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Constitutional-Law-II-Outline-Spring-2009

VIEWS: 6 PAGES: 39

									                                                         CONSTITUTIONAL LAW OUTLINE
                                                         Hofstra Law, Professor Ku, Spring 2009


The Bill of Rights & The Civil War Amendments ........................................................................................................3
Constitutional Protection...............................................................................................................................................3
   Theories of Incorporation..........................................................................................................................................6
Due Process & Individual Rights...................................................................................................................................7
   Substantive Protection of Economic Interests...........................................................................................................7
   Substantive Due Process: The Right of Privacy........................................................................................................7
       II.Abortion ............................................................................................................................................................8
       III.Physician-Assisted Suicide.............................................................................................................................10
       IV.The Autonomy of Private Sexual Choices......................................................................................................11
   Procedural Due Process in Non-Criminal Cases.....................................................................................................13
Equal Protection...........................................................................................................................................................15
   The Traditional Approach: Rational Basis...............................................................................................................16
   Discrimination on the Basis of Race/Ethnicity........................................................................................................18
   Discrimination Based on Gender.............................................................................................................................26
   Fundamental Rights.................................................................................................................................................29
Religion........................................................................................................................................................................30
       I.The Establishment Clause ................................................................................................................................30
       II.Aid to Religion ................................................................................................................................................30
       III.Official Acknowledgement.............................................................................................................................32
       IV.Free Exercise Clause ......................................................................................................................................33
Free Expression............................................................................................................................................................33
       II.Advocacy of Illegal Action..............................................................................................................................34
       III.Libel ...............................................................................................................................................................35
       IV.Fighting Words, Hostile Audiences, Offensive Words and Hate Speech........................................................36
       V.Obscenity .........................................................................................................................................................37

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2
            THE BILL OF RIGHTS & THE CIVIL WAR AMENDMENTS

I. The Bill of Rights
    A. PURPOSE
        i. To guarantee and codify widely accepted rights
        ii.Conceived of as protections against the federal government
        iii.For the “People”

  I – Freedom of religion & free speech/press; right to peaceably assemble
  II – Right to bear arms
  III – No quartering of soldier during peacetime
  IV – No unreasonable search & seizures; warrant requirement
  V – No deprivation of life, liberty, property w/o due process; double jeopardy; the “5th”
  VI – confrontation clause (confront your accuser); trial by jury in criminal; right to speedy & public trial
  VII – Right to trial by jury in civil proceeding (>$20 in controversy)
  VIII – no cruel & unusual punishment
  IX – enumerated right of the Constitution doesn’t exclude any implied rights
  X – powers not delegated to the federal government are reserved to the states

II. Civil War Amendments
    A. PURPOSE
        i. To end slavery and guarantee rights of freedmen
        ii.Conceived of as protections against state governments, and private oppression
        iii.Empowers Congress

  XIII - No slavery
  XIV - Equal Protection Clause
  XV – Right to vote (can’t be denied right b/c of race, color or b/c you were a slave before)




                                 CONSTITUTIONAL PROTECTION
                                                WHO IS PROTECTED?
I. The Scope of Constitutional Rights
    A. Reid v. Covert – Δ (US citizen) kills her husband, who is in the military, abroad. At the time of the
       offense, she was in England, and there was a treaty btwn U.S. & UK which permitted US military
       courts to exercise exclusive jurisdiction over offenses committed in UK by US servicemen or their
       dependents. Δ tried by US military & given the death sentence. Δ challenges this, claiming that she
       was entitled to constitutional protection (5th & 6th Amendments) which she did not get.
        i. Ct held that the Constitution always trumps treaties, so Δ entitled to her constitutional rights. The
           constitution limits US actions against citizens abroad.
            a. Doctrine of enumerated powers

                                                                                                                   3
                   1.The federal government does not possess any power other than what is enumerated in the
                    Constitution (for the most part). Since the constitution is source of all power, the federal
                    government only exists because of the constitution and so they can only act because of the
                    constitution.
               b. Texts of the 5th & 6th Amendments
                   1.5th – capital crimes by a grand jury, except in cases arising in the land or naval forces.
                       (a)Civilian wives of soldiers not included in the exception
                   2.6th - trial by jury in criminal proceeding
          ii.Harlan’s Concurrence - the Constitution applies overseas, unless its application was
             "impracticable and anomalous." This requires a case by case analysis.
               a. Harlan thinks the constitution applies here b/c it’s a capital offense. Perhaps it wouldn’t have
                  applied if not a capital offense, but it depends on the situation.
     B. Model’s of Constitution’s Scope
        Citizens in US          Citizens outside     Non-Citizens in US              Non-citizens outside US
        territory               US territory         territory                       territory
        Constitution            Fundamental          Constitution always applies Depends on which right
        always applies          rights of            if non-citizens are part of a       • Harlan says only
                                Constitution         “national community”                    fundamental rights
                                apply, when not      (permanent resident get         Depends on the text
                                impracticable or     protection, but what about          • as long as it’s the US
                                anomalous            illegals? Still unclear).               actively doing something
                                (Harlan in Reid)



                                        THE STATE ACTION DOCTRINE
II. "State Action" Doctrine - has long established that most provisions of the Constitution that
    protect individual liberty impose restrictions or obligations only on government.
     A. Private entities are bound by state and federal laws - which in some ways may be more restrictive than
        the Constitution.
     B. Civil Rights Cases – The Constitution and the rights guaranteed by the Constitution protect individuals
        against the government. The Civil Rights Act may only apply to government entities, but discrimination
        is being perpetrated by private entities.
          i. 14th Amendment – doesn’t allow Congress to make laws regulating private rights; only provides
             redress against the operation of state laws, and actions of state officers.
               a. Harlan’s dissent – certain individuals are in a practical sense agent of the state b/c of their public
                  duties and functions, so they can be viewed as state actors (innkeepers, RR companies).
          ii.13th Amendment – “slavery shall not exist” so not just limited to government action, but also to
             individual action. 13th is only to end slavery, not to address social rights of people though.
               a. Harlan’s dissent – slavery rests on the inferiority of a race, so their freedom involves protection
                  from private discrimination.
III. Exceptions to the State Action Doctrine
     A. Government Function – Is the private actor performing a government function?
          i. Some Examples of Government Function
               a. Party Primary Elections or Caucuses
                    1.Smith v. Allwright (1944) – democratic party of Texas (private) performing a government
                     function in conducting the primary elections (so can’t exclude blacks).

                                                                                                                       4
              2.Terry v. Adams (1953) – Jaybirds a private organization run like a political party & had
               elections within the org. Held to be performing a government function b/c their candidates
               always will elections (uncontested), so effectively, this is where the real votes count.
         b. Company-owned town
              1.Marsh v. Alabama (1946) – town owned by a shipbuilding company (private). Town looks
               like any other, so just b/c owned privately, their operation is essentially a public function (as a
               municipality), so it is subject to state regulation.
         c. Shopping centers and malls
              1.Amalgamated Food Employees Union v. Logan Valley Plaza (1968) - a large, privately-
               owned shopping center was the functional equivalent of a business district (municipality).
         d. Private parks
              1.A private park is a government function if it is generally open to the public (so it is
               municipal in nature).
         e. Gated Communities
    ii.What is a Government Function? The question is "whether there is a sufficiently close nexus
       between the State and the challenged action of the regulated entity so that the action of the
       latter may be fairly treated as that of the State itself."
         a. Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) – private utility company is heavily
            regulated by the state. Providing power is not a traditional governmental function
              1.State action b/c state has given the utility a monopoly. Ct disagrees. This is more of a
               "natural monopoly," which exists b/c of the nature of providing electricity. Regulation was
               imposed on such natural monopolies as a substitute for competition.
              2.State action b/c the utility company provides an essential public service, so it is performing a
               "public function." Ct says this would be true, but this is not a traditionally state function.
               Statute imposes a duty on regulated utilities to provide service, but no duty for the State to
               provide those services. Too many business subject to regulation & they can’t be state function.
              3.State action b/c the utility's service termination practice was authorized and approved by the
               State. The termination procedure was in place before state started regulating, so State never
               really considered it, they just let them keep doing it.
B. State Entanglement or Encouragement - is the private actor sufficiently involved with or
   encouraged by the state so as to be held to the state's constitutional obligations?
    i. Shelley v. Kraemer, 334 U.S. 1 (1948) – restrictive covenant in community that limits selling
       property to whites only. Shelley owned a home & wanted to sell to a black couple. Neighbor
       (Kraemer) went to court to enforce the restrictive covenant.
         a. The covenant is not imposed by the local government, it’s a private covenant. Since this is a
            private agreement there is no state action. However, the court’s enforcement of the covenant
            constitutes state action, and this would be in violation of the 14th Amendment.
         b. Every private transaction enforced by courts will essentially be state action. Whenever the
            court enforces some private activity, they have to consider whether or not they are effectively
            violating a constitutional right.
    ii.Problems
         a. Will devising property on condition that if person marries a person "not born in the Hebrew
            faith" the property goes to someone else.
              1.This is generally ok. This is a gift, rather than a sale.
         b. Child custody decree requiring private school tuition payments by father to a school that
            discriminates on the basis of race.
              1.Formal distinction (not state action) - father required by court to give money to mother, but
               it’s the school that's discriminating. Probably not state action b/c not close enough nexus
               btwn state action and the discrimination.
                                                                                                                 5
                                        THEORIES OF INCORPORATION
                                   th
I. Incorporation and the 14 Amendment
    A. Prior to the 14th Amendment, the Bill of Rights did not apply against the states.
    B. The 14th Amendment shifted from limit on federal government to limits on both federal and state
       government.
        i. "No state shall make or enforce any law which shall abridge the privileges or immunities of
           citizens of the United States." (But see: Slaughterhouse Cases)
        ii."Nor shall any State deprive any person of life, liberty, or property, without due process of law."
II. Total Incorporation VS Selective Incorporation
     A. Note: some of the personal rights safeguarded by the 1st 8 amendments against federal action may also
        be safeguarded against state action, because a denial of them would be a denial of due process (Twining
        v. New Jersey).
     B. Total Incorporation view - that the 14th amendment made all the provisions of the Bill of Rights
        fully applicable to the states.
          i. Adamson v. California, 332 U.S. 46 (1947) [DISSENT - J. Black] supported total incorporation, b/c
             the original purpose of the 14th amendment was to extend to all the people of the nation the
             complete protection of the Bill of Rights.
     C. Selective Incorporation – Some rights are incorporated***
          i. The test for which rights should be incorporated:
               a. Those rights implicit in the concept of ordered liberty (Palko v. Connecticut)
               b. Those rights deemed fundamental to the American scheme of justice (Duncan v. Louisiana)
          ii. Almost everything in the Bill of Rights is incorporated.
               a. Exceptions:
                   1.Amendment II - right to bear arms
                   2.Amendment III - quartering soldiers
                   3.Amendment VI - grand jury
                   4.Amendment V - civil jury
                   5.Amendment VI - no excessive bail
III. Selective Incorporation and Due Process
     A. Does the 14th Amendment have independent force?
         i. Rochin v. California, 342 U.S. 165 (1952) – Rochin involuntarily had his stomach pumped to find
            evidence of his possession of illegal drugs.
             a. Majority (Frankfurter): The conduct violated the 14th amendment due process. Due process
                prohibits using methods that "offend a sense of justice." Police cannot extract by force what is in
                someone's mind, therefore, they may also not extract by force what is in his stomach. This
                activity “shocks the conscious.”
             b. Concurrence (Black): 5th amendment's protection against compelled self-incrimination applied
                to the states and a person is compelled to incriminate himself when incriminating evidence is
                forcibly taken from him.
                  1.Disagrees w/ majority: Don’t look at 14th, and instead look at bill of rights, because it
                   "insures a more permanent liberty."




                                                                                                                  6
                            DUE PROCESS & INDIVIDUAL RIGHTS
                         SUBSTANTIVE PROTECTION OF ECONOMIC INTERESTS

I. Lochner v. New York, 198 U.S. 45 (1905) – court held invalid NY statute forbidding employment in a
   bakery for more than 60 hours a week or 10 hours a day – b/c violates the 14th Amendment.
    A. The right to contract is a substantive liberty interest covered by the due process clause. When the state
       interferes with this right to contract, it infringed on the constitutional right of due process
         i. Rationale Basis Test
              a. If the state's regulation infringes on your life, liberty or property interests, the state must
                have a rationale purpose for interfering with it.
              b.In addition, the state must use rationale means to achieve that purpose. Must be a
                rationale way for state to accomplish that rationale purpose.
    B. The Abandonment of Lochner
         i. Nebbia v. New York (1934) – state interfering w/ right of milk sellers to contract with buyers of
            milk. Court uses rationale basis test & finds it fine. Reason it comes out diff from Lochner, is that
            the court won't second-guess. They will defer if rationale, and unless there’s a clearly arbitrary &
            unreasonable, then it’s reasonable.


                        SUBSTANTIVE DUE PROCESS: THE RIGHT OF PRIVACY

                                         Fundamental Rights Analysis
 1. Identify a Fundamental Right
 2. Identify the Source of Constitutional Protection
 3. Subject state purpose for regulating or restricting this right to scrutiny



I. Introduction to the Right to Privacy
     A. "Several select liberties have attained the status of fundamental or preferred, with the
        consequence that the Constitution permits a state to abridge them only if it can demonstrate an
        extraordinary justification."
     B. Griswold v. Connecticut, 381 U.S. 479 (1965) – Δs arrested for violating a statute making it a crime for
        giving information, instruction, and medical advice to married persons as to the means of contraception.
         i. The law violates the individual right to privacy. It prohibited giving advice to married person as
            to means of preventing conception. The right to privacy encompasses marriage and having
            children; these decisions are sacred.
         ii.Constitutional Source - Right to privacy isn’t specifically mentioned in the Constitution. Where
            does it come from?


