controversy (1977 & 78) – BLACKMUN 2nd time around
▪ Nazis stage march in predominately Jewish suburb
▪ After 1st time in SCOTUS, Skokie adopted ordinances that were intended to prevent Nazis from marching
▪ 7th Circuit declared ordinances U/C (never made it to SCOTUS again)
▪ Takeaway: expression of hate speech = protected speech
o Police Dep’t v. Mosley (1972) – MARSHALL
▪ Chicago ordinance prohibited picketing while school was in session unless you were in a labor dispute; P was not in labor dispute but picketed
▪ Maj. Treats this as EPC case b/c 2 protestors treated unequally
▪ Found a content-based classification
• Non-labor union protestors were not allowed to “speak”
▪ Takeaway: First articulation of content based regs (used by Scalia)
o Gooding v. Wilson (1972) – BRENNAN
▪ Georgia statute prohibiting use of abusive language tending to cause breach of peace, anti-war demonstrating and says “I’ll kill you”
▪ Maj. Writes that the statute is overbroad and reverses conviction
o US v. Robel (1967) – WARREN
▪ Ct overturned Fed. law criminalized membership of commie party to be employed in defense facility
▪ Ct disavowed balancing approach ( only categorizing speech
o RAV v. City of St. Paul (1992) – SCALIA
▪ City of St. Paul ordinance prohibited placing certain symbols on public/private property that raised alarm/anger based on race, color, creed, gender, religion
▪ Maj. Assumes that these kinds of symbols are under “fighting words doctrine”
• Did not want to decide case on overbreadth, so have to classify words (intent to incite breach of peace or words that inflict injury)
▪ Viewed statute as a content-based classification
• Statute protects some groups listed but not others
o In order to use content-based classification ( need to make sure words fall w/in scope of 1st amdmt
• Here, statute is content based b/c it is UNDERINCLUSIVE
• Protects people on basis of some things but not others like labor unions
▪ First case to give “fighting words” protection under first amdmt
▪ If “Low-Level” speech ( Rational Basis Scrutiny
▪ However – if Content-Based classification ( STRICT SCRUTINY
• CSI ( yes, public interest
• Means narrowly tailored to ends? ( No
o City failed to use broad means to regulate ALL fighting words – not just some
▪ In Dictum, writes: Content-based distinctions within a category of unprotected speech will have to meet strict scrutiny with 2 exceptions
• 1. Permissible if it directly advances the reason why the category of speech is unprotected (ie obscenity)
• 2. OK if directed at remedying secondary effects
▪ Invalidated ordinance
▪ CONCURRENCE – WHITE
• Concentrates on overbreadth of statute
• Fatally overbroad b/c it criminalizes protected and unprotected expression
• Worried about “arouses anger, alarm or resentment”
o These are not confined to fighting words
▪ CONCURRENCE – BLACKMUN
• No first amdmt compromise b/c St. Paul is punishing fighting words
▪ CONCURRING – STEVENS
• Should not categorize speech but subject all speech to balancing
• Speech is a hierarchy and is concerned that majority giving fighting words same protection as political speech
o Spectrum of protected speech needed
• Disagrees that this is content-based but rather, regulating harm
▪ Takeaway: 3 ways to interpret RAV
• 1. Fighting words will only be upheld if ordinance does not draw content based distinction among types of speech
• 2. Strong presumption against content based discrimination within categories of unprotected speech
• 3. Should RAV have met Scalia’s exception
- Post- RAV
o Wisconsin v. Mitchell (1993) – REHNQUIST
▪ Wisc. Statute enhanced penalty based on whether D intentionally selected victim based on race, religion, color, disability, sexual orientation, etc; Group of black boys beat up white boy here violating statute
• This is a “content-based classification”
▪ Maj. Distinguishes this case from RAV
• Statute does not concern types of speech, but motive of conduct
• If State wants to regulate hate speech ( they have to do it in conjunction with regulating conduct
o Thus makes it fully outside first amdmt protection
• Thus can regulate hate CRIMES (conduct) with content-based classification, but cannot regulate hate SPEECH (speech) with content-based classification
▪ Takeaway: RAV limited!
• Content and viewpoint based classifications are prohibited when regulation is only targeted at Speech
o Virginia v. Black (2003) – O’CONNOR
▪ Va. Statue made it unlawful for any person w/ intent of intimidating another to burn cross on public/private property; cross burned here on private property
▪ Content-based classification?
• No language of race, ethnicity, or gender in statute ( does not trigger rule of RAV
▪ O’Connor creates NEW category of low-value speech – true threat
• True threat – speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm/death
• Resuscitating Chaplinsky definition of fighting words as “injurious”
• True treat = core of Chaplinsky definition
• Using SCALIA in RAV
o Can regulate against the specific reasons why the particular class of speech at issue is proscribable
▪ Since low-level speech ( apply low level scrutiny
• Legit gov’t interest? ( safety, yes
• Means rationally related to end? ( no
o Statute made it too easy to prove intent to intimidate and infringed on high-value speech
o Maj. Argues cross burning could be high value
▪ Just b/c you have a nasty message doesn’t mean you lack a political message at all
▪ CONCURRENCE/DISSNET – SCALIA
• Entire statute is constitutional
▪ DISSENT – THOMAS
• Statute addresses only conduct and thus is taken out of first amdmt protection
• Subject to DPC/EPC only but not 1st amdmt protection
- Obscenity
o Miller v. California (1973) – BURGER (pre- RAV)
▪ CA crim. law criminalized knowingly distributing obscene ad/brochures for “adult” material through the mail.
