Con Law Outline

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					                                                                      Con Law II Outline
                                                                      Professor Mason
                                                                      Spring 2007

                       Ends                                    Means
Strict Scrutiny        Compelling state interest               Narrowly tailored, least restrictive
Intermediate level     Important objectives                    Substantially related
Rational basis         Any conceivable legitimate purpose      Rational relationship

I   Theories of Constitutional Interpretation
    A Originalism
       1 The view that judges deciding constitutional issues should confine themselves to
          enforcing norms that are stated or clearly implicit in the written constitution
          (a) Original intent
               Looks at subjective intent of the framers
          (b) Original meaning
               Objective inquiry into what the original meaning of the constitutional
                  provision was at the time it was passed
    B Nonoriginalism
       1 The contrary view that courts should go beyond that set of references and enforce
          norms that cannot be discovered within the four corners of the document
          (a) Believe that it is permissible for the court to interpret the Constitution to protect
              rights that are not expressly stated or clearly intended
               Constitution can evolve by amendment AND interpretation
                  (i) Originalists: constitution can evolve only by amendment

                               Due Process and Incorporation
I   Privileges and Immunities Clause (14th Amendment): “No State shall make or enforce
    any law which shall abridge the privileges or immunities of citizens of the United States…”
    A Slaughterhouse Cases
       1 Facts
           (a) Louisiana passed a law giving a monopoly on New Orleans-area slaughterhouse
               to a particular company
       2 Issue
           (a) Whether the statute was a denial of the privileges and immunities of LA
               citizenship, including the right to practice one’s calling?
       3 Holding
           (a) The statute was NOT a denial of the P and I of LA citizenship
       4 Reasoning

         (a) 14th amendment distinguishes between U.S. citizenship (for which one need
             merely be born or naturalized in the U.S.) and state citizenship (for which
             residence is required)
              “Fundamental” civil rights, including the right to practice one’s calling, were
                  the domain of the states, not the federal government
         (b) Rights of national citizenship
              Right to travel physically from state to state
              Right to petition Congress for redress of grievances
              Right to vote in national elections
              Right to enter federally-owned lands
              Right to be protected while in the custody of U.S. marshall
              Right to peacefully assemble
              Rights given by treaties
              Right to use seaports
     5 Dissent
         (a) The P and I Clause guaranteed to every U.S. citizen that his “fundamental rights,”
             rights which “belong to the citizens of all free governments,” would not be
             infringed by any state
              Fundamental rights included the right to “pursue a lawful employment in a
                  lawful manner.”
   B Article IV, Section 2
     1 Nondiscrimination principle
         (a) If state creates a right, it can’t limit that right to citizens of its state
              It must extend the right to citizens of other states
   C Saenz v. Roe
     1 Involved the right of a newly-arrived resident of CA to receive the same state welfare
         benefits as a person who had been in the state longer
         (a) Court struck down the law as a violation of the 14th amendment’s P and I clause
              Strict scrutiny
                  (i) 14th amendment P and I clause requires the states to satisfy strict scrutiny
                      before they may treat newly-arrived residents less favorably than those of
                      longer standing
                      1. Adoption of Justice Field’s Nondiscrimination Principle from his
                          Slaughterhouse dissent
                          a. 14th amendment – State must treat all of its own citizens the same
                              i. 14th amendment expands the nondiscrimination principle of
                                  Article IV
         (b) But Saenz probably does not change the rule that a state is entitled to impose a
             requirement of bona fide residence as a pre-condition to receiving state benefits
II Due Process and Incorporation
   A Bill of Rights
     1 First ten amendments to the Constitution
         (a) Principle purpose is to protect the individual against various sorts of interference
             by the federal government
     2 Not applicable to the states
         (a) Barron v. City of Baltimore

            The guarantees of the Bill of Rights are NOT directly binding upon state
             (i) City of Baltimore was able to divert a stream in a way that ruined
                  plaintiff’s wharf; the “Takings” Clause of the Fifth Amendment was not
                  applicable to a state government
B Selective Incorporation
  1 Denies that the entire Bill of Rights is made applicable to the states via the 14th
     (a) Only those aspects of liberty that are in some sense fundamental are protected by
         the 14th amendment against state interference
          Cardozo Approach (Palko v. CT)
             (i) Those rights that are the very essence of a scheme of ordered liberty are
                  protected by the 14th amendment against state interference
                  1. 14th amendment has freestanding content
                      a. It is not dispositive whether a certain right is in the BOR
                          i. BOR does NOT set outside limits on the concept of “liberty”
             (ii) Criticisms of Selective Incorporation
                  1. Historical concern
                      a. Not what the framers intended
                  2. Substantive concern
                      a. Judges can subjectively decide what rights are implicit in the
                          concept of ordered liberty
                          i. Gives too much scope to the personal views of the individual
                  3. Uncertainty Concern
                      a. Causes states to uncertain about the legislation they can enact
                          i. Application of the selective incorporation approach is so
                              unpredictable that the states, far from being given greater
                              flexibility, are hamstrung by uncertainty
                  4. Federalism concern
                      a. Federal judge gets to decide whether the right is implicit in the
                          concept of ordered liberty
                          i. Concern about federal judges impinging on the state’s domain
                              and expanding federal power at the expense of state power
C Total Incorporation
  1 All of the guarantees specified in the BOR are made applicable to the state by the 14th
     amendment’s due process clause
          Black Approach
             (i) ONLY the BOR guarantees, and no others, should be considered part of
                  the 14th amendment’s guarantee of due process
             (ii) Criticisms of Total Incorporation
                  1. Its historical support is weak
                  2. It deprives the states of opportunity for reforms
                  3. It is not really less vague that the “fundamental rights” approach, since
                      it merely shifts broad judicial discretion from the general concept of
                      “liberty” and “due process” to the individual guarantees of the BOR

                              (e.g, the precise scope of the 8th Amendment’s prohibition of cruel and
                              unusual punishment)
    D Warren Approach (Modern Approach)
        1 Court today incorporates into the 14th Amendment any guarantee which is essential to
           an Anglo-American scheme of liberty
           (a) “Fundamental in the context of the judicial processes maintained by the American
                 Rearticulation of the Palko/Selective Incorporation approach
                     (i) Focuses more on whether the protection is fundamental to American
                          judicial system
        2 Duncan v. Louisiana
           (a) The Court held that the 14th amendment guaranteed the right to jury trial in state
                criminal prosecutions for which the potential sentence was two years in jail
                 In the American scheme, where the jury is extensively used, and very serious
                     punishments are generally imposed only after a right to jury trial, the jury
                     plays a fundamental role which the 14th amendment must safeguard
        3 Nearly all guarantees incorporated
           (a) Virtually the entire BOR has been incorporated into the 14th amendment (and
                thereby made applicable to the states), one guarantee at a time
                 Exceptions
                     (i) Second amendment right to bear arms
                     (ii) Fifth amendment right to a grand jury indictment in a criminal trial
                          1. Hurtato
                              a. Can charge by information
                     (iii)Seventh amendment’s right to jury trial in civil cases
                     (iv) Eighth amendment right to be free from excessive bail
III Modern Due Process: “no state shall make or enforce any law which shall…deprive any
    person of life, liberty, or property, without due process of law…”
    A 14th amendment v. 5th amendment
        1 14th amendment: imposes the obligation of due process on the states
        2 5th amendment: applies only to the federal government
           (a) Rule: anything that the 14th amendment due process clause would require the
                states to do, the fifth amendment due process clause requires the federal
                government to do
    B Basic Analysis
        1 Who is acting?
           (a) If state, use 14th amendment
           (b) If federal, use 5th amendment
        2 Is it a substantive or procedural due process claim?
           (a) Substantive: Laws of general applicability
                 If substantive, government is taking away a whole group’s ability to do
                     something (and P is definitely in group)
                     (i) State passes a law of general applicability that limits what people are
                          allowed to do
                     (ii) Plaintiffs are saying that the law is invalid because it infringes on liberty
                          and the state did not have a good enough reason to do so

           (b) Procedural: a right to procedural due process will only apply where the
               government action at issue involves an individualized determination
                If procedural, state took a one time action with respect to the plaintiff and
                  plaintiff claims that the government must provide the plaintiff with procedural
                                  Procedural Due Process
I  Introduction
   A “Nor shall any State deprive any person of life, liberty, or property, without due process
       of law.”
   B Procedural due process requires that a state act with adequate or fair procedures when it
       deprives a person of life, liberty, or property
II Three Due Process Questions
   A What is meant by life, liberty, and property?
       1 Property
           (a) Legitimate claim of entitlement
                Look at whether the individual has a legitimate claim of entitlement to the
                   property interest (the state entitlement)
                   (i) Determined by state law and the expectation of the parties
           (b) Tangible Property
                Includes actual tangible property such as a house
           (c) Employment
                State Law
                   (i) For purposes of the 14th amendment, the source of a property interest is
                        determined by state law
                        1. State law determines the scope of property rights
                            a. Roth and Perry
                Sources to determine the scope of a property right
                   (i) Employment contract
                        1. State institutions will usually put an at will provision in employment
                            a. This will define the scope of the right and limit the individual’s
                               entitlement to the property interest
                   (ii) Expectation of the parties
                        1. Common understood practices
                            a. If no one had been fired from University before, professor could
                               argue he had an expectation of continued employment
                   (iii)Teacher’s manual
                        1. Can support expectation of the parties argument
                   (iv) Importance of the right to the individual is NOT relevant
       2 Liberty
           (a) No liberty right to employ your chosen profession
                But dissents in Slaughterhouse cases contend there is such a liberty right
                   because dissent gives freestanding content to the 14th amendment independent
                   of state law
           (b) Vitek v. Jones

