Constitutional Law Part II Outline

CONSTITUTIONAL LAW II – OUTLINE I. POST-CIVIL WAR CONSTITUTIONAL AMENDMENTS Barron v. Mayor of City Coucil of Baltimore, 7 Pet. (32 US) 243, 8 L.Ed. 672 (1833) p. 446 Barron claimed that the City made his wharf useless by diverting the streams during construction work and making water too shallow for boats. Π argues that state Limited economic viability of his land. Barron sued the city for the taking of his property without just compensation. Π thinks 5th amendment protects him. ISSUES: RULES: Whether the 5th amendment applies to the City? the amendments to the Const. were intended as limitations solely on the exercise of power by the US Gov’t and are NOT applicable to the legislation of the states. 5th amendment says that there cannot be any takings without just compensation. Nor shall private property be taken for public use without just compensation (but does NOT specify which gov’t) HOLDING: Ct. holds that the Bills of Rights was a restriction of federal actions, not state and local conduct. Further, after looking at original const., Ct. concludes that the Framers of 5th amendment had to have expressly spelled out applicability to the states to make it applicable to the states. Chief J. Marshall argues that this is a fed‟l charter and any limitations that it imposes can only be viewed as limitations on fed‟l gov‟t unless they state specifically that the limitations apply to the states. Const. established fed‟l gov‟t and their limits; state const. establish limits on state. Here, the Ct. was being conservative, but deciding the case correctly given the understanding and faith the US Sup Ct. had in the states‟ constitutions. Ct. concludes that b/c in original const. when framers wanted to place limits on the states they made it clear, then the framers of bill of rights would have made it clear also. Ct. draws inference from const. language into the 5th amendment, which does NOT clearly state that it wants to be applicable to the states. NOTE: Barron establishes the principle that the Bill of Rights do NOT apply directly to the states. Prior to the Civil War, the 1st 10 amendments do NOT apply to states (Bill of Rights); After the Civil War, the 13th, 14th and 15th amendments apply directly to the states. Slaughter-House Cases, 16 Wall (83 US) 36 (1873) LA created a 25 year slaughterhouse monopoly where several butchers who were not included objected. Law sets up use of one slaughterhouse exclusively within the state for 25 years; thus sets up a monopoly. Π argues that 13th Amend. ban on involuntary servitude is violated; and 14th amend privileges and immunities of nat‟l citizenship, equal protection clause; and due process clause are being violated. RULES: The purpose of the 13th and 14th amendments was to protect former slaves. As such, those provisions should be interpreted narrowly. P&I Clause was NOT meant to protect individuals from state government actions and was NOT meant to be a basis for fed’l courts to invalidate state laws. HOLDING: Ct. is seeking to prevent fed‟l gov‟t from invalidating state laws. The Ct. finds that this was NOT the intent of the Framers, and states that ratified the 14 th amendment. For if they do NOT reject this argument, it will give congress the power to pass laws that tell states how they have to treat there own citizens. Ct. holds that reading amendments to prohibit the states and treating there citizens in a certain way would make the Ct. a perpetual arbitrer for a state‟s legislation. (radical departure to kind of system we had prior to the 14th amendment). Ct. is hesitant to conclude 14th amendment to do such and thus interprets it narrowly. Ct. interprets them narrowly and that they only apply to the treatment of slaves. NOTE: Decision of the Slaughter House Cases reads the privileges and immunities clause outside of the constitution. Privileges and immunities clause have become worthless on the basis that they interfere with fundamental rights traditionally governed by state. Ct. takes important clause of 14th amendment and renders it largely toothless. HOWEVER, under Saenz v. Roe, (1999), the Sup. Ct. held that the Privileges & Immunities Clause (P&IC) protects the right to migration and the right to travel. In 1875, hard to argue that amendments meant something else, but by 1905, easier to argue that amendments meant something else. -1- CONSTITUTIONAL LAW II – OUTLINE 14th Amend. P&I: With respect to P&I Clause, the Ct. finds that Πs are NOT being treated differently (state treats out of state residents differently when it comes to a fundamental right). Ct. says that all the amendment does is that it prohibits the states from interfering with the privilege of national citizenship, NOT state citizenship. (Privileges of State Citizenship: Medical services, Livelihood). Ct. holds that only these Nat’l Privileges are protected by the 14th amendment (Privileges of Nat‟l Citizenship: Can travel to Washington DC and transact business with the nat‟l gov‟t; Free access to seaports, courts and the related offices; Protection abroad of liberty & property; Right of peaceful assembly and petition for redress of grievances; Writ of habeas corpus; Use of navigable waters: streams, rivers, lakes, etc.; Protection of treaties that the USA has entered into with foreign governments). 13th Amend – Involuntary Servitude: According to Π, the law violates the 13th amendment (STRETCH) b/c it created an involuntary servitude by forcing them to paying fees or dues to one slaughter house. Π is making argument that this is an involuntary servitude (burden on property) similar to servient estate on an easement. Ct. holds that the Butchering of animals which requires the use of only one slaughterhouse CANNOT put them into involuntary servitude. 13th amendment used the word “servitude” (it means personal slavery) does NOT mean “property” servitude. 14th Amend. – DP: Π‟s due process claim is rejected b/c there was NO physical denial of property. Π argues that LA law violates due process b/c it denies liberty/property without due process. Π is NOT free to pursue the livelihood that they seek and NOT being able to use their property. DP clause does NOT give you a right to pursue whatever livelihood that you want against a state’s actions. Ct. concludes that labor is NOT property. All the Πs have been denied is there ability to exercise trade, BUT NOT a deprivation of property within meaning of 14th amendment. The only time when this clause is violated, is when property is taking. (DISSENT states that poor people‟s labor is their property). 14th Amend. – EPC: Ct. finds that Equal protection clause was designed to protect African Americans from discrimination NOT butchers, purpose of law was to ensure that slaves were treated fairly/equally. Saenz v. Roe, 526 YS 489 (1999) CA passed a law to limit amount of welfare benefits to new residents. CA did nOT deny welfare benefits entirely for peoplw who were in state for less than a year. CA determined amount based on amount that resident recv‟d from prior states. (Residents from LA or OK; they would have gotten less b/c CA pays more). CA says that they will pay the lesser amount until person is CA resident for one year. RULES: Prior decision establish that the the right to travel is a fundamental right. Ct. talks about right to travel. P&IC protects 3rd component of right to travel: Right to move to another state and to be treated like the citizens of that state. Three (3) aspects of right to travel: (1) Right to go through the states (Physical migration from state to state); (2) right to be treated as a welcome visitor; (3) right to become a permanent resident of another state and to be treated like all other residents HOLDING: Ct. finds that P&IC protects 3rd component of right to travel: Right to move to another state and to be treated like the citizens of that state. Ct. finds that CA has violated this right b/c they are treating new citizens to different from older citizens. States cannot wall off out of state residents; CA has treated new comers differently. Ct. finds that NOT all durational residency reqmt‟s are unconstitutional, some would be constitutional where the benefits are PORTABLE. Portable benefit – a benefit that a resident can receive in one state and take into another state. For instance, divorce or in-state tuition are benefits received in one state which can be taken into another state. States can attempt to make sure that they really mean it when they move to a state and prevent residents from taking their tax dollars without sincerely desiring to reside within a state. Ct. must determine whether benefit at issue is portable? Ct. finds that welfare benefits are NOT portable. Welfare benefits will be used in-state and NOT taken back to real home states. NOTE: In Shapiro, the Ct. has struck down state law that denied welfare b/c residency requirement was NOT met. State did NOT allow welfare benefits without 1 year residency. Ct. relied primarily on EPC clause b/c it discriminated people who were moving from out of state, and discriminated against fundamental right of getting welfare. -2- CONSTITUTIONAL LAW II – OUTLINE II. DUE PROCESS & INCORPORATION DUE PROCESS – 14th Amendment 1. Are there fundamental rights NOT expressly stated in the Const.? 