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           a. Penumbra of enumerated rights – if you look at the Constitution as a whole, it looks like the
              framers were really concerned about protecting privacy, so you can imply that they meant to
              protect it.
            b. 9th Amendment (catchall) – says rights not enumerated are still protected. But we don’t know
               what these rights are. The right of privacy in marriage is so basic and fundamental and deep-
               rooted in our society - so it can't be infringed.
            c. Due process clause of the 14th Amendment - Violates due process clause of the 14th
               amendment b/c it violates basic values "implicit in the concept of ordered liberty."
       iii.Since the right emanates from specific fundamental rights, the right to privacy is also
          fundamental. Therefore, its infringement is suspect and calls for strict scrutiny. A state can
          still encroach on a fundamental right as long as there is a compelling state interest, and the
          law is narrowly tailored to serve that interest.
   C. Griswold's Aftermath - Court extended Griswold beyond marriage
       i. Individual's right to use contraception
            a. Eisenstadt v. Baird, 405 U.S. 438 (1972) – state law made it a felony to distribute contraceptive
               materials, except in the case of registered physicians and pharmacists furnishing the materials to
               married persons, found unconstitutional. Violated the Equal Protection Clause, single vs.
               married persons. Married couples were entitled contraception under Griswold.
            b. The seed from which Roe grew
                 1.J. Brennan in Eisenstadt made a passing remark about the right of the individual to be free
                  from unwarranted governmental intrusion into such matters "as the decision whether to bear
                  or beget a child."
                 2.So both Eisenstadt and Griswold stand for the proposition that there is a "constitutional
                  protection of individual autonomy in matters of child-bearing."
       ii.Where a decision as fundamental as that whether to bear or beget a child is involved,
          regulations imposing a burden on it will be subject to strict scrutiny.
            a. Carey v. Population Services Intern., 431 U.S. 678 (1977) - invalidated a NY law which allowed
               only pharmacists to sell non-medical contraceptive devices to persons over 16 and prohibited
               the sale of such items to those under 16.
                 1.Court read Griswold to hold that the Constitution protects individual decisions in matters of
                  childbearing from unjustified intrusion by the State.
                 2.Restriction on minors under 16 - (less rigorous test than above) restrictions inhibiting
                  privacy rights of minors are valid "only if they serve any significant state interest that is not
                  present in the case of an adult.

II. Abortion
   A. The fundamental right to privacy encompasses a woman’s decision whether or not to terminate
      her pregnancy. Since this is a fundamental right, state regulation of abortion must be analyzed
      under strict scrutiny.
       i. Roe v. Wade, 410 U.S. 113 (1973) – TX statute makes procuring an abortion a crime except by
          medical advice for the purpose of saving the life of the mother.
           a. Majority (J. Blackmun): The right to abortion is a fundamental right, found under the right to
              privacy.
               1.There is a fundamental right to an abortion - Under the concept of liberty guaranteed
                under the 14th amendment - only personal rights that can be deemed "fundamental" or
                "implicit in the concept of ordered liberty" are included in this guarantee of personal privacy.
                This right of privacy is broad enough to encompass a woman's decision whether or not to
                terminate her pregnancy.
                                                                                                                   8
               2.Since the right to abortion is a fundamental right, state regulation is subject to strict
                scrutiny.
                   (a)What is the compelling interest?
                       ♦ Protection of life of the fetus –Court doesn’t resolve the question of when life begins
                          b/c they can’t if others in the fields of medicine, theology, & philosophy cannot
                          agree. So they don’t use this interest in the strict scrutiny analysis.
                       ♦ The compelling interest in preserving and protecting the health of a pregnant
                          woman. The compelling point is at the end of the 1st trimester (b/c medical
                          knowledge shows that until the end of the 1st trimester, mortality in abortion is less
                          than mortality in childbirth). Therefore, after this point, a State may regulate abortion
                          procedure to the extent that the regulation reasonably relates to the preservation and
                          protection of the mother.
                       ♦ The compelling interest in protecting the potentiality of human life. The
                          compelling point is at viability (at approx 28 weeks, b/c the fetus then presumably
                          has the capability of meaningful life outside the womb). So after the point of
                          viability, the State may regulate as far as to proscribe abortion during that period,
                          except when it is necessary to preserve the life or health of the mother.
                   (b)Narrowly Tailored? Under the framework the Court gave, the TX statute is too broad
                      and is held unconstitutional.
          b. Dissent (JJ. White & Rehnquist) - This has nothing to do with privacy (what you do in your own
             home). Abortions are done by doctors, and the dissent says this isn't really private. Therefore the
             statute should be reviewed under traditional scrutiny (rational basis). Also, look at long history
             of abortion laws. This is a strong indication that the right to an abortion is not so rooted in the
             traditions and conscience of the people as to be ranked as fundamental.
B. The link between right to privacy and right to an abortion - the right to privacy - a person belongs
   to himself/herself and not others nor to society as a whole.
     i. Few decisions are more basic to individual dignity and autonomy or more appropriate to the private
        sphere of individual liberty than the uniquely personal, intimate and self-defining decision whether
        or not to continue a pregnancy.
     ii.Abortion restrictions keep a woman from "belonging to herself."
     iii.Deprive a woman of bodily self-possession (changes in the body as a result of pregnancy, medical
        risks, labor & other physical demands)
     iv.Intrude on bodily integrity - body should be used as you want it to be used.
C. The Court reaffirms the essential holding of Roe, that the right to an abortion is a fundamental
   right, but places an undue burden standard on laws regulating abortion before viability.
     i. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) – state abortion
        law required that (1) informed consent and a 24 hour waiting period prior to the procedure, (2) a
        minor seeking an abortion required the consent of one parent, (3) a married woman seeking an
        abortion had to indicate that she notified her husband of her intention to abort the fetus.
          a. Court (O’Connor, Kennedy, Souter) reaffirms the essential holding of Roe.
               1.Stare Decisis - there is a need to stand by prior decisions even if they were unpopular, unless
                there had been a change in the fundamental reasoning underpinning the previous decision.
                Also acknowledged the need for predictability and constancy in judicial decision making.
               2.Constitutional protection of a woman's right to an abortion derives from the Due
                Process Clause of the 14th amendment. This liberty is not a specific guarantee in the
                Constitution, but a rational continuum which includes a freedom from all substantial
                arbitrary impositions and purposeless restraints. As stated in Roe, the Constitution places
                limits on a State's right to interfere with a person's most basic decisions about family and
                parenthood, as well as bodily integrity. The Constitution affords protection to matters
                                                                                                                  9
                 involving the most intimate and personal choices a person may make in a lifetime, choices
                 central to personal dignity and autonomy, which are central to the liberty protected by the
                 14th amendment.
            b. Undue Burden Standard - Court replaces strict scrutiny of abortion regulations with an
               undue burden standard. A law that imposes an undue burden on the woman's decision
               before fetal viability is unconstitutional.
                1.A legal restriction posing an undue burden was defined as one having "the purpose or effect
                 of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable
                 fetus."
                2.Under the undue burden standard a State is permitted to enact persuasive measures which
                 favor childbirth over abortion, even if those measures do not further a health interest.
                3.Court rejects Roe’s trimester framework. Viability is the time at which there is a realistic
                 possibility of maintaining and nourishing a life outside a womb, so that the independent
                 existence of the second life can in reason and all fairness be the object of state protection that
                 would override the rights of the woman. Then, the State has an interest in the protection of
                 potential life.
                4.Applying the Undue Burden Standard
                    (a)Spousal Notification – creates an undue burden, b/c it gives husbands too much power
                        over their wives and could worsen situations of spousal abuse.
                    (b)The court upheld the State's 24 hour waiting period, informed consent, and parental
                        consent requirements, holding that none constituted an undue burden.
            c. Concurrence (J. Stevens)
                1.The fact that the state's interest is legitimate does not tell us when that interest outweighs the
                 pregnant woman's interest in personal liberty.
                2.The State may not express a preference for childbirth and serious questions arise when a
                 State attempts to persuade a woman to choose childbirth over abortion.
                3.A burden may be undue either because the burden is too severe or because it lacks a
                 legitimate, rational justification. The 24 hour waiting period & the counseling provisions fail -
                 no evidence that the delay serves a useful & legitimate purpose and it burdens the mother.
            d. Concurrence/Dissent (Blackmun) - Abortion regulations should be subject to strict scrutiny. The
               Roe trimester framework is much more administrable and less manipulable than the undue
               burden standard. All the restrictions at issue here are unconstitutional.
            e. Concurrence/Dissent (Rehnquist) - Roe was wrongly decided & this case is the same.
                1.Right to abortion is not a fundamental right because it wasn’t historically protected. It is
                 however, a form of liberty protected by due process, but it’s just not fundamental. So Court
                 should use the rational basis test.
                2.Undue burden standard - "plucked from nowhere" and at least Roe's strict scrutiny standard
                 has some basis in constitutional law (b/c it's a fund right). It's not clear what a "substantial
                 obstacle" is.
            f. Concurrence/Dissent (J. Scalia) - Issue is whether it’s a liberty protected by the Constitution -
               says it's not. The Constitution says absolutely nothing about it & the longstanding traditions of
               American society have permitted it to be legally proscribed.

III. Physician-Assisted Suicide
    A. Washington v. Glucksberg, 521 U.S. 702 (1997)- WA prohibitions against causing or aiding a suicide.
       Physicians challenge the law b/c they want to assist terminally ill, suffering patients in ending their
       lives. They argue that it violates the 14th amendment b/c the liberty interest protected by the 14th
       extends to the personal choice of a mentally competent, terminally ill adult to commit physician
       assisted suicide. Majority (Rehnquist) held the prohibition doesn’t violate the 14th Amendment.
                                                                                                                  10
        i. Substantive due process analysis – Not a fundamental right
             a. Glucksberg test - that a fundamental right be carefully described and that there be
                objective evidence the right is deeply rooted in our nation's history and tradition.
                 1.There is a consistent and almost universal tradition in rejecting this right. Also, almost every
                  state has a prohibition against this.
                 2.The requirements of the Glucksberg test reflect an effort to ensure that the Court is enforcing
                  the kind of genuine social consensus that is required for provisions that actually make it into
                  the text of the Constitution. The test assures that rights protected by substantive due process
                  have long standing and overwhelming support.
        ii.Standard of scrutiny - rational basis test
             a. Rationally related to legitimate governmental interests. Court holds that the ban implicates a
                number of state interests, which all are rationally related to the ban:
                 1.Preservation of human life
                 2.Protecting life
                 3.Suicide as a public-health problem - b/c the wish to commit suicide is often caused by
                  depression or mental illness, which may be difficult to diagnose, allowing physician-assisted
                  suicide would make it more difficult for the State to protect depressed or mentally ill people
                  from suicidal impulses.
                 4.Protecting the integrity and ethics of the medical profession - physician-assisted suicide
                  contradicts the physicians role as a healer.
                 5.Protecting vulnerable groups (poor, elderly, disabled) from abuse, neglect or mistakes -
                  protects people from coercion, prejudice, negative and inaccurate stereotypes, and societal
                  indifference, which might encourage them to end their lives
                 6.Fear that this will lead to involuntary euthanasia - recognizing one due process right might
                  lead to recognizing the next.
   B. Vacco v. Quill, 521 U.S. 793 (1997) - court rejected the argument that because NY permit competent
      persons to refuse lifesaving medical treatment, and the refusal of such treatment is "essentially the same
      thing" as physician-assisted suicide, the state's assisted suicide ban violates the Equal Protection clause.
        i. Competent, dying persons have the right to direct the removal of life-sustaining medical
           treatment and thus hasten death.
        ii.There is a distinction between refusing treatment (permitting death to occur) and actively
           assisting in suicide (causing death to occur).
             a. Causation & intent - The intent is different.
   C. Abortion vs. physician-assisted suicide – The difference can only be explained in terms of practical
      and political concerns, and not in terms of the vague general principle offered in Casey.

IV. The Autonomy of Private Sexual Choices
   A. Bowers v. Hardwick, 478 U.S. 186 (1986) – statute criminalized sodomy. Δ violated statute by having
      sex with another adult male in the bedroom of his home. Δ challenges the statute. The Majority (White)
      held there is no fundamental right to consensual homosexual sodomy
       i. Fundamental right - those fundamental liberties that are implicit in the concept of ordered
          liberty such that neither liberty nor justice would exist if they were sacrificed; those liberties
          that are deeply rooted in this Nation's history and tradition.
            a. (Defining the fundamental right narrowly) Neither of these formulations would extend a
               fundamental right to homosexuals to engage in acts of consensual sodomy.
                 1.Bans on this have ancient roots - always has been criminalized.
       ii.Rationale Basis – Constitutional. Although the law's only basis is that homosexual sodomy is
          immoral and unacceptable, the court says that laws are constantly based on notions of morality.