▪ Is it under protection of First Amdmt
• Since this is pre-RAV, low value speech does not exist yet
▪ Applies Roth Test – what is obscene
• 1) Whether the average person, applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest (lustful, lascivious thoughts)
o Determined by community standards
• 2) Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law and
• 3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
▪ Finds that speech is obscene and thus, post Roth ( no protection at all
▪ Upholds conviction
• What would have happened post-RAV?
o Would have been low-value speech (obscenity, fighting words, inciting words = low value)
o Would have been a content-based regulation
▪ b/c not targeting distributing but what was inside
o probably would have upheld a statute that regulated the distribution of hardest-core porn
▪ DISSENT – DOUGLAS
• Obscenity too loosely based for crim. conviction
▪ DISSENT – BRENNAN, MARSHALL, STEWART
• Statute is overbroad for criminal penalties in context
• Community standards test is too hard to discern
o Community Standard in Obscenity
▪ Hamling v. US (1974)
• Local rather than statewide or national standards used in obscenity prosecutions
▪ Jenkins v. Georgia (1974) – REHNQUIST
• Judges do not have total discretion in deciding what was patently offensive
• Obscenity does not reach mainstream material
▪ Smith v. US (1977)
• Determination of community standards is a question for the jury
• HOWEVER, “literary, artistic, or political/scientific value is NOT to be measured by communities”
▪ Pope v. Illinois (1987)
• Value of speech not measured at local level, but subject to reasonable person test
- Child Porn/Porn as it relates to Minors
o Ginsberg v. NY (1968) – BRENNAN (pre-Miller)
▪ Ct asked if material was patently offensive to parents of minors
▪ Creates a new box of law speech – “Pornography as it Relates to Minors”
• States can regulate material that is obscene with regards to adults AND
• State can regulate material that is obscene with regards to minors
o NY v. Ferber (1982) – WHITE
▪ Charged with owning bookstore that specialized in selling sexually oriented products that depicted boys masturbating
▪ Maj. Classified child porn as a category of materials wholly outside 1st Amdmt protection (like Chaplinsky fighting words)
▪ Maj. Calls out new category – Child porn
• Different than obscenity b/c it actually harms children
• Creates modified Miller standard
o 1) here is does not need to appeal to the prurient interest of the average person
o 2) does not need to always be done in a patently offensive manner and
o 3) the material at issue need not be considered as a whole
▪ Uses a more state-deferential test
▪ As this is a BAN ( should SS be applied?
▪ Maj. Hints that they are using SS b/c they call out CSI
• Preventing harm to children = beyond compelling interest
▪ CONCURRENCE – O’CONNOR
• Statute is not overbroad enough to warrant facial attack
• Audience appreciation of child porn is wholly irrelevant
▪ CONCURRENCE – BRENNAN/MARSHALL
• Some significant value in child porn (literary, artistic merit)
o Osborne v. Ohio (1990)- WHITE
▪ Stanley rule (free to consume obscenity in home) found Inapplicable to possession of child porn
▪ Ban ( SS?
• No strict scrutiny
• SS only applied when there is an outright ban on something OTHER than core low-level speech
▪ Compelling state interest in eliminating full chain of child porn distribution
▪ DISSENT – BRENNAN
• Statute itself is overbroad
o Ashcroft v. Free Speech Coalition (2002) – KENNEDY
▪ Child porn prevention act of 1996 (CPPA) outlawed all child porn, including images not made with real children (virtual child porn)
▪ Question: Did this fit within the box of Child porn (Ferber) or was statute overbroad?
• Concludes that Congress has not stayed within Ferber box
▪ Found that statute was overbroad b/c virtual child porn does not harm actual children
• No proof that State needs this to help prosecute ppl with child porn
▪ Left room for Congress to rethink the Act
▪ CONCURRENCE – THOMAS
• When technology does evolve to where you cannot tell difference between real and fake kids, gov’t should be allowed to regulate
▪ CONCURRENCE – O’CONNOR
▪ Barred prosecution of adults that look likes kids
o DISSENT – REHNQUIST/SCALIA
▪ Congress has compelling interest here in protecting kids
▪ Believes on its face that it IS narrowly tailored
- Sexually Explicit but not Obscene Speech
o Ernozik v. Jacksonville (1975) – POWELL
▪ Drive in movie theater showing films with sexual content; city had ordinance that prohibited exhibition of the human male or female bare but, breasts or pubic area
▪ Facial Challenge
▪ Obscenity (low level speech ) v. Nudity
• Obscenity = CORE bad speech
• Nudity is the least of the obscene
o Portrayal of nudity may not be obscene
o Therefore, can’t have outright ban on nudity b/c not core low level speech
▪ Outright bans on things OTHER than CORE low-level speech trigger heightened scrutiny
• Compelling state interest ( traffic safety is compelling
• Least restrictive means analysis ( rejects state justifications
▪ 2 rulings:
• Law is overbroad with regards to access to minors AND
• Doesn’t meet SS for traffic safety
▪ DISSENT – BURGER/REHNQUIST
• Reads Maj. Opinion as classifying nudity as high value speech
• Would apply low-level scrutiny
• If just traffic at issue ( no true 1st amdt issue invoked
- Indecency Bans in the Communications Media
o FCC v. Pacifica Foundation (1978) – STEVENS
▪ 7 filthy words skit played on radio during day, dad heard it in car w/ kid, FCC fined radio station focusing on time of day it played
▪ Core low level speech? ( no, just dirty words
• Maj. Says this is “Intervalue speech”
o Intervalue speech = speech that is normally without value, but that is valuable in some instances
o Social value Determined by looking at context
▪ Ban or regulation?