2. How do we identify them? 3. Should judges be the ones to do so? 4. Are they absolute? 5. What role should history and the 9th Amend. (“The enumeration of the Const, of certain rights, shall NOT be construed to deny or disparage others retained by the people”) play in our answers to these questions? Selective Incorporation of fundamental rights protected under due process of law, as posited by J. Cardozo, has prevailed over J. Blacks‟s total incorporation of all the Bill of Rights. However, Sup. Ct. decisions have incorporated most of the Bill of Rights. The challenges to incorporation of Bills of Rights under DPC centered around (1) framers intent, which could not be decided either way based on the history (evidence of intent can be found for or against incorporation); (2) federalism, prohibiting fed‟l gov‟t from intruding on state and local governing sovereignty (state should not be limited by Bill of Rights as to what legal reforms or practices it seeks to implement); and (3) appropriateness of the judicial role and seeking to limit discretion justices had on incorporating certain rights from interference as applied to the states (justices will have too much scrutiny by either applying selective incorporation or total incorporation and constantly review state judicial decisions). Further, the Supreme Ct. has held that the content of the Bill of Rights may or may not be incorporated word for word. For instance, the 1st amendment is incorporated word for word preventing states from burdening religion any more than the fed‟l gov‟t can, but the 6th amendment has not been incorporated word for word allowing states to have less than 12 people on criminal jury. Adamson v. California, 332 US 68 (1947) HOLDING: The Supreme Court held that a selective incorporation of Bills of Rights through the 14th Amend. due process clause would be the basis for protecting certain fundamental rights, and that incorporation under DP clause would be “applied to rights where neither liberty nor justice would exist if they were sacrificed; to such principles so rooted in the tradition and conscience of our peoples as to be ranked as fundamental and that were therefore implicit in the concept of ordered liberty; due process precludes those practices that offend the canons of decency and fairness which express the notions of justice of English speaking peoples.” -3- CONSTITUTIONAL LAW II – OUTLINE III. SUBSTANTIVE DUE PROCESS – Economic Regulation The Lochner era is a period in American legal history from roughly 1890 to 1937 in which the United States Supreme Court tended to strike down economic regulations mandating certain working conditions or wages, or limiting working hours in favor of laissez-faire economic policy. In the eponymous 1905 case of Lochner v. New York, the Court struck down a New York State law limiting the number of hours bakers could work on the grounds that it violated bakers' "right to contract," a right implicit in the Due Process Clause of the Fourteenth Amendment. This doctrine, known as Substantive Due Process, defined the Court during the Lochner era. Lochner v.New York, (1905) Bakery owner claims law violates Freedom of contract. Plaintiff argues that the freedom of contract comes from the 14th Amendment ("nor shall any State deprive any person of … liberty…., without due process of law"). The NY state's potential arguments: (i) health of workers, (ii) likelihood that the bread may not be clean and wholesome if made by overworked bakers, (iii) no bargaining power by the bakers and the statute tries to equalize this imbalance. RULES: to be fair, reasonable, and appropriate use of a state’s police power, an act must have a direct relation as a means to an end, to an appropriate and legitimate state objective. 14th Amend.: Nor shall any State deprive any person of … liberty…., without due process of law Freedom of contract to buy and sell one’s labor is protected by the due process clause of the 5th and 14th Amendment. State gov’t can interfere with the freedom of contract only to serve a valid policy power purpose of protecting public health, public safety and public morals. State must offer evidence of findings. Judiciary would carefully scrutinize legislation to ensure that it truly served such a police purpose. CLOSE SCRUTINY: Is it fair and reasonable and appropriate exercise of the state police power, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty/property to enter into those contracts relating to labor which may seem to him appropriate or necessary to support himself/his family. HOLDING: The Ct. reasons that right to contract is not absolute, but subject to the "police power" of the states, otherwise, the 14th Amendment would be meaningless, and states would be able to pass any law using the police power as a pretext. Ct. reasons that the "liberty" (broad definition) in the 14th Amendment encompasses "…means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live an work where he will; to earn his livelihood by any lawful calling…" Ct. reads "liberty" of the 14th Amendment in very broad sense.1 "Close scrutiny" is used by the court to figure out if the method/means used by the legislature were reasonable in introducing this statute (limiting hours worked by bakers). Ct. will determine whether legislation is "a fair, reasonable and appropriate exercise of the police power of the state, or… an unreasonable, unnecessary and arbitrary interferences with the right of the individual… to enter into those contracts in relation to labor which may seem to him appropriate." Ct. finds that being a baker is NOT DANGEROUS, therefore, the statute was UNREASONABLE. Legislator reasons are Not entirely legitimate; law is an irrational way of achieving the legitimate ends (quality/cleanliness of bread). Legislature should NOT interfere with business. DISSENT: J. Holmes: “the 14th amendment does NOT enact Mr. Herbert Spencer‟s Social Statics…A Constitution is NOT intended to embody a particular economic theory, whether of patetnalism and the organic relation to the citizen of the State or of laissez faire.” Let the legislative majority do what the majority wants to do (hand's off approach). Holmes does not take the stand that the court should never step in, but if the controversy falls under the fundamental problem in the society‟s tradition, then maybe the court should step in. Laws embody convictions/prejudices that judges share; const. is not intended to embody an economic theory. Liberty cannot be used to incorporate an economic theory that happens to be popular at this time of history; Cosnt. is made for people with differing views. NOTE: Lochner has been considered poorly decided. (1) Because it uses due process laws to recognize substantive due process; (2) Even if there is a substantive due process, the "extensive/broad" use of the term "liberty" was flawed (using it to recognize an absolute, fundamental right of freedom of contract); (3) The requiring of the reasonable relationship between the end and the mean used by the government is too strict (Too restrictive in terms of what kinds of goals that the state can pursue – public health, morals and safety – state should be able to regulate much more than this); (4) The court's application of the standard was not proper/fair (in other words, it was not using reasonable standard but strict scrutiny and applying it inconsistently throughout the Lochner era); and (5) The court's rejection of the end/goal sought by the legislation was flawed (finding that the Goal to equalize Bargaining power is an illegitimate goal; Ct. imposes its unelected judgment for that of the legislature). It was NOT until 1930‟s when criticism of Lochner had reached a peak, that the court began to retreat from its approach of substantive due process. See Nebbia and West Coast. 