                                                                                                                 11
    iii.Dissent (Blackmun): This is not about recognizing the fundamental right to engage in
       homosexual sodomy (narrow), but about the "fundamental interest all individuals have in
       controlling the nature of their intimate associations with others" (broad).
         a. The proscription against homosexual sodomy in history has religious roots, so it shouldn’t
            matter that there's a such a long tradition. "The legitimacy of secular legislation depends instead
            on whether the State can advance some justification for its law beyond its conformity to
            religious doctrine."
    iv.Dissent (Stevens): [note: this is cited by the majority opinion in Lawrence]
         a. The fact that a governing majority in a State has traditionally viewed a particular practice
            as immoral is not a sufficient reason for upholding a law prohibiting the practice
              1.Example: Loving v. VA - just b/c miscegenation was always proscribed, didn’t save it from
               constitutional attack.
         b. Individual decisions by married persons, concerning the intimacies of their physical
            relationship, even when not intended to produce offspring, are a form of liberty protected
            by due process (Griswold). And this protection extends to unmarried as well as married
            persons. (as long as done in private). You can't treat the two groups separately.
B. The Level of Generality in Defining Rights
    i. In asking whether a particular right forms part of a traditional liberty, it is crucial to define the
       liberty at a high enough level of generality to permit unconventional variants to claim protection
       along with mainstream versions of protected conduct. The proper question is not whether
       homosexual sodomy is a protected right, but whether private, consensual, adult sexual acts partake
       of traditionally revered liberties of intimate association and individual autonomy.
C. Lawrence v. Texas, 539 U.S. 558 (2003) - police got a call about a weapons disturbance, and entered
   Lawrence's home where they found him having consensual sex with another man. The two men were
   arrested under the state's sodomy law (proscription only of homosexual sodomy).
    i. Majority (Kennedy): The court overturns Bowers - Bowers viewed the liberty interest too
       narrowly. Held that intimate consensual sexual conduct was part of the liberty protected by
       substantive due process under the 14th Amendment.
         a. Kennedy does not declare any fundamental rights, but only demonstrates that same-sex sexual
            freedom is a legitimate aspect of liberty (as opposed to actions that violate the rights of others,
            which are not liberty, but license).
              1."Liberty protects the person from unwarranted government intrusions into a dwelling or
               other place private places. In our tradition the State is not omnipresent in the home. And there
               are other spheres of our lives and existence, outside the home, where the State should not be a
               dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy
               of self that includes freedom of thought, belief, expressions, and certain intimate conduct."
              2."It is a promise of the Constitution that there is a realm of personal liberty which the
               government may not enter." (Casey).
         b. Standard of Review - something like rationale basis - "The Texas statute furthers no legitimate
            state interest which can justify its intrusion into the personal and private life of the individual."
    ii.Concurrence (J. O'Connor) - did not agree that the court should overturn Bowers, but said that the
       statute is unconstitutional under the equal protection clause b/c it only applies to homosexual and
       not heterosexual sex.
    iii.Dissent (J. Scalia) - The majority does not declare homosexual sodomy as a fundamental right
       under the due process clause. He also notes that the law isn't being reviewed under strict scrutiny (as
       would be applicable for a fundamental right). So although the majority is overruling Bowers, they
       find no fundamental right, but only that respondents are exercising their liberty. He also criticizes
       the majority for applying "an unheard-of form of rational basis review that will have far-reaching
       implications beyond this case."
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     D. Commentary on the Lawrence Case
         i. Focusing on the Relationship not the Conduct
              a. Focusing on the centrality of the relationship in which intimate conduct occurs rather than one
                 the nature of the intimate conduct itself, the Court emphasized its view that "to say the issue in
                 Bowers was simply the right to engage in certain sexual conduct demeans the claim the
                 individual put forward, just as it would demean a married couple were it be said marriage is
                 simply about the right to have sexual intercourse. Scalia, in his dissent, says "Not once does it
                 describe homosexual sodomy as a fundamental right or a fundamental liberty interest." Scalia
                 was missing the point here - it's not about the sodomy, it's about the relationship!
         ii.Same-sex marriages
              a. Just as Brown lead to Loving, it follows that Lawrence will lead eventually to a presumptive
                 judicial ban on all classifications based on sexual orientation. Lawrence denies that morality is a
                 legitimate state interest and it is difficult to identify a state interest other than moral disapproval
                 that would convincingly justify banning same-sex marriages.
         iii.Lawrence and prostitution
              a. "Prostitution is not just about 2 consenting adults in a room. It implicates all sorts of other issues
                 ranging from crime to the quality of the neighborhoods, to the subjugation of women. And
                 these are not an issue when you're talking about consenting adults alone in their own home
                 engaged in non-commercial intimate association with the people they're close to."
         iv.After Lawrence
              a. Need non-moral justifications for banning certain things like:
                   1.Sexual relations - adultery, fornication, prostitution
                   2.Adultery - promoting marriage
                   3.Fornication - avoiding illegitimate children that become wards of the state
                   4.Prostitution - social reasons
                   5.Intimate associations - marriage (gay, polygamy, polyandry)
                   6.Bodily integrity - marijuana, tobacco
              b. State needs to come up with a legitimate interest - burden is on the state to show this legitimate,
                 non-moral interest
                   1.However, there are some things (like slavery) that are banned purely for moral reasons, and
                    this isn't a bad thing. So Lawrence may be a problem.
         v. Substantive Due process after Lawrence
              a. History/Tradition/Narrowly define right (Rehnquist)
              b. Right of privacy (Souter)
              c. Generalized liberty interest (Kennedy)


                        PROCEDURAL DUE PROCESS IN NON-CRIMINAL CASES

  Federal government and state cannot deprive you of life, liberty, property w/out due process.



I. Substantive VS Procedural Due Process
    A. Substantive rights – individual right, and state cannot interfere, or can interfere in a very limited way
    B. Procedural rights – the process the court has to give you before they infringe on your right
        i. Process - A chance to be heard & go to court. This is valuable b/c (1) Likelihood of your right being
           protected is higher with due process, and (2) We think process is helpful for fairness.
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     C. Due Process requires that the government give you process before taking away your property or
        other rights.
     D. Framework:
          i. Is there a liberty or property interest at stake here which is recognizable under procedural
             due process?
          ii.If there is a liberty interest or right, what kind of process do you get/deserve?
II. Is there a liberty or property interest at stake here which is recognizable under procedural due
    process?
     A. To determine whether an interest deserves due process, the court will assess its importance to the
        individual, and then see it this interest outweighs the governmental interest.
          i. Goldberg v. Kelly, 397 U.S. 254 (1970) – court held that due process requires that welfare recipients
             be afforded an evidentiary hearing (process) prior to the termination of benefits.
               a. Welfare benefits are a matter of statutory entitlement for persons qualified to receive them. The
                  extent to which due process is afforded depends on the extent the individual will suffer a
                  grievous loss and the recipient’s interest in avoiding the loss outweighs the governmental
                  interest in summary adjudication.
          ii.Bell v. Burson - State could bar issuance of license until person's insured, but they couldn’t suspend
             it after he already had it. The individual's livelihood was at stake here w/o the license.
     B. Requirements of procedural due process apply only to the deprivation of interests under 14th
        amendment protection of liberty & property.
          i. Property Interests
               a. Board of Regents v. Roth, 408 U.S. 564 (1972) – different approach. Roth was hired by state
                  university and they didn’t rehire him after a year. No due process required b/c his interest didn’t
                  implicate a liberty or property interest.
                    1.Liberty - he could get a job somewhere else - they didn’t limit him, or damage his reputation.
                        (a)Where a reputation is at stake, "notice & opportunity to be heard are essential."
                    2.Property – need a reasonable expectation to have a property interest. Like if they had
                     promised to rehire him, etc.
               b. Castle Rock v. Gonzalez, 125 S.Ct. 2796 (2005) – Jessica Gonzalez case; bad facts b/c police’s
                  failure to enforce the restraining order leads to her children being killed by estranged husband.
                    1.A benefit is not a protected entitlement if government officials may grant or deny it in
                     their discretion. The order said that "law enforcement personnel shall use every reasonable
                     means to enforce the restraining order, or if arrest would be impractical, seek a warrant when
                     probable cause exists." Arrests, etc., are always in the police's discretion.
               c. Arnett v. Kennedy, 416 U.S. 134 (1974) – federal employee dismissed from his position after he
                  made recklessly false & defamatory statements about other employees.
                    1.Since the employee could only be discharged for cause, he had a property interest which was
                     entitled to constitutional protection.
                    2.However, there was a procedure in place already for him to reply to the charges, and that
                     procedure satisfied due process. If when you accept a civil service job, there are policies set in
                     place to which rights you get.
                        (a)You got to take the bitter with the sweet
                            ♦ Bitter - all the restrictions on the procedures
                            ♦ Sweet - you get the job
                        (b)If you accepted the job, you waived your right to those procedures
                        (c)Since you knew the restrictions when you took the job, your expectations of
                           property rights are according to those restrictions.
                    3.There's a constitutional minimum – procedure still has to comply to some standards,even if
                     you accepted them when you took the job.
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              d. Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532 (1985)
          ii.Liberty Interests
              a. Paul v. Davis, 424 U.S. 693 (1976) – Δ arrested for shoplifting (w/ constitutional protection).
                 But then police distributed a picture of him saying he’s a shoplifter. Δ argues his liberty is being
                 impinged b/c of the stigmatization & also that he can no longer go into the store. Court says not
                 enough of a liberty interest to trigger procedural due process (should bring a libel claim instead)
III. If there is a liberty interest or right, what kind of process do you get/deserve?
     A. Mathews v. Eldridge, 424 U.S. 319 (1976) – disability benefits terminated before hearing would take
        place. Eldridge challenged this – need hearing before benefits taken away. Court said this didn’t violate
        due process. Due process is “flexible” and called for “such procedural protections as the particular
        situation demands.” You don’t need the same level of due process for everything.
          i. In determining the amount of process due, the court should weigh three factors:
              a. Private Interest Affected. The interests of the individual in retaining their property, and the
                 injury threatened by the official action
              b. Risk of an erroneous deprivation. The risk of error through the procedures used and probable
                 value, if any, of additional or substitute procedural safeguards;
              c. Government Interest. The costs and administrative burden of the additional process, and the
                 interests of the government in efficient adjudication




                                          EQUAL PROTECTION
                         INTRODUCTION TO THE EQUAL PROTECTION CLAUSE


   No State shall ... deny to any person within its jurisdiction the equal protection of the laws.

I. Almost all legislation discriminates in some way. So the question is: Under what circumstances do
   legislative classifications violate the 14th amendment's command that no state shall "deny to any person
   within its jurisdiction the equal protection of the laws"?
     A. Traditional Approach - under the Equal protection Clause to general economic and social welfare
        regulations.
     B. Strict Scrutiny - this is given to explicit racial & ethnic classifications, which the court has deemed
        suspect.
     C. Basic Questions
          i. What is the classification? (underinclusive/overinclusive, both)
          ii.What is the proper level of scrutiny? (rational basis, strict scrutiny)
               a. Rational basis - whether government's classification of law is related to the important
                  government interest
               b. Strict scrutiny - law is narrowly tailored to the compelling governmental interest
                   1.This shifts burden to the government to prove
          iii.Does the governmental action meet the level of scrutiny? (government purpose)
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            a. Look at government's purpose in adopting this classification. Needs to be a legitimate
               government purpose, etc.
II. Equal Protection and the federal government
    A. The Equal Protection Doctrine applies only to the States. However, the Court has held that it also
       applies to the federal government.
        i. Bolling v. Sharpe - court held that the 5th amendment due process clause incorporates equal
           protection norms which are binding on the federal government. Basically, the approach to 5th
           amendment equal protection claims is precisely the same as to equal protection claims under the
           14th amendment.