          Held that the involuntary transfer of a Nebraska state prisoner to a mental
           hospital implicated a liberty interest protected by the due process clause
           (i) There was an objective expectation, firmly fixed in state law and official
               practice, that a prisoner would not be transferred unless he suffered from a
               mental disease or defect that could not be adequately treated in prison
    (c) Meachum
         Within the prison context, transfer to a more restrictive environment or prison
           does NOT implicate a liberty interest
3   Welfare Benefits
    (a) Goldberg v. Kelly
         Welfare payments, for a person statutorily entitled to receive them, were a
           right protected by the constitution against arbitrary withdrawal
           (i) A welfare recipient must be given a “evidentiary hearing” before his
               benefits may be terminated
               1. Predeprivation
4   Employment
    (a) Board of Regents v. Roth
         Facts
           (i) Plaintiff was given a non-tenured one-year contract to teach at Wisconsin
               State University. University declined, without giving reasons, to hire P
               after the one-year period
         Holding
           (i) Plaintiff’s interest in being rehired was not an interest in “liberty” or
               “property” and he therefore had no right to procedural due process
         Not a liberty interest
           (i) Plaintiff’s interest was not one in liberty because he was not barred from a
               broader class of employment (e.g., all other jobs in state universities)
         Not a property interest
           (i) Nor was plaintiff’s interest in being rehired a property interest
               1. Such an interest did not exist merely because the individual had a
                    “need” for a benefit, or even a “unilateral expectation” of it; rather he
                    must have had a legitimate claim of entitlement to it
                    a. Whether or not such a legitimate claim of entitlement to the benefit
                        existed was to be determined by reference to state law
                        i. Since Wisconsin law made it clear that rehiring decisions in
                            non-tenured cases were to be completely discretionary, plaintiff
                            had no such entitlement
         Marshall dissent
           (i) Expansive view of property interest
               1. Advocated the view that “every citizen who applies for a government
                    job is entitled to it unless the government can establish some reason
                    for denying the employment”
    (b) Perry v. Sindermann
         Rule: Informal practices or customs may be sufficient to create a legitimate
           claim of entitlement to a benefit

            (i) Plaintiff was untenured but had taught for ten years and alleged that the
                 college where he worked had a de facto tenure program, and that the
                 college administration had created an understanding that he had tenure
                 under the program
                 1. Such an interest will be found to exist if there are “mutually explicit
                     understandings” supporting a claim of entitlement
  5 Reputation
    (a) Paul v. Davis
         Plaintiff’s interest in his reputation, by itself, was not a constitutionally
            protected liberty or property interest
            (i) Must have stigmatization of P’s reputation AND an alteration of a state
                 created legal entitlement (such as attendance at a public university)
  6 Public Education
    (a) Goss v. Lopez
         When state creates a public school system, citizens have a property interest in
            that public education
            (i) Applies to higher education as well
         Court held that a suspension from public school constituted deprivation of a
            constitutionally-protected property interest
  7 Enforcement of a Restraining Order
    (a) Town of Castle Rock v. Gonzales
         Wife had a restraining order on her husband, but the Court held that the city
            did NOT violate wife’s procedural due process rights because wife did NOT
            have a legitimate claim of entitlement to the enforcement of the restraining
            (i) Tradition of giving police broad discretion in enforcement
            (ii) No specific personal claim of entitlement to enforcement
            (iii)No ascertainable money value in having the state enforce your restraining
                 1. Even if RO created a legitimate claim of entitlement to some
                     enforcement action, it is still not a protected property interest
B What process is due?
  1 Mathews Test
    (a) The strength of the private interest that would be affected by the official action
    (b) The risk of an erroneous deprivation of such interest through the procedures used,
        and the probable value, if any, of additional or substitute safeguards
    (c) The government’s interest, including the function involved and the fiscal and
        administrative burdens that the additional or substitute procedural requirements
        would entail
  2 Loudermill
    (a) Must refer to federal law for the substance of the process due
         NOT a state law question
    (b) Although state law remains the primary focus for the determination of whether a
        property right exists, state procedures contained in the law creating that property
        right are not the source of the constitutionally required procedures upon
        termination of that property right

                  The Due Process clause provides that certain substantive rights cannot be
                   deprived except pursuant to constitutionally adequate procedures
                   (i) The categories of substance and procedure are distinct
           (c) Firing of Tenured employee
                Court weighed a tenured employee’s interest in retaining his employment
                   against the government’s interest in having a quick way to fire unsatisfactory
                Court held that the considerations involved in the termination of public
                   employment differ from those involved in the termination of welfare benefits
                   (i) A tenured employee is only entitled to oral or written notice of the charges
                       against him, an explanation of the employer’s evidence, and an
                       opportunity to present his side of the story
                       1. It did not include the right to a full evidentiary hearing of the sort
                           imposed in the welfare-benefits context in Goldberg

                                  Substantive Due Process
I  Introduction
   A Three Questions in Substantive Due Process Cases
       1 Does the state law in question infringe on a constitutionally protected liberty interest?
       2 If it does, what are the state’s justifications for the infringement?
       3 Are those state justifications strong enough to permit the infringement of liberty?
           (a) Means-Ends analysis
II Rise of Substantive Due Process – Scrutiny of Economic Regulations
   A Slaughterhouse Cases
       1 Monopoly did NOT violate the due process clause
           (a) Dissent: argued that a statute prohibiting a large group of citizens from pursuing a
               lawful employment deprived them of both liberty and property without due
               process of law
   B Munn v. Illinois
       1 Facts
           (a) State law regulating the rates of grain elevators
       2 State justifications?
           (a) Protecting the public welfare
       3 Scrutiny
           (a) Court deferred to the legislature’s judgment as to an issue which the Court found
               to be “public” rather than “private”
                Court says the grain elevators really are business affecting the public interest
           (b) Court says that whenever the state wants to regulate prices, we will assume that
               the state’s action is justified by the police power
           (c) Private contracts
                But the Court indicated that in “mere private contracts,” the judiciary would
                   determine what regulations were “reasonable”
   C Mugler v. Kansas
       1 Facts
           (a) Law prohibiting intoxicating beverages

   2  State justification
      (a) Protecting the public welfare
  3 Scrutiny
      (a) Court sustained the ban on alcoholic beverages
           But Court indicated that legislation would be valid under the states’ “police
              powers” only if it truly related to the protection of the public health, safety or
              moral, and only if it did not violate “rights secured by the fundamental law”
              (i) Court will nto take every assertion of police power as legitimate
  4 Mugler standard
      (a) When a court is assessing a state’s justifications for an infringement of liberty, the
          court will ask whether the law has a real or substantial relation to the objects
          asserted by the state or whether the law is a palpable invasion of rights secured by
          the fundamental law
D Allgeyer
  1 Facts
      (a) LA law that says you can only contract with an insurance company that is
          licensed in LA
  2 Liberty to contract is one of the liberties protected by the 14th amendment
      (a) Court defines liberty broadly
           Protects not only physical liberty but also such intangibles as
              (i) The right to live and work where one wishes
              (ii) To earn one’s livelihood by any lawful calling, and
              (iii)To enter any contract necessary to accomplish any of these goals
  3 Harlan dissent
      (a) Says the right to enter into contracts is part of the liberty protected under the 14th
          amendment but the state’s interest in the health, safety and welfare of its citizens
          overrides that protection
E Lochner
  1 Facts
      (a) New York law which limited the hours which a bakery employee could work to
          10 per day and 60 per week
  2 Constitutionally protected liberty interest?
      (a) Yes, freedom of contract
           Right to contract is a fundamental liberty interest
              (i) Liberty has freestanding independent content
  3 State justifications?
      (a) Health of the bakers
           There must be more than the mere fact of the possible
      (b) Health of the community
      (c) Bakers are in weak bargaining position
  4 Scrutiny
      (a) Court strikes down the law because the state’s justifications were not strong
          enough to permit the infringement of liberty
  5 Lochner standard
      (a) The act must have a more direct relation, as a means to an end, and the end itself
          must be appropriate and legitimate, before an act can be held to be valid which

              interferes with the general right of an individual to be free in his person and in his
              power to contract in relation to his own labor
               Lochner court will not defer to the states
                   (i) No presumption of constitutionality like in Munn
               State has to actually produce evidence to support its justification for the law
III Review of standards
    A Allgeyer / Lochner
       1 Content of 14th Amendment Liberty
          (a) Is there a 14th amendment liberty interest?
               Allgeyer/Lochner
                   (i) Freedom to live / work lawfully
                   (ii) Freedom to enter into contracts
       2 State Justifications for Infringement
          (a) State has to articulate and proffer evidence
       3 Level of Court Scrutiny
          (a) Court asks: Whether the law bears a direct relationship to the problems it is
              supposed to fix
               Is Court deferential in asking that question?
                   (i) No, the court has a very active role because the court itself is going to
                        weigh the evidence
    B Holmes in Lochner / Mugler standard
       1 Content of 14th Amendment Liberty
          (a) Is there a 14th amendment liberty interest?
               Fundamental Principles / Tradition (Holmes / Lochner)
                   (i) Liberty is fundamental principles as defined by our people and our law
       2 State Justification for Infringement
          (a) State has to articulate and and proffer evidence
       3 Level of Court Scrutiny
          (a) Court asks: “Real and substantial relationship”
               More deferential – looks at evidence
               Presumes constitutionality of law
IV Decline of substantive due process with respect to economic regulation
    A Muller v. Oregon
       1 Court sustained a law barring the employment of women in a factory or laundry for
          more than ten hours in a day
    B Adkins v. Children’s Hospital
       1 Court struck down a minimum wage law for women
          (a) Reconciliation
               Maximum hours rules could be seen as promoting a legitimate health
                   objective, whereas it is hard to see minimum wage rules as promoting
                   anything other than a lessening of economic inequality
    C Coppage v. Kansas
       1 Court strikes down a Kansas law that prohibited employers from requiring their
          workers to agree not to join a union as a condition of employment
       2 State justification
          (a) Unequal bargaining power of the workers

    3 Unequal bargaining power can never be a justification for a deprivation of liberty
D   Nebbia v. New York
    1 Court sustained a New York regulatory scheme for fixing milk prices
    2 Loosens up the Mugler standard
       (a) Due process only requires that the law shall not be unreasonable, arbitrary or
            Court asks whether the law has a reasonable relationship to the legislative goal
               or whether the law is merely arbitrary
               (i) Deferential
                   1. No evidentiary analysis
E   West Coast Hotel Co. v. Parrish
    1 Court upheld a state minimum wage law for women, and thereby explicitly overruled
       the Adkins case
    2 State justifications
       (a) Health of the women
       (b) Unequal bargaining power
    3 Scrutiny
       (a) Reasonable relationship test
            Court asks whether the law has a reasonable relationship to the legislative goal
               or whether the law is merely arbitrary
       (b) Court conceded that the minimum wage law interfered with “freedom of contract”
           but Court concluded that a readjustment of economic bargaining power in order to
           enable workers to obtain a living wage was a legitimate limitation on that freedom
           of contract
F   Carolene Products
    1 Court sustained against a due process attack a federal prohibition on the interstate
       shipment of “filled” milk
    2 Presumption of Constitutionality
       (a) Court made it clear that a presumption of constitutionality would be applied in the
           case of an economic regulation subjected to a due process attack
    3 Scrutiny
       (a) Minimum rationality
            Whether there is a rational basis for the law
               (i) Most deferential standard thus far
                   1. No evidentiary analysis
       (b) Hypothetical reasons to support the act
            Court is willing to hypothesize reasons which would support the legislature’s
               action, even though there is no evidence whatsoever that these reasons in fact
               motivated the law
G   Lee Optical
    1 Court upheld an OK statute which prevented opticians from fitting eyeglass lenses
       into frames without a prescription from an opthamologist or optometrist
    2 State justification
       (a) State does NOT articulate justification for the law
       (b) Court hypothesizes itself