1 “LIBERTY includes the liberty of contract, that gave the case its special significance in the development of substantive due process: the liberty mentioned in that amendment means NOT only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.” -4- CONSTITUTIONAL LAW II – OUTLINE Nebbia v. New York, 291 US 502 (1934) New Policy - Judicial Deference to Gov’t Economic Regs State milk board fixed nine cents as the price to be charged for a quart of milk. Nebbia sold two quarts of milk and a loaf of bread for eighteen cents. Legislature found that milk was impt., paramount to the diet, affects health and prosperity. RULES: upon proper occasion and by appropriate measures, a state may regulate business in any of its aspects, including fixing prices. In absence of other constitutional prohibitions, the due process clause does not prohibit a state from enacting economic policies to further the public good, so long as the policy is not unreasonable or arbitrary. HOLDING: Ct. holds that Contract laws are NOT absolute and gov‟t has interest in regulating and Ct. will NOT always strike down these types of laws. The courts stated that the right to contract is not absolute. This case is the starting case for the court to get away from Lochner. The court give lot of deference to legislative NOTE: Ct. is striking down these laws at the same time that the Ct. is striking down laws that Congress could NOT reach do to Commerce Clause. Substantive due process limitations & C/C striking down had an impact on economy. Especially during Depression b/c gov‟t was passing laws to alleviate pressure on society. Ct. was under pressure to abandon these approaches (substantive due process & C/C restrictions). West Coast Hotel v. Parrish, 300 US 379 (1937) RULES: any regulation which is reasonable with relation to its subject and adopted in the interest of the community is due process The gov’t could regulate to serve ANY legitimate purpose and the judiciary will defer to the legislatures choices so long as they are reasonable. HOLDING: Ct. upholds minimum wage laws for women and directly questions idea of freedom of contract. Ct. overrules Adkins v. Children‟s Hosptial and repudiates Lochner stating that: “Const. does NOT speak of freedom of contract. Const. prohibits deprivation of liberty without due process of law.” Thus, any regulation which is reasonable with relation to its subject and adopted in the interest of the community is due process. Ct. gives a lot of deference to legislator‟s judgment and applies “reasonable standard” in a more lenient way. Ct. finds that a Reasonable judgment will NOT be interfered with and grants deference to the legislature. Ct. emphatically stated that the government was NOT limited to regulating only to advance the public safety, health and morals. -5- CONSTITUTIONAL LAW II – OUTLINE United States v. Carolene Products Co., (1938) Law prohibits interstate shipment of “Filled milk, which is Skim milk that has added to it non-milk fats (vegetable oil).” RULE: Economic regulations should be upheld so long as they are supported by ANY CONCEIVABLE rational basis, even if it cannot be proved that it was the legislature’s actual intent. HOWEVER, in FN4,2 the Ct. states that while most laws (economic regulations) will be subject to this rational basis review, three instances may require/warrant a stricter scrutiny: (1) laws that interfere with EXPRESS RIGHTS (those rights specifically mentioned in Const., a law that infringes on some specific express right); (2) laws that interfere with the POLITICAL PROCESS; (people in power insulate themselves from challenge and freeze the status quo); (3) laws that target DISCRETE AND INSULAR MINORITIES; relatively isolated/small groups of people that b/c of their #s are unlikely to protect interest through the political process; HOLDING: The court states it will uphold the statute and defer to legislature. Economic regulations will be subject to rational basis review and the Court will presume evidence of facts supporting legislative judgment. BUT Ct. holds that it will apply a double standard of judicial review. As to such laws which (1) interfere/limits fundamental rights; (3) interferes with political process, establishes status quo; (3) or target/prejudice discrete and insular minorities who cannot use political process to protect themselves, the Ct. will apply a close judicial scrutiny. Ct. implies that this is what judicial review should be about, NOT about identifying what substantive rights are FUNDAMENTAL, but ensuring that the POLITICAL PROCESS is free and fair (people can argue for substantive rights they want to have). Ct. invokes a Process approach to judicial review rather than a substantive judicial review. The court is retreating from Lochner approach and defer the legislature's act, unless it deems it irrational “i.e. rational basis review”. NOTE: FN4 introduced the idea of levels of judicial scrutiny. In keeping with the New Deal Revolution, FN4 established the rational basis test for economic legislation (an extremely low standard of judicial review). The "rational basis test", sometimes called the "sanity test", mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest. This higher level of scrutiny, now called "strict scrutiny", was first applied in Justice Black's opinion in Korematsu v. U.S. (1944). According to some lore, repeated in constitutional law classes around the nation, the language was planted by a forward thinking law clerk. 2 Carolene Products, Footnote 4: “there may be narrower scope or operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution in the first ten amendments (Bill of Rights); it is unnecessary to consider now whether legislation which restricts political processes which can ordinarilty be expected to bring about repeal of undesirable legislation, is to be subject to more exacting judicial scrutiny under the general prohibitions of the 14 th amendment than are most other types of legislation…nor need we enquire whether similar considerations enter into the review of statutes directed at particulare religious or racial minroties whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political process ordinarily to be relied upon to protect minorities and which may call for a correspondingly more searching judicial inquiry. -6- CONSTITUTIONAL LAW II – OUTLINE Williamson v. Lee Optical, (1955) OK law prohibits optician from performing any services for a patient‟s glasses without a prescription from optomologist (surgeon, MD), optometrists (eye exams, Cohen‟s). Opticians have a lower level of training, i.e., frame maker. Optician argues that there is NO reason to have this law. OK is requiring a prescription for every service to be performed. Legislator may want to give more business to optometrist/optomologist RULES: Economic regulations (laws regulating business and employment practices) will be upheld when challenged under the 14th Amend. DP Clause so long as they are rationally related to serve a legitimate government purpose. Any conceivable justification is sufficient and the law must be reasonable to attaining gov’t end HOLDING: Ct. gives great deference to the legislator refusing to interfere with the OK legislator‟s logic. Ct. allows legislator to make up