ConLaw OUTLINE

Constitutional Law – Individual Rights Jason Jarvis Constitutional Law – Individual Rights ECONOMIC DUE PROCESS: The Due Process Clause of the 5th/14th amendments will protect substantive interests/rights.  5th: Congress may not deny due process rights  14th: No state may deny due process rights This is referred to a substantive due process. Substantive interests are ―things you might want to do.‖ Rational Basis Test: Any laws limiting substantive interests must rationally relate to some legitimate/permissible government end.   Legitimate End: All you are looking for are legitimate or permissible. They need not be compelling. The Court may speculate about what legitimate possible ends may be. Rational Relationship: Does the law rationally attain the end? The Court looks at it – and even if the facts show that the law doesn‘t really advance the governmental interest, there still may be a rational basis. The 5th Amendment is read as though it said ―Congress may not take life, liberty or property without due process of law.‖ Note that the first Ten Amendments applied only to Congress until the 14th Amendment applied it to the several states. If there are wasteful or improvident laws, then people should use the political process to change the laws by changing the legislature itself. CONTRACT CLAUSE: No state shall pass any law . . . impairing the obligation of contracts. Only protects against retroactive application of laws, i.e., unconstitutional retroactive impairment of pre-existing contract. The Kansas Power & Light Test for Laws which Impair the Rights and Obligations of Contracts: Public Purpose Balancing Test: 1. Substantial impairment: The level of the Court‘s review will depend upon the severity of the impairment (Court will look at reasonable investment-based expectations). Court will look at the degree to which this particular business had been subject to regulation in the past. 2. Significant and legitimate public purpose justifying the impairment: How important is the public purpose and how important is it to abridge preexisting contractual rights to advance that purpose. Apparently, the purpose does not need to be very strong, although more is required when government cancels its own contracts. 3. Any changes in pre-existing contractual rights must be reasonable conditions appropriate to the public purpose: Practical and factually review. Ask how fair was the state in treating the contract holders? -1- Constitutional Law – Individual Rights Jason Jarvis 5TH AMENDMENT: NO TAKING CLAUSE: No taking of private property for public use without just compensation. Public Use: If the government wants to pay for it, it is for the public use. Just Compensation: The fair market value of the property prior to the government‘s interference. No Taking: Most important question: Types of Takings: 1. When the government takes something for government use: Not much dispute 2. Government takes your property for use by others: Also not much in dispute. 3. Indirect action by the government: Government not taking the property, they are just regulating it, there are two ―best‖ situations where takings may be found: a. Where the government physically invades your property (or allows the physical invasion of your property). This is de facto inverse condemnation. b. Where the government takes all economically-viable uses for your property: Imprecise. Some residual value may be left. Long settled that zoning does not require compensation. i. Major Exception: You cannot take all economically viable use unless necessary to abate a nuisance or some other similar type of governmental interest. c. Even without the two clear categories there still might be a taking if: The three factors from Penn Central: i. The economic effect on the owner of the property. Thus, even though there is not a complete taking the economic harm could be onerous. ii. The harm to reasonable investment-based expectations. Look at a number of things—look to see if the law is prospective or retroactive (prospective laws hurt investment-based decisions less, obviously). iii. The Court will look at the nature of the taking. Look at the inherent fairness of the taking. EXACTIONS: Government exacts something from you in order to approve a change of use. (i) there must be an essential nexus; (ii) exactions must bear rough proportionality to the harm. -2- Constitutional Law – Individual Rights Jason Jarvis SUBSTANTIVE DUE PROCESS (PRIVACY): With regard to most interests, the rational basis test is enough. But with regard to fundamental rights, you must satisfy the compelling state interest test. Compelling State Interest Test: (i) Look for a compelling governmental end; (ii) laws must be narrowly-tailored to accomplish compelling state interest. In looking at the relationship-part of the test, the Court will look to see if there are reasonable alternative ways of addressing the problem without hurting the fundamental right involved. Three-to-Five fundamental rights: Privacy (procreation, rearing of children, marriage), Interstate Travel, Voting. Abortion: Casey controls; drops reference to the compelling state interest test. Key holding is that the government cannot place an undue burden on the mother analysis. Equal Protection versus Due Process: Due Process (DP): Concern for overall substantive interest (1) Can the gov‘t restrict? (2) Level of review depends on type of legislation (a) Rational Basis (permissive scrutiny) (b) Fundamental rights => CSI (strict scrutiny) Equal Protection (EP): Concern for classification (1) Similar situations should get similar treatment (2) Level of review depends on type of legislation a. Ordinary social and economic legislation => rational basis b. Suspect classifications get higher review i. Gender => mid level ii. Race => CSI iii. Fundamental rights => CSI, see above RACE AS A SUSPECT CLASSIFICATION Classifications based on age are fine. Based on citizenship makes sense. Based on gender, okay There is a special portion of 14th amendment on point to race. Thus, race based classifications have higher scrutiny. Any classification based on ethnic origin. Race, as a classifier, can be used to erase race-based wrongs. Race—as a goal or agenda is fine, but using straight quotas is not. The use of race to remedy race-based wrongs is important in later affirmative action cases. The concern for racial quotas becomes important. What about same race schools – even thought the state is making some effort the result will be some all white and some all black schools. They need to review each school on a case by case basis – some deseg will not be feasible because of the geography. -3- Constitutional Law – Individual Rights Jason Jarvis The changing of attendance zones is allowed – the court can come in and do that – it is allowed. Since it is the altering of attendance zones (geography) this is easy to do. Busing can be used as a remedy although at some point the busing may be overly harsh and such busing might be inappropriate. The court just states the requirements for any court of equity. Should work out reasonable, feasible and workable remedies. Chief Justice Burger had the emphasis that Brown allowed the federal court to remedy stateimposed segregation (intentionally violated). Only the authority to remedy state imposed regulation – thus, the federal courts have no authority to remedy de facto segregation. Federal Courts can only remedy state intentional discrimination. The importance of that emphasis we can see in the cases that follow. Keyes v. School Dist. Of Denver Courts can only regulate schools that are intentionally regulated. For example, LA has a segregated school system but that alone is not enough to allow a federal court to step in. The court requires the proof de jure segregation – must show acts that the school system intentionally segregated them. In LA, the schools were ordered to integrate by a state superior court judge, and eventually that integration decision of the judge was reversed by the courts on the grounds that it had not been proven that it was segregated as a result of intentional acts. Once that requirement is imposed it makes it difficult to impose desegregation. Pasadena Board of Educ. v. Spangler Pasadena School Board was found to be intentionally segregated by acts of the school board. Does the federal court have the authority to remedy the re-segregation of the Spangler case? At that point it was a product of historical decisions not the result of the intentional state discrimination – the fulfillment of that agenda of C.J. Burger, Milliken v. Bradley There is now a de jure racially segregated system. In Detroit, wheel/scheme enacted by District Court. The Supreme Court determined this was not constitutional – the remedy needed to be limited only to the Detroit school system; this was not, so the district court judge could not do that. Oklahoma City Public Schools v. Dowell -4- Constitutional Law – Individual Rights Jason Jarvis A ―unitary system‖ indicated that the unconstitutional acts have been remedied. Once you‘ve been found guilty of a constitutional violation, you have to show that all past vestiges have been remedied. But if the school board can show that it has remedied all past violations (modern – to the degree practicable); then the federal courts loose their authority to impose desegregation. Two questions: how can you loose authority? How can remedy be violative of the 14th amendment Columbus and Dayton cases: De jure as a result of acts by school board. But state had stopped doing that by 1954; and thus has not intentionally done anything since 1954; so for almost 25 years the state of Ohio had not been guilty of constitutional violations – but does the court now have authority to remedy the past violation – yes of course they do – it was the result of intentional state acts. Freeman v. Pitts Overall deseg order to remedy unconstitutional violations. Court found part of the problem had been taken care of. Then if you can show that the school board has undertaken to remedy past vestiges of discrimination, then the federal court can release the school board from its responsibility with regard to that part. In short, those schools which have fixed it are no longer under a desegregation order has been continued. JENKINS MISSING NOTES 2/6 plus need to get handwritten If race neutral voting classifications are used that have a disproportionate impact it does not violate the 15th Amendment unless you can show that the intent was to hurt people‘s right to vote. Disproportionate impact does not equal a constitutional violation. If the impact is overwhelming…then If you see a race-based classification and there is any arguable justification the court is likely to use a compelling state interest test. In undertaking this level of review, it is such a high standard, that they can very easily strike the race-based classification down. There‘s no reason to apply the race-based per se approach, for the most part the court uses the CSI. With regard for neutral disproportionate racial impact, if you aggregate to specific raciallymotivated legislation then you may approach a per se approach. State-passed law: Anyone convicted of crime of moral terpitude may not vote. By itself this law does not violate the constitution. But this particular law disenfranchised more black voters than -5- Constitutional Law – Individual Rights Jason Jarvis whites; but add to that impact all the events in the passing and it is clear that this was racially motivated. RACE AND JURIES The 6th Amendment carries with it a ―fair cross section‖ of the community. That fair cross section refers to the pool of people from which your particular jury panel is drawn. I.e., the selection system from the community at large must yield a potential pool of jurors that represents the community at large. There is no requirement that the panel of 12 represent the community at large, but the jury pool must. The court‘s principle concerns are race and gender. It should fairly represent the race and gender of the community. To determine a fair cross section the Court looks at any rules with a disproportionate impact. For example, California‘s use of voting registration has a disproportionate racial impact. Thus, this violates the fair cross section requirement – the standard under the 6th Amendment is not the same as under the 14th. It must represent a fair cross section. Voir Dire: There have been a group of Sup Ct. Cases regarding the use of race or gender in the discretionary process to select a jury. No lawyer in voir dire may exclude a juror on the basis of race or gender. AFFIRMATIVE ACTION Normally we let the political process resolve differences about social policies but when racial classifications are used, the political processes do not work that well. Racial minorities cannot affect the political process as well as majorities. These are benign laws; affirmative action laws are examples of the political process working. Then we talk about Bakke Powell: Classifications based on race, hostile or benign, are inherently suspect and must be narrowly tailored to accomplish some compelling state interest. Brennan: Classifications based on race that are benign should use a Mid-level test. Race-Based classifications are the best way of accomplishing that compelling state interest and must look at reasonable alternatives. But in applying such test, it seems that there are four factors that tend to be important. Based upon how the court resolves the cases, these are the factors: 1) The purpose of the law: The most important part of the test – it gives us the category of those programs most likely constitutional. How specifically tailored to remedying past discrimination. a. Historical discrimination as a background to such a broad purpose is too broad and does not pass this high level of review. -6- Constitutional Law – Individual Rights Jason Jarvis b. Race can be used as a remedy to remedy a past specific wrong; note also the school cases – if race is used to commit a wrong then it can be used to remedy a wrong as well. c. Is diversity a compelling state interest? This has not been determined. d. Race has been used to remedy specific race-based wrongs. 2) The degree of the advantage to racial minorities: racial quotas (absolute preference) violates the CSI; but some limited preference might pass the compelling state interest test. The disadvantage to racial majorities: A person cannot be fired because of their race (Wygant). This fails the compelling state interest test. The flexibility of the overall law. Racial quotas are not allowed – they are not flexible enough. Court is more sensitive to those race-based advantages with waivers (don‘t provide any absolute requirements). 3) 4) Benign racial classifications get a compelling state interest test. Fullilove: Flexible and less-intrusive federal program is okay under CSI. City of Richmond v. Croson Court could not see a reasonable degree of relationship between the City of Richmond‘s plan and the prior discrimination. Adarand v. Pena All benign race based classifications get strict scrutiny (compelling state interest). Interesting about this case is the reference to socially-disfavored economically-challenged persons as opposed to race. Thus the purpose is to provide for racial advantage but the terms will be raceneutral. Gender-Based Affirmative Action programs: Kahn v. Shevin ??? Califano v. Webster and Schlesigner v. Ballard Preference to given to women (Ballard) in military advancement – the Court upheld the favorable treatment to women applying the midlevel test. Since women cannot fight in combat, it is fair to give them additional years to show their mettle – thus, the gender based preference for additional years to advance. The bigger point was illustrated by Califano. -7- Constitutional Law – Individual Rights Jason Jarvis California system for calculating retirement. This is based upon a calculation/formula based upon peak earning years. Women could calculate more peak earning years than men could – so women would get more retirement than men. The purpose was to make up for past economic discrimination against women. Gender based affirmative action programs can pass the midlevel review. Making up for past gender based discrimination does pass the midlevel of review. Midlevel test: Intermediate scrutiny is applied to protect women from hostile gender-based classifications but is applied to protect women‘s gender based affirmative action programs. These programs can make up for past historical economic discrimination. Governmental Gender-Based Programs must substantially relate to an important governmental interest. And we must ask whether the relationship part of the test is the best and least intrusive means of accomplishing the ends. Are there reasonable alternatives? In the Orr v. Orr case, the program must be carefully tailored. Look for alternative reasonable or even obvious alternatives. Mississippi University for Women v. Hogan Women being admitted to nursing college were advantaged over males. But this is not remedying discrimination since nurses have not been discriminated against in the past. Johnson v. Trans. Agency It was found that a male and female were equally qualified for a position for which women are traditionally underrepresented – based on that women will have an advantage for future vacancies. Classifications based upon Alienage: Very important! Graham v. Richardson The state of AZ gave welfare benefits to indigent citizens but not to aliens unless they had lived in the state of Arizona for 15 years. Naturalization laws are expressly granted to Congress in Art. I. This implies the states have no concurrent authority. Discrimination based on alienage triggers strict scrutiny. The political function exception: Important government jobs (important because they have a high level of discretion). The exception to this is where important elective and nonelective positions that relate ―to the heart of representative government.