• Forward looking BAN (outright on times of day)
• OR could also be looked at as regulation (time, place, manner)
o Maj. Looks at it as T,P,M regulation
▪ Since it is an outright ban on something other than core low-level speech ( SS invoked?
• NO
• Intervalue speech ( wants to be able to defer to state regs/bans on indecent/profane speech
▪ Context = Broadcast media ( 2 reasons why FCC sanctions were OK
• 1) Unique nature of the radio (extremely pervasive)
• 2) Radio uniquely accessible to kids
▪ This is a Time, Place, and Manner restriction ( OK (narrow holding)
▪ 2 ways to look at why he upheld law
• 1) FCC narrow regulation on interlevel speech
• 2) nature of the radio
▪ CONCURENCE – POWELL/BLACKMUN
• Do not talk about high/low value speech
• This is not a BAN but a REGULATION (TPM)
o If not a ban ( not SS
• Agree its intermediate value speech
▪ DISSENT – BRENNAN/MARSHALL
• Aware that other concurrence talks about TPM
• He targets the type of speech
• Concerned that this was high level speech – subject to SS
• Carlin ( had message/and political
o Maj. Could wind up banning literary/political works
• Disagreed with nature of radio ( can just turn it off
o Sable Communications v. FCC (1989) – WHITE
▪ Fed. Communications Act 1934 amended to outlaw obscene or indecent phone messages (included dial-a porn, pay per message calls)
▪ Differentiated from Pacifica
• Here – a total ban (not a TPM restrictions)
• Here – not like radio – you have to contact them
o Therefore, Pacifica not controlling
▪ What type of speech?
• “sexual expression which is indecent but not obscene IS protected by the first amdmt”
• HIGH value speech
▪ Ban on High value speech ( triggers SS
• CSI ( protecting kids (always CSI)
• Means narrowly tailored? ( no
▪ Overturned law
▪ CONCURRENCE – SCALIA
• Suggests that if law became narrowly tailored ( it would be ok
▪ CONCURRENCE – BRENNAN, MARSHALL, STEVENS
• Dissented that obscene communications should not be restricted in this way
- Commercial Speech
- Pre-1976
o Valentine v. Chrestensen (1942)
▪ Ban on distributing handbills soliciting submarine ride
▪ Explicitly held that commercial speech was low value speech
▪ Low value b/c just state purely factual matters
o Pittsburgh Press Co. Pittsburg Human Relations Comm’n (1973)
▪ Ordinance prohibited newspapers from listed employment ads in gender designated columns
▪ Upheld sex discrimination ordinance b/c employment advertising as commercial speech is not subject to first amendment protection
o Bigelow v. Virginia (1975)
▪ Virginia could not criminalize ads in Virginia newspapers showcasing the availability of abortions in NY
- 1976 – giving protection to commercial speech
o Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976) – BLACKMUN
▪ Virginia law said that pharmacists were guilty of unprofessional conduct if they advertised price of prescription drugs
▪ Govt? – Virginia (14th)
▪ Ban or Regulation ( total ban
▪ Type of speech – commercial speech
• High, low, intervalue?
• Emphasizes freedom of information – helping to promote democracy, marketplace of ideas
o Political and economic interest connected
o Protecting a CLEAR public interest
• Probably felt it was high value speech, but does not articulate it clearly
▪ NO language of what scrutiny level is used
• Believes he was using SS (see Central Hudson concurrence)
• Cuts down state justifications after analysis
• However, Commercial speech can be regulated IF:
o 1) the regulation is neutral and not content based
o 2) it serves a significant government interest (drawing up intermediate scrutiny) and
o 3) ample alternative channels for communication exist
▪ DISSENT – REHNQUIST
• Would rather apply low level scrutiny and call it low value speech
• Believes that the majority opinion will allow dissemination of info that is normally discourage
▪ Takeaway: 3 limitations on commercial speech protection
• Free speech protection does not extend to:
o 1) advertisements for illegal transactions, or
o 2) factually false or misleading information or
o 3) special procedural protections such as the ban on prior restraint
- Post-Virginia
o Central Hudson Gas v. Public Service Comm’n (1980) – POWELL
▪ NY public service commission prohibited electrical utilities from engaging in promotional advertising designed o stimulate demand for electricity, even alternative fuels/sources of engery
▪ Govt ( NY law
▪ Ban/Regulate? ( BAN
▪ What type of speech? ( Commercial
• Application of Virginia test
o 1) To be called commercial speech: need speech that is about a lawful activity AND is not fraudulent
o 2)whether government interest is SUBSTANTIAL and whether means Directly advances governmental interest AND whether means are not more extensive than necessary to serve that interest
• Means need to be reasonably related to end (Modified by Fox)
▪ Is about a lawful activity + is not fraudulent
▪ Promoting substantial gov’t interest? ( conserving energy (OK)
▪ Means no more extensive than necessary? ( YES
• Limits all advertising, even promotion of alternatives that would help shortage (too broad)
▪ Overturned law (probably would have upheld law after Fox)
▪ CONCURRENCE – BLACKUN, BRENNAN
• OK with intermediate level scrutiny but not OK with test used