justifications after the fact. Ct. finds that this law may be wasteful and needless (BUT NOT irrational, unjustified), but Ct. continues to uphold that law. Demonstrates great deference that the Ct. gives to such an economic regulation. Legislator passes a law that affects the economy, the Ct. will uphold the regulation regardless of legal justifications. Case represents the limits of rational basis review. Ct. states that gone is the day that the DP Clause is used to strike down state laws regulating business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought. Ferguson v. Skrupa, (1955) Kansas law made it unlawful for a person to be a debt adjuster except for attorneys. It put individuals who were debt adjusters but NOT attorneys out of business. RULES: Under the system of gov’t created by our Constitution, it is up to the legislatures, NOT thee courts, to decided on the wisdom and utility of legislation. States have power to legislate against what are found to be injurious commercial and business affairs, so long as their laws do NOT urn afoul of some specific federal constitutional prohibition, or some valid federal law. HOLDING: Ct. holds that the DP will no longer be used/interpreted to protect a right to practice a trade/profession or even freedom of contract; and Ct. will grant legislative deference despite the law being a clear, anticompetitve measure in favor of attorneys, b/c it passed by legislature. Ct. has discarded DP protection as applied in Lochner. Turner v. Elkhorn Mining Co., (1963) Coal operators challenged the Fed‟l Coal Mine Heatlh and Safety Act, which provided tat operators must provide compensation for former coal mine workers who suffered from black lung disease (pneumoconiosis). Coal operators challenged applying to law to those who terminated employment before the law was passed. RULES: Retroactive legislation without criminal effects would be upheld so long as it was rationally related to a legitimate government purpose. Rational Basis Review. Legislative Acts adjusting burdens/benefits of economic life come to court with presumption of constitutionality, and the burden is on one complaining of a DP violation to establish that the legislature acted irrationally or arbitrarily. HOLDING: Ct. held that it is well established that deference would be granted to legislature and challengers to law have burden of showing irrationality/arbitrariness. While there is an unfairness for applying laws retroactively, the Ct. will uphold those laws if they meet rational basis review. NOTE: Since 1937, the Ct. has NOT declared one law unconstitutional for violating economic substantive due process. However, in Eastern Enterprise v. Apfel (1998), the Ct. invalidated a retroactive law applying to coal operators and forcing them to pay for medical benefits for former EEs as an impermissible taking. -7- CONSTITUTIONAL LAW II – OUTLINE IV. SUBSTANTIVE DUE PROCESS – Fundamental Rights/Non-Economic Liberties Meyer v. Nebraska, (1923) Family Autonomy Teacher was convicted for teaching German in school in violation of Law prohibited the teaching of a foreign language to young children. RULES: Family autonomy is a fundamental right. Government has burden to show that (1) the interference is justified by a compelling gov’t interest and (2) the law is narrowly tailored to meet the gov’t interest. HOLDING: J. McReynolds wrote for the MAJ Ct. interpreting liberty broadly, stating that it “encompassed more than mere freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Ct. found that the law MATERIALLY interfered with the calling of modern language teachers, with opportunities of pupils to acquire knowledge and with the power of parents to control the education of their own. Ct. found that since the war was no longer ongoing, a legislative interest in fostering the American ideals is NOT adequate justification. Pierce v. Society of Sisters, (1925) Upbringing/Education of Children A challenge by parochial and private schools to an Oregon law requiring children to attend public schools. RULES: The liberty of parents and guardians to direct the upbringing and education of children under their control. The Child is not the mere creature of the state. Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. HOLDING: J. McReynolds wrote for the MAJ Ct. sustaining the OR law. Ct. found NO PECULIAR circumstances or present emergencies which demand extraordinary measures relative to primary education. Under the Meyer view of fundamental rights, the Ct. found that the the law interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control. There was NO GENERAL power of the state to standardize its children by forcing them to accept instruction from public teachers only. Reproductive Autonomy - Marriage/Procreation Skinner v. Oklahoma, (1942) OK Law sterilized criminals with two or more CMTs. RULES: Right to have offspring is a fundamental right. Marriage and procreation are fundamental to the very existence and survival of the race. HOLDING: Ct. found that the OK law violated equal protection and spoke broadly of the right to procreate as a fundamental right. Ct. finds that any such harm would cause irreparable injury. Ct. requires strict scrutiny and gov‟t‟s proof that the law is narrowly tailored to effect a compelling gov‟t interest. Ct. relies on Equal Protection Clause and avoids Substantive Due Process analysis. Ct. doesn‟t want to sanction killing of an entire minority race. Eugenic movement waning after WWII and Hitler. NOTE: Ct. did NOT overrule Buck v. Bell (1927), where Ct. poignantly and strongly asserted that the state has right to sterilize imbeciles; however, MAJ in Skinner strongly defended essential rights of marriage/procreation. Also, Ms. Carrie Buck was later found to be of average intelligence and had a daughter. -8- CONSTITUTIONAL LAW II – OUTLINE Griswold v. Conneticut, (1965) Right to Purchase/Use Contraceptives Π/doctors, executive director of Planned parenthood, gave contraceptives to a married woman. Π argues that she has a Right to use contraception. Law says that it is illegal to use/sell/prescribe/help to get someone contraception. Const. does NOT expressly state this right to contraception. Since this is NOT an express right, Π argue for this right to exist. RULES: Right to marital privacy and right to bee free from police inspection/interference in the sanctity of the bedroom. Right to purchase and use contraceptives. The right to mental privacy, although NOT explicitly stated in the Bill of Rights, is a penumbra, formed by certain other explicit guarantees. As such it is protected against state’s broad sweeping regulations. HOLDING: Ct. declared unconstitutional a state law that prohibited the use and distribution of contraceptives. Ct. finds that there is a RIGHT TO PRIVACY in the bedroom among married couples from police inspection and the ability to control information regarding contraceptive use. Thus, the Right to privacy encompasses ability to use contraception at least for married couples, and said right is implicit in many of the specific provisions of the Bill of Rights, 1st Amend, 3rd Amend, 4th Amend, and 5th Amend. J. Douglas states that the privacy right can be found in the penumbras (shadows) of other provisions as emanations from specific protections of certain rights. Specific provisions of Bill of Rights have shadows, the BOR do NOT protect what they expressly say they protect. CORE right is therefore MORE valuable. 1st Amend. right of association. J. Douglas states that the 1st amendment does NOT explicitly state that there is a right of assocaiton or study what one desires, and without the peripheral rights, the specific rights would be less secure; 3rd Amend. prohibition against peacetime quartering of soldiers; 4th Amend. prohibition against unreasonable searches and seizures; 5th Amend. selfincrimination clause; 9th Amend. reservation to the people of unenumerated rights. However, Ct. does NOT find that this is an extension of our liberty (as found in the 14th amendment) and rejects Lochner based analysis. J. Douglas – Penumbras of Bill of Rights, 1st, 3rd, 4th and 5th CONCURRENCE: J. Goldberg/J. Warren /J. Brennan – 14th + 9th + traditional & collection conscience.” J. Goldburg, Chief J. Warren and J. Brennan rely on 9th Amend. while not constitution independent source of rights, the suggest that the list of rights in the first 8 amendments is NOT exhaustive. Also, focus on the Traditions and collective of our conscience of our people will determine what is on the rights to privacy. Tradition indicates the importance of marriage.3 J. Harlan – liberty of DP clause + teachings of history + basic values implicit in “ordered liberty.” J. Harlan relies on the inability of police to invade the bedroom. 