‖ These get a rational basis level of review. It only applies to actual governmental employees. -8- Constitutional Law – Individual Rights Jason Jarvis Federal Laws relating to anything for immigration and naturalization is subject to rational basis because … But where the benefits are applicable to some aliens and not others State laws as to governmental benefits as to a broad range of activity including state laws relating to all governmental employment (benefits, welfare, etc.), get a compelling state interest level of review. Government must show it is narrowly tailored to accomplish some compelling state interest. State laws as to state employment where the job involves high level of discretion involves rational basis level. All federal laws get rational basis level of review. Based on Legitimacy: Gets a version of the midlevel test – one that is less protective than is the gender based test – the way to frame this is that – classifications based upon status of your birth must be substantially related to permissible governmental ends. Gender – substantially relates to important ends Legitimacy – substantially relates to permissible ends [This is in between the other two]. Other – rationally relates to permissible ends Classifications based upon legitimacy pass the midlevel test – and the laws of intestate succession are intended to replicate the wishes of the deceased if they had left a will, ask: if the father of illegitimate children does not have a will, Matthews v. Lucas: If male wage earner dies and there are dependents, then only dependent children are eligible for this social security benefit of the decedent. The federal law provided that legitimate children were presumptively dependent not illegitimate children had to prove dependency. Trimble v. Gordon Illinois law says children inheriting through intestacy from fathers only if the child was acknowledged by the father marrying the mother. Illegitimate children could qualify only if the father later married the mother. And the court said that classifications based on birth must substantially relate to permissible governmental ends. Court noted the concern for fraud justification for different treatment – but if you are going to make exceptions to that rule you need the rule to make sense – not in the narrow specific arbitrary manner. Lalli v. Lalli. State law requires a judicial order prior to father‘s death and within first two years of child‘s life demonstrating legitimacy of the child. -9- Constitutional Law – Individual Rights Jason Jarvis ―More sprinkles!‖ Passes the midlevel test – it is not like Trimble where the child can only be legitimated by marriage – it allows for the judicial order within the life of the father. If the legitimacy midlevel test were as strict in reviewing the classification as the gender-level test – it would not have passed the slightly stricter level of the intermediate test. Not as high a level of review as gender. Clark v. Jeter Court focuses on the requirement that the judicial order has to occur within a certain period of the child. Clark v. Jeter – there has to be a determination that the child is legitimate in some way within 6 years of the birth of the child. Court made it clear that the period of the time during which the child has to develop the required proof of legitimacy – the child must have until they are at least 18 (majority). As long as the father is still alive you have until 18 to establish parentage. Any judicial order of parentage must affirm within two years of the birth – this issue was not decided in Lalli v. Lalli, it is decided in Clark v. Jeter Clark v. Jeter: In terms of relationship until the time of birth, the child must have until the age of 18 to establish parentage. PARENTAL RIGHTS OF FATHERS OF ILLEGITIMATE CHILDREN These cases should be viewed as gender-based cases. This is because they involve the rights of fathers versus mothers, not the illegitimate. Again, Crieg v. Boren: Classifications based on gender must substantially relate to important governmental interests. Somewhat complicated because early cases were based on due process grounds (Stanley v. Illinois). The Court has struck down various laws in which fathers of illegitimate children were treated differently than their mothers. Classifications strictly based upon gender must substantially relate to important governmental interest. Thus, a law which said ―adoption permission only needs to come from the mother not father‖ is gender based. There may be important governmental interests – father may be unavailable, unaware – it is possible that some of the treatment of fathers are justified. It is not clear if such laws would pass -10- Constitutional Law – Individual Rights Jason Jarvis the midlevel test. It is clear that any classifications that treats fathers different than mothers must satisfy the test. The other option is to classify people based on their relationship with the child. The classifications are based upon those people who have a custodial or financial or emotional connection to the child versus those that do not. Such is gender neutral – with a disproportionate impact, of course, but the classification is neutral. Laws that classify the custodial parent in a different way than those without one, get a rational basis level of review. Based upon those kinds of laws the parent with a custodial relationship must approve the adoption – not necessary to get the other parent‘s permission for adoption. The difficulty of getting such approvals is going to pass the rational basis level of review. It is unclear whether particular laws pass the midlevel test. However, if the government decides to classify on a gender neutral basis, that law gets a rational basis level of review and such laws are likely to pass. Rational Basis Review Revisited: A new group of cases in which the rational basis test is successful – it strikes laws down based on the rational basis test. Question: How is this test different from the one we‘ve seen thus far. Suddenly here are a group of three or four cases where people are winning. How is this new rational basis test different from the old test we saw? When do you apply this new rational basis test versus the old one we‘ve gotten used to – it is not that this new one has replaced the old one – it is concurrently used. 1. How does this new test differ from the old? 2. When do you use the new one as opposed to the old? The New Rational Basis Test: The More Focused Rational Basis Test. The Court focuses more carefully on the actual basis for which the law was passed as opposed to looking around for any conceivable purpose. Actual purpose law was passed versus conceivable purpose. Dept. of Agriculture v. Marino Food stamp case #1. Hippie disfavor with food stamps. Court struck it down as not rationally related to a legitimate governmental end. City of Cleburne v. Cleburne Living Center Group homes for mentally handicapped being treated differently than other group homes. Court looks at the purposes given for the law. It discounts those given by the City. It does not seek and find another purpose nor does it simply stamp this one. -11- Constitutional Law – Individual Rights Jason Jarvis No rational relationship to a legitimate governmental ends. This is the ―more focused‖ rational basis test. Also called the ―less deferential‖ rational basis test. The other is called sometimes the ―extreme deferential‖ rational basis test. Romer v. Evans Co. had a number of laws protecting people from discrimination based on race or gender. Liberal cities in Co. wanted to treat sexual orientation the same as race/gender so they passed local ordinances. State politicals got a new law passed that would say ―no communities can elevate sexual orientation individually to same protection as race/gender‖. Court said – based upon Bowers v. Hardwick that classifications based on sexual orientation, which are not a suspect classification, it is not a fundamental right, thus we should use the rational basis test. There should be some unique concern for classifications based on race and gender. We should feel some abhorrence based on race/gender. And if we start adding other classifications, it weakens our resolve against classifications based on race and gender. Court misstates when they say: Co. amendment might take away basic rights… Metro Life v. Ward Ala law treated out of state insurance companies different than instate companies. Normally these laws are struck down in violation of the commerce clause but there was a specific federal law allowing such state laws. Court said – this is an equal protection issue. Out of state companies are taxed more – it is a rational basis test. Does it rationally relate to a legitimate governmental end? No. All it does is hurt out of state companies. Thus, they struck it down. Plyler v. Dough Texas law said children of illegal aliens could not receive free public school education. Court found that to be unconstitutional. Problem is: What is the level of review? Being an illegal alien is not a suspect class. Thus, alienage classification doesn‘t apply. Court says education is not a fundamental right. -12- Constitutional Law – Individual Rights Jason Jarvis Thus it seems the review should be by rational basis. BUT This law doesn‘t relate to substantial governmental interests. Doesn‘t relate to purposes for which the state can be about. For this test he cites a 1948 case involving discrimination based on race. (Which is compelling state interest). Principally he finds that children should not be punished for their parents. If this is looked at as a focused rational basis test – this is an example of when to apply that test: 1. When a law is addressed against a politically powerless group. (mentally retarded, gays, illegal aliens). If you have a sympathetic class, court is more likely to use the more focused test. 2. Applying a stricter rational basis test may make a difference. Two questions regarding the new test: How is it different from the regular rational basis test? When do you apply this more focused test? (Far more often do you use normal one – only when a politically weak group and when applying the focused test would bring a different result). Plyler v. Dough Applied a higher level of review due to politically powerless group. In California: Lower in-state university tuition is not available to children of illegal aliens, currently. From a Constitutional perspective what level of review should we use? It may be irrational to deprive poor kids any level of education (Plyler), but even if you conclude that children of illegal aliens should have right to access to public school, does that mean they should also have a right to higher education? Level of education is different. The harm is likely different. It is likely that California could uphold the law Zablocki v. Redhail Right to Vote is fundamental right. Fundamental right to privacy Fundamental right to vote Fundamental right to travel Right to vote is fundamental because of the level of protection given in the constitution, because the respect we give it in society and the past precedential illustrations from the history. Constitution actually does not seem to protect the right to vote. -13- Constitutional Law – Individual Rights Jason Jarvis Constitution says you can vote if you are allowed to vote in your state. And in the states, you could only vote if you were a white male property owner. Three things to emphasis, yea verily four: Reapportionment cases -- Standard for reapportionment Qualifications for being a voter (how does the CSI apply?) Qualifications for getting your name on the ballot/running for office? Yea, verily fourth: The use of race and the affirmative action use of race to maximize the success of minority candidates. Bush v. Gore Constitution says that every ten years there shall be a census and after that census the members of the house shall be reapportioned among the several states. The states that gained people get more representatives, the states that lost people lose representation. The Constitution requires a reallocation of the total among the states. The problem was that each individual states failed to reapportion the representatives. Baker v. Carr Unequal representation raises equal protection issues and the failure to represent fairly violates that clause. One person one vote. Reynolds v. Sims Court took the principle of Baker v. Carr and applied it to the states. Question: how do you balance population versus geographic power? The house and the senate. In California, a similar balance was struck. Geography versus population. Reynolds v. Sims said that both houses in the state legislature has to be apportioned based on population. The state of California argued, Hey! Why do we have to do that? The senate does it. The Court said – there is a constitutional provision that creates the senate not the state senates. How much variation can there be between the various districts? The variations allowed for state legislative bodies can be greater than that for the federal house of representatives: The state legislatures: Mahan v. Howell. Deviation of 16.4 percent. The standard is substantial equality. Such allows reasonable compliance. Deviations of up to 16 percent are allowed. -14- Constitutional Law – Individual Rights Jason Jarvis Gaffney v. Cummings: The deviation may be 8% between the bigger and smaller. Karcher v. Daggett: Standard for federal government is stricter. The authority to reapportion the house every ten years combined with the equal protection clause require that the house districts be as close to perfectly accurate in size as is possible to make them. There must have been a good faith effort to achieve as nearly equal as is practicable. State houses a deviation of 16 percent is allowed. POINT 8 percent is not allowed because the standard is different. Any Constitutional importance to the shape of the district? Davis v. Bandemer State legislature in Indiana draw the map in a gerrymandered way so as to diffuse the democratic sense. The court said it is possible to violate the political process using a gerrymander districts might, but the Court said: The mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. Rather, [it] occurs only when the system is arranged in a manner that will consistently degrade a voter or a group of voters influence on the political process as a whole. It is possible that gerrymander districts might violate the constitution but it is a very high standard. Harper v. Virginia State Board of Education State had a poll tax – a fee of $1 to vote. It was a tax for the privilege of voting which the Court said worked a wealth-based classification. Poll tax gets a CSI test. Because it was a wealth based classification as to the fundamental right to vote there is no compelling state interest to justify this classification. Dunn v. Blumstein Level of review is CSI. One year durational residency violates that level of review. Marston v. Lewis However long it takes to purify your voter list – that‘s the maximum voter residency duration length. Hill v. Stone Limited Salyer – Bond issue to fund new library was bound to how much taxes you pay and city said you could only vote if you had registered property that was possibly subject to taxation. Special interest election‘s may not be subject to the same level of review. -15- Constitutional Law – Individual Rights Jason Jarvis Fact that something is paid for by property taxes does not mean that the matter on which the voting occurs is not Richardson v. Ramirez: Does not violate equal protection when criminals lose right to vote. Rice v. Cayetano State of Hawaii has something called the Bureau of Hawaiian Affairs – benefits to native Hawaiians. 