                 No evidence need be proffered
                 The statute was a rational health measure, the Court found, because the
                  legislature “might have concluded” that the law would make it more likely
                  that citizens would get eye exams on a regular basis
       3   Scrutiny
           (a) Rational basis

Content of 14th Amendment       State Justifications for         Level of Court Scrutiny
Liberty                         Infringement
Allgeyer/Lochner                State articulates and proffer    Court asks “Direct
Freedom to Live/Work            evidence (Lochner)               Relationship” (Lochner)
Lawfully                                                         Court weighs evidence
Freedom to Enter into
Fundamental                     State articulates and evidence   Court asks: “Real and
Principles/Tradition                                             substantial relationship”
(Holmes/Lochner)                                                 More deferential – looks at
                                                                 Presumes constitutionality of
Textual guarantees              State articulating and zero      Court asks: “Reasonable?
                                evidence                         Arbitrary?”
                                Court presumes facts to          Deferential – No evidentiary
                                support state                    analysis
                                                                 -West Coast Hotel
Freedom from Physical           State doesn’t articulate         “Rational Basis”
Restraint                       Court hypothesizes               -Carolene Products
                                                                 -Lee Optical

V Substantive Due Process – Scrutiny of Non-economic Liberties
  A Introduction
     1 Economic rights (non-fundamental right)
         (a) Rational basis review
              Court has required merely that there be a rational relation between the statute
                 and a legitimate state objective
     2 Fundamental rights
         (a) Strict scrutiny
              Two tiers
                 (i) State’s objective must be compelling, not merely legitimate; and
                 (ii) The means must be necessary to achieve that end
                      1. Law must be narrowly tailored to achieve the state’s compelling

B Meyer v. Nebraska
  1 Court struck down a state law which prohibited the teaching of foreign languages to
      young children
  2 Liberty interest
      (a) Important
           The right of teachers to teach, and that of students to acquire knowledge
  3 Scrutiny
      (a) Court asks whether the law is arbitrary or without a reasonable relation to a
          legitimate state purpose
C Pierce v. Society of Sisters
  1 Court struck down a state statute requiring children to attend public schools
  2 Liberty interest
      (a) Fundamental
           Liberty of parents and guardians to direct the upbringing and education of
              children under their control
  3 Scrutiny
      (a) Reasonable relation
D Skinner v. Oklahoma
  1 Court invalidated an OK statute which provided for compulsory sterilization of
      persons convicted three times of felonies showing moral turpitude, but which did not
      apply to such white collar crimes as embezzlement
  2 Liberty interest
      (a) Fundamental
           Right to marry and procreate
  3 Scrutiny (Equal Protection, NOT substantive due process)
      (a) Court objected to the discrimination between grand larceny and embezzlement,
          but it emphasized that its reason for strictly scrutinizing the discrimination was
          that “marriage and procreation are fundamental to the very existence and survival
          of the race.”
E Contraception
  1 Griswold v. CT
      (a) Court struck down a CT statute which forbade the use of contraceptives (and
          made this use a criminal offense); the statute also forbade the aid or counseling of
          other in their use
           Planned parenthood was convicted of counseling married persons in the use of
      (b) Issue
           Does the CT law violate the due process rights of married persons by denying
              them the right to use contraception?
      (c) Holding
           The CT law DOES violate the due process rights of married persons by
              denying them the right to use contraception
      (d) Liberty interest
           Right to privacy within the marital relationship
      (e) Source of the liberty interest
           Specific guarantees in the BOR have penumbras

            (i) The liberty interest emanates from these penumbras
         Several of the BOR guarantees protect the privacy interest and create a zone
            of privacy
            (i) 1st amendment
                 1. By its explicit protection of the freedoms of speech and of the press,
                      has emanations which create a penumbra
                      a. It is this penumbra which protects the freedom of association, a
                          freedom not explicitly mentioned in the Constitution
            (ii) 4th amendment
                 1. Ban on unreasonable searches and seizures has a penumbra which
                      protects privacy interests
                      a. As do the 3rd, 5th, and 9th amendments
                          i. Collectively, these Amendments establish a zone in which
                              “privacy is protected from governmental intrusion”
    (f) Scrutiny
         Whether the means sweep unnecessarily broadly and thereby invade the are of
            protected freedoms?
            (i) Not any of the articulations of scrutiny we have seen before
    (g) Goldberg concurrence
         Believed that the 14th amendment’s due process clause protected all
            “fundamental” rights, whether or not these were explicitly listed in the BOR
            (i) Ninth amendment supports this view
                 1. “The enumeration in the Constitution of certain rights shall not be
                      construed to deny or disparage others retained by the people”
                      a. Shows a belief of the Constitution’s authors that fundamental
                          rights exist that are not expressly enumerated in the first eight
    (h) Harlan “ordered liberty” approach
         Argued that the 14th amendment’s due process clause does not merely
            incorporate the specific Bill of Rights guarantees, but instead protects those
            basic values “implicit in the concept of ordered liberty.”
    (i) Black Dissent
         No right of privacy within the marital relationship
         Only those rights explicitly protected by a specific Bill of Rights (or other
            constitutional) provision were protected by the 14th amendment
            (i) No broad right of privacy was protected by any specific provision
2   Eisenstadt v. Baird
    (a) Court invalidated a statute which, by permitting contraceptives to be distributed
        only to married persons, discriminated against the unmarried
    (b) State justification
         Use of contraception is per se immoral
    (c) Liberty interest
         Right of privacy
            (i) “If the right of privacy means anything, it is the right of the individual,
                 married or single, to be free from unwarranted government intrusion into

                  matters so fundamentally affecting a person as the decision whether to
                  bear or beget a child.”
     (d) Equal Protection
          Statute treats married people and unmarried people differently
              (i) Scrutiny
                  1. Rational basis
                      a. There is no rational basis for this differential treatment because the
                           Griswold right of privacy applies to the unmarried and the married
     (e) Private place no longer required
          Carey v. Population Services
              (i) Right of privacy protected by Griswold and Eisenstadt now exists even in
                  non-private situations
                  1. The constitutionally protected privacy interest in procreation and child
                      rearing “is not just concerned with a particular place, but with a
                      protected intimate relationship. Such protected privacy extends to the
                      doctor’s office, the hospital, the hotel room or as otherwise required to
                      safeguard the right to intimacy involved.”
F Abortion
  1 Roe v. Wade
     (a) Court invalidated, on privacy grounds, a TX law that made abortion illegal unless
         it’s done to save the life of the mother
     (b) State justifications
          Safeguarding mother’s health
          Protecting medical standards
          Protecting potential life
     (c) Liberty interest
          Fundamental
              (i) A woman’s right to privacy
                  1. Court says the right of privacy is “broad enough to encompass a
                      woman’s decision whether or not to terminate her pregnancy” because
                      the negative consequences for the woman of having an unwanted child
                      are serious
     (d) Scrutiny
          Strict
              (i) Whether the state has a compelling interest and whether the law is
                  narrowly tailored to achieve
     (e) Trimester Approach – Court chooses viability as the point where the state’s
         interest becomes a compelling interest
          Viability – the point in the pregnancy when the fetus can survive on its own
              outside of the mother (usually beginning of third trimester)
              (i) First trimester
                  1. State has NO compelling interest to regulate during the first trimester
                      a. A state may not ban, or even closely regulate abortions

                     b. The decision to have an abortion, and the manner in which it is to
                         be carried out, are to be left to the pregnant woman and her
            (ii) Second trimester
                 1. State may protect its interest in the mother’s health by regulating the
                     abortion procedure in ways that are “reasonably related” to her health
                     a. But the state may protect only the mother’s health, not the fetus’s
                         life, during this period
                         i. Therefore, a flat ban on second trimester abortion is NOT
                         ii. Nor may the state regulate in ways that protect the fetus rather
                              than the mother’s health
                 2. State can:
                     a. Require certain standards of abortion providers
                     b. Regulate abortion facilities
                     c. Require that abortion take place in a hospital rather than a clinic
            (iii)Third trimester (viability)
                 1. The state has a compelling interest in protecting the fetus
                     a. It may therefore regulate, or even proscribe abortion, except when
                         the abortion is necessary to preserve the life or health of the mother
2   Planned Parenthood v. Casey
    (a) How does Casey clarify the right articulated in Roe?
         Casey says that the decision to terminate a pregnancy is grounded in the 14th
            amendment’s reference to liberty
    (b) How does the court define the right?
         Liberty interest in bodily integrity
         Liberty interest in decisional autonomy
            (i) At the heart of liberty is the right to define one’s own concept of existence
         Right of privacy does not appear in Casey
    (c) How does the Casey plurality deal with the suggestion that the content of liberty
        is determined by what’s in the Bill of Rights?
         Total incorporationist view
            (i) Casey plurality rejects the total incorporationist view
         Palko conception of liberty
            (i) Palko conception that liberty is an expanding concept that judges can
                 determine by looking at history, tradition, and the collective conscience of
                 the people
                 1. Plurality does not adhere to the Palko conception of liberty
    (d) What interpretive methodology does the court use to determine the scope of the
        liberty interest?
         Reasoned judgment
            (i) It is the court’s exercise of reasoned judgment that will allow us to define
                 the scope of liberty in the due process clause
            (ii) Court asserts its own power to engage in reasoned judgment and to use
                 that contemporary reasoning to inform the content of the word liberty
                 1. Sources

                    a. Stare Decisis
                    b. Unique burdens that pregnant women bear
                    c. Profound consequences of bringing an unwanted child into the
    (e) Does the fundamental status to the liberty interest remain in the Casey opinion?
         Yes
           (i) But changes the standard of review to undue burden
    (f) Undue burden
         Roe – Court applied strict scrutiny
         Casey – Court changes the standard to undue burden
    (g) Trimester framework rejected
         After viability
           (i) After viability, the state can regulate or proscribe abortion except as
                necessary to protect the life or health of the mother
         Before viability
           (i) Before viability, the state cannot impose an undue burden on the right of a
                woman to terminate her pregnancy
                1. Undue burden
                    a. A state regulation will constitute an undue burden if the regulation
                        “has the purpose or effect of placing a substantial obstacle in the
                        path of a woman seeking an abortion of a nonviable fetus.”
                        i. State can impose certain kinds of regulations
         What kinds of regulations can the state impose before viability?
           (i) If state regulations merely create a structural mechanism by which the
                state may express profound respect for the life of the unborn, and do not
                place a substantial obstacle in the woman’s path, the regulations will be
                1. Regulations that are constitutional
                    a. Informed consent
                        i. Twenty four hours before performing the abortion, physician
                            informs the woman of the nature of the procedure, the health
                            risks of both abortion and childbirth, gestational age of the
                            unborn child
                    b. Parental consent for woman under 18
                2. Regulations that are NOT constitutional
                    a. Spousal notification
3   Stenberg v. Carhart
    (a) Court struck down a NE statute that made it a felony to perform a partial birth
        abortion unless the procedure was necessary to save the life of the mother (no
        health exception)
    (b) Two faults with statute
         Lack of health exception
           (i) Court held that if a particular abortion method may be safer for the mother
                in some circumstances, the state may not flatly ban the method, and must
                instead allow a maternal-health exception to the ban