14th Amendment. He suggest that Ct. look at teachings of history, look at “basic values implicit in ordered of liberty.” J. Harlan is relying on what we have done in the past and focuses on “ORDERED LIBERTY: a System is built on balancing an interest in liberty and interest in order.” DISSENT: J. Black – no right to privacy/not express in constitution, change by amendment only. J. Black finds that there is NO explicit textual right to PRIVACY found anywhere in the Const. and thus he argues that it CANNOT be inferred by looking at any amendments. He states that it is NOT the Ct.‟s job to interpret or alter the original writing of the Const.; the right to privacy should be done via an amendment to the Const. J. Black is unwilling to read it into liberty, penumbras into Bill of Rights. J. Black argues that in order to avoid imposing his own values is to BIND yourself to the literal text found in the Const. 3 Tradition is a living thing. Full scope of liberty guaranteed by DP clause cannot be limited by precise terms by guarantees elsewhere in Const., liberty cannot be guaranteed by explicit statements, NOT penumbra. This liberty is NOT a series of isolated points pricked out in terms of such specific guarantees as speech and religion. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. And which also recognizes that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement. -9- CONSTITUTIONAL LAW II – OUTLINE Eisenstadt v. Baird, (1972) Right to Control Reproduction (Use/Dist. Contraceptives) MA law allowed only physicians to distributed contraceptives to married persons, prohibited distribution to unmarried individuals. RULES: Fundamental Right to control reproduction among unmarried and married persons. Ct. Protects right to DISTRIBUTE and USE contraceptives. HOLDING: Ct. declared law unconstitutional. Ct. finds that the MA legislature denied EP b/c it discriminated against unmarried individuals. Further, Ct. held that prohibiting contraception served NO legitimate gov‟t purpose when compared to the fundamental right to control reproduction by any person. Ct. found law unreasonable where legislature sought to prescribe pregnancy and use the birth of the child as a deterrent/punishment for fornication and the prohibition could not be justified as a health measure. Casey v. Population Services Int’l, (1977) Right to Procreation Post-Roe Case where divided Court struck down a NY prohibition of the sale/distribution of contraceptives to minors under 16 years old. RULES: Fundamental Right to control reproduction. Fundamental right to control procreation. STRICT SCRUTINY applies for legislative burdens on a fundamental right imposes a burden on the gov’t to show a compelling gov’t interest and that the law is narrowly tailored to express only those interests. HOLDING: Ct. declared law unconstitutional. Ct. finds that the law failed to satisfy strict scrutiny when compared to the fundamental right of whether or NOT to beget or bear a child which is at the very heart of this cluster of constitutionally protected choices. COMPELLING is the key to the analysis, holding that where a decision as fundamental as whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests. Ct. finds that burden on use of contraceptives is unconstitutional; as such, prohibitions on distribution are likewise unconstitutional. FUNDAMENTAL RIGHTS (1) (2) (3) (4) (5) (6) (7) Right to privacy (Griswold v. CT); Right to marry; Right to custody; Right to keep the family together; Right to control the upbringing of children/child rearing (Pierce v. Family, Meyer v. NE); Right to procreate (Skinner v. OK); Right to purchase and use contraceptives (Griswold v. CT); - 10 - CONSTITUTIONAL LAW II – OUTLINE V. SUBSTANTIVE DUE PROCESS – Abortion Rights Roe v. Wade, 410 US 113 (1973) Right to Abortion Challenge of TX law that outlaws all abortions except in those cases where it is necessary to save the mother. Sup. Ct. strikes down TX law and relies on right to privacy as articulated in Griswold. RULES: DP clause says you cannot violate right to life, liberty and property without DP of law. Ct. finds a fundamental right to privacy as found under penumbras, 1st, 3rd, 4th and 5th Amends. + (procreation, marital bedroom, right to contraceptives, right to determine procreation) and thus fundamental right to abortion. Abortion is a fundamental, constitutional right of a woman to determine whether or NOT to procreate. As such, the government: (1) Cannot prohibit abortions during the 1st trimester, and can only regulate them to require that they be performed by a licensed physician, similar to medical procedures; (2) Cannot outlaw abortions during the 2nd trimester, but may regulate abortion procedures in ways that are reasonably related to maternal health; (3) May prohibit abortions after viability of fetus in the 3rd trimester, except if necessary to preserve the lifeor health of the mother. Right to abortion is not absolute and it must be balanced against other consideration, such as the state's interest in protecting "prenatal life.” STRICT SCRUTINY: Where fundamental rights are involved, regulations limiting these rights my be justified only by a compelling state interest and legislative enactments must be narrowly drawn to express only legitimate state interests at stake. HOLDING: J. Blackmun writing for MAJ Ct. (7-2) found that women have a fundamental right to have an abortion as part of a right to privacy. Women should have the right to control her life and outlawing abortion would interfere with that right. Further, Ct. finds that prohibiting abortion would impose terrible, strenuous hardship and burdens (emotional, psychological, and financial) on the woman and unwanted child. Thus, since liberty includes right to privacy, the right to privacy is broad enough to encompass a women‟s decision to terminate her pregnancy, so women has right to abortion. Further, while woman may be going to a public place that involves a doctor and other staff; she maintains her DECISIONAL AUTONOMY which includes privacy in making very important decisions in her life. It is a Women‟s decision to her bodily integrity that places it under the right of privacy recognized in Griswold. Ct. rejects the argument that a “person” definition should include “fetuses” and refuses to answer the question of when a human person begins to exist. Finally, a right to abortion is not absolute and its interference is permissible where the state satisfies STRICT SCRUTINY. In applying STRICT SCRUTINY the court indicates that the state‟s compelling interest begins when the fetus is viable. 4 NOTE: Some scholars argue that Roe should NOT have been justified on substantive due process grounds but on EPC grounds. Roe v. Wade was decided under strict scrutiny analysis b/c the Ct. found a right to abortion to be a fundamental right protected by the DP clause‟s “liberty” and right to privacy as articulated in Griswold. However, if the court had based its decision in Roe on the EP Clause, the standard of scrutiny would have been intermediate scrutiny: if the government's action is substantially related to an important government interest. DISSENT: J. Rehnquist and J. White argue that abortion should be left to the political process without the court‟s judicial activism imposing its views without exercise such extravagant judicial power. NOTE: Professor Healy finds a similarity between Roe v. Wade and Lochner. In Lochner, the Ct. held that it would NOT uphold laws that are IRRATIONAL and would only apply strict scrutiny to those laws that do interfere with express fundamental rights, political process or a discrete minority. Here, there is NO express, fundamental right, or a political process tampering, AND it does NOT target a group (WOMEN) that has an inadequate ability to protect its interest through the political process. Thus, the court should have only applied rational basis review. However, “women looking for an abortion” are a small, discrete minority; further, the right to privacy is a recognized fundamental right. 