9 Elected trustees ran the benefit program. Under Hawaiian law, you could only vote for the trustees if you could trace ancestry back. Access to the ballot: Bullock v. Carter Right to have your name on the ballot. The level of review – is not compelling state interest. The test is: Laws dictating who can be on the ballot must be closely scrutinized and found reasonably necessary to the accomplishment of legitimate state objectives. If those judgments are reasonably related to making the ballot manageable, then it passes the equal protection test. If you are a third party candidate you have a difficult time getting on the ballot in each of the states. Race has been used to maximize the chances of a minority candidate to be elected. Race is used to put a majority of a particular racial minority Voting Rights Act of 1965: Teeth into the federal law banning race discrimination in voting. Any of the states in the historical South (where there was an underrepresentation of minority voters) could not change the rules with regard to voting unless the Attorney General approves such changes. This was used by AG Reno to maximize chances of African. This was affirmative action use of race to advance the benign goal of increasing the number of minority candidates in Congress. Miller v. Johnson: It is not constitutional to use race for this benign purpose of getting more elected officials. It violates the equal protection clause to use race simply to advance the interest in electing more minority candidates. This was done based on the earlier case of Shaw v. Reno. In Shaw, the state of NC did a similar stretching of districts. -16- Constitutional Law – Individual Rights Jason Jarvis Later cases: Some use of race is allowed. There is a close affiliation between AfricanAmericans and thus they can try to get more democrats – some use of race as a substitute for political affiliation is okay. Bush v. Gore The state supreme court ordered state wide recount allowed each county to recount in their own manner. One county recounted with three times as many positive votes. Right to Vote is fundamental right. Any standards get a CSI test. The undervote (a peculiar form of a vote) may be crucial in a close election. With regard to the most crucial votes, the county standards vary from county to county. The right to vote is a fundamental right. The Florida Supreme Court decision allowing all counties to have their own standards violates the equal protection clause. The Florida law also did not provide for determining the overvotes – where someone votes for two people instead of none. While Gore might have won, there was no way to figure out how to count overvotes. Many ballots said had write-ins. Counting undervotes where you can discern voter intent but not counting overvotes violates the equal protection. Same group said – December 12 is a key date – can‘t have a valid recount with a single standard within the state of Florida, therefore Bush wins. It sounds like from Equal Protection Standard – 7-2 said it violates the equal protection clause. But Breyer and Souter said that 12/12 deadline was not meaningful. Case reinforces that the right to vote is a fundamental right and differing standards as to crucial votes can violate that test. FUNDAMENTAL RIGHT TO TRAVEL Fundamental because of relationship to other portions of the Constitution. Also fundamental because we as a society value our right to travel state to state. California law saying you need a job to move to California was invalid. Thus, precedent said this was illegal. Shapiro v. Thompson Welfare law. Reviewed under equal protection issue. Case involves the fundamental right to travel – a poor person might be prohibited from traveling because if you can‘t get welfare for a year then you can‘t move – it makes it hard for indigents to move. Durational residency with right to welfare violates fundamental right to travel. Dunn v. Blumstein One year durational residency requirement for boating. -17- Constitutional Law – Individual Rights Jason Jarvis This violated the fundamental right to travel as well. Memorial Hospital v. Maricopa County When the durational impact re travel impacts other fundamental rights or the Durational residencies that penalize the fundamental right ot travel by impacting the necessities of life. Other durational residency requirements that do not penalize the fundamental right of travel. MUST HAVE TWO THINGS: 1. Must have a durational residency requirement. Court has never applies fundamental right to travel to any case not involving durational residency requirements. 2. Must have an impact on a necessity of life or other fundamental rights. Something like welfare or medical care; something like right to vote. Jones v. Helms Right to travel has little to do with travel. If you see something with traveling it is probably not a travel issue – right to travel is durational residency and impact on necessities of life. Court has discovered the fundamental right to travel interstate: durational residency and penalties on the necessities of life (or other fundamental right). Durational residency laws are subject to compelling state interest test: “You must be a resident for one year to get welfare.” Genuine bona fide residency laws are only subject to rational basis test: “You must be a resident to get welfare.” Residency requirements for voting, education, welfare, etc., just get a rational basis level of review. Zobel v. Williams AG of NY v. Soto-Lopez Williams v. Vermont Three cases that are just a hybrid between the fundamental right to travel and the rational basis test. Some members thought it should be a rational basis test. Some members thought a more focused rational basis test. But there is no agreement as to any particular level of review – in particular, there is no agreement that the fundamental right to travel is involved. Zobel v. Williams: -18- Constitutional Law – Individual Rights Jason Jarvis State of Alaska had too much oil money. Proposal to make a new capital. Then they were going to give revenues back as tax refunds based on length of residency. The length of residency determined what share of the taxes you get back. Some members of the court said the fundamental right to travel was involved and therefore the law was unconstitutional; others just said it didn‘t make sense. Soto-Lopez: You have preferential welfare status based on time in the armed services. Only those veterans that lived in the state at the time the benefit was calculated from got it. Some members of the court said the fundamental right to travel was involved and fails CSI. Some members said they get the rational basis test, but that it was not rational. Williams v. Vermont State of Vermont gave you credit for the sales tax elsewhere only if you reside in Vermont. Gave you credit based on residency at the time you bought the car. Fundamental right to travel was involved. Residency is at a fixed point in time. Court alternatively says it just isn‘t rational. Saenz v. Roe Privileges and Immunities Clause from Art. IV. As to all important rights there should be equality between citizens and non citizens. If Art. IV protects important. 14th Amendment protects important rights. Since it does, the privileges and immunities clause of the 14th amendment protects only unimportant rights and doesn‘t matter. Slaughter-House cases killed the PI clause of the 14th Amend. Only thing protected: Right to petition the government for grievances. Right to protection while in custody of a U.S. Marshall Right to sail the navigable waters Right to travel (Saenz) interstate (also been protected by the commerce clause). Saenz: -19- Constitutional Law – Individual Rights Jason Jarvis California tries to cut welfare. Passes a law that says – if you move from another state you cannot receive the higher amount California pays welfare until you live here a year. Remember Shapiro? Have to live in the state one year before you can get any welfare. No good. Now, California has a durational residency requirement, but California is not taking all welfare, just saying we are going to pay you welfare of what you would have gotten back home. Court should have just used Shapiro because it was a durational residency requirement with impact on necessities of life. But the Court did not. They decided it based on 14th Amendment PI clause. SUM: If you have something involving something like durational residency (length of residency, residency at fixed time, residency when purchase is made); Even though it doesn‘t involve necessities of life some members of the court will apply CSI. Majority is made up of those justices plus those that say it fails the rational basis test make up majority. CLASSIFICATIONS BASED ON WEALTH. Court will combine both equal protection and due process rights. And then another group of cases that deal with a simple rational basis on wealth based classification tests. Griffin v. Illinois Criminal defendants have a right to a free trial record when necessary for appeals. Indigent persons have right to a free trial transcript if needed for review. It is not fair that well-to-do defendants can buy the transcripts and appeal but indigent persons can‘t. A combination of procedural due process + the equal protection concerns of the wealth-based classifications. Douglas v. California Based on Griffin, indigent defendants have the right to free representation – state provided counsel for their first appeal. The sixth amendment gives the right to counsel at the trial level – the right to such gives right to attorneys for the appeal level even though it is not protected under the sixth amendment. The fairness to the suspect in being able to appeal and the equal protection concern that people with money can appeal but not people without money. People have to provide funded counsel for the first appeal. Boddie v. Connecticut -20- Constitutional Law – Individual Rights Jason Jarvis A filing fee charge may be too high to survive test – wealth based classification concern. Fundamental right to marry – fee must be waived. United States v. Kras Rational basis level of review – upheld the fee requirement for filing for bankruptcy. Ortwein v. Schwab To seek appeal you need to file $25 fee. People on welfare wanting to appeal cancellation of their welfare. That filing fee was constitutional. It was rationally related. Little v. Streater State must provide free bloodtest to indigent persons in civil paternity cases. Where paternity is at issue indigent persons must be provided free blood test. Lassiter v. Dep’t of Soc. Serv. All states have procedure to terminate completely parental rights. These procedures are civil and in order to terminate parental rights you must show something akin to criminal neglect. There are such important rights – your right as a parent, which does go to a fundamental interest – that if there are special factors then the state must provide free attorneys. Special factors may include things for which an attorney might be helpful – disputed facts, MLB v. SLJ Parental termination proceedings, though they are civil in nature, a parent about to legally lose all relationship with their child are entitled to a free trial record if needed for appeal. These cases are precedent driven – it is otherwise difficult to predict how other cases will be decided. Dandridge v. Williams State gave $250 per month of welfare per child up to a maximum number of children. If you are on welfare, you get the same amount for four children as for seven. A wealth-based classification 1. 2. Taking of a liberty or a property interest. -21- Constitutional Law – Individual Rights Jason Jarvis 3. If you have an adjudicative taking of a property interest, what level of processes is due? 4. Difficult and obtuse doctrine of irrebuttable presumption HYPO: State law says if a police officer declares bankruptcy they are fired because of a concern of corruption. Since there is no fundamental right involved, this law only flows to a rational basis test and thus will pass it. Is this a procedural due process issue? Equal protection issues will mask themselves as procedural due process issues. Must look for individualized notice for procedural due process. There you have an individualized case by case issue – procedural due process issues arise out of these. Must be an adjudicative taking to bring in procedural due process. Anyone who gets five traffic tickets gets suspended. This has no hearing involved regarding whether there is five traffic tickets. But if it said ―anyone who drives recklessly‖ then it would involve an adjudicative-judge-like decision that raises the procedural due process issue. Legislative classifications do not – those that call for ministerial decisions. Ask ―is there something on which to have a hearing?‖ Liberty/Property No judicial like takings. If the FCC gives you a license and then says we will take it back if you do not do good. Must be a taking of a liberty or property interest. Board of Regents of State Colleges v. Roth But where there was a year long contract and a teacher was fired, his interest in the job was not a property interest because the state law did not provide him a property interest. If the law says you cannot be fired without misfeasance or nonfeasance; this would create a property right because you could only be fired for cause. If someone gets fired for no cause, unless the state law gives you a property interest in that job, you have no procedural due process right. -22- Constitutional Law – Individual Rights Jason Jarvis Property interests are strictly dependent upon law – if the law doesn‘t give you a property interest then you don‘t have one. Property interest could also be welfare. You must find an independent law establishing a property interest. Liberty interest are tougher – they are protected by the Constitution as well as state law. What are implicit liberty interests protected by the constitution? The interest to be free from institutional confinement. As civil cases, juvenile cases are entitled to a high level of procedural due process… Transfer within various forms of institutional system – no liberty interest in minimal security jail. Good time credits. . . warden took these away after a prisoner took away these credits. Yeah, those good time credits are protected by state law. Reputation as a liberty interest. An interest in a state job was not a property interest because state law didn‘t make it so. But if a person were fired because of their point of view they might have a liberty interest based on free speech. But the Court also said that if a false reason had been given for firing the plaintiff, then the false reason might be a taking of your reputation, which might be a liberty interest. No taking of liberty interest in the reputation. But later… Paul v. Davies: City police sent out leaflet at Christmas saying: known and notorious shoplifting persons. Innocent person is listed and fired because of it. Reputation alone is not a protected liberty interest by procedural due process. Liberty interests – The prisoner cases – once they discovered procedural due process, they were always suing. Doesn‘t violate procedural due process to take away prisoner rights, unless however you treat the prisoners imposes atypical or hardships on prisoners compared to other prisoners. Only violates if you create an atypical harsh quality of life different than normally being in prison. -23- Constitutional Law – Individual Rights Jason Jarvis Parrot v. Taylor Prisoner received in the mail a hobby kit which prison officials negligently damaged. He claims that his procedural due process rights have been violated. Obviously he is not asking for a hearing prior to the kit being broken, he thought he outta have a damage claim. Daniels v. Williams A guard negligently left a pillow in a staircase, the prisoner stumbles over the pillow and injures themselves. They think it is a violate to not set up some prison mechanism to claim damages. Davidson v. Cannon A guard was passed a note that a prisoner was in danger from another prisoner. Guard forgets about note and the other prisoner was severely hurt. Violation of PDP. COURT: You may be entitled to state remedies for tort, but there is no Constitutional procedural due process issues. Judicial Taking of some Liberty Interest/Property Interest Without notice/hearing When are you entitled to your due process? Usually only prior to your property/liberty deprivation. Normally procedural due process comes pre deprivation; except in emergent situations. What is the level of due process required? Mathews v. Eldridge What should the level of due process be? Importance of privacy interest; Risk of mistake (the accuracy factor) Government‘s interest Procedural due process gives you a right to a hearing – an informal opportunity to present your case. Cleveland Board of Education v. Loudermill Can a state give you a property interest in a job and then define the process which may occur less than a full administrative hearing? -24- Constitutional Law – Individual Rights Jason Jarvis State law defines what the property interest is. They don‘t have to give you a property interest; but once they do so, then the level of process to remove that job is a constitutional issue as determined by those factors. Irrebuttable presumptions Mass v. Mergia. Police officers shall be retired at the age of 50. Prior to that they took exams. The concern was that police officers need to be fit to do their work. If a law irrebuttably presumes and classifies based on age; then because it is just age we use a rational basis test. Irrebuttable presumptions classify. If you are not 21 you cannot drink. This is irrebuttable. Bell v. Burson Georgia law provided that if you are involved in an automobile accident without insurance then you are presumed at fault. Your license is automatically suspended and then a hearing is set for some time down the road on the issue of ‗were you at fault?