                 1. Majority believed that there were or at least might be situations where
                      the D&X method was somewhat safer for the mother than the principal
                      late-term method, the D&E method
          Statute may cover D&E method
             (i) Majority concluded that the language of the statute was ambiguous and
                 might be construed by NE courts to also cover the more common D&E
                 1. The mere possibility that the statute might be so construed was enough
                      to constitute an undue burden on women’s abortion rights, because
                      practitioners might be reluctant to use the clearly-constitutionally-
                      protected D&E method for fear that they would be prosecuted for a
G Family Relationships
  1 Troxel v. Granville
     (a) Facts
          State court judge ordered the mother of two minor girls to give monthly
             visitation privileges to the girls’ paternal grandparents
             (i) State statute allowed a court to order visitation rights for any person when
                 visitation may serve the best interests of the child
     (b) Liberty interest
          Fundamental
             (i) Parent’s liberty interest in making decisions re the care, control, and
                 custody of their children
                 1. Meyer and Pierce
     (c) Visitation statute as applied in this case “unconstitutionally infringes on that
         fundamental parental right
          Where a parent is fit, a court deciding whether to grant visitation rights “must
             accord at least some special weight to the parent’s own determination” about
             whether the proposed visitation would be in the child’s best interests
  2 Loving v. Virginia
     (a) Court struck down VA’s ban on interracial marriage
          Relied principally on equal protection
     (b) Liberty interest
          Fundamental
             (i) Freedom to marry
                 1. Has long been recognized as one of the vital personal rights essential
                      to the orderly pursuit of happiness by free men
                 2. One of the basic civil rights of man, fundamental to our very existence
                      and survival
                      a. Skinner
     (c) Statute deprives the Lovings of liberty without due process of law in violation of
         the Due Process Clause of the 14th amendment
  3 Zablocki v. Rehail
     (a) Court struck down a Wisconsin statute that prevented people with unpaid child
         care obligations to marry
     (b) Liberty interest

            Fundamental
             (i) Freedom to marry
    (c) State justification
         Welfare of the children
         Collecting child support
    (d) Scrutiny
         Strict but they don’t use the phrase
             (i) Court concluded that the state’s interests were legitimate and substantial
                 but that the state’s method of furthering those interests unnecessarily
                 interfered with the fundamental right to marry
                 1. State could have used less drastic compliance methods
                      a. Wage assignments
                      b. Civil contempt proceedings
4   Moore v. East Cleveland
    (a) Court struck down a zoning ordinance which allowed only members of a single
        family to live together
    (b) State justifications
         Preventing overcrowding
         Preventing traffic congestion
         Preventing burdens on the local school system
    (c) Liberty interest
         Fundamental
             (i) Right to determine your familial relationships
    (d) Source of the liberty interest
         All opinions invoke the Palko approach to determining what is a fundamental
             liberty interest
             (i) Examine the history and tradition of the family relationship
                 1. Majority says there is a tradition of the family extending beyond the
                      nuclear family
                      a. Minority reaches opposite conclusion
    (e) Scrutiny
         Strict
             (i) Although the state interests advanced in support of the ordinance were
                 legitimate ones, these interests were only marginally advanced by the
5   Michael H case
    (a) Case arose from a CA law establishing a presumption that a child born to the wife
        is legitimately a child of the marriage, a presumption rebuttable only under
        limited circumstances
         Blood tests established that Michael H was the biological father and he sought
             rights with respect to the child
    (b) Court upheld the CA law and concluded that none of Michael H’s constitutional
        rights had been violated
    (c) Level of Generality in Substantive Due Process Cases
         Scalia – Very specific level of generality

               (i) Resort to “tradition” required emphasis on the “most specific” level of
                   generality at which the history and tradition could be perceived
                   1. Would ask whether the relationship between the persons in this
                      situation have been treated as a protected family unit under the historic
                      practices of our society, or whether on any other basis it has been
                      accorded special protection
                      a. Scalia found a tradition that denies protection to a parent in
                           Michael H’s position
              Brennan – Broad level of generality
               (i) Broader conception of liberty and tradition
                   1. “The concept of tradition can be as malleable and as elusive as liberty
                      a. Tradition does NOT place a discernible border around the
                      b. Tradition evolves
H Sexuality
  1 Bowers v. Hardwick
     (a) Court upheld a GA statute making it a crime to perform or submit to sodomy
          Statute did not on its face distinguish between heterosexual and homosexual
     (b) State interest
          Morality
     (c) Source of liberty interest
          Palko approach
             (i) Court regarded as fundamental only those liberties that are either “implicit
                 in the concept of ordered liberty” or “deeply rooted in this Nation’s history
                 and tradition”
                 1. At common law sodomy has traditionally been a crime
                 2. Court’s precedent does not support the right asserted here
                     a. Pierce
                     b. Meyers
                     c. Loving
                     d. Eisentstadt
                     e. Griswold
                     f. Rowe
                         i. None deal with sodomy
     (d) Liberty interest
          NOT fundamental
             (i) Constitution does NOT confer a fundamental right upon homosexuals to
                 engage in sodomy
     (e) Scrutiny
          Rational basis
     (f) Privacy of the home irrelevant
          Bedroom does not totally insulate you from government intervention
             (i) Insofar as plaintiff claimed a constitutional protection for all voluntary
                 sexual conduct between consenting adults in the home, it would be

                logically impossible to protect the claimed right to homosexual conduct
                while leaving exposed to prosecution adultery, incest, and other sexual
                crimes even though they are committed in the home
    (g) Blackmun dissent
         Court defined the right too narrowly
         Characterizes the right as the right to be left alone and the right to determine
            that nature and scope of one’s sexual relations
    (h) Stevens dissent
         Precedent (Griswold and Eisenstadt) talks about a liberty interest that is much
            broader than just the decision to marry or to have kids
            (i) Therefore, the state can’t tell married couples that they can’t have oral sex
                1. By implication, the state can’t tell homosexuals that they can’t have
                     oral sex
2   Lawrence v. Texas
    (a) Court struck down a TX statute criminalizing gay sodomy on substantive due
        process grounds and overruled Bowers
    (b) State justification
         Morality
    (c) Liberty interest
         Important
            (i) Right to choose your own intimate relationships and express them
                1. Much broader than as defined in Bowers
    (d) Source of liberty interest
         Court does not cite the Palko tradition / implicit in the concept of ordered
            liberty language
            (i) Majority is interested in traditions in a more contemporary way
                1. Evolving tradition
                2. Foreign treatment of the right (European Court of Human Rights)
                3. State laws / popular opinion
                4. Precedent
                     a. Casey
                         i. Fundamental right to make intimate personal decisions – no
                             real reason why homosexuals should not be able to make these
                             decisions as well
                     b. Romer v. Evans
                         i. CO constitutional amendment repealing all laws that would
                             have protected the human rights of gays
                         ii. Court strikes down the constitutional amendment
    (e) Scrutiny
         Rational basis review
            (i) Court strikes down the statute on the grounds that it furthers no legitimate
                state interest
                1. Morality is a legitimate state justification but it is not enough here to
                     override the important right to engage in sexual conduct without
                     intervention of the government

I   Review of Methodologies
    1 Palko
       (a) Traditions / implicit in the concept of ordered liberty
    2 Rowe
       (a) Reasoned judgment
    3 Lawrence
       (a) Emerging consensus
J   Death
    1 Cruzan
       (a) Facts
            Woman is in persistent vegetative state and her parents want to cut off the
               feeding tube
       (b) Issue
            By imposing the evidentiary requirement that intent of the patient must be
               established by clear and convincing evidence, does the state infringe on
               Cruzan’s protected liberty interest?
       (c) Holding
            The state does NOT infringe on Cruzan’s protected liberty interest by
               imposing the evidentiary requirement
       (d) State interest in clear and convincing standard
            Interest in safeguarding human life
               (i) Court does not say if it is fundamental
       (e) Liberty interest
            A competent person DOES have a constitutionally protected liberty interest in
               refusing unwanted medical treatment
       (f) Scrutiny
            Seems as though Court applies rational basis review
               (i) Missouri’s interest in safeguarding human life was strong enough that the
                   state was entitled to “guard against potential abuses” by imposing the clear
                   and convincing standard
                   1. States do not have to have a clear and convincing standard
                       a. They may have one
       (g) What would satisfy the clear and convincing evidence standard
            Living will written prior to the patient becoming incompetent
               (i) Cruzan suggests that the state is constitutionally required to honor the
                   patient’s wishes re refusing life saving treatment
    2 Glucksberg
       (a) Facts
            Washington state statute that forbade physician assisted suicide
       (b) Issue
            Whether terminally ill patients have a constitutionally protected interest in
               controlling the time and manner of their death and accordingly physician
       (c) Holding
            14th amendment does not protect the interest in controlling the time and
               manner of one’s death