                           THE TRADITIONAL APPROACH: RATIONAL BASIS

I. Underinclusive Classification
     A. Underinclusive Legislation - The one step at a time approach to legislation
          i. Underinclusive legislation doesn’t include all classifications necessary to completely solve the
             problem or in general meet the purpose of the legitimate interest. But courts will say it’s ok b/c it’s
             up to the legislature to decide what needs to be done. Sometimes there aren’t enough resources to
             deal with the entire problem or legislature thinks it’s not wise to have a certain policy and the court
             defers heavily to the legislature to decide this.
     B. Railway Express Agency v. New York, 336 U.S. 106 (1949) - NYC regulation that you can't advertise on
        a vehicle unless it's your own business your advertising.
          i. Classification - ppl advertising their own business vs ppl advertising other businesses
              a. EP issue- The problem here is not that they're banning advertising, but that they are banning the
                 same advertising for one group of ppl, and allowing that same advertising for another.
          ii.Level of Scrutiny – Rationale Basis
              a. NYC's purpose - prevent distractions to drivers & pedestrians (safety)
                   1.But how does the classification fix the problem? There are still ppl advertising that might be
                    distracting.
              b. Court gives a lot of deference to the government. They say that it may be that those who
                 advertise their own business do not present the same traffic problem in view of the nature/extent
                 of the advertising they use. The classification is related to the purpose for which it is made.
     C. New Orleans v. Dukes, 427 U.S. 297 (1976) - New Orleans ordinance banned all pushcart food vendors
        in the French Quarter except those who had continuously operated there for 8 or more years.
          i. When local economic regulation is challenged solely as violating the EP Clause, the Ct will
             defer to the legislature & presume it constitutional, and require only that the classification be
             rationally related to a legitimate state interest (unless the classification is suspect).
              a. States are afforded wide latitude in the regulation of their local economies under their police
                 powers.
              b. Underinclusiveness - State can adopt regulations piecemeal, which may only partially fix
                 the problem, and this is fine.
          ii.Level of Scrutiny – Rational Basis
              a. Legitimate state purpose - to preserve the appearance and custom valued by the Quarter's
                 residents and attractive to tourists.
              b. Classification - The grandfather provision


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                c. Rationally Related? Yes. Instead of proceeding by the immediate and absolute abolition of these
                   vendors, the city could have rationally decided that newer businesses were less likely to have
                   built up substantial reliance interests, & the older businesses had become part of the distinctive
                   character & charm of the area.
                     1.Note: the court is coming up with their own rationality of the law, & not necessarily asking
                      the state to explain themselves.
II. Overinclusive Classifications - subject an entire class to regulation, even though not every person within
    the class may pose the problem that the legislature seeks to address.
      A. Overinclusiveness VS underinclusiveness
           i. Over poses less danger than Under in terms of political accountability. Over does not ordinarily
              exempt potentially powerful opponents from a law's reach.
           ii.However, while Under fails to impose the burden on some who should logically bear it, Over
              actually does impose the burden on some who do not belong in the class.
      B. New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979) – NYC excluded all methadone users from
         any Transit Authority employment. City’s Purpose – methadone use related to illicit drug use, and there
         is a concern for safety & job performance.
           i. Classification is overinclusive – some methodone users would have presented none of the risks
              associated with illegal drug use.
           ii.Ct held that creating more precise rules (so not so overinclusive) creates an undue burden on TA.
              Too costly for such a big employer to make an individualized evaluation of each applicant. Also,
              there's always a degree of uncertainty for ppl on methadone (not sure if they will stay free of illicit
              drugs). No difference in the degree of rationality of the classification if it were only part of the class
              rather than the class as a whole.
III. Actual v. Plausible Purpose
      A. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980) – Congressional retirement act enacted
         to phase out certain benefits (both RR & social security benefits).
           i. Classification: Those who worked >10 yrs & >25 yrs vs. those who worked in between 10-25 yrs.
                a. Those who worked 10-25 yrs don’t get certain benefits
           ii.Scrutiny - rationale basis of a legitimate governmental purpose
                a. Legitimate purpose – Ct says if there are plausible reasons for the legislation, then it’s
                   constitutional. Court comes up with some plausible reasons.
                b. As long as there could be a rational/plausible reason, then it’s ok. Court doesn’t require
                   legislature to explain themselves. Doesn’t matter that it’s not the actual purpose.
           iii.Dissent: look at the actual purpose when enacted, not post hoc justifications. It does matter the real
              reason behind legislation.
IV. No Rational Basis
      A. United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) – Food stamp act excluded any
         household containing an individual who is unrelated to any other member of the household.
           i. Legislature’s Legitimate Purpose – held that state acted for impermissible purposes
                a. Purpose of the act was to raise level of nutrition among low-income households. But court said
                   the classification is totally unrelated to this purpose. Looks at legislative history – intended to
                   exclude hippie communities. Not a legitimate purpose.
                b. State argues issue of fraud which is the purpose behind the exception – But court said too
                   underinclusive. If ppl were to commit the fraud, then they would just change their living
                   arrangements to receive the benefits. The provision only excludes those ppl who are so poor
                   they can’t change that.
                c. Moreno can be read narrowly to hold that "a bare congressional desire to harm a
                   politically unpopular group" is not a constitutionally permissible purpose.

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    B. Logan v. Zimmerman Brush Co. (1982) - statutory discrimination against claimants who did not get a
       timely hearing (b/c of the statute of limitations), through no fault of their own.
         i. State terminated a claim which the State itself had misscheduled. This is not rational for the purpose
            of expediting the resolution of disputes.
    C. Alleghany Pittsburgh Coal Co. v. County Comm'n, 488 U.S. 336 (1989) – property valuation for taxes
         i. Classification: property recently sold vs. property not recently sold
              a. Differing ways to calculate value of property for the two classifications, resulting in recently
                 sold property to be a higher value than neighbors’, resulting in higher taxes.
         ii.Purpose: all property of the same kind to be taxed at a rate uniform throughout the state according
            to estimated market value
         iii.Not rationally related – the actual assessment isn’t uniform.


                        DISCRIMINATION ON THE BASIS OF RACE/ETHNICITY
I. Discrimination Against Racial and Ethnic Minorities
    A. Historical Background - Racism & race discrimination are deeply imbedded in American
       constitutional history.
        i. Dred Scott v. Sandford, 60 U.S. 393 (1857) – Dred Scott born a slave in VA. Traveled with his
           master to IL, a free state where slavery illegal. Returned to MO, slave state. Dred later argued that
           he attained his freedom under the law of IL, b/c slavery illegal there. Brought suit in federal ct
           based on diversity of citizenship.
            a. Diversity jusidication – Ct says slaves not considered citizens under Constitution, so he couldn’t
               being the federal claim under diversity.
            b. Slaves were private property – so a state could not “take” a citizen’s private property w/o due
               process (5th). Ct says free state law prohibiting slavery was unconstitutional b/c it sought to take
               away private property.

         Neither slavery nor involuntary servitude . . . shall exist within the United States.


    No State shall make any law which [denies] to any person the equal protection of the laws.

    B. Separate But Equal
        i. Plessy v. Ferguson, 163 U.S. 537 (1896) – LA law required that RR passenger cars have "equal but
           separate accommodations for the white, and colored races." Plessy (7/8 white; 1/8 black) was
           arrested when he refused to vacate a seat in a coach for whites.
            a. Plessy’s Arguments
                 1.Violates 13th Amendment– these laws are a legacy of the slavery era and attempts to enforce
                  slavery
                 2.Violates 14th Amendment– segregation implies an inferiority of blacks, and effectively gives
                  one race less protection ins laws than another.
            b. Majority (7:1): Separate but Equal is constitutional. Court uses reasonability in its scrutiny of
               the law, and hold that legislation to separate the races in RR cars is reasonable.
                 1.Government purpose - public welfare
                     (a)Tradition – they’ve done it in the past
                     (b)People have grown accustomed to segregation, and it keeps good order in our society


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               2.Although the 14th amendment requires the state to guarantee equal protection, they say that
                separate is ok as long as it’s equal, and there are equal accommodations.
          c. Dissent (Harlan) - "Our Constitution is color-blind." What else can arouse hate and
             distrust more than to perpetuate the idea that there is a difference in the races that we
             need to separate them. "Equal" is misleading. The problem is that although separate can
             be equal, in reality, it is not.
     ii.A Racist Decision
          a. The problem is that at that time, the racism in the South was terrible (worse than while slavery
             existed), and there was a lot of aggression. Maybe the court could not have decided a
             different way. "Given the background of race relations at the turn of the century and the limited
             capacity of the Supreme Court generally to frustrate public opinion, it may be implausible to
             think that the Justices realistically could have reached different results, since among other
             things, political officials especially in southern states might simply have ignored a Court ruling
             that mandated equal treatment of the races."
C. Racial/ethnic classifications are subject to strict scrutiny. The classification must be narrowly
   tailored to a compelling governmental interest.
     i. Korematsu v. United States, 323 U.S. 214 (1944) [First case to apply strict scrutiny to racial
        classifications]- After the Japanese attack on Pearl Harbor, the Government started taking people of
        Japanese ancestry and sending them to relocation centers; no evidence of involvement in any
        sabotage. Korematsu (of Japanese ancestry) was convicted for not relocating. ‘
          a. Majority: (Black) – All legal restrictions which curtail the civil rights of a single racial
             group are immediately suspect, and can only be constitutional if they pass strict scrutiny.
               1.Held that the need to protect against espionage outweighed Korematsu’s rights. Compulsory
                exclusion, though constitutionally suspect, is justified during circumstances of “emergency
                and peril.” Gov’t doesn’t have the time to sort through everyone to figure out who is actually
                dangerous.
               2.If there's any evidence that the purpose of the order was just animosity towards ppl of
                Japanese descent, then this would be unconstitutional. There's a lot of evidence of that here,
                but the court accepted the other purpose given - there's a legitimate threat that the U.S. is
                trying to protect citizens against. Problem is no serious evidence that U.S. citizens of Japanese
                ancestry were dangerous.
          b. Dissent (Murphy): Unlikely that citizens of Japanese ancestry are actually dangerous, and
             actually not one of those individuals was accused or charged with espionage or sabotage.
          c. Dissent (Jackson): Court should not have interfered with military decisions b/c it’s not their
             place to. "Military decisions are not susceptible of intelligent judicial appraisal."
     ii.Ex Parte Endo, 323 U.S. 283 (1944) - basically same facts as Korematsu, except the government
        had conceded that the individual of Japanese ancestry was not a threat, so the Court ordered Endo's
        release. The decision was not based on the constitutionality of the government's action, but rather
        that there's no reason to hold Endo if there's no security reason for holding her.
     iii.Criticism of Korematsu – This was not justified by military necessity, and the decision was not
        driven by analysis of military conditions. The real reasons were race prejudice, war hysteria, and the
        failure of political leadership.
D. Separate but Equal is Inherently Unequal
     i. "Classifications based solely upon race must be scrutinized with particular care, since they
        are contrary to our traditions and hence constitutionally suspect. Liberty extends to the full
        range of conduct which the individual is free to pursue, and it cannot be restricted except for a
        proper governmental objective. Segregation in public education is not reasonably related to
        any proper governmental objective."