‘ Court said – you made the issue ―fault‖. Once you did so, you need a hearing before the licenses is suspended. Stanley v. Illinois Unmarried fathers are presumptively unfit. Mother dies Children removed from father Hearing on fitness after removal Don‘t just remove based on presumption. Vlandis v. Kline Residents of states qualified as lower tuition people. Also, whatever residency you start school with remains as your residency. Once you make residency an issue the person is entitled to a hearing. Cleveland v. La Fleur 4-5 months Pregnant public school teachers had to hire substitute teachers. -25- Constitutional Law – Individual Rights Jason Jarvis Due to an irrebuttable presumption. Without a hearing this violates the procedural due process clause requirement of a hearing. Weinberger v. Salfi Law says that if you are married for less than nine months to a social security recipient and such recipient dies, your children are not entitled to death benefits (due to concern for fraud). This is a duration of relationship requirement – an irrebuttable presumption. Procedural due process issue requires a hearing. Court says – irrebuttable presumptions are just classifications. This doesn‘t mean you get a hearing. You have no right to a hearing. Under the rational basis test, it is unheld. Usery v. Turner Medical benefits to miners. If miners have blacklung disease they are irrebuttably presumed to be totally disabled. This is a classification, not a requirement for a hearing. Normally, Irrebuttable Presumptions present equal protection issues. Anytime you see that phrase, ―irrebuttably presume to‖ it is just a classification. Then determine the level of review, which is usually rational basis. Sometimes, Irrebuttable Presumptions present procedural due process issues. The model is Bell v. Burson: Law makes something an issue (fitness of a father, for example); there is a prehearing deprivation; and then later on there is a hearing scheduled on that issue. Law makes something an issue Takes away the right before determining the issue Later on it gives you a hearing on the issue STATE ACTION 14th Amendment says: no state shall deny… 14th amendment only reaches state actors; not private actors. Section 5 of the 14th Amendment says: Congress shall pass appropriate legislation to carry into effect the foregoing. Congress by legislation can reach only state acts in violation of due process, equal protection, and privileges and immunities. -26- Constitutional Law – Individual Rights Jason Jarvis As a result, the Constitution says ―no state shall do‖ certain things. Federal law (18 USC 1983) says that you cannot do something ―under color of law‖ all that means is state action. That is because, Congressional power is limited to reaching that doctrine. What is, state action? State action means any form of governmental acts. Any governmental acts at any level. You only have a state action issue when you have a private person violating your constitutional rights. The issue is – when is the state responsible for private acts? Burton v. Wilmington Parking Authority Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance. To find state action from private action you need: 1. Government blame. Government culpability for the private acts. You find that by sifting and weighing the facts. 2. Not a very helpful test. Court never tells us what kind of culpability they are looking for. Look for categories of types of facts that are helpful in finding state culpability and state blame. Burton v. Wilmington Shopping. If you are told a particular agent of the government did that then you know there is state action. You only have a state action issue when you are trying to find a private individual liable for state action or trying to find the government responsible for a private violation of the 14th amendment. We are looking for application of 14th amendment to private acts. 1. Private person performing a public function. White primary cases. State of Texas refused to allow African-Americans to vote. Court found this violation equal protection. So the state turned over the running of their elections to the private political parties. Democratic party + the Republican party are private actors. So the Democrats ran their primary in a way that excluded blacks from appearing on the ballot or vote in the primary election. In so doing, this private entity was performing a public function. Thus, the democratic party became a state actor. So the discrimination by the private entity was attributable to the state of texas which had delegated the public function to the party. Marse v. Alabama -27- Constitutional Law – Individual Rights Jason Jarvis A company town. Privately-owned municipality. In this town they had rules against speaking in public sidewalks. He said his free speech rights were violated. The question was whether the company town was a public entity for the purposes of state action. Giving the company the right to run the town is an example as a public function. What about a mall? That it operates as a ―down town‖ and thus should also be a public actor. Private shopping centers perform a public function. Then the court reversed and said that is not the case. Steel v. RR Private union finding collective bargaining practices. Since federal law gave private unions the right to act on behalf of employees, it was a public actor. Evans v. Newton. Operation of a public part by a private party (with considerable city involvement) 5th requires governmental acts as well as 14th. Congress turned over to the U.S. Olympic committee SF Arts + Athletics v. US Olympic US Olympic Committee is a private entity; not bound by the 14th amendment so if it wants to discriminate it can. Tarkanian v. NCAA So he sued claiming violation of his procedural due process rights. NCAA is not a state actor in Nevada because most schools are private. No state action. The U of Nevada could be responsible but not Brentwood Academy v. Tennessee Secondary School Assoc. Private entity suspended one private school from competition because of violation of recruiting rules. US Olympics is private actor NCAA is a private actor. Most are private entities. Here, most are public schools. The private association was so entwined with the state that the state is responsible for the private violations. -28- Constitutional Law – Individual Rights Jason Jarvis Jackson v. Metro Edison Reitman v. Mulkey We are looking for the rights kinds of things to analyze. Not hard rules. Shelley v. Kramer Private restrictive covenants to agree not to sell homes to minorities. Where the court made an injunction to uphold these rules, the court is a state actor. Evans v. Abney Gerard College: Private testator set up a trust and city of Philadelphia ran the trust – since the trust discriminated the private actor was subject to bill of rights. Shelley v. Abner Private homeowner did not want to discriminate based on race. Thus, here the Court required someone to discriminate that did not want to. As opposed to Evans v. Abney where the actor did want to discriminate. It is state action for an attorney to use preemptory challenges to remove possible jury members. The logic is that the private attorney is playing a role in the state procedure. That court proceeding alone is enough. This case is not helpful outside peremptory challenges. Burton v. Wilmington Parking Authority Private coffee shop – The Eagle Coffee Shop. This was one of the facilities in a public parking garage. The coffee shop engaged in racial discrimination. It was a privately owned entity. Is there state action? COURT: We have to sift the facts and weigh the circumstances. First, there was the appearance that it was part of the state. Second, there was a symbiotic relationship between coffee shop and the parking authority. -29- Constitutional Law – Individual Rights Jason Jarvis Third, the city in licensing out a coffee shop easily could have prevented any private entity from engaging in racial discrimination. Other cases: Loan of school text books Loan of use of a park. But because racial discrimination was alleged, the relatively low connection was enough. Federal Law said: You, the private nursing home, has to make sure that those people receiving reimbursement are eligible therefore. Private Nursing Home kicked people out without procedural due process. If there is no state action, then it doesn‘t matter whether property or liberty rights are involved – because if there is no state action there cannot be a procedural due process right. Court said there is NO state action. This is because: School firing of teachers w/o due process where school is a public school where 90% of revenue comes from the school. No state action. What does it tell you? 1. Burger/Rehnquist does not like finding state action 2. Racial discrimination is frequently found to be state action. But for hiring and firing of teachers, -- employment policies do not connect as much to the state action portions. Regulations of liquor licenses – however bad racial discrimination is by private groups, the simple grant of a liquor license is not enough to make the state responsible for the discrimination. Jackson v. Metro Edison Private utility company cancelled utility services without notice or hearing. If this had been a public utility it would have violated procedural due process rights, but since it was private, there was a question about state action. Should the state have been responsible? Look at all the factors: Monopoly, ease of regulation, appearance, and it looks awfully like state action. Court said: No state action. Reitman v. Mulkey States can pass laws against private discrimination. In California, the prior law was that you could sell as a private entity, then it changed and in California we passed Proposition 26, which repealed fair housing laws and said that before new fair housing laws could be passed, they must be passed by 2/3rds vote of citizens of California. -30- Constitutional Law – Individual Rights Jason Jarvis 1. Private choice 2. Then state laws preventing race-based discrimination by landlords 3. Then citizens repealed laws – so it is back to private choice This will result in more private racial discrimination. But is the state responsible for the new law? Is it state action? Does the law violate the Constitution? Just a repeal of a fair housing law should not violate the constitution, right? It is unconstitutional only if the state became responsible for the new law. Court said it is responsible and so this was state action. Later court statements said the 2/3rds vote aspect of Reitman meant that the 2/3rds voting aspect works a race-based classification. Since it is a race based case it needs to pass a CSI, and it doesn‘t. Section 1 of the 14th Amendment says: No state may. . . Section 5 says: Congress may pass appropriate legislation. Two issues are thus raised: (1) is this power only to prevent state violations of PI or also private violations? (2) Can Congress expand the substantive provisions? The Federal Government is limited to making law limited by their enumerated power. E.g., §1 bans slavery; §2 Congress has power to enforce. Congress‘ ability to reach private acts under these various amendments Congress‘ ability to go beyond the substantive meaning Congress‘ ability to reach private acts under the 13th amendment and under the 14th amendment. Congress clearly has power to regulate private actors under the commerce power. This is not an issue for us. 13th does not have a state action limitation. ―No person can hold another person in involuntary servitude. [slavery]. Congress can pass appropriate legislation. If Congress passes a law saying it is a felony to hold another in slavery. Congress can also reach private acts that impose ―badges of slavery.‖ Badges: The kinds of disability that incorporated slavery – upheld the institution of slavery. Such as:  Lack of right to vote  Denial of education  Refuse of travel ability  Denial of ability to own property. -31- Constitutional Law – Individual Rights Jason Jarvis Thus, congress has the ability not only to prevent slavery but also all these sorts of things. Congress can regulate badges of slavery/race and whatever disabilities were imposed on people because of race. 14th §1 Due Proc., Eq. Prot., Priv & Imm. §5 mean they can pass appropriate legislation – but does it mean state acts or private acts? Originally the court said in the original civil rights cases (1883) that Congress only had the power to regulate state discrimination. 1965: United States v. Guest. Whether there was sufficient state action to make private individuals responsible for violations of the Constitution. The local police were involved with people trying to kill civil rights demonstrators. At this point six members of the Supreme Court thought Congress could reach private acts, but not together. So the only operative law you have is the 1883 civil rights cases. Which means Congress still does not have power to reach more than state acts. With respect to privileges and immunities, Congress may reach the private acts. What are the privileges and immunities of federal citizenship? Sailing the navigable waters, etc. Even if there had been no enumerated powers, Congress would have had the implied power to protect privileges and immunity of federal citizenship. Thus, since the power was already implied, and then is express, it is extra powerful? Federal law says: No person can travel highways in disguise to hamper interstate travel. What if we had a federal law that said no private employer can fire individuals without notice and hearing. United States v. Morrison Congress can reach private acts under the 13th amendment (race + badge of slavery) Congress can abrogate 11th amendment immunity under §5 of the 14th amendment, but it has to fall under §5 of the 14th amendment. Enumerated powers of Congress to reach private acts: Congress‘ ability to change the substantive provisions of the civil war amendments. -32- Constitutional Law – Individual Rights Jason Jarvis City of Boerne v. Flores Congress obviously cannot pass legislation inconsistent with the provisions – i.e., Dickerson (anti Miranda case). But there are issues, e.g., RFRA and the anti-establishment clause. E.g., congress can by legislation reach badges of slavery -- §1 of the 13th Amend. limits only slavery, not the badges, but Congress by legislation can reach badges of slavery. 