          (d) Liberty interest
               Ninth circuit
                  (i) Right to control the time and manner of one’s death
               Supreme Court
                  (i) Rehnquist phrased the issue at a very high level of generality
                       1. Whether the liberty specially protected by the Due Process Clause
                           includes a right to commit suicide which itself includes a right to
                           assistance in doing so
                           a. NOT fundamental
                               i. Only rights or interests that are “deeply rooted in this Nation’s
                                   history and tradition” can be fundamental
          (e) Scrutiny
               Rational basis
          (f) Reasoning
               Tradition
                  (i) There is a tradition of suicide and physician assisted suicide being
               State can allow physician assisted suicide, but there is not liberty interest
                  protected by the federal constitution
VI Substantive Due Process Review
   A Liberty
      1 Sources
          (a) Text of the constitution
               Bill of Rights
                  (i) Total Incorporation
               Penumbral emanations
                  (i) Griswold
               Ninth amendment – the enumeration in the constitution of certain rights shall
                  not be construed to deny other rights remaining with the people
                  (i) Goldberg (Griwold), Douglas (Roe)
                       1. “Blessings of Liberty”
          (b) Traditions, collective conscience of the people, implicit in the concept of ordered
               Palko
                  (i) Level of Generality
                       1. Moore case
                           a. Brennan v. Scalia
          (c) Reasoned Judgment
               Casey
                  (i) Sources
                       1. Precedent
                       2. Custom
                       3. Sociological understandings
                       4. Theoretical understandings / philosophy
                  (ii) Negatives
                       1. Amorphous

                   2. No substantive content
                   3. Lacks boundaries
      (d) Evolving Consensus
           Lawrence
              (i) Last 50 years of federal and state cases
              (ii) International trends
                   1. European Court of Human Rights
           Negatives
              (i) One way ratchet
                   1. Only used to expand liberty
                   2. How to quantify when the consensus has emerged
                   3. Judicial independence
                       a. Why look to popular opinion
      (e) Democracy
           Scalia
B Liberty
  1 Scalia
      (a) You’re either inside or outside the 14th amendment
  2 Fundamental liberty
      (a) Right to raise / educate children
           Meyer, Pierce, Troxel
      (b) Right to marry
           Loving, Zablocki
      (c) Right to live with relatives
           Moore
      (d) Right to procreate
           Skinner
      (e) Right to avoid procreation
           Griswold
              (i) Contraception
              (ii) Marital privacy
           Eisenstadt
              (i) Decision to bear or beget a child
                   1. An individual decision
      (f) Right to structure intimate and personal relationships
           Lawrence
      (g) Right to terminate a pregnancy
           Roe
           Casey
      (h) Right to refuse lifesaving nutrition and hydration
           Cruzan
  3 Nonfundamental liberty
      (a) Right to contract
      (b) Physician assisted suicide
           Glucksberg
C State interest

       1 Morality
         (a) Legitimate interest
              But not valid standing alone to justify a wholesale infringement of a
                 fundamental liberty interest
              But a moral judgment of disapprobation against a minority (interracial
                 couples, blacks, gays) is not enough to justify infringement of a fundamental
                 liberty interest
      2 Court will hypothesize state interests
         (a) States do not necessarily have to advance state interests
      3 Hierarchy of state interest
         (a) Compelling
         (b) Legitimate
         (c) Not legitimate
    D Scrutiny
      1 Fundamental liberty
         (a) Strict scrutiny
              Is the law necessary to achieve a compelling state interest?
                 (i) Very high standard
         (b) Undue burden (Casey)
              Intermediate scrutiny
         (c) Real and substantial relation (Mugler)
              Between law and justification
      2 Nonfundamental liberty
         (a) Rational basis
              “Reasonable relation”

                                      Equal Protection

                      Ends                                  Means
Strict Scrutiny       Compelling state interest             Narrowly tailored, least restrictive
Intermediate level    Important objectives                  Substantially related
Rational basis        Any conceivable legitimate purpose    Rational relationship

I   Introduction
    A Government action required
        1 Make sure state (14th amendment) or federal (5th amendment) government is acting
    B Basic guarantee of EP clause
        1 People who are similarly situated will be treated similarly
    C Facial v. As Applied Challenge: two different types of attacks a plaintiff may make on a
        1 Facial Challenge
            (a) Under no circumstances can this law be constitutional
        2 As applied Challenge
            (a) Even though the law may be constitutional as applied to some people, it is
                unconstitutional as applied to me
    D Three Questions in Equal Protection Cases

       1  What classification does the law create?
          (a) Suspect
          (b) Nonsuspect
               Overinclusive v. Underinclusive Classifications
                  (i) Overinclusive
                       1. Classification includes more people than necessary to achieve the
                           state’s purpose
                  (ii) Underinclusive
                       1. Classification fails to include everyone necessary to achieve the state’s
      2 What is the state’s justification for the classification?
          (a) Compelling
          (b) Important
          (c) Legitimate
      3 What level of scrutiny must the court apply?
          (a) Suspect classification
               Strict scrutiny
                  (i) Even if classification is benign
          (b) Nonsuspect classification
               Rational basis scrutiny
II Scrutiny of Economic Regulations
   A Introduction
      1 Deferential Review
          (a) Where a suspect class is NOT implicated (as is the case with most economic
              regulations), the Court will review a classification with extreme deference, and
              with a heavy presumption of constitutionality
               Mere rationality review
                  (i) The statute will NOT be stricken if it’s conceivable that there is some
                       rational relation between the means selected by the legislature and a
                       legitimate legislative objective
                       1. The law will be stricken only if the classification is purely arbitrary
   B Railway Express Agency v. New York
      1 Facts
          (a) A NYC traffic regulation bans the placing of advertising on vehicles, except that
              the owner of a vehicle is permitted to advertise his own products
      2 What classifications does the law create?
          (a) People who advertise on their own trucks and people who advertise on someone
              else trucks
          (b) Types of advertisements
               Advertisements for your own business and advertisements for other
          (c) Distinction between different kinds of trucks
               Advertising vehicles
               Business delivery vehicles
                  (i) Ok, if advertising business delivery business

      (d) Lots of different classifications that a law can make depending on how you think
          about it
      (e) None of these classifications are suspect classifications
  3 State justification
      (a) Safety
  4 Scrutiny
      (a) Nonsuspect classification
           Rational basis review
  5 “One step at a time” approach
      (a) A key feature of “mere rationality” review is that legislation will not be
          invalidated merely because the legislature dealt with only one part of a problem
           Legislature may deal with a problem one step at a time
              (i) Or a statute which is underinclusive is not necessarily invalid
C Village of Willowbrook v. Olech
  1 Facts
      (a) Plaintiff was a homeowner. City required a larger easement from her than they
          required from other property owners
  2 One Time One Person Government Decision
      (a) The number of individuals in the class discriminated against can be one
           Can bring a claim that the government treated me differently in a one time
              (i) Can bring an equal protection claim
  3 Breyer concurrence
      (a) Oleck is a special case because the plaintiff is saying not just that the government
          treated her differently but the government acted out of ill will or an illegitimate
D Beazer
  1 Facts
      (a) Law said that if you’re in methadone treatment, you can’t work for the
          transportation authority
  2 Overinclusive and Underinclusive
      (a) Overinclusive
           Law bars people in methadone treatment program from working for the MTA
              even though some of these people could safely perform their job functions
      (b) Underinclusive
           It is underinclusive to bar only methadone users from MTA jobs because there
              are other types of drug addicts
  3 Justification for the law
      (a) Represent the city
           It is not safe for people that are in a methadone treatment program to work for
              the MTA
              (i) Therefore, we will bar them all from all jobs
  4 Alternatives to the law
      (a) Only apply the restriction to jobs that could affect safety (actually running the

          (b) Some kind of individualized finding that the potential worker would not be able to
              perform his job functions safely (drug tests)
       5 Rational basis review
          (a) Court holds that there is a rational basis for the law
    E Murgia
       1 Facts
          (a) Law that forces police to retire at age 50
       2 State justification
          (a) Police officers need to be strong and health and at age 50 that diminishes
       3 Plaintiff’s argument
          (a) Some 50 year olds are weak but I’m still strong, so why draw the line at 50
          (b) The law is overinclusive because it bars some perfectly fit over 50 year olds
          (c) The law is underinclusive because it doesn’t cover some under 50 year olds that
              are extremely physically weak
       4 Other alternatives
          (a) Require individualized physical testing
               Concern
                  (i) Practicality
                  (ii) Logistical cost issues
       5 Holding
          (a) Rational basis review
               Not the best law to meet the state’s purpose but the alternative is not workable
               Rational basis is easily enough satisfied in this case
    F Other ways to read the laws
       1 Morgia law
          (a) Concern about the actual legislative intent
               Animus against elderly workers
       2 Beaser law
          (a) Animus against former drug users
    G Moreno
       1 Facts
          (a) Law is a federal food stamp law that excludes groups of unrelated persons but
              covers groups of related persons
       2 State justification
          (a) Raising levels of nutrition in families and helping farmers
       3 “A mere congressional desire to harm a politically unpopular group CANNOT
          constitute a legitimate government purpose”
          (a) Quote is important for nonsuspect groups and the laws that target them out of
       4 Rational basis review
          (a) Law was motivated by an animus against a politically unpopular group.
              Therefore, law bore no rational basis to the government purpose
III Determining a statute’s purpose
    A Actual Legislative Purpose
       1 If the statute itself, either within its text, or in its preamble, contains a statement of
          purpose, that statement will control

   2 If the legislative history of the bill discloses a purpose, that will control
     (a) Combination of goals
           So long as one of the purposes of the statute is legitimate, and sufficiently
              closely linked to the means, the statute will be valid under mere rationality
B Conceivable Basis Standard
  1 Court considers any purpose which the statute’s defenders can assert as having been
     the or even a, consideration which may have motivated the legislature
     (a) If the Court agrees that this purpose may have motivated the legislature, and that
          purpose is legitimate and rationally related to the means used by the legislature,
          the statute will be upheld even if there is no hard evidence that that purpose was
          in fact a motivation to the legislature
  2 Illustrations of Conceivable Basis standard
     (a) McGowan v. Maryland
           Facts
              (i) Law mandated that all stores be closed on Sunday except certain stores
           State justification
              (i) State does NOT assert one
              (ii) Court steps in and says that the law might serve the purpose of health of
                   the populace or enhancement of recreational atmosphere of the day
     (b) Fritz
           Facts
              (i) Law is about retirement benefits
                   1. If you are already retired, you get the dual benefits
                   2. If you are not yet retired
                       a. Worked on the RR for less than 10 years = no benefits
                       b. Worked on the RR for more than 10 year = have to meet one of the
                           three criteria
                           i. If meet one of the criteria, then you get the benefits
                           ii. If don’t meet any of the criteria, then you don’t get the benefits
                           iii. This group challenges the law
           State justification
              (i) Phase out dual benefits to prevent the RR retirement system from going
              (ii) To protect the vested interest in receiving benefits of the people who had
                   worked for more than ten years
                   1. Brennan says that the classification at issue cannot be rationally related
                       to the goal because the purpose of protecting vested interests is NOT
                       served by the goal
           Conceivable basis standard
              (i) Majority says that the Court can hypothesize Congress’s purpose
                   1. Majority imputes a purpose to Congress of rewarding people who were
                       career RR employees
           Scrutiny
              (i) Rational basis