4 Viability is defined as the fetus‟ capability of surviving/maintRight to abortion is not absolute and it must be balanced against other consideration, such as the state's interest in protecting "prenatal life."aining meaningful life outside of the womb. - 11 - CONSTITUTIONAL LAW II – OUTLINE Planned Parenthood of Central MI v. Danforth, (1976) Records/Reports Requirements MI law required some info regarding physicians, abortion forms, seven years duration, and inspection by Health officials. RULES: Recording and reporting requirements are constitutional b/c they are reasonably related to maternal health and respect confidentiality and privacy of individual. Ct. upholds MI law b/c the information was NOT disseminated and requirements were related to health. HOLDING: Maher v. Roe, (1977) Gov’t Funding NOT Req’d RULES: Roe implies NO limitation on the authority of the state to make a value judgment favoring childbirth over abortion, and to implement that judgment by allocating public funds. HOLDING: Ct. holds that the indigency may make it difficult and in some cases perhaps impossible, for some women ot have abortions, but this indigency is neither created nor in any way affected by the state‟s regulation to bar federal funding Harris v. McRae, (1980) RULES: B/c the gov’t may NOT prohibit abortion, use of contraceptives; therefore, the gov’t has a duty to ensure that all persons have financial resources to obtain contraceptives or have abortions. HOLDING: The ct. finds that the prohibition o federal funds for abortions leaves an indigent woman with at least the same range of choices in deciding whether or NOT to obtain a medically necessary abortion as she would have had if Congress chose to subsidize no health care costs at all. City of Akron v. Akron Center for Reproductive Health, (1983) Akron had a 24 waiting period that req‟d two trips to physician. RULES: Waiting Periods Waiting periods are unduly burdensome by increasing costs, risks and not serving legitimate state interest of informed consent. Ct. specifically upholds waiting periods b/c state does NOT show how its interests in informing women passes strict scrutiny. Further, Court holds that detailed information given to women seeking abortions will be struck down b/c state is placing an obstacle in a woman‟s right to an abortion. HOLDING: Information about Fetus Thornburgh v. American College of OBGYN, (1986) PA law req‟d detailed information 24 hours prior to abortion. Physiological characteristics, effects on woman, etc. RULES: Detailed informed consent requiring much information to be given to a woman seeking an abortion unduly burdens her right and creates a substantial obstacle. Ct. specifically strikes down informed consent requirements b/c state failed to show that its interests passed strict scrutiny (narrowly tailored to serve a compelling gov‟t interest). Further, Ct. strikes down the detailed reporting requirements b/c they mandated more info than necessary and no guarantee of privacy of records. HOLDING: Webster v. Reproductive Health Services, (1989) Fetal Viability Test MI legislature declared that MI state‟s view was that life begins at conception, prohibited the use of government funds or facilities from performing or “encouraging or counseling” a woman to have an abortion, and allowed abortions after 20 weeks of pregnancy only if a test was done to determine fetus was unviable. RULES: Ct. rejects Roe’s rigid framework, arbitrary lines drawn by Court, and indicates that the state’s interest in protecting potential human life is as important/compelling before and after viability. DP generally confers NO affirmative right to gov’t aid where such aid is necessary to secure life, liberty or property interests, which the gov’t itself may NOT deprive the individual. Gov’t rarely has an affirmative constitutional duty to provide benefits or to facilitate the exercise of rights. HOLDING: Ct. upholds (without MAJ opinion) MI law and speaks strongly against the wrongly decided Roe v. Wade. Ct. does NOT expressly state that Roe should be overruled. Ct. indicates that Roe did NOT have any constitutional basis and was merely an imposition of those justices view on a matter that is purely for the political/legislative branch. However, Ct. notes that here, MI law did NOT prohibit abortions, and there is no necessity to accept the state’s invitation to reexamine the constitutional validity of Roe. Further, Ct. upholds fetal viability test under STRICT SCRUTINY. DISSENT: Plurality is discarding a landmark case and could soon be denying many women a fundamental right to not beget a child/procreate. NOTE: Webster overruled Colautti v. Franklin, (1979) which declared a state law unconstitutional that required a doctor to determine viability prior to an abortion. If professional conclusion was that fetus was viable, many requirements came into play to ensure survival of fetus. - 12 - CONSTITUTIONAL LAW II – OUTLINE Planned Parenthood of Southeastern Pa. v. Casey, (1992) Reaffirming Right to Abortion PA law had many requirements prior to a woman receiving an abortion. The requirements of the PA statute: (1) Informed, Truthful, non-misleading consent; (2) twenty-four (24) hour waiting period; (3) Spousal notification with exceptions; (4) Parental consent with judicial bypass; (5) Reporting requirements; (6) Catchall exception of medical emergency. RULES: Stare decisis warranted overruling precedents if (1) the earlier decisions had proved unworkable; (2) there was an evolution of legal principles that undermined the doctrinal foundation of the precedents; (3) if there was a change in the factual predicate for the decisions (changed circumstances/ facts or a changed understanding of circumstances/facts); (4) Remnant of abandoned doctrine where the doctrine is no longer used.; (5) Reliance (whether the people or institution have come to rely that it would lend a special hardship in consequence of overruling). Gov’t can regulate abortions performed prior to Viability so long as there is NOT an undue burden on access to abortions. Test for evaluating the constitutionality of a state regulation of abortion is whether it places an "undue burden" on access to abortion/right to abortion. The undue burden standard is means of reconciling the state's interest with the woman's constitutionally protected liberty. A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. To promote the state’s profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will NOT be invalidated as loing as their purpose is to persuade the woman to choose childbirth over abortion. These measures must NOT be an undue burden on the right. Waiting periods, informed consent, records/reporting requirements, & parental notifications are NOT unduly burdensome b/c they serve state interest in protecting potential life State is permitted to enact persuasive measures which favor childbirth over abortion even if those measures do NOT further a health interest. State can provide information about fetus prior to abortion and it will not be an undue burden. HOLDING: The Ct. upholds the essential holding of the Roe (fundamental right to abortion protected by the due process) but with some modifications removing the trimester framework for determining viability. The trimester framework suffers from formulation flaws misconceiving the interest of pregnant woman and undervaluing the state‟s interest in potential life. Ct. holds that Const. recognizes many unenumerated rights which are NOT explicitly stated in Const. The right to an abortion is