15th Amendment bans intention race discrimination‘s use to determine who can vote. The state cannot intentionally exclude persons from being able to vote because of their race. But Congress amended the Voting Rights Act – disproportionate impact ban based on race (as applied to voting happenings). With respect to the EP clause, there are two competing cases: Katzenbach v. Morgan Law that persons who completed the 5th or 6th grade in Puerto Rico could vote even though they had not passed literacy tests. There is a partial ban on literacy tests – previously there was case law allowing literacy tests (as Constitutional). It was possible that the older decision was older law. The Court accepts the finding that literacy tests are constitutional. 14th Amend. §1: No state shall violate equal protection rights 14th Amend. §5: Congress has enumerated power to enforce. But since it had been found that literacy tests are constitutional, Congress did have the power under §5 to ban literacy tests, but they did so via convoluted reasoning: People who don‘t vote don‘t have same governmental services as people who do. In communities where there are large non voting persons, those communities do not have same governmental services. The literacy test can lead to non voting. Non voting can lead to unequal governmental services. So Congress can address this equal protection concern by banning literacy test. Thus, the ban is based on addressing equal protection issues of representation, not fundamental voting rights. Oregon v. Mitchell Congress passed legislation giving 18 year olds the right to vote. This law was challenged as regard to state elections. Where did Congress get the right to give 18 year olds the right to vote. Congress claimed the power came from the 14th amendment. Better governmental services. Same claim as Katzenbach v. Morgan. Since 18 year olds can‘t vote, they get a different level of governmental services. Court said ―No. We don‘t believe you.‖ The particular law is therefore beyond the scope of Congress‘ enumerated power. Congress did have the power to give 18 year olds the right to vote in federal elections, but not the state. Court reasoned that Congress can prevent violations of the EP clause, but age discrimination does not violate the EP clause – thus, Congress cannot give 18 year olds the right to vote. -33- Constitutional Law – Individual Rights Jason Jarvis City of Boerne v. Flores Historically, the Court has said a state could not take away your free exercise of religion unless it had some compelling state interest. Recently, Oregon v. Smith, the Court said that the test is not compelling state interest. Oregon said the test is a balance? A RB? All the Court said was ―it is not compelling state interest.‖ Thus, Congress passed a law to protect the free exercise of religion in which the Congressional clause said that the free exercise could not be taken away without some compelling state interest. Congress thus restated the standard for religious freedom. The Court said that Congress does not have the enumerated power to impose a higher standard than that imposed by ―the constitution.‖ Any state could do that. It is Congress that is limited to enumerated powers. Congress is limited to protecting the substantive provisions and not allowed to go beyond. Right now, the DP clause includes the right to privacy and the right to privacy includes the right to freedom of choice with respect to abortion. If Congress was trying to protect this right (perhaps after a reversal). The problem is: How do you know when Congress has the enumerated power to do something and when do they not? Who knows… Court: Congress can shape remedies but not the underlying substantive interest. Of course there is no clear line between the two. Thus, Congress can pass legislation that seems to be directly connected to the underlying substantive rights and when Congress tries to create new ones they have gone too far. FREE SPEECH Court has said: Free speech is a fundamental right. But there are not clean/neat lines between what is fundamental and what is not. The Court does distinguish between Content based regulations and time, place and manner regulations. Content type regulations get a form of strict scrutiny comparable to the CSI test, but there are a number of different strict scrutiny rights. Requirements: 1. Pick the correct test of the various strict tests a. Clear and present danger test. i. This is used for Radical political speech b. New York Times v. Sullivan i. Defamation c. California v. Miller i. Sexually-explicit d. Right to privacy e. Biting words -34- Constitutional Law – Individual Rights Jason Jarvis f. Catchall test: The Compelling State Interest test. 2. Time / Place / Manner a. Usually the Court will apply a balancing test. Regulations of the time, place, and manner of speech must substantially relate to the important governmental end. b. Limited Public Forums: Governmental forums primarily devoted to non-free speech uses (like Airport terminals). In those we will just apply a reasonable basis test. 3. Void for Vagueness and Overbreadth 4. Prior Restraint Why the Court views Content-based more strictely: Gov‘t regulations to content does more harm to free speech. If someone is passing out leaflets critical of the government, then it hurts free speech to put this person in jail. But if the government regulates the time place and manner of the leaflet distribution, then it is not harming the idea behind it. CLEAR AND PRESENT DANGER The first test used by the Court in order to protect free speech. Historically very important. The first of the various tests used by the court in order to protect free speech. Right after we passed the 1st Amendment, the First Congress made it a crime to criticize the uniforms of the government. The modern test: Brandenburg v. Ohio Leader of the KKK makes a racist speech threatening violence on blacks and Jews. He is arrested and convicted for violated the Ohio anti-syndicalism action. This is a form of radical political speech (defined broadly to mean any type of advocacy of violence to achieve social ends). Before radical political speech can be punished there must be three elements:  Words of incitement.  Specific Intent.  Likelihood of success. History of this test comes from WWI: Congress passed a series of laws to protect the war effort: Alien and Sedition Acts. The nature of these laws was to protect the war effort. These laws made certain activities against the war federal crimes. E.g., a crime to obstruct the draft. When can speech be punished as a form of obstructing the draft? When can speech be punished as an attempt to obstruct the draft? What about incitement? When can speech be punished as an incomplete or inchoate form of obstructing the draft. -35- Constitutional Law – Individual Rights Jason Jarvis Case: Reverend Waldron: For himself, he did not think Christians could kill others in war, but each Christian would have to make that decision for him/herself. District Court said: If speech had the merest tendency to obstructing the draft then it could be punished. Thus he was guilty and sent to jail. Producer made a film on the revolutionary war between the US and GBR. ―The spirit of 76‖. Portrayed GBR badly. During WWI. Got 15 years in jail. Learned Hand used the test: Incitement Test. Based on the common law of solicitation. Speech should not be punished unless it satisfied the common law of solicitation: Had to advocate a particular crime with the intent of accomplishing the crime. Schenck v. United States: Required a clear and present danger. Clear and present danger test: there has to be some close connection to the act. The illicit act had to bear a clear and present danger to accomplishing the illegal acts. Schenck: Speech is not protected absolutely. Black and Douglas argued speech is absolutely protected. White Russian protest against Russian intercedence. Clear and present danger test was not very critical. In the Abrams case: Brandeis and Holmes said: It is not enough that there be clear and present danger: Law of attempt requires specific intent as well as proximity. Thus, we need specific intent for guilty free speech. Historically the clear and present danger test was the all purpose test although it is no longer. Certain type of speech can be a crime. Gitlow v. New York Speech may be the crime itself. If the government makes a certain kind of speech a crime, is there any place for Whitney v. California Clear and present danger means very clear, very present and very evil. This is a commonly cited version of the clear and present danger test. Dennis v. United States Communist party illegality -36- Constitutional Law – Individual Rights Jason Jarvis As the evil grows the need for proximity decreases. Thus, there is a weighing test that Evil + Proximity = 1 We don‘t have to wait until the Communist Party is ready to take over the government to act. The need is so great we can prevent it in its earlier stages. This is the ―discount version‖ of the clear and present danger test. This is never specifically reversed but it is never really followed either. The Brandenburg case has the best statement. After these cases, the Court required: 1. Some specific unlawful acts 2. Knowing membership – you needed to know the aims of the communist party was illegal and you had the specific intent to accomplish the illegal aims. This standard was very close to Brandenburg v. Ohio. Radical Political Speech: Clear and Present Danger Clear and Present Danger: Contempt of Court cases. There were a group of cases in which individuals were punished for statements to the trial court. Courts can only hold an out of court person, not a party to the action, statements made outside the presence of the court, can be found in contempt only if there is clear and present danger to the fair administration of justice. Prior Restraint Vagueness and Overbreadth Notice: A reasonable ascertainable standard. There must be significant enough guidance that people who want to obey the law may do so. Vague: Court is afraid that vague free speech laws may lead to suppression of various points of view. Such as laws regulating loitering. Overbroad: Court is concerned that the law is going to reach illegal as well as legal actions, especially concerning speech. Any type of law may be overly broad. A regulation of abortion rights went too far – the overbreadth doctrine may be even more concerning for free speech issues. Herndon v. Lowry -37- Constitutional Law – Individual Rights Jason Jarvis Concern that the law failed the clear and present danger test and so the court said that they did not need to decide that – they found the law unconstitutionally vague – doesn‘t provide ascertainable standards – it fails a procedural due process standard because it doesn‘t give notice. Now this vagueness law is not used as frequently because there is an established body of free speech law. Coates v. Cincinnati Cincinnati law made it a crime for 3 or more people to hang out on the sidewalk and behave in an annoying fashion. Just disregard the vagueness issue. Just assume the people are in fact being annoying. If a law is overbroad that makes illegal conduct that is not protected by the first amendment, but A person engaged in illegal activity has standing to challenge a law as though the conduct was legal if it is overbroad. Must identify why your act is not protected by the first amendment But the law might be applied as against people who might be protected by the first amendment Escape bad facts to litigate the law on its face. If you have a problem where you sense vagueness usually the problem is overbreadth. Prior Restraint Near v. Minnesota Person can go to jail or subject to money damages for making defamatory statements. Is this constitutional? No, because it is a prior restraint. It is a prior restraint because it prevents the actual use of the speech. You cannot stop punish someone for something that they may speak about. Even speech that is otherwise illegal cannot be punished. Prior Restraint only applies if you have some illegal speech. Prior Restraint: Even with regard to speech not protected by the first amendment, prior restraints are presumptively invalid. Someone‘s right to fair trial. Press printed all sorts of details: Court issued a gag order to prevent publications – but that is an invalid prior restraint. But even where you can be punished after the fact, even where important governmental interest are presumptively invalid. Are they ever allowed? Only in times of Clear and Present Danger. Needs to be a sufficient and compelling purpose and the gag order must -38- Constitutional Law – Individual Rights Jason Jarvis   Only have a prior restraint if there is some pre-publication approval process: Injunctions. Even stuff not protected by the first amendment cannot be subject to the prior restraint Marketplace of ideas. Free speech protects good ideas + bad ideas. Why is it worse:   If you punish someone after they make a statement, the idea is still running free. If you issue a prior restraint you prevent the idea from getting into the marketplace. Vagueness and Overbreadth: Principle interest is in overbreadth. Free speech issue where someone is engaged in speech/activity not involved in the first amendment and they are asserting that the law might be hypothetically applied to speech protected by the first amendment. A law on the books hampering free speech rights might ―chill‖ free speech; to ―open the marketplace of ideas.‖ Prior Restraint: You only have a problem when you have a licensing/permit scheme or an injunction against publication of something. Key is that they are invalid even when the speech might be published after the fact. Regulation of defamatory speech and the right to privacy. Originally defamation was not protected by the first amendment. There are certain categories of speech beneath constitutional protection. The libelleous statement is beneath constitutional protection. New York Times v. Sullivan Court makes the common sense observation that: If you too easily covert general governmental criticism into defamation of a particular individual you have destroyed political speech and you have made it impossible to have criticism of the government. It is not sufficiently protective of political speech to limit protected speech to true speech. Speech and public issues needs to be robust, wide open and uninhibited and limiting speech to true speech is not adequate protection. The court is wanting to make sure that all worthy speech is protected so they build up some unworthy speech as a buffer between truthful speech and unprotected speech. Before public figures can maintain an action for defamation they must show ―actual malice.