▪ CONCURRENCE – STEVENS/BRENNAN
• This is not commercial speech, but speech dealing with promotion of alternative energies
▪ DISSENT – REHNQUIST
• Speech here not entitled to 1st Amdmt Protection
• Reasserts that economic speech is subordinate to political speech
• Utility is like state owned entity ( state can regulate economic activity
o Bolger v. Youngs Drug Products Corp (1983) - MARHSALL
▪ Unsolicited ads for contraceptives were being handed out at a drug store and they spoke about venereal disease and condoms
▪ Ads were discussing public issues ( were entitled to substantial first amdmt protection
o Board of Trustees State Univ. Of NY v. Fox (1989) - SCALIA
▪ Tupperware parties were being held on campus with the “public interest” agenda of being financially responsible
▪ Rejected public interest agenda and stated that it was pure commercial speech
▪ Mere links to constitutional issues is not enough to get first amdmt protection
▪ ***MODIFIED Central Hudson test
• Now means only have to be reasonably related to end
▪ Takeaway post Fox ( commercial speech = intermediate level scrutiny
- Content Neutral Laws
o Where legislature tries to write a Ban or regulation on type of conduct that infringes on free speech (incidental impact) ( Intermediate scrutny
o 2 types of content neutral laws:
▪ 1) aimed at behavior and has incidental speech impact OR
▪ 2) aims at expression but is not for content reasons
o United States v. O’Brien (1968) – WARREN
▪ O’Brien burden draft cards at Ct. house, under Congressional statute ( mutilating/changing draft card was illegal
▪ Ban or Regulation? ( ban on changing draft card
▪ Speech or Conduct?
• On its face, statute deals only with conduct
• However, applied in such a way as to “squelch his speech”
• Is his conduct speech (expressive conduct like RAV)?
o Ct says no – 1st amdmt not limitless, not all expressive speech triggers 1st amdmt
▪ Maj. Creates NEW categogy
• “Legislation that regulates conduct that has an incidental effect on speech”
▪ Calls out scrutiny level
• 1) regulation within official power of the gov’t (not really a big prong b/c all statutes/regs are within power of govt)
• 2) Substantial Governmental interest
• 3) is the gov’t interest unrelated to the suppression of free expression (this is the prong you need to start with)
o Start at 3rd prong b/c if the gov’t’s interest is related to suppression of expression ( you have a content-viewpoint based classification (RAV/Virginia)
o That would invoke strict scrutiny
o If not ( intermediate scrutiny is applied
• 4) whether means no greater than necessary ( becomes “whether means are reasonably related to end (becomes Central Hudson as modified by Fox)
▪ 3rd Prong analysis ( is gov’t interested in suppressing free speech?
• Maj. Says no ( only interest in maintaining draft cards
▪ Therefore ( intermediate level scrutiny applied (not heightened)
• Substantial gov’t interest ( protecting national security (OK)
• Means related to end?
o Yes, b/c if you destroy draft cards undermines being able to build an army
▪ Upholds statute even as applied
o Texas v. Johnson (1989) – BRENNAN
▪ Burning American flag is violation of Texas law; flag was burned in political protest at Republic national convention
▪ Govt? ( texas law
▪ Law? ( this is a regulation on flag desecration
• Since this is a law on conduct, need to apply O’Brien test to see what level of scrutiny applies
▪ Is the regulation related to suppression of expression? O’Brien Test
• Compares statute to statute in O’Brien
o Does not prohibit degradation of ALL flags, just where it would seriously offend someone
o Therefore ( statute is targeted at expressive conduct NOT JUST SPEECH
▪ See if it targets speech by looking at effect of statute, but only look at statute’s face
▪ Therefore outside O’Brien’s less stringent test
o What kind of expressive conduct was it barring?
▪ Political speech (at political rally)
• That is high level speech
▪ Since related to suppression of expression of political speech ( look for content/viewpoint based classification (RAV)
• Content-based b/c it is classified as “offensive” flag burning
▪ Thus ( triggers Strict Scrutiny
• Compelling state interest?
o Breach of peace ( not good enough b/c no immediate threat found here
o Preservation of flag as unity is related to suppression of expression (both interests rejected)
▪ 2 state interests asserted
• 1) breach of peace
• 2) preserve flag as symbol of national unity
▪ Overturns conviction
▪ DISSENT – REHNQUIST, WHITE, O’CONNOR
• Believe that flag burning is akin to fighting words
• This is targeting pure conduct, not speech
▪ DISSENT –STEVENS
• Not punished for expression of ideas, but for the way in which he did it
- Time, Place, and Manner Test – designed to promote public order
o Cox v. Louisiana (1965) – GOLDBERG
▪ Breach of peace conviction arising from civil rights demonstration
▪ Invalidated breach of peace conviction arising from civil rights demonstration
▪ Found discriminatory application of traffic safety law
o Heffron v. International Society for Krishnna Consciousness (1981) – WHITE
▪ Booth rule restricting literature at a county fair, could only distribute on first come, first serve basis, Krishnas says it violated beliefs.