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     ii.Brown v. Board of Education, 347 U.S. 483 (1954) - a bunch of black children want admission to
        the public schools of their community on a nonsegregated basis.
          a. Separate but equal violates the 14th amendment, b/c it is inherently unequal. Court moves
             for the desegregation of public schools.
               1.Stigma of inferiority. Studies show a stigma in young children, and they are being punished
                in this environment. Segregation denotes an inferiority of blacks, & this affects the motivation
                of children to learn.
                    (a)Note: Psychological studies always change. Not clear is studies are correct.
          b. Originalist argument - Not clear if framers of the 14th amendment had schools in mind when
             they wrote it. But the Court gets around the originalist argument.
               1.Public education has changed since that time. Back then, schools were mostly private and
                not as important as they are today. Today, this is more fundamental & important.
     iii.Brown v Board and Social Consequences
          a. With All Deliberate Speed – Brown v Board did not by itself integrate public schools;
             segregation still continued for a while. The SC gives states/lower courts time to transition into
             desegregation. But this means that some people won't have their rights given to them at all -
             because they will grow out of public school. But looking at it from the perspective of the entire
             race, the change will eventually come, vindicating the race as a whole.
               1.Why the slow transition? The Court understood the social consequences of their decision
                (initiating a social revolution), and they feared certain people were completely unprepared for
                immediate desegregation, and anything too quick would lead to violence. But the reality is
                that the slow pace encouraged violence by "allowing enough time for opposition to
                desegregation to build while holding the hope that the decision would be reversed."
          b. The Civil Rights Movement
               1.Brown did not lead directly to racial desegregation, because it was little enforced for over a
                decade, it nonetheless played a large indirect role in advancing civil rights. Brown created a
                massive backlash among southern whites, radicalized politics, and fomented violence.
                Although Brown failed to achieve immediate school desegregation, that violence produced a
                counter-backlash in the form of the Civil Rights Movement, which ultimately lead to vast
                strides for the cause of racial equality.
          c. After Brown, the Supreme Court became more confident on its role in shaping society. This case
             raised the profile of the Supreme Court. Ppl being supportive of the broader goals of the Court.
     iv.Legal Consequences of Brown
          a. Essentially, it's seen as a repudiation of Plessy, even though they didn’t actually overturn it.
             Brown said Plessy doesn’t apply in public education. Later cases say Plessy doesn’t belong in
             any context.
E. Mere equal application of a statute containing racial classifications is not enough to remove the
   classification from the 14th amendment's proscription of all invidious racial discrimination.
   Therefore, the statute is not immunized from the "heavy burden of justification" (strict scrutiny)
   that 14th amendment requires.
     i. Loving v. Virginia, 388 U.S. 1 (1967) - The Lovings, a black woman and white man, were married
        in DC, and returned to reside in VA. They were convicted under a VA statute that prohibited whites
        marrying nonwhites.
          a. Purpose: the state's purpose was to "preserve the racial integrity of its citizens, and to prevent
             the corruption of blood, and the obliteration of racial pride" (white supremacy argument).
          b. State's equal application argument- State argues that the meaning of the EP Clause is only that
             the state penal laws containing an interracial element as part of the definition of the offense must
             apply equally to whites and Negroes, and this law punishes both the same.
          c. Holding: (Warren)
                                                                                                              20
                1.Organic purpose of the 14th amendment was to eliminate all official state sources of
                 invidious racial discrimination in the States. At the very least, the EP Clause demands
                 that racial classifications be subject to the most rigid scrutiny.
                    (a)There is no legitimate purpose other than invidious racial discrimination which justifies
                      this classification. The measure is designed to maintain White Supremacy. Under strict
                      scrutiny, we must look at the real purpose. The real purpose here was racism.
                    (b)Also, the statute deprives them of liberty without due process. Marriage is one of the
                      basic civil rights of man. To deny this fundamental freedom on so unsupportable a basis
                      as the racial classifications embodied in these statutes surely denies due process.
II. De Jure vs. De Facto Discrimination
    A. De facto discrimination - laws that explicitly discriminate against racial and ethnic minorities
    B. De jure (or intentional) discrimination - the law may be racially neutral on its face, but ends up
       being racially discriminatory
        i. may be deliberately administered in a discriminatory way
        ii.may have been enacted with a purpose (or motive) to disadvantage a "suspect" class
    C. Facially neutral law that is deliberately administered in a discriminatory way is subject to strict
       scrutiny analysis
        i. Yick Wo v. Hopkins, 118 U.S. 356 (1886) – SF ordinance made it unlawful to operate a laundry w/o
           the consent of the Bd of supervisors, except in a brick or stone building. Yick Wo, a Chinese alien,
           had operated a laundry in a wood building for 22 years & had certificates from health and fire
           authorities, but was refused consent by the board. Although the law is neutral on its face (doesn’t
           mention race), the reality was that only Chinese laundries were negatively impacted by it.
             a. The legislature had a very good purpose – preventing fires. The problem here is with the law’s
                application – the law is applied so unequally and oppressively as to amount to a practical denial
                by the State of equal protection.
    D. Facially-neutral law that has a racially discriminate impact doesn’t trigger strict scrutiny unless
       there is a purpose/intent to discriminate.
        i. Washington v. Davis, 426 U.S. 229 (1976) – test administered to applicants to become police
           officers. About 4 times as many blacks as whites failed the test. Other than this test, the police dept
           had affirmatively sought to enroll black officers. So there's no allegation that the Dept acted with
           discriminatory intent, but only that the test had a discriminatory impact.
             a. The purpose of the EP Clause is to prevent government from discriminating on the basis of race.
                Although disproportionate impact is not irrelevant, it shouldn’t be the sole reason to
                trigger a strict scrutiny review of the law.
             b. No evidence of a purposeful device to discriminate, even with the disproportionate impact. So,
                the court applies rational basis. The test is neutral on its face and rationally may be said to serve
                a purpose the government is constitutionally empowered to pursue (to make sure it's employees
                have verbal communication and writing skills).
             c. Concurrence (Stevens): "Frequently, the most probative evidence of intent will be objective
                evidence of what actually happened rather than evidence describing the subjective state of mind
                of the actor."
        ii.Why the Court disfavors the "effects" test:
             a. For the court to use strict scrutiny for every instance of a statute's disproportionate impact would
                infringe too far on governmental decision-making. Also, this open-balancing of all
                governmental acts would invite too many inquiries into impact that is not determined by legal
                rules.
        iii.Discriminatory impact due to prior history of discrimination?
             a. The racially disproportionate impact like in Washington may have been due to prior
                discrimination. So maybe it should trigger a heavier burden of justification.
                                                                                                                  21
               1.Look at past discrimination and make causal connections to why there is a difference in test
                scores among different races.
               2.Differing perspectives of what racism means, and this makes a difference when looking at
                the history and context of racially discriminatory impact.
                    (a)Whites see racism as an exception - something that happens on an individual basis and
                      is brought on by conscious & explicit behavior on the basis on racial superiority
                    (b)Blacks on the other hand see racism as ingrained in society, and are a pervasive
                      condition in American life. It's more of a set of practices and institutions that result in
                      oppression.
                    (c)Washington adopts the white view of racism, where it's not discrimination unless there's
                      some explicit, invidious intent. It rejects the perspective of minorities that they are
                      victims of pervasive discrimination.
               3.Carolene Products held that courts have a special role in protecting "discrete and insular"
                minorities. Traditional minorities have suffered 2 types of disadvantage in the political and
                legislative process: hostility and indifference. The court's approach gives no protection against
                indifference.
       iv.What is a discriminatory purpose?
           a. Personnel Administrator v. Feeney, 442 U.S. 256 (1979) – MA had an "absolute lifetime
              preference to veterans" for civil service positions. This preference overwhelmingly advantaged
              males. Court found that the distinction of veterans vs. nonveterans was not a pretext for gender,
              & was enacted for legitimate and worthy purposes. There are too many men who are
              nonveterans to infer that the statute is a pretext for preferring men over women.
               1.Discriminatory purpose implies that the decision-maker selected or reaffirmed a
                particular course of action at least in part because of, not merely in spite of, its adverse
                effects upon an identifiable group. Of course, if adverse consequences of a law upon an
                identifiable group are inevitable, a strong inference that adverse effects were desired can
                reasonably be drawn.
               2.Dissent – Difficult to know for sure the subjective state of mind of decision-makers, so the
                burden should rest on the State that no discriminatory consideration played a part in the
                particular legislation.
           b. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) - held that a
              Village's refusal o rezone land from single-family to multiple-family so as to permit construction
              of racially integrated housing did not violate EP.
               1.To determine whether invidious discriminatory purpose was a factor, the court should
                inquire into circumstantial and direct evidence of intent. The impact of the action is an
                important starting point, but since it’s not always clear, other circumstances to look at are:
                    (a)Historical background of the decision
                    (b)Specific sequence of events leading up to the challenged decision
                    (c)Departures from the normal procedural sequence
                    (d)Legislative or administrative history - minutes of meetings, reports
               2.However, even if a discriminatory purpose is found, this doesn’t automatically invalidate the
                law. Instead, the burden shifts to the legislature to prove that the same decision would have
                resulted even absent the impermissible purpose. If so, then the complaining party could no
                longer attribute the injury to improper consideration of a discriminatory purpose.

III. Benign/Remedial Discrimination
   A. Affirmative Action in Higher Education


                                                                                                              22
i. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) – Univ. CA reserved 16/100 places in
   its entering class for members of minority groups. Bakke was a rejected white male applicant who
   challenged the constitutionality of this. (Ct split down the middle here).
     a. (4 justices, Powell)
          1.Level of Scrutiny – Any kind of racial or ethnic classification is subject to strict scrutiny.
           Doesn’t matter that whites are not a suspect class.
              (a)Carolene Products Co., n.4 - defined a suspect class as a “discrete and insular minority
                requiring extraordinary protection from the majoritarian political process.”
          2.Compelling Interest: obtaining the educational benefits that flow from an ethnically
           diverse student body. Court says this is a permissible goal. Academic freedom, though not
           enumerated, has long been viewed as a special concern of the 1st amendment.
              (a)Court also rejected three other interests the school gave:
                  ♦ Reducing the historic deficit of traditionally disfavored minorities in medical schools
                     and the medical profession. Court says preferring members of any one group for no
                     reason other than race or ethnic origin is discrimination.
                  ♦ Countering the effects of societal discrimination. Too broad. More narrow - there is
                     a compelling interest in ameliorating or eliminating the disabling effects of identified
                     discrimination. Need actual findings of past discrimination for this to be a
                     compelling interest.
                  ♦ increasing the # of physicians who will practice in communities currently
                     underserved. No evidence that the program is geared to promote this goal; no
                     assurance that minority doctors will work in those communities.
          3.Not Narrowly Tailored.
              (a)The diversity that furthers a compelling state interest encompasses a far broader
                array of qualifications and characteristics of which racial or ethnic origin is but a
                single but important element. This program here focuses solely on ethnic diversity,
                and would hinder rather than further attainment of genuine diversity.
              (b)Need an individualistic application review - look at each one, and you can use
                race/ethnicity as a factor.
     b. Concurrence/Dissents:
          1.(Brennan): Whites are not a suspect class so classifications which disadvantage them are
           not subject to strict scrutiny.
              (a)Level of Scrutiny – Intermediate scrutiny: racial classifications designed to further
                remedial purposes "must serve important governmental objectives and must be
                substantially related to achievement of those objectives."
              (b)Several important government interests. Also this program no different than if making
                individualized assessments of the applications, with race being a positive factor.
          2.(Marshall): Long history of pervasive discrimination against blacks, and not that a state
           want to remedy its effects, the Constitution should not stand as a barrier.
              (a)Remedial discrimination is a very important state interest, and if we don’t do it,
                "America will forever remain a divided society."
              (b)History – Framers if 14th also proposed the 1866 Freedman's Bureau Act which gave
                special relief to blacks, so it’s clear they intended for there to be some remedial relief.
          3.(Blackmun) - hopes for a time when an affirmative action program is unnecessary, but "in
           order to get beyond racism, we must first take account of race. And in order to treat some
           persons equally, we must treat them differently. We cannot let the EP Clause perpetuate
           racial supremacy."
ii.Grutter v. Bollinger, 539 U.S. 306 (2003) – MI law school using race as a factor in student
   admissions; white applicant is rejected and sues. The school would enroll a "critical mass of
                                                                                                          23
   underrepresented minority students." Critical mass was defined as meaningful representation - a
   number that encourages underrepresented minority students to participate and not feel isolated.
   They would have daily reports that kept track of minority student applications.
     a. Majority (O'Connor):
          1.Level of Scrutiny - Strict scrutiny applied to smoke out illegitimate use of race classification
          2.Compelling interest - attaining a diverse student body
               (a)Studies show student body diversity promotes learning outcome & better prepares
                 students for real world.
          3.Narrowly tailored? Yes. There's no quota. Daily reports don’t amount to a quota b/c race
           only used in the final stages of the admissions process after the individualized review.
               (a)Although there might be a problem with having any preference on the basis of race, for
                 the time being, this is necessary.
     b. Concurrence (Ginsburg): there is pervasive racial discrimination on our society which impedes
        our highest values (equality). Minorities experience inequalities in early education, but despite
        that, some are able to meet the requirements of the finest schools. Hopefully, the quality of
        lower school education will improve, and we will progress toward nondiscrimination & genuine
        equal opportunity, so that we no longer need affirmative action.
     c. Dissent (Rehnquist): not narrowly tailored – the critical mass is a veil for discrimination. If you
        look at the numbers, only blacks really enjoy a preference, not other minorities, so not
        necessarily tailored for the interest of diversity.
     d. Dissent (Thomas): (1) Blacks are not necessarily benefited by affirmative action, and it
        might actually infer an inferiority that they cannot succeed without this help. (2) There is
        evidence that this kind of diversity impairs learning among blacks. (3) Under-qualified
        applicants are accepted b/c of race, and then they cannot succeed among the competition.
iii.Parents Involved in Community Schools v. Seattle School District, 127 S.Ct. 2738 (2007) - School
   District allowed students to apply to any high school in the District. When some schools got
   overfilled (b/c too many students chose it) the District used a system of tiebreakers to decide which
   students would be admitted to the popular schools. The second most important tiebreaker was a
   racial factor intended to maintain racial diversity. The Court applied strict scrutiny and found the
   District's racial tiebreaker plan unconstitutional under EP.
     a. Plurality (Roberts):
          1.Compelling Interest: Although Grutter held that diversity is a compelling interest, the
           situation is different here. Unlike the cases pertaining to higher education, the District's plan
           involved no individualized consideration of students, and it employed a very limited notion of
           diversity ("white" and "non-white").
          2.Not Narrowly tailored: Also not narrowly tailored b/c the tiebreaker plan was actually
           targeted toward demographic goals and not toward any demonstrable educational benefit from
           racial diversity.
iv.Gratz v. Bollinger, 539 U.S. 244 (2003) – White female denied admission to MI Univ, & she
   challenges their affirmative action program. Admissions program followed a point system, where
   points were accumulated by regular academic achievements, but you could also get 20 points for
   being a minority (also get these points based on socioeconomic status, if you were an athlete, etc.)
   Max 150 points, % # of points determined whether you got it.
     a. Majority (Rehnquist): Court holds that there is a compelling interest of educational diversity, but
        that the admissions program is not narrowly tailored.
          1.Not Narrowly Tailored. You can't prefer someone on the sole basis of race or ethnicity.
           The school must have an individualized assessment of each applicant. Here, the automatic
           distribution of the 20 points has the effect of making the factor of race decisive.

                                                                                                         24
         b. Dissent (Souter): this isn't like in Bakke where a specific# of seats were reserved only for
            minority students. Here, points are given on the basis of race, where the same points are also
            given for various other soft factors. The program is permissible in awarding value to racial
            diversity.
         c. Dissent (Ginsburg): race is a suspect class not because race is inevitably an impermissible
            classification, but because it is one which usually, to our national shame, has been drawn
            for the purpose of maintaining racial inequality. But where race is considered for the
            purpose of achieving equality, no automatic proscription is in order.
    v. Political Representation: When the majority, the group that controls the decision making process,
       classifies so as to advantage a minority and disadvantage itself, the reasons for a racial classification
       being suspect are not present. So strict scrutiny is not necessary.
    vi.Strict Scrutiny? - The court seems to apply a less strict level of scrutiny to racial classification
       benefitting minorities than those that burden them.
B. Affirmative Action in Employment
    i. Wygant v. Jackson Bd. Of Educ., 476 U.S. 267 (1986) - there was a minority preference when
       laying off teachers, and the white teachers laid off brought the suit.
         a. Plurality (Powell): held unconstitutional (under strict scrutiny)
              1.No Compelling Interest: The school board had no compelling interest in remedying societal
               discrimination b/c there was no prior history of discrimination by the school.
              2.Not Narrowly Tailored: But even if there was prior discrimination to find a compelling
               interest, it's not narrowly tailored. Future employment is much less burdensome and intrusive
               than a loss of an existing job.
         b. Dissent (Marshall): found the school's interest in preserving levels of faculty integration
            justified. Also - another reason was the education benefits of the students that they would not get
            with an all-white faculty.
    ii.Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) - City Council adopted regulations that required
       companies awarded city construction contracts to subcontract 30% of their business to minority
       business enterprises.
         a. Majority (O'Connor): unconstitutional
              1.Compelling Interest: remedying past racial discrimination
              2.Not narrowly tailored: general assertion of past racial discrimination cannot justify the rigid
               racial quotas established here. The 30% quota could not be tied to any injury actually suffered
               by anyone.
         b. Concurrence (Scalia): Remedying past discrimination is only a compelling interest when acting
            to eliminate their own maintenance of a system of unlawful racial classification. (ex: after
            Brown, need actual measures to desegregate).
         c. Dissent (Marshall): classifications based on race that are remedial should be analyzed under
            intermediate scrutiny.
    iii.Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) - federal affirmative action program that
       gave contractors on highway construction projects a financial incentive to employ subcontractors
       controlled by minorities.
         a. Note: EP doesn’t apply to federal government, so the challenge is based on the 5th amendment
            due process clause. Any legal restrictions which curtail the civil rights of a single racial group
            are immediately suspect & courts must apply strict scrutiny - same as under the 14th.
         b. Previously held that benign federal racial classifications subject only to intermediate scrutiny.
            But there's no way to determine whether classifications are benign and which are motivated
            by illegitimate notions of racial inferiority. Therefore, any kind of racial classifications
            must be analyzed under strict scrutiny.