‖ Actual malice is defined as intentional falsehood or reckless disregard for the truth. That is the key language that is in NY Times v. Sullivan. The key language is: reckless disregard. -39- Constitutional Law – Individual Rights Jason Jarvis You never will need to show another person intentionally lied about another person. The best definition of reckless disregard comes from Garrison v. Louisiana. There, the court defined reckless disregard as having serious doubt about the truthfulness of the statement and having made it in any event. In the Garrison case the court also emphasized that it is a subjective standard as opposed to a reasonable person objective standard. Garrison: DA in charge of investigating vice activity, was upset with local judges who were supposed to approve is vice officers. So the DA said he thought there needed to be an investigation of the judges. He defamed them by asserting a racketeering influence on vacationminded judges -- something that he said without reckless disregard according to the court. NY Times: When do you apply this standard as opposed to some other standard – this is the standard for public officials and the court later extends to public figures. Wally Butts: Prominent football court at U. Georgia. Sat. Even. Post: He and another coach conspired to fix football game. Public Figures: Assumed risk of public comment; have the ability to protect themselves by responding in kind; Public Officials: Anyone who holds or is running for any kind of elective political office. Does not employ all government officials. What is the standard for private figures: State may provide own standard but the constitution requires that there be at least a negligence standard. Firestone: is a person involved in a famous case a private or public figure. Factual review of the case – look for someone thrusts themselves into the limelight. Unless a person chooses to enter the limelight they probably remain a private figure. Public figures v. Private figures Public/private figures for the purposes of a particular public controversy. Dun & Bradstreet v. Greenmoss Private defamation not involving matters of public concern the standard is probably strict liability. At common law if you made a defamatory statement it was presumed to be fault – the burden of proof was on the defendant to show the statement is true. Private individuals cannot sustain a False Light claim unless they sustain the NY Time standard: Intentional falsehood or reckless disregard. -40- Constitutional Law – Individual Rights Jason Jarvis Why this standard? Uncertainty as to the degree of harm where you simply portray someone in a false light. In terms of misappropriation – that‘s when you take someone‘s likeness for commercial purposes or commercial gain. Zuccini – news broadcast of the act of being shot out of a canoon. The taking of an act for commercial gain – no newsworthiness to it. Consistent with the first amendment the state can make misappropriation an actionable claim. Intrusion on Seclusion: Court has decided a number of cases related to intrusion on seclusion. Invasion of Privacy. An illegal trespass into someone‘s property/electronic seizure of conversation – illegal act to gain information. Court recently said that the media can be sued for violation of ride-alongs during the execution of arrests and search warrants. Media can be subject to liability for participation with the police for those activities. Reveal Private Facts: Must reveal private acts of an offensive nature: Information is so private and the public interest so limited that it is said to ―shock the conscience.‖ Various state courts have upheld this consistent with the first amendment but the Sup. Ct. has not addressed that issue. If the media/anyone obtains information lawfully and if the information is truthful then it is protect by the first amendment absent a need to further a state interest of the highest order. Perhaps a CSI standard. Even assuming that a seizure of something is illegal, can Congress make it either a crime or provide for civil penalties for disclosure of it separately being punished by the seizure of it. Court said that there are competing free speech interests involved. On the one hand it was intended to protect the privacy of private conversations. On the other hand – the information obtained. Court said it had to reconcile and balance those competing interests. The majority of the court said free speech and public concern was more important than the private person. If the media got the information legally they could broadcast it because it was a matter of public concern. Two of concurring said they allowed it because it was a matter of public concern. Legally obtained information is protected absent a compelling state interest. Private truthful acts/statements are protected by privacy except where there is a strong public interest. Pornography and Profanity In the Warren Court era, the Court gave a very high level of protection to sexually explicit speech. -41- Constitutional Law – Individual Rights Jason Jarvis Roth v. United States. Court said that pornography/obscenity is beneath Constitutional protection. Argued to the court was clear and present danger test. To say it is beneath – you need to define – ―the prurient interest.‖ An itching longing, lustful thoughts about sexual matters. Emphasis was on:  Judge pornography/obscenity based on its impact on the average reasonable person (not just children / not just perverts).  Judge the impact looking at the material as a whole. Warren Court came to protect all sexually-explicit material unless it involved non-consenting adults or any children. Stanley v. Georgia A combination of free speech and fundamental right to privacy together, said that if you got porn into your sick little home, then it was protected. Pornography in your home is protected. Combination of free speech + fundamental right to privacy. Paris Adult Theatre v. Slaton Law is not you can see whatever you want to. There is no absolute right of consenting adults to see/read whatever they want. Miller v. California The new test of the Burger/Rehnquist court: Level of protection is that of Miller v. California: Sexually explicit speech is protected by the first amendment unless: 1. The material taken as a whole has to appeal to the prurient interest of the average reasonable person; Look at it as a whole, look for prurient appeal, unnatural curiosity about sexual matters, look at its impact on TARP. 2. Look to see whether material is patently offensive as specifically-defined (by statute). Patently offensive is on: specifically defined. Because the definition of pornography, the court requires that the state spell out specifically what it is that it finds to be pornographic. Apply contemporary community standards. That means community may vary on what they consider to be pornographic. Supreme Court allowed the standard to vary from community to community. 3. Has to be without serious literary, artistic, political, or scientific value. Basically it has to have serious value. It is this part of the test that is less protective of sexually protective speech that is less protective. The Warren court required only ―utterly without redeeming value.‖ i. Prurient appeal ii. Patently offensive specifically defined iii. Without serious value Jenkins v. Georgia -42- Constitutional Law – Individual Rights Jason Jarvis Mainstream movie: Carnal Knowledge. Four mainstream stars. But, in Georgia, applying contemporary community standards, Georgia found it to be pornographic. In Miller v. California, when we said you could apply contemporary community standards applies only to the first two parts of the test. As to without serious value, that‘s a national value. As to the three part test, what we meant was: hard core pornography is not protected by the first amendment but everything else is. New York v. Ferber Child pornography is not protected anywhere, at all, ever. Profanity are protected by the constitution unless they satisfy the court‘s definition of fighting words. Fighting Words: Words that by their very utterance would call for a physical response. There must be a face to face confrontation. Must use fighting words, it must be face to face Law has to be limited to fighting words. The overbreadth doctrine kicks in. TIME, PLACE AND MANNER: If you have these restrictions (often restrictions of the use of the public forum); if the regulations are content-neutral you use a balancing test. This balancing test such as a midlevel test (like in Craig v. Boren) [Substantially relate to an important governmental end.] or perhaps, [narrowly tailored to accomplish significant governmental ends] Court will look at reasonable alternative governmental ends (without impunging free speech); but also recently they will look at the reasonable alternative places/times the speaker could have gotten their message across. If it is content-based, then you get a compelling state interest test, or conceivably one of the other tests. Schneider v. New Jersey Balance the harm to speech versus the importance of the governmental interest. Here, the importance of cleanliness lost to the importance of litter. The harm to free speech may be to a particular kind of voice, often the underrepresented. Look at who the speaker is. Look at alternatives by looking at the competing facts. The Supreme Court values free speech highly. Is the right minimum access or equal access? It is both. -43- Constitutional Law – Individual Rights Jason Jarvis What about a regulation in DC re speech in front of embassies? Here is the regulation: 1. You cannot demonstrate in front of an embassy with a sign that holds the embassy up to public disrepute (cannot mock the foreign nation). 2. No picketing/signs within 50 feet of the embassy. Both are okay. First, content based – CSI; Second, content-neutral – substantial Frisby v. Schultz ―Focused‖ residential picketing There is a law passed that bans picketing of particular residences. It is not a ban on all neighborhoods, it is a ban on picketing particular homes. So Gov‘t interest is protecting the privacy at residences Harm to free speech is to stop picketers What about a law that said: no picketing in residential neighborhoods. Same law is used for same purpose. This would impact the traditional public forum in a more dramatic way. To be fair, the private interest in terms of focused residential picketing is hurt slightly more – because your home is threatened specifically. Content Based – CSI Content Neutral – Balancing approach: several approaches. What is important is that you fairly consider the competing interests. Madsen v. Women‘s Health Center A number of regulations of free speech – time place and manner. Court says that the normal test for a content-neutral regulation must be narrowly tailored to achieve an important governmental end. But here, because it was an injunction, it will be stricter. But don‘t take that too seriously. They don‘t seem to take a stricter approach at all. 36-foot buffer zone protecting the interest of the driveway protecting the entrance to the building. Must weigh the interests – the court balances and finds a legitimate interest in governmental regulation but not really in free speech. No loud demonstrations between 7:30am – 12:30 pm Mon-Sat. This also is content-neutral. -44- Constitutional Law – Individual Rights Jason Jarvis However, the ban on approaching within 300 feet that keeps people from displaying signs – this is too far. Hill v. Colorado Ban of 8 feet is okay. Another case: Ban of 15 feet is not okay. FREE SPEECH AND NON-TRADITIONAL (LIMITED) PUBLIC FORUMS Previously we have applied a test based on where. But in the airport we don‘t use an airport – we use a lower test – less than the balancing test – it is more like a reasonability test. We have increased concerns both with timing (then) and safety (currently). Limited public forums, that is, they are public forums but their intended use conflicts so dramatically with full free speech that the court adopts a more restrictive test. Limited Public Forum: Reasonable basis Arkansas: Isn‘t the point protecting less powerful speakers? Reasonable Basis Test: It is not clear when to apply this test as opposed to the balancing test. What is a limited public forum? Why airports? International Society for Krishna Consciousness v. Lee The test is a balancing midlevel test – narrowly tailored to achieve important governmental interests. NOT what the Court states it there. Traditional Public Forums and Designated Public Forums. They both get a balancing test for content neutral. Designated Public Forums are those in which the government has taken a non-traditional area and made it a public forum. Widmar v. Vinson U. Missouri – state college classrooms could be used by student groups when classes were not in session. University has taken classrooms and designated them as public forums. Once done, content neutral get balancing, content based get CSI. -45- Constitutional Law – Individual Rights Jason Jarvis Non-traditional forums: Reasonable basis test. City of Ladue v. Gilleo Sign on the house that says: End the Gulf Way City passed ordinance regulating signs on houses. Law said, ―No signs other than identifying a residence – address, etc., or for sale signs, could not use signs.‖ Sign in the case was less than 1x1 foot. Court was tempted to find that the ban was content based, but then the court said that they assume that the ban is content-neutral. But then they found the free speech rights too great. They though the government over regulated. Lindmark Associ. City had a regulation against for sale signs on front lawns. You could have other kinds of signs. They wanted to do this to keep neighborhoods integrated. Even if we view it as content-neutral, the harm in applied balancing test is too great. Hurts speech too much. Hurts it because the best way to sell your house is a for sale sign. Court found that the harm to speech outweighed the governmental interest. Time, Place and Manner finish-up The basic approach: If content-neutral regulation then you take a balancing test. The framing of the balancing test: Either that of Craig v. Boren, the law regulating speech must substantially relate to an important governmental interest OR the classification must be narrowly-tailored to accomplish some significant governmental interest. Consider the harm to free speech versus importance of governmental interest. Look for reasonable alternatives for either the government or the free speaker. If Content-Based: Then use a compelling state interest test or one of the qualifiers – such as the ―fightin‘ werds!‖ test! Sometimes difficult to make the distinction between the content and neutral based. Consolidated Edison of NY v. PSC Regulation of inserts inside the invoices of Consol. Edison. Regulation prohibited controversial issues of public policy. Young v. American MiniTheatres -46- Constitutional Law – Individual Rights Jason Jarvis City of Detroit was concerned about deterioration of neighborhoods. If there are certain uses of a neighborhood it leads to deterioration of the neighborhood. Could not have an adult theatre within 500 feet of a residential neighborhood or within 1000 feet of both a massage parlor or a tattoo parlor. The purpose of the law was to advance concern re neighborhoods. Renton Playtime Theatres Law in that case was that you couldn‘t have adult theatres within 1000 feet of a residential neighborhood or church. This regulation was content-neutral. It‘s principle concern was to regulate non-speech. Even though there is some consideration of content, which would normally get content-based, we‘re going to treat it as content-neutral because its primary purpose. Sometimes content can be considered:  Viewpoint neutral  Important non-speech interest where the emphasis not on speech  The content directly relates to the important governmental interest. This is not really consistent. Sometimes the court emphases the content. But sometimes they emphases the type of speech. It is not easy to know whether you have a content-based or content-neutral kind of law. Look at the instances where the court has found content. One viewpoint over another. What is speech? In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether ―an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.‖ Four things to determine whether symbolic acts (such as flag burning) are speech: 1. 2. 3. 4. Was it closely akin to speech? Is it like speech? Was it imbued with communicative aspects Did it communicative a particularized message? Was it likely that the message would be commonly understood? United States v. O‘Brien Once we determine whether something is speech, we go into the balancing/CSI tests. -47- Constitutional Law – Individual Rights Jason Jarvis Congress passed a federal law requiring that you keep your draft card with you, but also that prevented the destroying of a draft card. Burning your draft card in the context of the time communicated a particular idea. The test for symbolic speech: 1. 2. 3. 