▪ Ban v. Regulation?
• Time, Place, and Manner Restriction HERE b/c not saying that Krishna’s couldn’t distribute, but couldn’t do it inside fair
▪ T, P, M regulations IF (TEST)
• 1) they are neutral AND
• 2) modified intermediate level scrutiny
o A) significant gov’t interest
o B) means reasonably related to end, AND
o C) whether the reg left open ample channels for communication
▪ Allows ct to monitor “purity” of TPM reg
▪ Found TPM OK here ( upheld reg
▪ DISSENT – BRENNAN (partial dissent)
• Not narrowly tailored enough
o Police Dept v. Mosley (1972) – MARSHALL
▪ Barred picketing in front of school while in session except if labor dispute
▪ Ban v. Regulation?
• T,P,M restriction ( telling people where they can/can’t stand
▪ Conduct v. Pure speech
• Conduct
o O’Brien’s 3rd prong – suppression of expression?
▪ YES, b/c gave exemption for peaceful picketing, therefore suppressing an idea
▪ Look for content/viewpoint based reg?
• Content based ( anyone but labor
▪ Therefore ( triggered strict scrutiny
• Not true TPM, b/c became a ban on types of political speech
• Therefore ( regulation
o Ward v. Rock Against Racism (1989) – KENNEDY
▪ City had law that city had to control concert sounds for volume control
▪ Uses O’Brien test for T,P,M (b/c its regulating conduct)
▪ Modifies O’Brien test
• For intermediate scrutiny ( means only have to be reasonably related to end
o Metromedia v. San Diego (1981) – WHITE (plurality)
▪ San Diego ordinance regulating billboard displays to eliminate hazards to pedestrians and motorists brought about by distracting sign displays
▪ Takeaway: Court gives LARGE deference to gov’t interest in regulating aesthetics
FREE EXERCISE + FREE RELIGION
- “Congress shall make no law respecting an establishment of religion or prohibiting the exercise thereof
- Gov’t
o 1st
o 14th
- Shall Make No Law
o Criminal
o Civil (taxes)
o Exception to Funding (Davey)
- Prohibiting the Free Exercise of Religion
o Belief
▪ Absolute protection
o Conduct
▪ Not absolute protection
▪ Restrictions can be justified
- [or by an intentional classification]
o Classification
▪ Malign? (Santeria?)
▪ Benign? (Davey?)
o Direct evidence of classification
▪ Facial classification
o Circumstantial evidence
▪ Yick Wo
- [or by a neutral law with an incidental effect on religion?]
o Neutral law w/ incidental effect is OUTSIDE scope/protection of 1st Amdmt
▪ Smith (SCALIA)
- [without justification]
o Strict Scrutiny
▪ Compelling gov’t interest
▪ Means narrowly tailored to ends
o Low level Scrutiny
▪ Legit Gov’t objective
▪ Means rationally related to ends
- Everson v. board of Education (1957) – BLACK
o Held that state may pay to bus children to/from parochial school
o Two takeaway principles from this case: Voluntarism and Separatism
▪ “Voluntarism means that the advancement of a church would come only from the voluntary support of its followers and not from the political support of the state.”
▪ “Separatism means that both religion and government function best if each remains independent of each other”
- Rosenberger v. Rector (1995)- THOMAS
o Va. Included religious magazine as subsidized student activities
o Cannot single out religion for special benefits but govt can still participate in neutral ways
o Upheld gov’t ability to participate
- United States v. Seeger (1965) - CLARK
o Law that held that people may be exempted from military combat by conscientiously objecting through religious training and belief
o Here, seeger stated on draft card that he left his belief in a higher being “Open”
o Test for what constitutes belief:
▪ “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”
- Welsh v. US (1970) – BLACK (plurality)
o Military exemption even though Welsh had struck the word religious on his application
- Gillette v. US (1971)- MARSHALL
o Congress could constitutionally refuse to exempt those who did not oppose all wars but only particular conflicts (faithful catholic – just/unjust wars)
- US v. Ballard (1944) – DOUGLAS
o Ds were indicted under federal mail fraud laws b soliciting for “I Am movement” claiming they had been selected to distribute divine messages
o 1st amdmt bars trier of fact from examining truth of religious beliefs
- Church of the Lukumi Bablu Ayev v. City of Hialeah (1993) – KENNEDY
o City ordinance prohibited ritual slaughter of animals; but made certain exceptions for Kosher slaughter and more, but Santerians still can’t practice
o Gov’t ( 14th (city gov’t)
o Shall make no law?
▪ Criminal law
o Prohibiting Free Exercise?
▪ Need to see if this statute targets free exercise of religion
• Direct evidence ( look at text of statute
o Is not neutral at all ( makes all other exceptions except for Santerians
• Circumstantial evidence
o Lack of exceptions = yick wo style classification
o Goes into legislative history as well
▪ Legislative history shows that the statute was targeted directly at Santerians
▪ Triggers SS
o SS
▪ Compelling state interest ( to not harm animals (OK)
▪ Means narrowly tailored (no)
o Overturns law
o CONCURRENCE – SCALIA/REHNQUIST
▪ Believes that law makers – NOT COURTS – should decide the real reason for laws
▪ It is impossible to figure out the motive of the legislative body
- Locke v. Davey (2004) – REHNQUIST
o Washington Constitution said that no money or property shall be appropriated or applied to any religious worship exercise or instruction; scholarship program would pay for post-secondary ed. but not for student to train as minister
o Gov’t – State law
o Shall make no law?