                                                                                                             25
              c. Concurrence (Thomas): "Government cannot make us equal; it can only recognize, respect, and
                 protect us as equal before the law."
              d. Dissent (Stevens): there is a big diff between laws that perpetuate racial inferiority and
                 those that eradicate it. Remedial discrimination is used to foster equality in society & the
                 government's duty to govern impartially should not ignore this distinction.
                  1.Distinction between federal & state government. "it is one thing to permit racially based
                   conduct by the federal government - whose legislative power concerning matters of race were
                   explicitly enhanced by the 14th amendment - and quite another to permit it by the precise
                   entities against whose conduct in matters of race that amendment was specifically directed."
              e. Dissent (Ginsburg): court owes a large deference to "Congress' institutional competence and
                 constitutional authority to overcome historic racial subjugation."
         iv.14th Amendment gives Congress the power to enforce the EP Clause. Since Adarand, the court
            has held that this power is exclusively a power to prevent or remedy state action that violates
            the Constitution and that federal statutes enacted under it must be "congruent" and "proportional"
            to the pattern of unconstitutional action to which they are addressed.


                                   DISCRIMINATION BASED ON GENDER

I. Defining the Level of Scrutiny
    A. Prior to 1971, court used the traditional approach to test the constitutionality of gender classifications.
        i. Reed v. Reed, 404 U.S. 71 (1971) - law preferred males to females when 2 persons were otherwise
           equally entitled to be the administrator of an estate. The law was too arbitrary. No rational basis for
           the classification.
        ii.Frontiero v. Richardson, 411 U.S. 677 (1973) - federal statute permitted males in the armed services
           an automatic dependency allowance for their wives but requiring servicewomen to prove that their
           husbands were dependant.
             a. Court departs from the traditional rational basis analysis. Classifications based on sex are
                inherently suspect and must therefore be subjected to close judicial scrutiny.
                  1.History of sex discrimination
                  2.Sex is an immutable characteristic which has no relation to ability to perform or contribute to
                   society (unlike intelligence or physical disability).
                  3.However, woman do not constitute a small and powerless minority.
             b. Gov’t purpose – usually wives are dependent, not husband’s, so easier on the administration if
                we presume wives are dependent, but require proof that husbands are.
                  1.But the court says "any statutory scheme which draws a sharp line between the sexes,
                   solely for administrative convenience violates EP."
    B. Gender Classifications will be reviewed under intermediate scrutiny – The classifications must
       serve important governmental objectives and must be substantially related to the achievement of
       those objectives.
        i. Craig v. Boren, 429 U.S. 190 (1976) - OK statute prohibits the sale of beer to males under 21 and
           females under 18. So males 18-20 can’t buy, while females 18-20 can.
             a. Majority: unconstitutional under intermediate scrutiny
                  1.Important government interest - enhancement of traffic safety. Court says this interest is an
                   important governmental objective.
                  2.Not substantially related


                                                                                                                 26
                    (a)Statistics - alcohol-related driving offenses of 18-20 yr olds. 2% of males in this age
                      group arrested for this offense, but only .18% of females. Although the difference is not
                      trivial, it is still a tenuous fit to say maleness serves as a proxy for drinking & driving.
                    (b)The law only referred to "nonintoxicating" beer so it doesn’t address consumption of
                      alcohol generally.
                    (c)The law only restricted the selling of this beer, not the consumption of it once acquired.
            b. Dissent (Rehnquist): Level of scrutiny should be rational basis b/c the discrimination is against
               men, not women.
        ii.United States v. Virginia, 518 U.S. 515 (1996) - VMI was the only exclusively male public
           undergraduate higher learning institution. They proposed making an all-women version of VMI.
            a. Holding (Ginsburg): the all-male admissions policy is unconstitutional under the 14th
               amendment EP clause, b/c there was no exceedingly persuasive justification for it.
                1.Level of Scrutiny – Intermediate Scrutiny. But court here uses different language – the
                 school has to show an exceedingly persuasive justification for excluding women.
                    (a)VA's interest in furthering educational diversity.
                        ♦ The justification must be genuine, not hypothesized or invented post hoc in
                          response to litigation. This interest would be fine except that, looking at the history
                          of the school, there was no evidence this policy was created or maintained for this
                          purpose. Rather, it was the tradition of keeping women out of higher education.
                    (b)VMI's adversative method of training provides educational benefits that cannot be made
                      available, unmodified, to women. Changing the program to accommodate women would
                      destroy the very essence of this program, and the reason why it's so good.
                        ♦ The justification must not rely on overbroad generalizations about the different
                          talents, capacities or preferences of males and females. The notion that admission
                          of women would downgrade VMI's stature is not proven, and rather it's more like a
                          self-fulfilling prophecy (that women can't handle it the way it is).
                2.Remedial plan - keep VMI all-male, & make a separate all-female version of it, VWIL.
                    (a)Problem is that VWIL doesn’t afford women the opportunity to experience the rigorous
                      military training for which VMI is famed. VWIL deemphasizes military education, &
                      uses a cooperative method of education which reinforces self-esteem.
                        ♦ VA argues that these are due to pedagogical diff between men and women in learning
                          and development needs, psychological and sociological differences that are real, not
                          stereotypes.
                        ♦ Generalizations about the way women are, or what is appropriate for women,
                          no longer justify denying opportunity to women whose talent and capacity place
                          them outside the average description. Some women are fully capable of the
                          meeting the standards of VMI.
            b. Dissent (Scalia): The court isn't using intermediate scrutiny language, and the exceedingly
               persuasive justification requirement is the only reason this was held unconstitutional.
II. Differences - Real and Imagined
    A. The court has assumed that differences between men and women sometimes justify different
       treatment. But the problem is to distinguish the real differences and impermissible reliance on
       and reinforcement of gender-based stereotypes.
         i. Geduldig v. Aiello, 417 U.S. 484 (1974) – state disability insurance system excluded "disability that
            accompanies normal pregnancy and childbirth"
             a. Just because only women can become pregnant doesn’t mean that any legislation
                concerning pregnancy is sex-based, unless there's a showing that distinctions involving


                                                                                                                27
        pregnancy is a mere pretext designed to effect invidious discrimination against members of
        one sex.
     b. Just like any other legislation on a physical condition, legislation may pass such laws, as long as
        it passes the rational basis test.
ii.Dothard v. Rawlinson, 433 U.S. 321 (1977) - women prison guards excluded from duty in "contact
   positions" in all-male prisons.
     a. A woman's relative ability to maintain order in a male, maximum security, unclassified
        penitentiary could be directly reduced by her womanhood. Also risk of assault on female guards.
iii.Michael M. v. Superior Court, 450 U.S. 464 (1981) - statutory rape law that punished the male, but
   not the female, party to intercourse when the female was under 18 & not the man's wife.
     a. The gender classification here is not invidious, but rather realistically reflects the fact that
        the sexes are not similarly situated in certain circumstances.
          1.Interest in preventing illegitimate teenage pregnancy.
              (a)Consequences of teenage pregnancy fall on the female (& serves as a deterrent for the
                female only), not the male, so law designed to balance out the deterrent effect.
              (b)Also, it would be impossible to prosecute if both would be charged, b/c the female
                would never report violations.
     b. Dissents:
          1.(White) - court not applying intermediate scrutiny. Also, thinks a gender-neutral statute
           would be probably be more effective. It would help deter both males & females.
          2.(Stevens) - b/c of the fact that a female confronts a greater risk is more so a reason to apply a
           prohibition to her. Also, a rule that authorizes punishment of only one of two equally guilty
           wrongdoers violates the essence of the constitutional requirement that the government
           must govern impartially.
iv.Rostker v. Goldberg, 453 U.S. 57 (1981) - military provision authorizing the President to require the
   military registration of males but not females.
     a. Government Interest in raising and supporting armies, and the court should defer to Congress'
        judgment on how to they do so, long as it’s constitutional. The means of raising and
        supporting an army is a decision for Congress. Basis for Congress’s decision:
          1.Since women were excluded from combat, in the event of a draft, they wouldn’t be needed.
          2.Any need for noncombatant roles (much smaller number) could be met by volunteers.
          3.Staffing noncombatant positions with women during mobilization would be detrimental to
           the important goal of military flexibility.
     b. Dissent: there no government interest served by not preparing for a draft by registering both
        men & women. The armed forces then decide who goes and who does what.
v. J.E.B. v. Alabama, 511 U.S. 127 (1994) - State sued father for paternity and child support on behalf
   the mother of a minor child. The state used 9 out of 10 of its peremptory challenges to remove male
   jurors.
     a. Discrimination on the basis of gender in jury selection does not substantially further the State's
        legitimate interest in achieving a far and impartial trial. Gender-based peremptory challenges
        perpetuate a stereotype the law seeks to condemn.
vi.Nguyen v. INS, 533 U.S. 53 (2001) - Immigration and Naturalization Act says American citizen
   mothers pass their citizenship automatically to their illegitimate children born abroad, but American
   citizen fathers must pass some procedural barriers before that can happen.
     a. Substantially related to an important governmental interest of assuring that a biological parent-
        child relationship exists and ensuring that the child.
     b. Dissent: with DNA testing, there should be no justification for the difference in treatment.



                                                                                                          28
                                            FUNDAMENTAL RIGHTS

I. Discriminatory classifications burdening "fundamental" rights will trigger strict scrutiny, even if they
    do not otherwise employ a suspect class.
II. Voting -There's no right to vote in the Constitution - just an equal protection of the right to vote.
    Once you make voting available, it must be available to everyone.
       i. Harper v. Virginia State Bd. Of Elec., 383 U.S. 663 (1966) - poll tax of $1.50 prereq. for voting.
            a. The right to vote is a fundamental right, so any law restricting it will be analyzed under
               strict scrutiny. Held that it doesn’t pass.
            b. Dissent: Many non-invidious reasons for the poll tax - (1) collecting revenue, (2) those who pay
               the poll tax will be interested in furthering the State's welfare when they vote (3) ppl with money
               & property have a deeper stake in community affairs and are consequently more responsible,
               educated, knowledgeable when it comes to voting.
       ii.Kramer v. Union Free School District, 395 U.S. 621 (1969) – can only vote in the school district
          elections only if they or their spouse (1) own or lease taxable real property within the district, or (2)
          are parents of(or have custody of) children enrolled in the local public schools.
            a. Majority: Unconstitutional Doesn’t pass strict scrutiny.
                 1.Legitimate interest - limiting participation in the schools district elections to those primarily
                  interest in such elections
                 2.Not narrowly tailored - permits inclusion of many ppl who have only a remote and indirect
                  interest in school affairs, & excludes others who have a distinct & direct interest in school
                  decisions.
            b. Dissent: Uses rationally related language. Argues against strict scrutiny because no fundamental
               right is being impinged upon - you elect the legislature who promulgated these voting
               qualifications - you had a say already as to how they were to run.
III. Travel
     A. The people of the US constitute one nation, and implicit in the idea of nationhood is a prohibition
        against state interference with the right to travel from one state to another. (court didn’t point to a
        specific provision of Constitution though, Crandall v. Nevada (1867))
     B. Shapiro v. Thompson, 394 U.S. 618 (1969) - state welfare statute denied benefits to people who had
        not lived in the state for at least one year.
          i. Majority (Brennan): Fundamental right to interstate travel, so analyzed under strict scrutiny.
               a. Although not in the Constitution, the court recognizes interstate travel as a fundamental
                  right. B/c of the nature of our nation & constitutional concepts of personal liberty, it must be
                  required that all citizens are free to travel throughout the land uninhibited by laws that resitrict
                  or burden this movement.
               b. No compelling interest: the statute's goal was simply to prevent indigents from moving to their
                  state so they wouldn’t become burdens. Someone on welfare cannot live a year without the
                  assistance - that's why they need welfare. So the state is basically preventing them from moving
                  to their state.
          ii.Dissents:
               a. (Warren): Congress has often restricted interstate travel via laws and taxes, so legislation is not
                  invalid merely because it burdens this right.
                    1.Right to travel is not being prohibited here - the only burden is that a potential welfare
                     recipient might take the loss of welfare benefits for a limited period into consideration on
                     whether to move. Evidence that few welfare recipients have in fact been deterred.
               b. (Harlan): Shouldn’t apply the strict scrutiny of EP to this - it was intended for race
                  discrimination, not all discrimination. Passes traditional rational basis.
                                                                                                                   29
    B. Residency requirement vs durational requirement
         i. McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645 (1976) - PA fireman terminated after
            moving to NJ, per municipal regulation that employees of the city had to be residents of the city.
            Court held that this did not impair the right to travel interstate as defined in Shapiro.
         ii.A residency requirement does not burden interstate travel b/c any person is free to move to a
            State and establish residence there. Martinez v. Bynum, 461 U.S. 321 (1983)
    B. Zobel v. Williams, 457 U.S. 55 (1982) – statute said dividends from state fund (mineral royalties) would
       be distributed to the state’s adult residents depending on how long they were residents.
         i. Governmental services and benefits may not be apportioned according to past taxes or other
            contributions of the citizens involved, nor may a state favor established residents over new
            residents.
         ii.Dissent (Rehnquist): This is an economic regulation, so should use rational basis.
    C. Saenz v. Roe, 526 U.S. 489 (1999) – CA began limiting benefits in response to high welfare benefit
       payments it was making. First 12 months of a new citizen’s residency in the state would be the same
       level received by the individual in his previous state of residence.
         i. The 14th Amendment protects the right to travel in three ways:
             a. The right to enter and leave another state;
             b.The right to be treated as a welcome visitor;
             c. The right to elect to become a permanent resident and to be treated like other citizens of
                the new state
         ii.By paying first-year residents the same benefits they received in their state of origin, states treated
            new residents differently than others who have lived in their borders for over one year. It therefore
            unconstitutionally discriminated among residents.