constitutionally protected b/c of the importance of the choice and the intrusion in forcing a woman to remain pregnant against her will. The destiny of a woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in sociery. State‟s interest must be more important than the women‟s suffering to justify regulation abortion. Further, Ct. holds it cannot now repudiate Roe b/c it stands on a sound constitutional analysis and stare decisis requires more than Justices changing their mind to overturn a decision. Stare decisis provides Predictability, Equality and Judicial efficiency. Finally, Ct. upholds all provisions of the PA law but strikes down the spousal consent/notification requirement b/c it imposes too great a burden on fundamental right to abortion b/c it would be a substantial deterrence to married women from aborting. The state cannot coarse woman to have childbirth than abortion, but the state can persuade woman to have childbirth than abortion. State can regulate abortion to protect life of baby and mother. State can regulate throughout the entire of the pregnancy to protect either the mother’s health (medical regulation) and can also regulate to show respect for a potential life. State can do this so long as its regulation is reasonably related to achieving that goal (protect women’s health or show state’s respect for child’s life) and as long as the regulation does NOT place an undue burden on the women’s right to choose an abortion. Viability is the cutoff point. An undue burden is one that places a substantial obstacle in the way of a woman’s ability to choose to have an abortion. Ct. holds that the regulations that are designed to inform the women‟s choice are permissible b/c they are simply showing a state‟s respect for life and in the court‟s mind do not interfere with a women‟s choice. But, regulations that attempt to coerce a women‟s choice are NOT permissible. The line btw coercion or persuasion is tricky. DISSENT: J. Rehnquist, Scalia, White and Thomas explicitly stated that they think Roe should be overturned and that stare decisis does NOT prevent it from being done. Scalia states that Roe should be overturned b/c (1) the Const. says absolutely nothing about it and (2) the longstanding traditions of American society have permitted it to be legally proscribed. (compares it to bigamy). - 13 - CONSTITUTIONAL LAW II – OUTLINE Undue Burden Test Specifically Applied Stemburg v. Carhart, (2000) NE law banned partial birth abortions, a/k/a dilation and extraction, and made NO exceptions for this prohibition. Partial birth abortions removed a living fetus or a substantial part of a living fetus with the intent of ending the fetus‟s life. RULES: Before viability, the woman has a right to choose to terminate her pregnancy. Whether a state law places an "undue burden" on access to abortion/right to abortion such that the law would be unconstitutional? State cannot act with the purpose of creating obstacles to abortion State can act with the purpose of discouraging abortion and encouraging childbirth. Undue burden exists only if there is a showing that the regulation will keep someone from getting an abortion. HOLDING: Ct. applies and specifically upholds the Undue Burden Test. Ct. struck down NE law b/c the law unduly burdened the right of an abortion. First, the way the law was written might be construed to apply to this particular type of abortion and to other types of abortion and might open up physicians who perform such a type to liability. Second, the state did NOT make an exception for protecting the life of the mother, as required by Roe v. Wade and reaffirmed by Planned Parenthood v. Casey. Further, in applying to more than one type of abortion, the law imposes a large burden, but also restricts and imposes an undue burden on a woman‟s choice in what medical procedure to use prior to viability. DISSENT: J. Connor, Scalia, Thomas and Kennedy hold that regulation of partial birth abortion is constitutional. Congress passed a fed‟l ban on this type of abortion procedure (DNX) and did NOT make an exception for the health of the mother. Congressional findings did NOT believe that DNX is ever necessary for the life/health of the mother. J. Thomas, Scalia and Rehnquist call for Roe and Casey to be overruled. NOTE: Case is NOW before the Supreme Court and has already been argued; a decision will come down this year. First abortion case to come before with the two new members J. Roberts and J. Alito. J. Alito replaces J. O‟Connor; J. Roberts replaces Chief J. Renhquist NOTE: In Casey and Roe, the Ct. agrees that there may NOT be a specific tradition for abortion, but it frames the tradition much more broadly and states that there was a tradition to allow decisions about procreation. STANDARDS OF REVIEW 1. Strict Scrutiny: any law that infringes upon fundamental liberty interest may be upheld if state shows that law is Compelling to states interests and law is narrowly tailored for the specific end. Applies to fundamental rights or discrimination of specific class of people. 2. Intermediate Scrutiny: law must be closely tailored to an important government interest to be upheld. 3. Rationale Basis Review: law must be reasonably related to a Legitimate state interest to be upheld. Applies to non-fundamental rights. - 14 - CONSTITUTIONAL LAW II – OUTLINE VI. SUBSTANTIVE DUE PROCESS – Family Relationships Loving v. Virginia, (1967) Right to Marry RULES: anti-miscegenation laws are unconstitutional because of interference with fundamental right to marry HOLDING: Ct. struck down law that prohibited interracial marriage as a violation of the Equal Protection Clause. The Ct. finds that marriage is a fundamental right, suggesting that it was under the Due Process Clause as a fundamental Right subject to strict scrutiny. Ct states that right to marry has long been recognized as vital personal right essential to the orderly pursuit of happiness by free men. Marriage is one of he basic civil rights of a man, fundamental to our very existence and survival. The law CANNOT deprive all state‟s citizens of this liberty without due process of law. Boddie v. Connecticut, (1971) Right to Divorce RULES: right to divorce is a subset of a right to marry b/c failure to get divorced prevents marriage to another person. HOLDING: Ct. finds that marriage involves interests of basic importance in our society. Thus, preventing individuals from obtaining a divorce (by requiring indigents to pay high fees) precludes them from exercising their right to marry someone else. NOTE: In subsequent cases, the Sup. Ct. upheld the constitutionality of filing fees for bankruptcy petitions or appeals of welfare denials. Ct. distinguished Boddie b/c of the fundamental nature of the right to marry. Zablocki v. Redhail, (1978) Case involved a law that says that you cannot get married if you had a child and were behind on child support. RULES: Right to Marry if the right to procreate means anything at all, it must imply some right to enter the only relationship which th state allows sexual relations legally to take place. Further, at a minimum, the gov’t has to show a law that is closely tailored to a sufficiently important to state interests HOLDING: Ct finds that it is NOT surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. Ct. strikes down WI this law b/c the right to marry is fundamental. State cannot keep you from getting married unless the law is supported by important state interests and is tailored to effectuate only those interests. Further, Ct. decides case under EPC, striking down law that targeted individuals who owed child support. Ct. finds that the law was NOT sufficiently related to the end of ensuring child support payments b/c it failed to be narrowly tailored. The state had other methods (wage garnishment, civil contempt, and criminal prosecution) to ensure payment of child support. NOTE: Ct. signals INTERMEDIATE SCRUTINY by use of “important” even though we are talking about a fundamental right. Turner v. Safley, (1987) Right of Prisoners’ to Marry Prisoners could NOT get married without compelling need determined by the