▪ Exception to Fundamenting
o Prohibiting free exercise of religion?
▪ Targeted at conduct (where you can choose to go to school)
o By an intentional classification?
▪ Direct evidence? ( YES
• Statutory text specifically talks about evidence of intent to discriminate ( finds proof of intent b/c statute specifically talks about not allowing religious study
▪ Different than Lukumi
• Not about preserving religious freedom (Santerians), but about preserving funding
• Not as onerous as Lukumi ( but Maj. Chooses not to make benigh/malign distinction b/c it gets too messy
• Can either 1) apply SS or 2) concentration that fund is on a statute
o Chooses to apply low-level scrutiny
▪ State’s interest ( It’s constitution says it cannot give ANY funding to religion
• V. compelling b/ c this is the state legislating AND this is REHNQUIST
▪ Rationally related to end?
• Yep
o Upholds statute
o DISSENT – SCALIA/THOMAS
▪ This is a facial ban
▪ Maj. Opinion is devoid of any standard of review
o Takeaway: Rehnquist started OK by making criminal/funding distinction but then he gets confused
▪ By default ( he uses low level scrutiny
▪ His state gov’t interest comes in
Neutral laws affecting Religion? (outside scope of First amdmt)
- Braunfeld v. Brown (1961) – WARREN (plurality)
o Pa. Sunday closing law that made people close stores on Sunday; Orthodox jews, who had to close their stores on Saturday, said this was discriminatory
o Regulating CONDUCT, not belief
▪ Freedom to at is not w/o legislative restriction
▪ Striking down indirect burden would hinder the legislature
- Shervert v. Verner (1963) – BRENNAN
o 7th Day Adventist was discharged b/c she would not work Saturday b/c that was her Sabbath day. She would not take other jobs that made her work that day and therefore was denied unemployment benefits b/c she turned down “suitable” work
o Gov’t – Employment benefits
o Law: Denial of civil benefits? ( but not a penalty
o Targets Conduct
o Intentional classification? – religious based classification for 7th Day Adventists
o Triggers Strict Scrutiny
▪ Compelling State Interest?
• Preventing fraudulent claims ( not enough
• State not asserting any secular interests
o Overturns denial of benefits
o CONCURRENCE – STEWART
▪ Believes that this does not align with Braunfeld, should overrule it
o DISSENT – HARLAN/WHITE
▪ She was deprived from work for secular reason (could not work Sat.)
▪ Forcing state to create exception is bad
Post-Sherbert (more deferential review)
- Thomas v. Review Board (1981) - BURGER
o Relied on Sherbert to strike down Indian’s denial of unemployment compensation to Jehovah’s Witness who quit job in a munitions factory b/c of objections to war
- Hobbie v. Unemployment Appeals Comm’n (1987
o Followed Sherbert in upholding unemployment compensation claim of employee whose religious beliefs had changed during course of employment
- Frazee v. Illinois employment Security Dept (1989)
o Lack of membership in a church is irrelevant to find religious belief
Compulsory Education Laws
- Wisconsin v. Yoder (1972) – BURGER
o Amish guy criminal punished for failing to send daughter to public school past age of 15; argued it was what Amish culture required
o Gov’t action? ( punishing Amish
o Rule? ( neutral criminal law at issue
o Freedom of religion?
▪ This statute is regulating conduct
o Intentional classification?
▪ Excludes Amish
▪ Direct burden on Amish
o Applies Strict Scrutiny
▪ CSI?
• Ct reframes CSI
• NOT about whether education is a compelling state interest but whether gov’t had a compelling state interest for refusing to carve out exception
• No CSI asserted
o Got 2 things
▪ 1) constitutionally mandated exception and
▪ 2) reversal of conviction
- Employment Division, Dept Human Resources v. Smith (1990) – SCALIA
o This case governs today
o Oregon law criminalized use of peyote, challengers were members of Native American Church (looking for Constitutionally mandated exception)
o Gov’t action? ( Oregon Law
o Rule ( neutral criminal law at issue
o Freedom of religion?