                                                 RELIGION
    Congress shall make no law respecting an establishment of religion or prohibiting [its] free
                                           exercise.

I. The Establishment Clause
    A. The central purpose of the Establishment Clause is to insure governmental neutrality in matters
       of religion.
        i. Early on, the establishment clause only limited the federal government. It protected the states from
           the national government, by preventing Congress from establishing an official church of the U.S.
    B. The Establishment Clause prevents the government from
        i. promoting or affiliating itself with any religious doctrine or organization,
        ii.discrimination among persons on the basis their religious beliefs and practices,
        iii.delegating governmental power to a religious institution,
        iv.from involving itself too deeply in a religious institution’s affairs.

II. Aid to Religion
    C. The Establishment Clause was intended to erect a wall between church and state. It does not
       prohibit a state from extending its general benefits to all its citizens without regard to their
       religious belief.

                                                                                                                 30
    i. Everson v. Board of Educ., 330 U.S. 1 (1947) – NJ Bd of Ed authorized reimbursement to parents
       for costs of using public transportation to send children to school, whether public or parochial.
         a. This doesn’t violate the establishment clause. Reimbursement of transportation is intended
            solely to help children arrive safely at school, regardless of their religion. It does not support
            any schools, parochial or public. To invalidate this would handicap religion, which is no more
            permissible than favoring religion.
         b. Dissent: Ct should prohibit use of public funds to aid religious schools.
    ii.Walz v. Tax Com'n, 397 U.S. 664 (1970) – NY state grants religious organizations tax-exempt status
       for property and income.
         a. The establishment clause does not require the state to be hostile to religion. The statute
            authorizing the exemptions grants favorable treatment to educational facilities and charities as
            well, indicating that the state wants to encourage organizations that contribute to the well-being
            of the community.
         b. Dissent: economic aid to religion advances their cause by allowing them to obtain vast amounts
            of wealth and property w/o paying taxes. Impermissible subsidy that aids religion.
D. The Lemon Test
    i. To determine the validity of state statutes granting financial aid to church-related schools, the
       statute must:
         a. reflect a clearly secular purpose
         b.have a primary effect that neither advances nor inhibits religion; and
         c. avoid “excessive government entanglement” with religion
    ii.Lemon v. Kurtzman, 403 U.S. 602 – RI provided salary supplements for nonpublic school teachers,
       and PA reimbursement to nonpublic schools for certain expenditures. Both had comprehensive
       auditing to ensure that the funds were used only for secular education.
         a. Court says these programs involve excessive government entanglement with religion, so
            unconstitutional. This type of assistance is not neutral like Walz (providing funds to everyone)
            because the continuing state surveillance requires the type of entanglement dangerous both to
            church and state.
    iii.Neutrality reflects a secular purpose. If the government, seeking to further some legitimate
       secular purpose, offers aid on the same terms, without regard to religion, to all who
       adequately further than purpose, then the aid going to a religious recipient only has the effect
       of furthering that secular purpose.
         a. Mitchell v. Helms, 530 U.S. 793 (2000) – grant which provided loans of education materials to
            public and private schools to implement secular programs. 30% of the funds were allocated for
            private schools, most of which were religious. Constitutional b/c neutral.
E. Zelman v. Simmons-Harris, 536 U.S. 639 (2002) – state provided tuition aid for students attending
   certain public or private schools chosen by their parents. 96% of children who participated in the
   program attended religious schools.
    i. Valid secular purpose - providing educational assistance to poor children in demonstrably failing
       public school system.
    ii.Test for reviewing government neutrality (Whether it has the forbidden effect of advancing or
       inhibiting religion)
         a. Direct v. Indirect – distinction btwn programs that provide aid directly to religious schools &
            programs that allow, indirectly through the exercise of private choice, government aid going to
            religious schools.
         b. Neutrality/Non-endorsement – funding programs based on choice might lead to the incidental
            advancement of religion, but that advancement is attributable to the individual recipient who
            makes the choice, not the government. The program here does not infer that the government is
            endorsing religious schools.
                                                                                                            31
               1.More aid given to public schools – for private schools, families have to copay a portion of
                the school’s tuition.
               2.Although 96% of children in private schools attend religious ones, only 20% of children total
                attend religious schools (if you count all schools in the program).

III. Official Acknowledgement
   F. Alleghany County v. ACLU, 492 U.S. 573 (1989) – county allowed the display of a nativity scene,
      Christmas tree, and Chanukah menorah in the county courthouse.
        i. Rather than requiring the government to avoid any action that acknowledges or aids religion,
           the Establishment Clause permits government some latitude in recognizing and
           accommodating the central role religion plays in our society. However, there are two
           principles limiting government:
             a. Government may not coerce anyone to support or participate in any religion or its exercise
             b.Government may not, in the guise of avoiding hostility or callous indifference, give direct
                benefits to religion in such a degree that it in fact establishes a state religion or tends to do
                so.
        ii.Nativity Scene – it stands alone, nothing detracts from its religious message. In this setting and
           context, the display violates the Establishment Clause.
        iii.Christmas Tree/Menorah – it’s combined with a sign saluting liberty. This doesn’t suggest an
           endorsement of religion, but a secular celebration of the tradition. It simply recognized that
           Christmas and Hanukkah are part of the same winter-holiday season, which, the court found, has
           attained a secular status in U.S. society.
   G. When government acts with the predominant purpose of advancing religion, it violates that
      central Establishment Clause value of official neutrality.
        i. McCreary County v. ACLU, 125 S.Ct. 2722 (2005) – 10 commandments posted in courthouse
           violates Establishment clause b/c of the “predominantly religious purpose.” Problem was not that it
           was coercive, but that the purpose was religious.
   H. The Constitution guarantees that government may not coerce anyone to support or participate in
      religion or its exercise.
        i. Lee v. Weisman, 505 U.S. 577 (1992) – rabbi gives speech at graduation, which inclues
           nondenominational prayer, but acknowledges God.
             a. Prayer exercises in public schools carry a particular risk of indirect coercion. Even at the
                graduation ceremony, there is a pressure to stand and remain silent during the prayer, signifying
                a degree of adherence or assent. The government may not enact religious conformity from a
                student as the price of attending her own graduation.
        ii.Santa Fe Ind. School Dist. v. Doe, 530 U.S. 290 (2000) – school district allowed a student elected
           by the HS’s student council to give a prayer over the public address system before each home
           varsity football game.
             a. Although the message is private student speech, they are authorized by government policy &
                take place on government property at government-sponsored events.
             b. Coercion – there is an informal pressure to attend an athletic event, event if not mandatory, or as
                strong as attending graduation. The audience perceives the religious messages as a public
                expression of the majority view.
   I. There is no violation for government to enact neutral policies that happen to benefit religion. The
      test for endorsement of religion was either expression by the government itself (Lynch), or else
      government action alleged to discriminate in favor of private religious expression or activity
      (Allegheny).
        i. Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995) – KKK placed a cross on
           public property. Doesn’t violate establishment clause. The State did not sponsor this expression, the
                                                                                                                 32
         expression was made on the government property that had been open to the public for speech, and
         permission requested through the same application process as for other private groups.

IV. Free Exercise Clause
   J. The Free Exercise Clause bars governmental acts that would regulate religious beliefs, interfere with its
      dissemination, impede the observance of religious practices, or discriminate in favor of one religion
      over another, where such acts are not justifiable in terms of valid governmental aims.
        i. You can prohibit conduct, but not the belief. But problem is belief requires certain conduct.
   K. Conflict with State Regulation - Religious activity may be regulated or prohibited by government
      if there is an important or compelling state interest that prevails when balanced against the
      infringement on religious freedom.
        i. Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987) – Hobbie was discharged when
           she refused to work on Saturday, which was the Sabbath day of e religion she converted to after she
           had begun working. Her application for unemployment was denied b/c she was terminated for
           cause. She claims the government is denying her unemployment benefits b/c of her religiously-
           motivated conduct.
            a. Strict scrutiny applied where the state burdens religion by conditioning the receipt of an
               important benefit upon conduct proscribed by a religious faith, or by denying such benefit
               because of conduct mandated by religious belief.
            b. The government may give accommodations based on religion, and it doesn’t make a difference
               that the conflict between job and religion did not previously exist b/c then government would be
               singling out the religious convert for less favorable treatment
        ii.***Employment Division v. Smith, 494 U.S. 872 (1990) – State makes it a crime to use peyote.
           Smith was fired from his job at drug rehab for using peyote as part of his religious ritual as a
           member of the Native American Church. Drug rehab has a policy that people working there can’t
           use illicit drugs. The State denied unemployment benefits b/c he was fired for cause (misconduct).
            a. Using a different test here than in Hobbie (probably b/c there is a criminal prohibition here)
                 1.If prohibiting the exercise of religion is merely an incidental effect of a generally
                  applicable and otherwise valid law, the 1st Amendment is not implicated.
                 2.This is more of a rational basis test, not strict scrutiny like in Hobbie.
            b. This is not about religious activity at all. Instead, this is about peyote, and about a secular
               purpose of banning peyote. As long as not about religion in general, but happens to impact
               religion in general, then it's different.
                 1.Legitimate government legitimate - regulating drug trafficking




                                        FREE EXPRESSION
       Congress shall make no law … abridging the freedom of speech, or of the press.

I. Introduction
   A. Balancing Interests. The right to freedom of expression is not an absolute right to say or do anything
      you want. Rather, the interests of the government in regulating such expression must be balanced
      against the very strong interests on which this right is based.
       i. It’s a case-by-case analysis to determine whether restriction on speech is constitutional.


                                                                                                               33
    B. Rationale behind freedom of expression. Such freedom will lead to discovery of truth and better
       ideas through the competition of differing viewpoints. Such speech and action are necessary for a free
       society that is to be governed by democratic principles.
    C. Two approaches to free speech infringement:
         i. It’s not speech. Or at least it’s not valuable speech
              a. Obscenity
              b. Libel/False Speech
              c. Private Speech
              d. Commercial Speech
              e. Fighting Words
              f. Content based regulation subject to strict scrutiny
         ii.Speech must give way to important governmental interest.
              a. Advocacy of illegal action with “clear and present danger”

II. Advocacy of Illegal Action
    A. The question is whether the words are used in such circumstance and are of such nature as to
       create a clear and present danger that they will bring about the substantive evils that Congress
       has a right to prevent - it is a question of proximity and degree.
        i. Schenck v. United States, 249 U.S. 47 (1919) - Δs convicted of a conspiracy to violate the 1917
           Espionage Act by distributing material that was anti-draft to men accepted for military service
           (telling ppl they have a right to and should, refuse the draft).
                  1.The only intended effect this could have had was to influence those subject to the draft to
                   refuse to go.
                  2.The court held that the circumstances of wartime permit greater restrictions on free speech
                   than would be allowable during peacetime.
        ii.Triggers of action.
             a. Masses Publishing Co. v. Patten, 244 Federal. 535 (1917) - Π was told by the postmaster that he
                couldn’t mail Π's magazines under the Espionage Act "because [some of the cartoons] tended to
                encourage the enemies of the United States and to hamper the government in its conduct of the
                war." Π sought an injunction against the postmaster.
                  1.There is a difference between political agitation (not agreeing with the government &
                   expressing those beliefs) and calling for people to take unlawful action (where the freedom of
                   expression can be curtailed). The cartoons were not triggers of action; the cartoons do not
                   "directly counsel or advise insubordination or mutiny."
        iii.Justice Holmes - Dissenting in Abrams v. United States, 250 U.S. 616 (1919)
             a. Congress could only limit expression where there was the present danger of immediate evil or
                an intent to bring it about.
                  1.Both were lacking in this case. There was no intent to hurt America, but only to support
                   Russia. Also, we weren’t at war with Russia, but with Germany, so no present danger.
                  2.Also, he argues that if we’re involved in a war, that should be a reason to allow for greater
                   speech.
        iv.State Sedition Laws
             a. Gitlow v. New York, 268 U.S. 65 (1925) – law prohibiting language advocating, advising, or
                teaching the overthrow of organized government by unlawful means.
                  1.The state has determined that such activity is so inimical to the general welfare that it must
                   be controlled through use of the police power and suppressed in its incipiency.
    B. Communism and Illegal Advocacy
        i. Dennis v. United States, 341 U.S. 494 (1951) – Several members of the Communist party of the
           U.S. convicted under the Smith Act, which made it illegal to advocate to overthrow the government.
                                                                                                                34
           They were teaching communist material to their members, and part of the ideology was to
           overthrow the government.
             a. Clear and present danger test: When the expression is a direct encouragement of illegal action,
                there must be a clear & present danger of the evil Congress is trying to stop.
                  1.Must be a tight nexus - there is a clear & present danger that the illegal action will
                   occur as a result of the speech.
                  2.Court broadened the test, applying it to advocating
                      (a)Illegal act here: advocating illegal action (the actual speech itself was illegal) -
                         advocating the overthrow of the government.
                      (b)There is a danger that they will actually attempt, through the teaching of it, the
                         overthrow of the government & it should be illegal.
    C. Modern Distinction between advocacy and incitement
        i. A state may not forbid advocacy of the use of force or lawlessness except where such advocacy
           (i) is directed to inciting or producing imminent lawless action and (ii) is likely to incite or
           produce such action.
             a. Brandenburg v. Ohio, 395 U.S. 444 (1969) - Ohio Statute bans "advocating the duty, necessity,
                or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of
                accomplishing industrial or political reform." KKK caught on film marching with guns and
                advocating violence.
                  1.No imminent threat - they were speaking in broad, general terms. Crucial fact - court kind of
                   thought they were pathetic - only a few of them, no one listening, we can safely ignore them.
                  2.Did the court drop the clear & present test? Maybe they replaced it with the imminence test
                   or incitement test. So either this is a new test, or a way to distinguish Dennis.