                       1. So long as there was a “plausible” reason for Congress to have made
                          the classification scheme it did, mere rationality review was satisfied
                       2. It was constitutionally irrelevant whether this reasoning in fact
                          underlay the legislative decision, since the Court had “never insisted
                          that a legislative body articulate its reasons for enacting a statute.”
                 Brennan’s critique
                  (i) Court is abdicating judicial review
                       1. Majority responds by saying talk to the hand
                 Stevens
                  (i) Can use the actual purpose or a legitimate purpose reasonably presumed
                  (ii) Rational basis test that Stevens would apply?
                       1. Animus
                          a. If the adverse impact on the class is the apparent aim of the
                              legislature, the court will view the classification with skepticism
IV Race
   A Introduction
      1 Suspect classifications are those based on
        (a) Race
        (b) National origin
        (c) Alienage
      2 Strict scrutiny
        (a) Suspect classifications receive strict scrutiny
        (b) Classification will be upheld only if it is necessary to achieve a compelling
            government interest
      3 Carolene Products Footnote 4
        (a) More heightened scrutiny for when rights that are actually in the constitution are
            being infringed
        (b) Court might apply different levels of scrutiny to different liberty infringement
             First time the court has suggested this
        (c) Situations that trigger stricter scrutiny
             If the law falls within a specific prohibition of the bill of rights
             If the law restricts political processes that ordinarily could be expected to
                oppose undesirable laws
                (i) If law restricts people’s ability to assemble and protest
             Laws that express prejudice against discrete and insular minorities, including
                religious, racial, etc.
   B Requirement of Purposeful Discrimination
      1 A classification will not be deemed to be suspect, and therefore subject to strict
        scrutiny, unless the Court finds that there was a legislative intent to discriminate
        against the disfavored group
        (a) Discriminatory effect is NOT enough
             The mere fact that a law has a less favorable impact on a minority group than
                it has on the majority is NOT sufficient to constitute a violation of equal

            (i) But a demonstration of disproportionate impact is a factor in the EP
                 analysis, but it can never by itself suffice; proof of intentional
                 discrimination is required
2   Washington v. Davis
    (a) Facts
         DC police department gives a test to law enforcement officer applicants
         Blacks fail more often than whites
    (b) Issue
         Whether the facially neutral policy violates EP because it has a disparate
            impact on a minority group?
    (c) Holding
         EP plaintiff must allege and prove that the state or local defendant has
            purposefully discriminated against plaintiff because of plaintiff’s race
            (i) Intent to discriminate is required
3   Arlington Heights v. Metropolitan Housing Corp.
    (a) Plaintiff does not have to show that purposeful discrimination is the sole
        motivation for the law
         Plaintiff must only show that purposeful discrimination was a motivating
            factor for the law
            (i) How to show that purposeful discrimination was a motivating factor for
                 the law
                 1. Impact of the official action
                     a. Sometimes a clear pattern, unexplainable on grounds other than
                         race, emerges from the effect of the state action even when the
                         governing legislation appears neutral on its face
                 2. Historical background of the decision
                     a. Particularly if it reveals a series of official actions taken for
                         invidious purposes
                 3. Departures from the normal procedural sequence
                 4. Legislative or administrative history
                     a. Statements by members of the decisionmaking body
                     b. Minutes of its meetings
                     c. Reports
                 5. Testimony of decision makers at trial
4   Mixed Motive Cases (Burden Shifting Framework)
    (a) Where there is evidence that the state action had a perfectly legitimate purpose
        and an illegitimate purpose
         Plaintiff does not have to show that the race or gender bias is the defendant’s
            sole motivating purpose. The plaintiff just has to show that the discriminatory
            purpose was a motivating factor
            (i) Discriminatory Motive must be but for cause of the enactment
                 1. The statute must have been enacted because of a desire to bring about
                     a discriminatory impact, not merely in spite of the probability of such
                     an impact
                     a. Personnel Administrator of Mass. v Feeney
            (ii) Burden shifting

                 1. If the plaintiff can show that, the burden shifts to the state to
                      demonstrate that it would have made the same distinction even without
                      the impermissible bias
                      a. If the defendant succeeds in showing this, the requirement of
                          discriminatory purpose will be deemed not satisfied
  5 Three ways to show intentional discrimination
     (a) The law discriminates on its face, i.e., by its explicit terms
     (b) The law, although neutral on its face, is administered in a discriminatory way
     (c) The law, although it is neutral on its face and is applied in accordance with its
         terms, was enacted with a purpose of discriminating
          As shown by the law’s legislative history, statements made by legislators, the
             law’s disparate impact, or other circumstantial evidence of intent
C Facially Discriminatory
  1 Strauder v. West Virginia
     (a) Facts
          A state statute provides that “all white male persons who are 21 years of age
             who are citizens of this State shall be eligible to serve as jurors.
          P, a black, is convicted of murder by a jury from which all blacks have been
             removed pursuant to the statute
     (b) Holding
          The act on its face discriminates against blacks, and therefore violates the EP
  2 Korematsu v. United States
     (a) Facts
          K challenges the military order that orders Japanese descendants to be put in
             internment camps
     (b) Suspect classification
          Court uses this language for the first time
     (c) State justification
          Pressing public necessity
          Japanese population contains a large number of traitors and it is impossible to
             segregate out the bad people from the good people
          Underinclusive
             (i) Classification only covers Japanese, not all traitors who pose a risk
          Overinclusive
             (i) Classification covers ALL Japanese, even though not all Japanese are
     (d) Holding
          The Court upholds the Japanese exclusion law but they say that racial
             antagonism alone can never justify a racial classification
             (i) But the classification here comes from a military necessity and that is
                 sufficient to uphold the law
     (e) Justice Murphy
          Applies rational basis review
          Internment camps were not reasonably related to the goal of national security
D Discrimination in Administration

   1  Yick Wo v. Hopkins
      (a) Facts
           A SF ordinance bars the operation of hand laundries in wooden buildings,
              except with the consent of the Board of Supervisors
           Board gives permits to all but one of the non-Chinese applicants, but to none
              of nearly 200 Chinese applicants
      (b) Holding
           Although the ordinance is neutral on its face, there was discrimination in its
              administration, and the discrimination violated the EP Clause
E Discriminatory Purpose Shown by Circumstantial Evidence
  1 Rodgers v. Lodge
      (a) See page 248 of supplement
F Strict Scrutiny – Fatal in Fact???
  1 Johnson v. California
      (a) Facts
           CA dept. of corrections had policy of segregating convicts by race for the first
              sixty days they were in jail
              (i) State prison policy
           Overt classification based on race
      (b) Scrutiny
           Court applies strict scrutiny even though the law is neutral in application
      (c) State justification
           Interest of safety in the jails because of gang violence organized around race
      (d) Holding
           Court says that this a compelling government interest but case is remanded to
              determine whether the law is narrowly tailored
      (e) NOTES
           Strict scrutiny does NOT have to be fatal
           Strict scrutiny may be applied to uphold an overt racial classification
      (f) Dissent
           Would NOT apply strict scrutiny
           As long as a prison regulation is reasonably related to a legitimate penalogical
              (i) Turner test
           Dissenters would go lower than rational basis review
G Unconstitutionality of Racial Segregation
  1 Plessy v. Ferguson
      (a) Facts
           Homer Plessy sits in the white passenger compartment and refuse to leave
           Convicted of a crime
           RR law has a facial racial classification
      (b) Does court subject the classification to strict scrutiny?
           No, the court applies rational basis review
           Every exercise of the police power must be reasonable
      (c) How does the Plessy court deal with Strauder?

           This law provided for separate but equal accommodations
           But law in Strauder banned all black people from serving on juries
           Plessy says that certainly the framers of the 14th amendment were not
            considering integrated schools or interracial marriage
         Plessy says that this law is just a social classification
         14th amendment applies to racial classification but only classifications that
            deal with civil / political rights, not the social fabric of our country
    (d) How does the court analyze this separate sphere of social laws?
         Okay if goal of law is not to suppress a certain race but instead to preserve the
            public good and peace as well as the engrained traditions of our country
    (e) How does Court deal with the idea of separate accommodations stamping the
        black race with a badge of inferiority?
         The colored race chooses to put that construction upon it
    (f) Harlan dissent
         What is the purpose of the law?
            (i) To keep the black people out of the white people’s coach
            (ii) The law is premised on white superiority
         There is in this country no superior dominant ruling class of citizens. There is
            no caste here. Our constitution is colorblind.
            (i) In the social setting, the government cannot draw classifications based on
         On the psychological point, Strauder is right and even separate but equal laws
            brand the black race as inferior
         There should not be any racial classifications in the law at all
2   Brown v. Board of Education
    (a) Facts
         Brown tries to enroll his daughter in the white grade school
         What is Brown’s theory re why separate but equal violates the EP clause
            (i) Separate is inherently unequal
    (b) Issue
         Does segregation of children in public schools solely on the basis of race
            deprive the children of the minority race of equal educational opportunities?
    (c) Holding
         Yes
         In the field of public education, the doctrine of separate but equal has no
            place. Separate educational facilities are inherently unequal.
    (d) Reasoning
         Court cites studies
    (e) Original Intent and Brown
         Nobody thought that schools should be desegregated at the time the 14th
            amendment was passed
            (i) Vast majority of states permitted segregated schools at the time the 14th
                 amendment was passed
         Two possible originalist arguments in favor of Brown

              (i) Framers intentionally used broad language because they wanted equal
                   protection to be elastic and grow with the times
              (ii) After the 14th amendment was passed, Congress debated a bill (which did
                   not survive a filibuster) that would have provided equal access to public
                   accommodations including schools
                   1. Argument that this demonstrates that Congress intended the 14th
                       amendment to have an elastic meaning
                   2. Argument is that Congress was acting under its 14th amendment
                       section 5 powers in debating the bill
                       a. This indicates that Congress thought segregated schools violated
                           the 14th amendment and Congress wanted to eliminate this practice
                           by using its section 5 powers
  3 Brown II
     (a) Local school authorities have primary authority for solving the problem of
     (b) Federal district courts will supervise these local school authorities
     (c) Overall goal
          Admission to public schools as soon as practicable on a nondiscriminatory
              (i) Goal is integrated schools as opposed to laws that don’t make racial
     (d) Practical considerations
          School transportation
          Infrastructure of the schools
          Etc.
              (i) This is why the integration was ordered to be gradual
     (e) Timeline
          “with all deliberate speed…”
  4 Loving v. Virginia
     (a) Facts
          Lovings are an interracial couple who got married
          Law makes it a crime for people of different races to marriage
     (b) How does the court analyze the racial classification?
          This is totally an illegitimate state interest
          The law can’t stand
     (c) Is the law’s interpretation correct as a manner of original interpretation?
          Not really because antimiscegenation laws were common at the time the 14th
              amendment was passed
     (d) Strict scrutiny
          Court applies strict scrutiny because there is a racial classification
          Racial classifications are suspect
          Classification violates EP
H Desegregation and the Implementation of Brown
  1 Brown II
     (a) Remedy is the admission to public school as soon as practicable on a
         nondiscriminatory basis