▪ Statute is regulating conduct
▪ Not main purpose of law to inhibit religion ( just incidental effect
• Confines Sherbert precedent to unemployment cases
▪ KEY ( determine if law prohibit exercise of religion
• By putting large emphasis on “prohibit” ( an otherwise VALID neutral law with an incidental effect on religion is VALID
o Since not “prohibiting religion ( applied Low Level Scrutiny
o Upheld Law
o CONCURRENCE – O’CONNOR
▪ Believes in a different weighing test – burdens v. interest
▪ Goal: preserve religious pluralism
▪ Need to weigh all competing interests
o DISSENT – BLACKMUN, BRENNAN, MARSHAL
▪ Balancing (not neutral law only) is best way to go
▪ State offers no proof that peyote harms people
▪ Ct should not turn blind eye to central tenets of religion
o Takeaway: Neutral laws with just an incidental effect on religion are VALID
Establishment Clause
- “Congress shall make no law respecting an establishment of religion”
- Test:
o Establishment clause not recognizing liberty interest
o Articulates a right to separation of church and state
- Top violations:
o Creation of official church by gov’t state
o Paying taxes to fund religious orgs/program
o School Prayer
|Goes from most deferential to|Official Church |Tax for Religion|School Prayer (in |Legis. Prayer |Public Religious |Financial Aid to |
|least deferential | | |class v. Graduation) |(adults at |displays |Schools |
| | | | |issue)- Marsh |(creche v. menorah +|(direct aid v. |
| | | | | |symbols) |indirect aid) |
|Penalty Test (Scalia) |violation |violation |Violation/no |No violation |No violation |X |
| | | |violation | | | |
|Coercion Test (Kennedy) |violation |violation |Violation |No violation? |No violation |X |
|Endorsement Test (O’Connor) |Violation |violation |Violation |No violation |Violation/no |X |
|As informed by history | | | | |violation | |
|Lemon Test (Brennan/Souter) |violation |violation |violation |Violation |Violation/ violation|Direct aid = |
|1) statute = secular | | | | | |violation/ |
|legislative purpose | | | | | |Indirect aid = no|
|2) its principal or primary | | | | | |violation |
|effect must be on that | | | | | | |
|neither advances nor inhibits| | | | | |Indirect aid |
|religion (sectarian effect) | | | | | |(post Zelman) use|
|3) the statute must not | | | | | |2 prong lemon |
|foster an excessive | | | | | |test |
|government entanglement with | | | | | | |
|religion | | | | | | |
- Lemon v. Kurtzman (1971)
o 1) statute must have a secular legislative purpose
o 2) its principal or primary effect must be on that neither advances nor inhibits religion
o 3) the statute must not foster an excessive government entanglement with religion
- McCollum v. Board of Education (1948) - BLACK
o School board’s permitted its students to attend religious/sectarian classes held in public school during school hours by parochial school instructors
o 2 major things wrong
▪ 1) public schools being used for religious ed AND
▪ 2) gave religious groups aid that was supposed to be for public use
- Zorach v. Clauson (1952) - DOUGLAS
o NYC program permitting public schools to release children to go to religious instruction – parents had to make written request to do so, no public $ used
o Use coercion test
▪ No evidence of coercion being used on students to get them to participate in this religious activity (they could just stay in school if they wanted)
▪ Separation of church and state cannot go so far so as to create hostilities towards each other
▪ School merely accommodating without providing funds (OK
o Upheld statute
o DISSENT – BLACK
▪ State manipulating laws to coerce kids into religious sects
o DISSENT – JACKSON
▪ Like EP argument – some people can take classes, other cants
- Engel v, Vitale (1962) – BLACK
o NY legislature prepared non-demoninational prayer for use in public schools
o Maj. Makes school prayer akin to taxpayers giving dollars to establishing religion
o Prayer = clearly religious
o Struck down prayer as violation of establishment clause
o DISSENT – STEWART
▪ NY not coercing
- Wallace v. Jaffee (1985) – STEVENS
o Alabama law authorizing schools to set aside one minute at the state of each day for mediation or voluntary prayer
o State action = authorizing that moment of silence could be for prayer
o Addition of “prayer” takes away secular purpose
▪ Thus violating Lemon
o Overturned law
o CONCURRENCE – O’CONNOR
▪ Key is not coercion, but if state ENDORSED religion
- Leee v. Weisman (1992) – KENNEDY (only wrote for himself) b/c no test agreed upon
o RI middle school invited rabbi to read nonsectarian prayer at graduation
o Proponent of coercion test
▪ Did State Actor coerce children to embrace religion?
• Age of kids ( middle school kids are impressionable
• Graduation ceremony ( not voluntary to not attend
• State pretty much forcing participation through indirect social pressure
o Challenge to law sustained
o CONCURRENCE – BLACKMUN
▪ Need more than just freedom from coercion
▪ Gov’t cannot coerce religion or even convey a religious message as “preferred”
▪ By hiring Rabbi ( state saying they prefer Judaism
o CONCURRENCE – SOUTER
▪ Ceremonial messages especially coercive b/c given to captive audience
▪ Need more than just freedom from religious coercion
o DISSENT – SCALIA
▪ Proponent of penalty test
• If a criminal law imposing a penalty or a civil law imposes taxes based on religion ( this is a penalty
o Nothing else qualifies
• No penalty here
o Even under penalty test ( would find violation of EC if there was prayer in school
▪ b/c school is mandated
▪ Graduation not mandatory
▪ Speaks in terms of history and tradition
- McGowan v. Maryland (1961) – WARREN
o Rejected claims that Sunday Closing Laws violated religious clauses
o Evolution of religious rule to secular purpose (satisfies Lemon)
- Marsh v. Chambers (1983) – BURGER
o Nebraska Legislature opens each legislative day with prayer made by chaplain that is chosen by legislature