4. Must be within the government‘s enumerated powers; Furthers an important or substantial governmental interest Unrelated to the suppression of free speech (meaning not a regulation of content) No greater incidental effects on free speech greater than necessary. Reorder this test: 3. Unrelated to content If related to content then use CSI; if content-neutral, apply the balancing test. 2. Important interest 4. No greater than necessary (is just a adequate alternate test). Symbolic test is exactly the same as regular speech. If it is speech then treat it like you would any other issue. Court concludes that the particular regulation was content-neutral. Court said this was content-neutral (although it probably was). Texas v. Johnson If you burn/destroy the flag in a serious manner (certain kinds of destruction is a crime The federal law says no burning except for ceremonial burnings (assumed that ceremonial burnings was not a content-based regulation). City of Erie v. Pap‘s AM Overview I. II. III. Make sure you have speech. If you don‘t, use rational basis; If you have speech, look to see if it is content-based, or is content-neutral; The balancing may be different for symbolic speech. If you are burning a flag during a windy season in the dry season they may be able to regulate what you are doing and regulate it. -48- Constitutional Law – Individual Rights Jason Jarvis The symbolic aspect can create additional governmental concerns (but may do the same in reverse). For example, there was a case banning black armbands protesting the war. Even if we say that is content-neutral, wearing the armband is less distractive of the educational atmosphere than pure speech would be. Symbolic Speech (1) Is it speech? a. Was it closely akin to speech? Is it like speech? b. Was it imbued with communicative aspects c. Did it communicative a particularized message? d. Was it likely that the message would be commonly understood? (2) O‘Brien Test: The test used for symbolic speech. It is just a version of the balancing test. See above. The key element in O‘Brien is the third part of the test: Is the regulation related to the suppression of speech (is it a regulation of content?). If not, then use the O‘Brien content-neutral test. If yes then it gets a CSI test. (3) Symbolic aspects of the speech may affect the balance. Fire may be worse than black armbands. Time place and manner: Content-based: CSI Content-neutral: Balancing tests: (i) Creig v. Boren framing (regulation of non-speech interest which impacts speech must substantially relate to important governmental ends); and (ii) Narrowly tailored to achieve significant governmental ends. Look at reasonable alternatives for the government. Reasonable alternatives of speech. (iii) O‘Brien test: Symbolic speech test as above. O‘Brien is just confusing. Prior Restraint: Presumptively Invalid. They can only be issued when there is a clear and present danger that cannot be prevented in any other way; or a compelling state interest. License/Permit: If the licensing or permit scheme is limited to content-neutral regulations then the court will apply a fairly soft balancing test that usually upholds such regulations. If the permit scheme regulator considers content, then the normal prior-restraint rules apply. If the regulation does not refer to the specific limitations on the administrator, it is presumed that the administrator has discretion and is therefore presumptively invalid. If the permit scheme is valid, but it is applied in an invalid way, you have to appeal it (you cannot simply ignore it). You can have a permit to have a parade if you take care of traffic concerns. (Assuming appeal is available). If invalid, you can ignore it. Unless the regulators go to court to get an injunction and get it, even if the injunction is enforcing a law you can ignore, you must obey the injunction and appeal it later. Licensing/Permit Scheme: Limited to valid time, place and manner concerns. Freedom of Belief -49- Constitutional Law – Individual Rights Jason Jarvis West Virginia v. Barnette JW viewed pledge of allegiance as against religious. Court phrased it as a matter of free speech. You have right to make speech choice. Wooley v. Maynard JWs did not like the live free or die. Covered it. JW got in trouble for altering his plate. Free speech means we have the right to not say ―live free or die‖ you cannot be compelled by the government Freedom of Association (another corollary to free speech). Speech becomes more powerful when you ban together to express a particular point of view. Freedom of Speech includes the right to associate with likeminded people who espouse that point of view. NAACP v. Alabama State of Alabama in the 1950s required that various charitable groups turn over list of membership list and list of those contributing. NAACP said, if we turn that over, they will be subject to state harassment. NAACP said it violated freedom of association. Court agreed. Government has some interest in the membership list in terms of regulating charitable institutions but not enough. Read as though: freedom of association cannot be taken away without a compelling state interest. NAACP v. Claiborne Group of people banning together to boycott racist businesses. State had laws against certain kinds of secondary economic coercion. These laws were passed to regulate labor disputes. But the state said this was an economic diversion. Nonviolent actions are protected by freedom of association. Individual members only liable for violent conduct of the group if they had knowledge of the goals and individual held a specific intent to further those illegal gains. Freedom of Association is a corollary of free speech and laws restricting must satisfy a CSI standard. State laws regulating private groups (in particular against discriminatory group). Laws prohibiting gender discrimination. But the freedom of association cannot be taken away absent some compelling state interest. -50- Constitutional Law – Individual Rights Jason Jarvis How do you reconcile these issues? Court says: Not all associations involve the freedom of association. The expressive associations. Roberts v. United States Jaycees Associations can be different things for different purposes, so although the Jaycees exclude communists for business reasons, there is nothing expressive about their excluding women. So the government can preclude the Jaycees from discriminating against women as long as there is a rationally-related legitimate governmental end. Is there an expressive association or not? Boy Scouts v. Dale Pro-family is expressive. COMMERCIAL SPEECH Valentine v. Christianson: Read to say free speech did not extend to commercial speech. Ordinance against commercial leaflets (that is trying to hide as political). REA Express: Ban on the advertisements on the sides of vehicles. Commercial Speech: 1. Determine if it is commercial or not? If it is commercial then apply Central Hudson test; if it is not commercial then treat it as regular speech To determine if something is commercial speech: Proposing a commercial transaction. An advertisement of some sort. The buying and selling of things. Commercial speech is not speech for profit. Newspapers are speech for profit but it is still not commercial speech. Commercial speech is limited to the buying and selling of things. A speech that a speaker is being paid for is not commercial speech. Central Hudson Test: (p1339). The principle test used to determine the level of protection given to commercial speech. There are four factors: 1. Involving lawful activity that is not misleading 2. Government regulation is in promotion of a ―substantial governmental end.‖ 3. Law directly advances that substantial governmental interest 4. the regulation of commercial speech is not more extensive than is necessary to achieve the substantial governmental end. -51- Constitutional Law – Individual Rights Jason Jarvis How does the regulation of commercial differ from regular speech? Non commercial speech can be misleading or unlawful, and it is still protected. False non-commercial speech is still protected unless in the field of public figures unless you can show reckless disregard for intentional misrepresentation. Commercial speech is protected, just not as much (the big difference is the misleading/unlawful aspects). In terms of the regulation of the content of noncommercial speech we use a CSI. We use the balancing test with regard only to content-neutral regulations. With respect to commercial speech it is always a balancing test. Once again:  No misleading/unlawful  Substantial governmental interest  Furthered by the regulation  It hurts commercial speech no more than necessary to advance the governmental interest. In most cases, the Court has protected commercial speech and usually because the regulation hurts too much speech and was a regulation more than necessary. Virginia Board of Pharm. Court upheld the publication of commercial drugs is protected. Bates: lawyer advertising protected by the first amendment Central Hudson: State banned electrical utilities from promotional advertising. This was a regulation against advertisements. Regulator thought people using gas-based stuff was bad. Court said this was a regulation of commercial speech. Adopt the four part test. Concluded that the regulation went too far. Puerto Rico banned casino gambling for advertising of casinos to locals. Court thought the limitation ad US v. Ed Broadcasting FCC regulation that prevented licensed TV stations from accepting ads for the state lottery in states where the lottery was not legal. Court upheld the law. 1453: Greater New Orleans Broadcasting v. US Federal law prevented radio and television stations from accepting casino ads but there were a number of exceptions. Gambling was legal in Louisiana. Gambling was bad. US could regulate bad stuff. The regulation seemed to further the governmental interest. However, the court found the law was not precise – that it was too inconsistent and hurt free speech too much. -52- Constitutional Law – Individual Rights Jason Jarvis Tobacco agreed not to advertise on TV. Mass determined that tobacco could not advertise certain kinds of properties. Furthers the governmental interest but it hurts free speech too much. THE GOVERNMENT AS SPEAKER. Government can have a point of view. It need not be content-neutral. As speaker, the government can be protected itself as having a point of view. Court said the government has discretion as to which books to buy in a public library. But once purchased, once they are in the library, then they are some restrictions on the ability of the government to remove the library. If the books are removed for educational reasons, then the government has total discretion. But the court said, the government cannot remove books for ideological reasons. Court recognized the government as speaker: Russ v. Sullivan: President Reagan said that planned parenthood clinics that receive federal funds couldn‘t provide information as to abortion at all. If they are accepting federal funds then they are an example of the government as a speaker. They are then accepting the limits the government decides to employ. The government as speaker is not limited by normal first amendment standards. National Endowment for the Arts v. Findley A compromise was reached that the NEA would have to consider general standards of decency in giving federal funding. The NEA then refused to fund various types of endeavors including certain kinds of performance artists. Artist sued based on free speech. Court said if the government is funding it they can decide how to fund it and the artist is therefore subjected thereto as well. The level of protection in public colleges and universities is the same as anywhere. The government has no additional right to regulate. However, the mandatory schools (elementary— high school) the government has a greater right to regulate free speech in those schools. Speech is still protected, just not as much. Speech in public libraries is protected a little bit. The principle cases show that speech is not protected as much in the public school cases as it is elsewhere. A high school student gave a nomination speech to a public assembly. Giving this speech his references were dirty. Kind of speech that would be protected elsewhere. Test in school: Does the regulation reasonably relate to pedagogical educational concerns? The principal was legitimacy concerned with the identities of certain kids and that some of the -53- Constitutional Law – Individual Rights Jason Jarvis statements on divorce or abortion are borderline defamatory – these articles can be restricted in the public schools because related to reasonable pedagogical educational concerns. Right to Compel Persons to Pay Dues Unions, state bar associations, etc., tend to spend the dues monies for political causes unrelated to the actual labor functions of the union and unrelated to the actual practice of law. If compelled dues are used for activity that is not properly law or union duties, then the individual member could get some portion of their dues back. So if you are a lawyer your dues are circa $500 per year – so if you could show the bar is using 10% of its funds for uses unrelated to the practice of law, you could get that portion of your dues rebated back to you. Board of Regents of U Wisc. v. Southward. Students argued that they were required to pay student fees to the University of Wisconsin and then the University dispersed fees to some groups with beliefs inconsistent with those of the students compelled to support them. Students asserted that they should get back some proportion of their dues being spent inconsistent with their beliefs. The Court said: Unlike unions or state bar groups, which have a particular function, it is hard to identify what is appropriate for a university and what is inappropriate. Approved in Wisconsin based on content-neutral and applied a balancing test. As to certain parts of the expenditures that required student referendums, as to those types, then the regulation is content-based; and so the Court struck down those portions that required overlal a student referendum. Compulsory Speech for Third Parties Particular individual cannot be compelled to espouse some point of view of a third party. Not only can you keep private what you think but also keeps the government from forcing you to espouse someone else‘s view. PG&E v. Public Utilities Commission of Cal. California wants to give some others some voice in communicating re PGE appliances. California forces PG&E to send out another viewpoint. Court said – this is true. PG&E has a first amendment right to not espouse the PUC‘s views. Private shopping centers are state actors for the purposes of the state constitution but not the federal constitution. Just a regulation not a taking to regulate the speech in shopping centers. Shopping center: granting of free speech rights to private individuals on private shopping centers forces shopping center to adopt the speech of a third party (the private actor). -54- Constitutional Law – Individual Rights Jason Jarvis Glickman v. Wileman Comprehensive marketing scheme for plums, nectarines, and apricots. The Point of the central marketing scheme was that Cal. fruits are very good! Grower argued having to say this is infringement on free speech rights. Court said ―no. Even though you have to pay for some marketing doesn‘t mean you can‘t send out your own announcements.‖ Mushroom Council promoting mushrooms – of generic quality. Supreme Court said this violated mushroom grower free speech rights. Court reconciled these two: Glickman – marketing was an overall program – also had to commit produce; Mushroom Growers – eat more mushrooms. Court thought this was too much speech, court thought in Glickman its speech was not the big deal. Speech of Governmental Employees. Pickering v. Board of Education Governmental employees have a free speech rights to speak on issues of public interest. On the other hand, the government as employer has certain rights as well. McConick v. Myers Ms. Myers was an ADA in New Orleans working for DA office (DA Conick – so-and-so‘s dad). Has problems at work. Issues a questionnaire asking what they think about their employment. It was viewed as being critical of the District Attorney. She was fired. The issue was – is the questionnaire a matter of public interest/concern or a matter of government as the employer getting rid of a bad apple. Court ruled that they had every right to fire her – she was a bad apple. She had no procedural due process rights because the government policy makes her an employee at will (and no property interest therein). Rankins v. MacPhearson Lady said ―if they go for him again [assassinating Reagan] I hope they get him.