III. Libel
    A. Group Libel
        i. Beauharnais v. Illinois, 343 U.S. 250 (1952) - Statute prohibits public display of "depravity or
           criminality of a particular race." Leaflet distributed seeking to halt Negro immigration to Chicago
           and warning that whites will be "mongrelized" and that Negroes would commit "rapes, robberies,
           knives, guns, and" spread "marijuana." Prohibition constitutional.
             a. Libel is not the kind of speech that’s protected by the Constitution, so punishment of this
                type of speech does not violate the 1st amendment. Since the speech is of so little value, it
                doesn’t get the benefit of the clear & present danger test.
             b. Court applies a rational basis test. There were tense race relations at that time. The legislature
                can conclude that group libel tends to exacerbate these problems.
    B. Public Officials and Seditious Libel
        i. Criticism of public officials relating to their official conduct cannot result in either criminal or
           civil liability for libel unless made with actual malice. Public officials can normally refute false
           charges because they have access to the media.
             a. New York Times Co. v. Sullivan, 376 U.S. 254 (1964) – NY Times published several falsehoods
                about the repressive police conduct in Montgomery. Although his name wasn’t mentioned, the
                accusation could be read referring to the police commissioner, so he sued.
                  1.The Constitution expresses a commitment to uninhibited debate on public issues. Truth
                   here is not required for constitutional protection because that would inhibit publications
                   and suppress speech. If they’re not sure if it’s true, then they can always be sued. We
                   want public officials to answer to the public for the democratic process.
                  2.However, if there was malice, reckless disregard for the truth, and on purpose, then no 1st
                   amendment protection.
                  3.Private speech - spreading libel on your neighbor, you can face a lawsuit. Not protected.
                                                                                                                35
IV. Fighting Words, Hostile Audiences, Offensive Words and Hate Speech
   A. Fighting Words
       i. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) - Statute forbids "offensive, derisive, or
          annoying word to any other person who is lawfully in any public place." Jehovah's witness in a
          public place & got angry at police officer, and said "You are a damned fascist," and was arrested.
            a. A state may forbid the use in a public place of words that would be likely to cause violence
               – “fighting words.” Don’t have to prove that it will actually lead to violence.
            b. Fighting words are not protected by the Constitution – other unprotected speech are bribery,
               perjury, and criminal solicitation.
   B. Hostile Audiences
       i. Terminiello v. Chicago, 337 U.S. 1 (1949) – peace statute included a restriction on speech that stirs
          the public anger, invites dispute, or causes unrest.
            a. Unfavorable response from the audience is not necessarily enough to render the speech
               unprotected. One of the functions of free speech is the invitation to dispute; free speech is
               often provocative and challenging.
       ii.Feiner v. New York, 340 U.S. 315 (1951) – Δ was addressing a street meeting and attracted a crowd.
          People didn’t like it and asked police to stop him. Police asks Δ to stop but Δ refused and was
          convicted of disorderly conduct.
            a. Δ was arrested not for his speech, but for the reaction it caused. Police preventing incitement of
               a riot, and were justified in acting to preserve peace and order.
   C. Offensive Words
       i. Cohen v. California, 403 U.S. 15 (1971) – Δ wore a jacket that said “Fuck the Draft” in a
          courthouse corridor (he took it off when entering courtroom). He was convicted a statute that
          prohibited "maliciously and willfully disturbing the peace or quiet of any neighborhood or person
          by offensive conduct."
            a. The government has the power to regulate speech that is obscene, constitutes “fighting
               words,” or intrudes on substantial privacy interests in an essentially intolerable manner.
                 1.Not erotic/obscene.
                 2.It wouldn’t violently provoke the common citizen like fighting words do.
                 3.Persons present in the courthouse were not unwilling captives of the offensive expression;
                  they could simply avert their eyes, so no intrusion on privacy interest.
            b.The regulation fails because it would permit the state to outlaw whatever words officials
               might deem improper, thus running a substantial risk of suppressing ideas. Such power
               would permit official censorship as a means of banning the expression of unpopular views.
   D. Hate Speech
       i. R.A.V. v. St. Paul, 505 U.S. 377 (1992) – teenagers burned a cross on a black family’s lawn.
          Ordinance prohibited the display of a symbol which "arouses anger, alarm or resentment in others
          on the basis of race, color, creed, religion or gender."
            a. Although some speech is of so little social value that they are not constitutionally protected
               speech, the government still can’t restrict that speech based on its content. Content-based
               speech is subject to strict scrutiny.
                 1.Although this is probably a fighting word (very likely to cause anger & retaliation), the
                  constitution limits the government to what they can proscribe – basically, they cannot regulate
                  based on the viewpoint of the speech without protecting the other side. It singles out speakers
                  who express views on disfavored subjects.
            b.Content - Neutrality Exceptions
                 1.Allowed where basis for content discrimination is the reason all such speech
                  proscribable
                      (a)Ok to prohibit offensive obscenity, but not obscenity that includes political messages.
                                                                                                               36
               2.Allowed to regulate secondary effects of speech
                  (a)Ex: prohibiting only obscene live performances that involve minors.

V. Obscenity
   A. Difficulty of defining obscenity
       i. Roth v. United States, 354 U.S. 476 (1957) – Δ convicted of mailing obscene material in violation of
          the obscenity statute.
            a. Obscenity has no social value, and is not protected by the Constitution.
            b. Obscenity is not synonymous with sex. Obscenity deals with sex in a manner appealing only to
               the prurient interest. Prurient - unwholesome desire; sexual desire
            c. The test for obscenity is whether to the average person, applying contemporary
               community standards, the dominant theme of the material taken as a whole appeals to the
               prurient interest, and utterly lacks social value.
       ii.What is obscenity? In one opinion, J. Stewart said, “I cannot define it, but I know it when I see it.”
   B. Moral Rationale for restricting obscenity
       i. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) – DA wants to stop the theatre from showing
          hardcore porn. The movies were available only to consenting adults – must be 21+ yrs, and there’s a
          sign telling you there is nudity (notice, so you consent to it if you go in).
            a. The states have power to make a morally neutral judgment that public exhibition of
               obscene material, or commerce in such material, has a tendency to injure the community
               as a whole, even if actual exposure is limited to a few consenting adults.
            b. The right to privacy precludes regulation of the use of obscenity in the home. But this is a
               commercial venture and is not private.
   C. A Revised Standard
       i. Miller v. California, 413 U.S. 15 (1973) – Δ convicted for knowingly distributing obscene material
          to unwilling recipients.
            a. The standard for regulation of obscene material:
                 1.Whether the average person, applying contemporary community standards, would find
                  that the work, taken as a whole, appeals to the prurient interest.
                 2.Whether the work depicts or describes, in a patently offensive way, sexual conduct
                  specifically defined by the applicable statute; and
                 3.Whether the work, taken as a whole, lacks serious literary, artistic, political, or
                  scientific value.
            b. Under this test, material can be regulated w/o a showing that it is “utterly w/o redeeming social
               value.”
            c. Dissent (Brennan) – The difficulty in defining obscenity means that laws prohibiting it are
               necessarily vague. The best solution is to permit government to regulate the manner of
               distribution of sexually-oriented material to protect juveniles and unconsenting adults, but not to
               wholly suppress this material.
                 1.But this doesn’t address social harms
                     (a)Child porno harming children
                     (b)Idea that watching porn causes sexual violence




                                                                                                                37
Abrams v. United States, Dissent...........................34                      Goldberg v. Kelly...................................................14
Adarand Constructors, Inc. v. Pena........................25                       Gratz v. Bollinger...................................................24
Alleghany County v. ACLU...................................32                      Griswold v. Connecticut...........................................7
Alleghany Pittsburgh Coal Co. v. County Comm'n                                     Grutter v. Bollinger................................................23
  ............................................................................18
                                                                                   Harper v. Virginia State Bd. Of Elec......................29
Arlington Heights v. Metropolitan Housing Dev.
  Corp....................................................................22       Hobbie v. Unemployment Appeals Comm'n..........33

Beauharnais v. Illinois............................................35              J.E.B. v. Alabama...................................................28

Board of Regents v. Roth.......................................14                  Jackson v. Metropolitan Edison Co..........................5

Bowers v. Hardwick...............................................11                Korematsu v. United States....................................19

Brandenburg v. Ohio..............................................35                Kramer v. Union Free School District...................29

Brown v. Board of Education.................................20                     Lawrence v. Texas..................................................12

Capitol Square Review & Advisory Board v. Pinette                                  Lee v. Weisman......................................................32
  ............................................................................32
                                                                                   Lemon v. Kurtzman................................................31
Carey v. Population Services Intern.........................8
                                                                                   Lochner v. New York...............................................7
Castle Rock v. Gonzalez........................................14
                                                                                   Logan v. Zimmerman Brush Co.............................18
Chaplinsky v. New Hampshire...............................36
                                                                                   Loving v. Virginia..................................................20
Civil Rights Cases....................................................4
                                                                                   Masses Publishing Co. v. Patten............................34
Cohen v. California................................................36
                                                                                   Mathews v. Eldridge..............................................15
Craig v. Boren........................................................26
                                                                                   McCarthy v. Philadelphia Civil Service Comm'n. .30
Dennis v. United States..........................................34
                                                                                   McCreary County v. ACLU...................................32
Dothard v. Rawlinson.............................................28
                                                                                   Michael M. v. Superior Court................................28
Dred Scott v. Sandford...........................................18
                                                                                   Miller v. California.................................................37
Eisenstadt v. Baird....................................................8
                                                                                   Mitchell v. Helms...................................................31
Employment Division v. Smith..............................33
                                                                                   New Orleans v. Dukes............................................16
Everson v. Board of Educ......................................31
                                                                                   New York City Transit Auth. v. Beazer..................17
Ex Parte Endo........................................................19
                                                                                   New York Times Co. v. Sullivan............................35
Feiner v. New York................................................36
                                                                                   Nguyen v. INS........................................................28
Frontiero v. Richardson..........................................26
                                                                                   Parents Involved in Community Schools v. Seattle
Geduldig v. Aiello..................................................27               School District...................................................24

Gitlow v. New York................................................34               Paris Adult Theatre I v. Slaton...............................37
Paul v. Davis..........................................................15     Santa Fe Ind. School Dist. v. Doe..........................32
Personnel Administrator v. Feeney........................22                   Schenck v. United States........................................34
Planned Parenthood of Southeastern Pennsylvania                               Shapiro v. Thompson.............................................29
  v. Casey................................................................9
                                                                              Shelley v. Kraemer...................................................5
Plessy v. Ferguson..................................................18
                                                                              Terminiello v. Chicago...........................................36
R.A.V. v. St. Paul...................................................36
                                                                              United States Dept. of Agriculture v. Moreno.......17
Railway Express Agency v. New York..................16
                                                                              United States R.R. Retirement Bd. v. Fritz............17
Reed v. Reed..........................................................26
                                                                              United States v. Virginia........................................27
Regents of Univ. of California v. Bakke................23
                                                                              Vacco v. Quill.........................................................11
Reid v. Covert..........................................................3
                                                                              Walz v. Tax Com'n.................................................31
Richmond v. J.A. Croson Co..................................25
                                                                              Washington v. Davis...............................................21
Rochin v. California.................................................6
                                                                              Washington v. Glucksberg.....................................10
Roe v. Wade.............................................................8
                                                                              Wygant v. Jackson Bd. Of Educ.............................25
Rostker v. Goldberg...............................................28
                                                                              Yick Wo v. Hopkins...............................................21
Roth v. United States..............................................37
                                                                              Zelman v. Simmons-Harris....................................31
Saenz v. Roe...........................................................30
                                                                              Zobel v. Williams...................................................30

								
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