o Relies on History and Tradition
▪ Prayer was performed for 200 years
o Perhaps BURGER was anticipating ENDORSEMENT test
o DISSENT - BRENNAN
▪ Legislative prayers clearly violate principles of neutrality and separation embedded in establishment clause
▪ Injects religion into the political sphere
▪ Violates Lemon
o DISSENT – STEVENS
▪ State implicitly showing that it prefers one religion over another because it chooses the chaplain
- Lynch v. Donnelly (1984) – BURGER
o RI town erects Christmas display every year with crèche along with other secular symbols like Santa; putting up of crèche paid for by city
o Lemon test is only ONE way to measure violations of the EC
o No coercion here b/c this is part of a legitimate secular purpose
o NOT a subtle expression of gov’t coercing people into religion
o Upheld display
o CONCURRENCE – O’CONNOR
▪ Modifies Lemon test
• 1) too much entanglement with religious institutions (not v. impt)
• 2) endorsement/disapproval of religion (2nd prong of lemon)
o Look at purpose/effect of legislation
o LOT of weight on second prong
▪ Constructs “reasonable observer standard”
• Look at what the gov’t has done in terms of what a reasonable, historically informed observer would see
▪ Question is whether RI endorsed Christianity
▪ Not endorsement when just using religious symbols
o DISSENT – BRENNAN
▪ At least 3 principles must be satisfied to clear EC violation
• 1) gov’t may act to accommodate to some extent the opportunities of individuals to practice their religion
• 2) gov’t sponsored practices that stemmed from religious practices can continue today as long as they are continued for a secular purpose
• 3 gov’t cannot be completely prohitibted from recognizing in its public actions the religious beliefs and practices of the America people as part of our national culture and history
▪ Creche foster’s excessive gov’t entanglement
▪ Nativity is NOT secular either
- Allegheny County v. American Civil Liberties Union (1989) – BLACKMUN
o 2 things at issue: Crèche display at county court house without any other secular symbols AND menorah placed next to Christmas tree and “Salute to Liberty” sign at city-country building a block away
o For the Crèche
▪ Maj. Used “endorsement test” (adopted from O’CONNOR)
• Found that since the crèche was an endorsement of religion b/c it was not situated near other secular objects (unlike Donnelly)
▪ DISSENT - KENNEDY
• Said that the endorsement test reflected a hostility towards religion
• Go back to “no coercion” analysis
• Would find no violation b/c standing crèche is a “tradition”
▪ CONCURRENCE – O’CONNOR, BRENNAN, STEVENS
• Defended use of endorsement test
• Coercion test fails to embrace religious pluralism
• Coercion test fails to show subtle gov’t favoritism
▪ Overturned crèche display as violation of EC
o Menorah –BLACKMUN
▪ Still using endorsement test
▪ Found that this was a more pluralistic setting
▪ b/c different religions + secular message ( No endorsement
▪ CONCURENCE – O’CONNOR
• Need to concentrate on effect of gov’t action
• No endorsement here, but concentrate on second prong of modified Lemon more
• This = akin to acknowledgement of religion (like in god we trust)
▪ DISSENT – BRENNAN/STEVNS
• Menorah is indisputably a religious symbol
• Applies Lemon test
o No secular purpose here
o Advances Chanukah
o Fosters entanglement b/c gov’t pays for care
▪ All 3 prongs violated
- Zelman v. Simmons-Harris (2002) – REHNQUIST
o Ohio had program to help low income students attend better schools w/ tuition voucher. 96% of these vouchers used to send people to religiously affiliated private schools
o Narrow Question – whether the vouchers constituted direct aid to religious schools (violation of EC under McCollum)
o Maj. Focuses on indirect means of funding
▪ Gov’t gives money to parents
▪ Who then make private choices about where their kids go to school
• Must be evaluated differently than direct aid
o Applied Lemon test as 2 prong test:
▪ Secular purpose = education (OK)
▪ Enhance/inhibit religion (purpose/effect prong) ( no b/c it’s indirect aid
o No violation of lemon test found
o CONCURRENCE – O’CONNOR
▪ This is a break from precedent
▪ All educational alternatives (not just these schools) need to be considered
▪ Goes back to endorsement test ( no violation
o CONCURRENCE – THOMAS
▪ Defines education as a liberty interest
▪ Neutral programs should not affect this liberty interest
o DISSENT – SOUTER
▪ Vouchers – overwhelmingly go to religious education
▪ Since most private schools are religious ( is not voluntary
▪ Coercion of religious ideals (violation of EC)
- Board of Ed v. Mergens (1990) – NO MAJORITY
o Equal Access Act of 1984 provided that public secondary schools receiving fed. finaid has limited opp. to deny equal access to students wishing to conduct a meeting on the basis of the religious….content of the speech at such meetings
o Ct interpreted the ACT broadly
o Found NO EC violation b/c school
o O’CONNOR/REHNQUIST/WHITE/BLACKMUN
▪ Act itself was secular in purpose (prong 1 of Lemon)
▪ No promotion of religion (no endorsement) (prong 2) ( at secondary level, kids are mature enough to know this is not state sponsored speech
o CONCURENCE – KENNEDY, SCALIA
▪ Once again rejecting endorsement test for coercion test with no coercion found here
o CONCURRENCE – MARSHALL, BRENNA
▪ Schools needs to specifically separate itself from religious speech
- Cutter v. Wilkinson (2005) – GINSBURG
o Religious Land Use and Institutionalized persons Act – gov’t can’t impose substantial burdens on the religious exercise of prisoners without passing SS
o Davey – Gov’t can “play the joints” to accommodate religion w/o prisoners without endorsing
o RLUIPA OK b/c it was a narrow provision, balanced against other interests, passes SS
o
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