‖ She was fired from her job as a police person. Comment is one about public interest, and was protected free speech and could not be fired therefore. ___ Elrod v. Burns People cannot be fired for their political affiliation. -55- Constitutional Law – Individual Rights Jason Jarvis Violates first amendment to fire people in government unless the job requires political or confidentiality. Unless the nature of the job is one that requires membership in the political party then you cannot be required to be a member of that party in order to hold that job. Rutan v. Republican Party of Illinois Job freeze because no one could be promoted or hired – unless the governor made a specific exception to the job freeze. Then republican governor only granted exceptions for republicans. Though the overall scheme was neutral in nature, the way it was applied was that republicans got new jobs but democrats didn‘t. If the language is neutral it can still be applied violatively. Content-neutral versus content-based. A law can be content-neutral on its face but if it is applied in a content-based kind of way then you apply the stricter test. Electronic Media Private broadcasters (such as NBC and CBS). They are private. They have government licenses but it does not convert the private broadcasters into state actors. They can do whatever they want. A state entity owned the television station – well of course that‘s a state actor then. State-owned tv station would be the governmental speaker, but in terms of sponsoring a political debate, it is a limited public forum. . . but there‘s no issue about it being a state actor. Principle point is this: When the FCC regulates public television, there is a different approach to that regulation than everything else: Because the federal government grants the right to use the electronic spectrum, the government has some responsibility for protecting this scarce resource – this gives the government a greater power to regulate speech on broadcast radio and television than it does elsewhere. The additional reasoning: TV and radio is so pervasive – that the government has a greater justification in regulating broadcast messages than in others. Responsibility of the government – this results in a lower level of protection of free speech for broadcast: For content-based regulations of broadcast radio and television the court applies a balancing test: Court uses any one of the three choices we have been given. E.g., the regulation must substantially relate to important governmental interest, etc. Sexual speech that qualifies for indecency – indecent speech must be broadcast between the hours of 10pm and 6am. This is a safe harbor provision. That kind of regulation would be unconstitutional anywhere else unless it is pornographic. But because of the interest in -56- Constitutional Law – Individual Rights Jason Jarvis protecting the spectrum, the government can move indecent speech off to those hours that are more likely to be watched by adults than by kids. Regulation of Cable Television: Cable not viewed as a limited spectrum. You choose to sign up, particular for premium. Normal regulations apply – content based v. content-neutral. Regulation of the Internet: Court in Shaw v. Reno: You may have a compelling state interest in protecting kids from bad stuff on the internet, but we have to judge the law with respect to adults; normal free speech rules apply so unless it is hardcore pornography, it can‘t really be regulated. Sexually explicit talk over federally regulated phone lines was sought to be regulated. If the regulation were limited to hard core porn, it would be constitutional – but most phone sex is not porn. To the degree that it regulates anything not hard core porn, it restricts free speech rights of adults. Congress said: we‘re trying to protect kids. Court said we have to evaluate its impact on adults. Election Speech: Disclosure requirements – that they disclose how much money they get. Court has upheld these by and large with a few exceptions. Socialists Worker Party: Restrictions on contributions have been found to be constitutional. Limitations on contributions to various causes (soft money) are not constitutional. The new election reforms (the attempt to regulate more soft money) to the degree it is limiting contributions to candidates it may be found constitutional but to ―causes‖ it will likely be unconstitutional. Limits on expenditures – court upheld conditional limits on expenditures for presidential candidates. It is constitutional to limit expenditures by candidates to condition receipt of federal funds. However, the court has struck down as unconstitutional overall expenditure limits. That an independently wealthy person cannot spend as much as they want is unconstitutional. ANTI-ESTABLISHMENT AND FREE EXERCISE CLAUSES -57- Constitutional Law – Individual Rights Jason Jarvis Do not read the clauses together, except in rare circumstances such as conscientious objector status. Older Establishment Clause: There is a high and impregnable wall between church and state. Later case: There really isn‘t a high impregnable wall. ―far from being high and impregnable it is more like a blurred indistinct, barely discernable line. Bowen v. Kendrink: Feds give catholic church money in order to teach tenets of their faith. Lemon Test: Three part test for determining when government aid to religious institutions violates the establishment clause. First, the principle purpose of the aid must not be to advance religion. Second, the principle effect must not be to advance religion. In making sure that the second part of the test is not violated, there must not be excessive entanglement between church and state – must not require impermissible oversight. Primary Purpose Primary Effect Avoid Entanglement Problems with Lemon: (1) No one on the Supreme Court likes it – but they cannot agree on what to replace it with. (2) Sometimes the Court does not apply it, they just ignore it. Endorsement Test: Government violates the establishment clause when it endorses religion. Coercion Test: Used by more conservative members (Scalia, Rehnquist and Thomas). Ought to be constitutional unless the government goes too far in terms of coercing people to do something religious. Lemon: a. b. Purpose: Government must have at its purpose some secular end not a sectarian end. Mandatory prayer in schools; requirement that verses of the Bible be read. Posting of the Ten Commandments. Principle purpose is to advance religion. Court‘s treatment of a ―moment of silence‖ law – Alabama had a law requiring prayer in schools. Court struck it down. Alabama had a law requiring a moment of silence, for prayer. Court struck it down. Alabama made a new law ―there is a moment of silence.‖ Court said: If the evidence is clear that the state passed the law to advance prayer in schools Effect: Subtle and difficult. Court assumes the purpose was to advance a secular goal. A non-religious goal. But it has some effect on advancing religion to some extent. Court assumes that aid given to parochial schools is to advance the education of children. But when is the aid too much? When does it advance the religious goals of private schools. The cases are almost impossible to decipher. In the early cases, the court upheld the right of the schoolboard to provide free bus transportation. Majority of court upholds bus-rides to schools and free school books. But in later cases, government can pay for MP exams but NOT essay exams; buses to field trips, and globes are not allowed. If the aid is more likely to be allowed if it must be used -58- Constitutional Law – Individual Rights Jason Jarvis for educational; but then if aid more possible to be used for religious purposes it is less likely to be allowed. Regarding aid to colleges (where they are usually more lenient) they are more likely to use – as long as aid for non-religious purposes. Three principle things emphasized for principle effect: a. Nature of the Aid: Aid in the form that is likely to be limited to the sectarian goal is more likely to be upheld than aid that could be diverted. b. Directly Given to Students? Aid given directly to students is more likely to be upheld that aid given to the school itself. These are not absolutes, just the court tends to like it better. c. Given to both Public and Private? Whether the aid is to all students – both public and private – both is more likely to be upheld than that which goes only to private parochial schools. State gave tax advantages to school children, tax break went in total most to the public, but as to individuals better for the private, Court upheld it! d. Aid to parochial colleges is more likely to be upheld that that to lower schools. This is because it is less likely to have an impact on the views of the students. If the college is too pervasively religious there is no allowed governmental aid. e. If you look and the money is an endorsement of religion. Endorsement can be implicit. If aid is given in such a way as to coerce then it is inappropriate. c. Excessive Entanglement: Most limited part of the test. The principle purpose is to prevent aid to religious groups that in order to prevent impermissible effect requires a lot of oversight. Any aid in a form that requires constant oversight threatens the establishment clause. E.g., State law says you cannot have a bar within 500 feet of a church unless the church approves it. That‘s too entangled – the church ought not to have that kind of power. Court has somewhat changed its view. If too much oversight is required then the court views that as excessive entanglement. Any type of porn is subject to state regulation. Virtual child porn – cannot be treated like child porn – you cannot punish a person for concern of the underlying evil. Agostini v. Felton Court previously held that remedial subjects could provide those services to students in private schools but not on private school property. Release programs are constitutional: Look, any kind of aid to schools could be used. Mitchell v. Helms: Money given to private schools that could use them for secular, non ideological purposes. Lynch v. Donnely -59- Constitutional Law – Individual Rights Jason Jarvis Christmas and other religious holidays are part of our heritage and it is part of who we are – the establishment clause does not require a strict division of our displays of culture. But they must have an appropriate balance of Christmas. March v. Chambers. City County Had Menorah, Xmas tree, and liberty. Court upheld the constitutionality of paid Chaplains. Bowen v. Kendrick Congress established a program for addressing the problem of illegitimate children. Anyone in the community that has an idea for addressing the problem of illegitimate births, the Catholic church often asked for funding since they had a solution. The purpose of the aid was to address the problem of illegitimate children, and as long as that is what the church was doing, then it did not matter that their program happened to parallel the tenets of the Catholic faith. Widmar v. Vincent Case where the University of Missouri said that student groups could use the state University classrooms for student meetings provided classes were not in session; except for religious groups. Court said – this is a classification of speech for use of a designated public forum based on content. Religious speech is treated in a different way than non-religious speech. Therefore level of review is compelling state interest. Gov‘t must show some CSI. Does concern for the establishment clause qualify as a CSI? Court said they made their public space available on a FCFS basis. To make it available is okay, but not a CSI. Limited public forum: is it reasonable under the circumstances? FREE EXERCISE CLAUSE: Reasonable alternatives test: A part of any test above rational basis. Least restrictive alternatives is basically synonymous. Legal Services v. Valasquez Legal services clinics cannot take certain kinds of funded aid groups cannot challenge. Congress said they could not take cases regarding the constitutional challenge to welfare clauses if they want funding. -60- Constitutional Law – Individual Rights Jason Jarvis Court said no: It violates the free speech rights of the legal services clinics because: Congress lets legal services clinics challenge welfare, but if congress allows the LSC to take cases then they should be able to use the arguments?Monies? Oregon v. Smith State of Oregon fired two drug counselors for ingestion of peyote as part of native American rituals. Supreme Court of Oregon asked: is there a religious exception to the crime for use of peyote. Oregon said: there are no exceptions. So native Americans said: not providing for an exception for using peyote violates the free exercise clause. Alternatives: ban the use of peyote except for religious practices. Court said: It is not a compelling state interest test (and ignored prior rulings). Court said there is a two-part test: Content based-CSI; content neutral-balancing. If a law is passed for the purpose of regulating religion then the test is a compelling state interest test. If a law is neutral of general applicability that generally impacts religion then we use a balancing test. Laws to regulate a general problem in society, it is not a compelling state interest test. If not a compelling state interest test, the court doesn‘t say what test it is. In a footnote, the court said: there are two kinds of cases: the content-neutral free speech cases, and that test is a balancing test. But the other case cited by the court is Washington v. Davis, neutral laws with disproportionate interest is rational basis. They use a footnote that refers to both alternative tests. In Smith, the law is a general regulation of the ingestion of peyote. There is no intent to single out or regulate or address any religion. So it is a neutral law of general applicability. The test is not compelling state interest. Church of the Lukumi v. City of Hialeah Law passed by the city that said: you cannot sacrifice live animals within the city limits of Hialeah. The butchering of live animals for any use other than human consumption. Law is passed to regulate religion. The law gets a compelling state interest level of review. If you look at the historical cases, they apply a very weak compelling state interest test, and thus maybe Oregon v. Smith is correct; but confusing. -61- Constitutional Law – Individual Rights Jason Jarvis See, e.g., How do you apply the Compelling State Interest Test How do you apply the Balancing Test The earliest case always cited is: Reynolds v. United States Federal crime to have more than one wife. Sherbert v. Lerner. Be eligible on Saturday to work in order to comply with certain labor regulations to get unemployment. This is a legitimate work-related law not intended to impact religion. Court said it was compelling state interest when state law hurts the free exercise. Making sure that people are eligible is a compelling interest, but part of that is the relationship part of the test, which means you consider reasonable adequate alternatives, and such would allow an exemption for those people. You can accomplish the purpose and exclude those who cannot work on Sunday. Wisconsin v. Yoder The Amish are willing to send their kids to public schools up through the eighth grade. They are not willing to send the students to high school. Making exceptions for religious beliefs is a reasonable adequate alternative. Applied a compelling state interest test and determined that making an exception for religious groups is required. The court is not saying that any counter-culture types can just keep those kids at home; they must be sincerely held religious beliefs. Ling: State is building a highway through a sacred burial ground. Highway need not be moved. Goldman v. Weinberg: Interest of the military in having unquestioned obedience outweighs his free exercise clause. Bowen v. Roy: Native American religious beliefs: Giving her a number would rob her of her soul. Interest in promoting social security card outweighs the harm to free exercise rights. -62- Constitutional Law – Individual Rights Jason Jarvis What about when all these exceptions are made: Why doesn‘t that violate the establishment clause? State law said: No consideration for any employer, but there is an absolute right for any religious person to ask for a Sunday off. Court said: No. That violates the establishment clause. City of Boerne v. Flores Every federal law must have as its source some enumerated power. One of these issues is that Congress cannot reach private acts. Another is that Congress cannot change the substantive provisions in Section 1 of the 14th Amendment. Congress passed RFRA, and forced a Compelling State Interest test; but they cannot go beyond that in the 14th Amendment § 1. -63-