           What is in violation of the EP clause
            (i) De jure segregation
            (ii) Circumstantial evidence of board’s purposeful segregation of schools
2   Green v. School Board
    (a) Argument is that remedy that court is ordering exceeds the scope of the violation
    (b) School board adopts a freedom of choice plan
         Parents can choose which school
    (c) No whites had attended the black school and only 15% of the blacks were
        attending the white school
    (d) Counterargument is that the board has an affirmative duty to desegregate the
        public schools
    (e) Court holds state’s responsibility is to eliminate the vestiges of discrimination
        root and branch
    (f) Six Factor Test for whether the state is eliminating the vestiges of
         Racial balance of student assignments
         Racial balance of faculty assignments
         Transportation
         Physical facilities
         Extracurricular activities
         Resource allocation
    (g) Remedy is measured by its effectiveness
    (h) States are required to take race into account when remedying their EP violations
3   Swann v. Board
    (a) Facts
         Remedy that school district tries is that all the kids get to go to the school
            nearest to their house
            (i) Problem: neighborhoods were segregated
         District court requires board to bus children within the district
         SC rules that this intradistrict busing order is fine
            (i) Unless the burdens of travel will risk the child’s health or significantly
                 interfere with child’s education
    (b) SC says that once the board has remedied the EP violation, board has no
        affirmative obligation to keep the school integrated
4   Milligan
    (a) District court can take broad and drastic measure in remedying
    (b) Detroit is mainly black, so district court orders busing to white suburban schools
         SC holds that district court exceeded its broad power to end segregation in the
            (i) Interdistrict busing is not okay
5   Rehnquist’s view
    (a) Schools should not be required as a part of the remedy to seek racial mixing
         School should only be required to remove formal racial segregation
    (b) There has to be some time limit for how long district courts can be involved in
        supervising school districts
6   Board v. Dowell

         (a) Federal supervision of local school systems should be temporary
         (b) Compliance is measured by…
              Has the school board complied in good faith with the district court’s order
              Have the vestiges of the past discrimination been eliminated
     7   Freeman v. Pitts
         (a) Board had integrated its schools but then the racial imbalance reemerged
         (b) Justice Kennedy says that the racial imbalance itself does NOT mean that the
             school board has not remedies
         (c) Once the violation is remedied, the board is under no duty to remedy a racial
             imbalance which is due to other factors such as demographic change
     8   Missouri v. Jenkins (1995)
         (a) Justice Thomas (dissent) – the real remedy for the violation in Brown is the repeal
             of the law and the compensation of the victims of the segregation
              As soon as you compensate those children, that’s the end

I. Affirmative Action and Race Preferences in Education (3.21)
  A. Introduction
     1. AA is benign classification b/c it helps minorities
        a. But related the same- still STRICT SCRUTINY
     2. Want to remedy past discrimination from segregated system
        a. But what would this remedy be?
           i. Could say no discrimination, but we won’t actively desegregate
           ii. Could say no discrimination and we will bus to integrate (trying to remedy
           iii. Can only remedy INTENTIONAL discrimination
                 This intentional requirement is limited to EP realm (do not need with PI or
                    DP clauses)
     3. But can’t change people’s attitudes towards opposite races
        a. Could argue that we would have segregation anyway (in living patterns, etc. even
           w/o segregation laws)
           i. So all we should remedy is that “extra” bit of segregation and harm coming
                from the segregation laws
        b. Could say we can’t give a remedy, so we should not enter this area (but courts
           here don’t want to be ineffective- they want to help)
  B. Cases
     1. Regents of Univ. of CA v. Bakke (3.22)
        a. Quota system in higher education is unconstitutional
        b. But can still consider race in admissions
        c. NO purposeful discrimination found
        d. Non-compelling state purposes
           i. Ameliorating racial discrimination
                 Not enough unless state created imbalance
           ii. Reduce deficits of minorities in med schools or counteract effects of social
                 Cannot do this at expense of another
           iii. Increase number of physicians to serve minorities

                     Reinforces stereotypes, no correlation, narrow-tailoring problem
            e. Compelling interest
               i. Educational benefits of a diverse student body
            f. Uses STRICT SCRUTINY (but 4 votes for using intermediate b/c classification is
         2. Grutter v. Bollinger (3.25)
            a. Law school policy
            b. Can use race in admissions as plus factor
               i. Want flexible plan
            c. Compelling interest is having a diverse student body
            d. Do NOT have to consider all alternatives- so percentage plan and lottery system
               not workable and thus do not have to be used
            e. Majority wants to sunset AA in 25 years
            f. Dissent (Rehnquist)
               i. Said law school engaged in racial balancing- % of admitted = % of each
                    minority applicant
            g. Dissent (Kennedy)
               i. Daily reports, small fluctuations show impermissible AA
            h. Dissent (Thomas)
               i. Law school does NOT have compelling interest in diverse student body
               ii. Law school is elite and can do what it wants
               iii. AA bad for beneficiaries- hard for them to succeed
         3. Gratz v. Bollinger (3.26)
            a. UM undergraduate admissions policy- point system
            b. Point system is not okay b/c not flexible and does not consider the individual
               i. And get way more points for minority than for other achievements
            c. Not narrowly tailored
               i. Administrative challenges not a defense
            d. Flagging not a solution (near miss file flagged for individual review) b/c w/o 20
               points may not be near miss
            e. Concurrence (O’Connor)
               i. No individual assessments, flagging not okay
            f. Dissent (Souter)
               i. Not a quota here- everyone is competing for every seat
               ii. Did not show system was so extreme to cause almost every minority to be
            g. Dissent (Ginsburg)
               i. Legacy of discrimination, other plans don’t work
               ii. Could resort to camouflage anyway (ex. write about cultural traditions in
                    essays or cultural associations)
II.     Affirmative Action and Race Preferences in Employment and
      Contracting (3.28)
      A. Cases
         1. Fullilove v. Klutznick (3.28)
            a. FEDERAL spending program that requires funds to go to MBE is okay
            b. Congress has broader authority to make federal AA programs

             i. Authorized by §5 of 14th amendment
       2. Richmond v. J.A. Croson Corp. (3.29)
          a. Tried to adopt plan that is from Fullilove
          b. Struck down
          c. Congress CAN remedy effects of past discrimination (but this does not mean the
             states can)
          d. No evidence of past discrimination exists here, but few contracts go to MBE
             i. W/o evidence, then cannot use AA measures
             ii. Must show specific findings that governmental body engaged in intentional
                  discrimination (but hard to do b/c liability problems)
             iii. OR can show that private parties practiced discrimination past and
                  government activity w/o AA would compound this problem
             iv. But must be SPECIFIC (ex. in construction industry, not society as a whole)
          e. Not narrowly tailored
             i. Why couldn’t apply special rules to small businesses (which includes a lot of
          f. Dissent (Marshall)
             i. Dissent wants to use intermediate scrutiny b/c benign classification
             ii. Also notes that majority of city council is black (so blacks are represented)
       3. Adarand Constructors, Inc. v. Pena (3.32)
          a. Federal government has program giving more money to K who use minority
          c. So case remanded b/c improper standard applied

I   Gender
    A Introduction
       1 Intermediate scrutiny
          (a) Any gender based classification must be “substantially related” to “important”
              governmental objectives
               Or defenders of a gender based scheme must show an “exceedingly persuasive
                  justification” for the scheme
                  (i) VMI
    B Sex Based Classifications
       1 Text of the constitution
          (a) Original Bill of Rights has no textual guarantees
          (b) 19th Amendment
               Says the right to vote shall not be denied or abridged on account of sex
                  (i) Initially some people said that this indicates women are a protected class
                      in the United States
                      1. But amendment has been strictly construed
          (c) Equal Rights Amendment
               Not ratified by enough states
               The amendment would provide that equality of rights under the law shall not
                  be abridged or denied on account of sex

     (d) 14th Amendment
          Section 2 talks about male citizens’ right to vote
          Section 1 talks about privileges and immunities, EP, etc.
     (e) Equal Protection clause
C Bradwell v. State
  1 Facts
     (a) Bradwell was one of five women lawyers in the country
     (b) Denied license to practice in front of the Illinois Supreme Court because she was
         a woman
     (c) She claims that she has the privilege to pursue her chosen profession under the P
         and I clause of the 14th amendment
  2 Paternalistic approach
     (a) Women should stay in the home and fill a domestic role
  3 Holding
     (a) P and I clause has nothing to say about this kind of law
D Gosert v. Cleary
  1 Facts
     (a) Law said that no woman could obtain a bartender’s license unless she is the wife
         or daughter of a bar owner
          Overt sex based classification
  2 Holding
     (a) Rational basis review applies to gender classifications
  3 State justification
     (a) Protecting women from vice, drinking, etc.
     (b) Law ensures oversight of women working in a bar
  4 Reasonable relationship between the means and the ends
     (a) Court rules that there is such a rational relationship
     (b) The classification is NOT without basis in reason
     (c) EP clause does not require states to reflect shifting social standards
          Court recognizes that the role of women in society is changing
E Reed v. Reed
  1 Facts
     (a) Idaho law that requires the dad to be appointed the administrator of an estate,
         rather than the mother
     (b) Son dies – Reeds are divorced
     (c) Court appoints dad the administrator because of the law
  2 Rational basis review of Idaho law
     (a) First ask what is the purpose of the law
          The court or state can supply the purpose
          Basically the purpose of the law is administrative convenience
     (b) If you are applying rational basis scrutiny, there is certainly a rational relationship
         between the means and the ends
          Plus there is the Cleary precedent which is hard to get around
             (i) So court is clearly not applying the same rational basis review they applied
                 in Cleary
     (c) Court says that this is the very kind of arbitrary legislative choice forbidden by EP

             Court applies rational basis but gives less deference to the government
              (i) Pure administrative convenience is not good enough
F Frontiero
  1 Facts
     (a) A federal law that treats married men different than married women
          Female soldiers have to prove that their man is dependent on them but male
             soldiers do not
     (b) Fifth amendment equal protection challenge
          Boland v. Sharpe – same standard as 14th amendment EP challenge
  2 Justification
     (a) Administrative convenience – more men in the military than women
  3 Justice Brennan’s arguments for equating race and sex as suspect classifications
     (a) Both are immutable traits
          Cannot change your sex or race and have no control over what your race or
             sex is
     (b) Current discrimination
          Still discrimination in society directed at both
     (c) Historical discrimination
          Historical treatment of race and sex
     (d) Discrimination predicated on inferiority
          You regard women as weak and in need of protection
     (e) Race and sex bear no relationship to one’s ability to contribute to society
  4 Footnote 4 in Carolene Products
     (a) Discrete and insular minorities
G Craig v. Boren
  1 Facts
     (a) Law said that 18 yr. old girls can buy beer in Oklahoma but 18 yr. old boys
     (b) Male plaintiff asserting an EP violation
  2 Standard of Review
     (a) Classification must be substantially related to the achievement of important
         governmental objectives
          Intermediate scrutiny
     (b) The government has the burden of showing that the classification meets the
         standard of review
     (c) Race gets strict scrutiny but sex gets intermediate scrutiny
          Race
             (i) Justification
                  1. Compelling
             (ii) Means ends relationship
                  1. Narrowly tailored
          Sex
             (i) Justification
                  1. Important
                     a. Stereotypes can never be important justifications
                     b. Administrative convenience can never be an important justification

             (ii) Means ends relationship
                  1. Substantially related
          Other
             (i) Justification
                  1. Legitimate
             (ii) Means ends relationship
                  1. Reasonable
                     a. “Fair and substantial relationship”
                         i. Is this a higher standard than reasonable?
                         ii. Rational basis with teeth (Royster Guano)
  3 Governmental justification
     (a) Traffic safety justification
          Men have more of a tendency to drink and drive
  4 Means ends relationship
     (a) Overbroad classification
          Punishes all boys because 2% of boys drink and drive
     (b) If you want to get at traffic safety, why does the law merely bar the sale of alcohol
         rather than bar the consumption of alcohol
  5 Burden of proof
     (a) For sex based classifications, the state must demonstrate that it had an important
         interest that motivated the classification and that the classification is substantially
         related to the achievement of that interest
H Hogan
  1 Facts
     (a) Mississippi has an all women’s nursing school
     (b) Joe Hogan challenges the school’s single sex admissions policy
  2 Standard of review
     (a) “Exceedingly persuasive justification”
          Alternative shorthand for “important” and “substantially related”
             (i) Not a different standard
  3 State justification
     (a) Pedagogical advantages to having single sex education
          But O’Connor says they let men audit the courses – weakens the argument
             that not admitting men is substantially related to the governmental interest of
             maintaining single sex education
     (b) Educational affirmative action for women – state has an interest in compensating
         for past discrimination against women
I US v. Virginia
  1 Facts
     (a) VMI only admits men
     (b) US sues on behalf of woman who was denied admission
     (c) Court of Appeals gives VMI three options
          Admit women
          Establish a parallel military institute for women
          Privatize
     (d) VMI picks the second option

          No adversative education
          Not as many classes or prestige
  2 Standard of Review
     (a) “Exceedingly persuasive justification”
          New standard?
              (i) Dissent thinks so
  3 Burden on government
     (a) Justification burden rests on state and it can’t be hypothesized ad hoc
          Justification can’t rest on stereotypes about women
  4 Justifications
     (a) Diversity in educational opportunities
          Ginsburg
              (i) Even assuming that diversity in educational opportunities is an important
                   justification, VMI never brought this justification up in the 1980s when
                   they were considering whether to go co-ed or not
     (b) VMI would have to change its core way of functioning if women were admitted
          Adversative method would have to be modified if women were allowed to
              (i) Method of education is incompatible with the presence of women
                   1. Expert testimony
                       a. Males need the adversative environment while women thrive on
  5 Means – ends
     (a) Government must show that it has considered gender neutral options before it
         imposed the gender based classification
J Sex classifications
  1 Immutability of the sex characteristic
  2 Pregnancy
     (a) How should courts deal with classifications based on this physical difference
         between men and women (ie ability to become pregnant)
K Gudooldig
  1 Facts
     (a) CA has a benefits program for workers who miss work for medical conditions
          Things not covered:
              (i) Pregnancy
              (ii) Alcoholism
              (iii)Drug use
     (b) Law distinguishes between covered and uncovered disabilities
     (c) Distinguishes between people who can get pregnant and people who can’t
     (d) The court says that this is not a true sex based classification
          Brennan says that there are conditions that only men have that are covered
              (i) Therefore, it is a sex based classification
  2 State justification
     (a) If you cover everyone that has a baby, that is a huge financial drain on the system
          Plus pregnancy is not a health problem

       3   Mixed Motive cases – evidence that the state action had a perfectly legitimate
           purpose and an illegitimate purpose (save money and we hate women)
           (a) Under Arlington Heights, in a mixed motive case, the plaintiff does not have to
               show that the race or gender bias is the defendant’s sole motivating purpose. The
               plaintiff just has to show that the discriminatory purpose is a motivating factor.
                If the plaintiff can show that, the burden shifts to the state to show that it
                   would have made the same distinction even without the impermissible bias
       4 Holding
           (a) Laws that use pregnancy as a classification device do NOT trigger heightened
               scrutiny because it is not a sex based classification
                Title VII
                   (i) Pregnancy Discrimination Act
                        1. An employer who uses pregnancy as a classification device is subject
                            to the constraints of Title VII
                            a. Undercuts G’s constitutional holding
    L Michael M case
       1 Facts
           (a) Statutory rape is defined as having sex with a girl under 18
                Girls cannot commit statutory rape
       2 Classification based on sex
           (a) Intermediate scrutiny
       3 State justification
           (a) Preventing illegitimate pregnancy
       4 Important interest?
           (a) Yes
       5 Substantially related?
           (a) Plurality says yes
II Illegitimacy (page 815 of book)
    A Facts
       1 Guy born out of wedlock in Vietnam
           (a) Dad is American citizen
       2 Moves to the US but dad never officially legitimates him
       3 Federal law that treats illegitimate children born abroad depending on if the mother or
           father is the US citizen
    B Justification
       1 We want to ensure that there is a biological relationship between the child and the
    C Intermediate scrutiny
III Alienage classification
    A Can VA Tech say that only US citizens can be admitted to our university
       1 Alienage classification
           (a) Treatment of citizens v. noncitizens
                In particular legal permanent residents
                   (i) Illegal aliens not really covered by alienage
    B General rule
       1 Strict scrutiny

         (a) Exception
              Certain governmental jobs
     2 Sugarman v. Dougall
         (a) Law banning lawful permanent residents from any state job
              Court strikes it down but says that the state does have some leeway to make
                 citizenship a prerequisite for certain jobs
         (b) Exceptions where state can make citizenship a prerequisite (apply rational basis
              Voter registration
              Elective office
              Non-elective offices as long as they are participating in the formulation of
                 broad public policy
              State troopers
              Public school teachers
         (c) Notary publics
              Cannot make citizenship a prerequisite for becoming a notary public
                 (i) Ministerial function of a notary public
                     1. Not very much discretion
   C Reasons why alienage is a suspect classification
     1 Politically powerless
     2 Xenophobia
     3 History of discrimination
         (a) But characteristic is mutable
   D Federal immigration
     1 States can’t trump federal supremacy
IV Mentally Retarded
   A Cleburne v. Cleburne Living Center, Inc.
     1 Facts
     2 Issue
         (a) Whether laws that draw lines on the basis of mental retardation are subject to
             heightened scrutiny?
     3 Holding
         (a) Mental retardation is subject to rational basis review. Mental retardation is NOT
             a suspect class.
     4 State justifications
         (a) Neighbors are afraid of mentally retarded people
         (b) City will need to provide protection because school children may harass the
             mentally retarded living in the house
              Court says a law motivated by a bare desire to harm a politically unpopular
                 group cannot withstand rational basis review
         (c) Houses are on a flood plane and the state wanted to protect the inhabitants of the
              Relationship between means and ends is too attenuated
                 (i) Frat houses, etc are allowed under the ordinance
     5 Reasoning

         (a) Mentally retarded people are functionally different so the state has an interest in
             providing for them based on those differences
         (b) Mentally retarded have experienced discrimination but there has been legislation
             passed protecting them
              This demonstrates they are not a discrete and insular minority (no political
                 powerlessness concern)
                 (i) See Carolene Products
     6 Steven’s Dissent
         (a) Don’t apply heightened scrutiny. Instead ask:
              What class is harmed by the legislation, and has it been subjected to a
                 tradition of disfavor by our laws?
              What is the public purpose that is being served by the law?
              What is the characteristic of the disadvantaged class that justifies the disparate
V Sexual Orientation
  A Romer v. Evans
     1 Facts
         (a) Colorado passes a constitutional amendment that prohibits all legislative,
             executive or judicial action at any level of state or local government designed to
             protect gays and lesbians
              State law that has an overt classification based on sexual orientation
     2 State’s argument
         (a) State’s principal argument in defense of Amendment 2 is that it puts gays and
             lesbians in the same position as all other persons
              Court rejects this argument by stating that the amendment withdraws from
                 homosexuals, but no others, specific legal protection from the injuries caused
                 by discrimination, and it forbids reinstatement of these laws and policies
                 (i) Only way to get around it is through a constitutional amendment
     3 Hunter v. Ericsson
         (a) The state may no more disadvantage any particular group by making it more
             difficult to enact legislation on its behalf that it may dilute any person’s vote
              Protects the abilities of minorities to participate in the political process
     4 Level of scrutiny
         (a) Sexual orientation is NOT a suspect class
              Rational basis applies
         (b) Bowers is governing law
              Does that necessarily mean that sexual orientation can’t be treated as a suspect
                 classification for EP purposes?
                 (i) No, because Bowers was about substantive due process
                      1. No fundamental right to engage in gay sodomy
                 (ii) Everybody assumed that Bowers precluded that argument even though
                      Bowers was about substantive due process and not EP
     5 Sexual orientation as a suspect classification
         (a) Pros
              Current discrimination and animus
              Discrete and insular minorities (political powerlessness)

         Immutable trait
    (b) Cons
         Gays do have political power
         Slippery slope argument
6   Look at O’Connor’s concurrence in Lawrence


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