superintendent of the prison. RULES: prisoners have a right to marry that is fundamentally protected by the DP clause and any restrictions are subject to strict scrutiny, where the gov’t may only interfere with prisoners rights if the action is reasonably related to a legitimate penological interest. Ct holds that marriage is religious exercise, expresses emotional/public commitment, there is an expectation of being returned to society; and a condition for gov‟t benefits. Further, Ct. concludes that law is unconstitutional b/c prison can regulate marriage times, place, duration, and other circumstances without forbidding all marriages. HOLDING: NOTE: In Califano v. Jobst, (1977) the Ct. found that a law which has the effect of deterring marriages b/c of the subsequent denial of Social Security benefits is constitutional. Congress has power to find that a married person is less likely to b dependent on his/her parents. Also, in Bowen v. Owens, (1986) the Ct. upheld a restriction in Social Security Act that denied benefits to widows who remarried, thus giving more money to unmarried widow/widowers. Ct. finds that in allocating scarce resources, Congress will be granted deference to determine that remarried widows need the benefits less than unmarried widows. In both cases, Ct. applies strict scrutiny and recognizes that a clear infringement on a fundamental right or discrimination against a suspect class must be present for the Ct. to interfere. - 15 - CONSTITUTIONAL LAW II – OUTLINE Moore v. East Cleveland, (1977) Right to Family Togetherness Grandmother living with two grandsons who are NOT brothers but are cousins. Zoning ordinance limited occupancy to members of a single family. RULES: when gov’t intrudes on choices concerning family living arrangements, this Ct. must apply STRICT SCRUTINY and must examine carefully (1) the importance of the government interests and (2) the extent to which they are ser ed by the challenged law. choice of household companions, institution of family is deeply rooted in the nation’s history and covers the extended family b/c it is not limited to the immediate family. Any right to live together as a family is NOT limited to the nuclear/immediate family, but encompasses the extended family as well. Right to privacy allows you to live with people who are you relatives (immediate or extended) b/c it is deeply rooted tradition HOLDING: Ct. strikes down a zoning law that limits you to living with members of your immediate family and infringes on rights of the extended family. Under DP, the Ct. requires Strict Scrutiny. Ct. says that choice of household companions, institution of family is deeply rooted in the nation’s history and covers the extended family b/c it is not limited to the immediate family. Ct. finds that the Const. protects the sanctity of the family through which we pass down our most cherished values, morals and cultural. Further, Ct. distinguishes Belle Terre v. Boraas (1974), where the Ct. upheld a law that prohibited living together among people who are NOT related. DISSENT: States that history was used to broadly to create a right. Troxel v. Granville, (2000) Right of Upbringing Children Law granted visiting rights to grandparents over objection of sole, surviving, fit, custodial mother. RULES: liberty interest is that of a mother to control child’s upbringing. a state court decision giving grandparents visitation rights interfered with the right of the parent to choose who her children saw. The state cannot mandate that grandparents can visit the children HOLDING: Ct. strikes down a visitation law because it infringes on mother‟s ability to raise her children. This interests is old, fundamental and unquestionable. The state cannot infringe this interest without satisfying Strict Scrutiny. There was no MAJ opinion in this case. Michael H. v. Gerald, (1989) Right of Unmarried Fathers Married woman conceives child from affair. Biological father was regularly involved and sought Ct. ordered visitations. CA law created presumption that a married woman‟s husband is the father of her child if they were cohabitating and if the husband is NOT impotent or sterile. Rebuttable must be within 2 years of birth and only if the husband/wife motion Ct. The CA denies biological father all visitation rights despite test showing 98% probability of being father. RULES: even an unmarried father, who participated actively in the child’s life is NOT entitled to due process if the mother was married to someone else. A state may create an irrebuttable presumption that a married woman’s husband is the father of her child even though it negates all of the biological father’s rights. HOLDING: Ct. holds that the law was constitutional. The biological father does NOT have a liberty interest b/c there was NO tradition of protecting father‟s rights when the mother is married to someone else. Ct. held that the Sup. Ct. should protect rights under DP only if there is tradition stated at the most specific level of abstraction, for safeguarding liberty. - 16 - CONSTITUTIONAL LAW II – OUTLINE VII. SUBSTANTIVE DUE PROCESS – Sexuality Right to Make Sexual Conduct Decisions Bowers v. Hardwick, (1986) Two gay men were arrested under a GA statute that barred sodomy in same sex and opposite sex couples. Gay men challenged law as a violation of their law to privacy. Police came to their bedroom on unrelated matter. RULES: State may prohibit sodomy. Right to privacy does not protect a right to engage in private consensual homosexual activity. HOLDING: Ct. finds that DP protected reproductive/procreation rights, and homos don‟t fit in these categories. Ct. does NOT find any support of homosexual right in text of Const. or tradition of history. Ct. is applying rationale basis review b/c state has a legitimate interest of promoting rationality. NOTE: J. Powell said that he made a mistake and regretted his decision b/c these kind of laws were NOT regularly enforced (if these laws were enforced at all, were enforced against gay couples). At time case was decided, J. Powell stated that he did NOT understand homosexuality and that he never met a gay person. J. Powell commented as much to his law clerk, who was gay. Lawrence v. Texas, (2003) Sexual Orientation TX law made it a crime for two persons of same sex to engage in certain intimate sexual conduct. TX officers received anonymous tip about something @ private residence. They entered the apartment and observed Lawrence and another man engaging in sexual conduct. The Δs argued that the TX law violated EPC, b/c it targets Homosexual couples which are NOT being treated equally. Further, TX laws violates DP clause b/c DP should protect them to act in the privacy of their own home. RULES: Law prohibits sodomy among gay couples only Two adults can give consent to act in any way they want in the privacy of their own home. HOLDING: Ct. strikes law down as unconstitutional under the DP clause. Ct. provides Const. protection for all individuals in the most intimate/private aspects of their lives. Ct. holds two adults, with full and mutual consent can engage in sexual practices that are common to a homosexual lifestyle. Ct. said that striking it down under EPC would NOT require Ct. to overrule Bowers, but in striking it down under the DP right to privacy grounds requires that Ct. find that right to privacy and thus consensual sex is a fundamental right. J. O‟Connor wanted case decided on EPC grounds. Under EPC finding, then Ct. did NOT have to overrule Bowers, MAJ declines to decide case on EPC grounds and says that “we conclude that the instant case requires us to determine whether Bowers remains valid… states might think that they might outlaw all sodomy if court decides under EPC…if protected conduct is made criminal and law that does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for EP reasons. When homosexual conduct is made criminal by the law of the state that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. Further, Ct. finds that since the activity takes place in the bedroom, and “liberty protects the person from unwarranted gov’t intrusions into a dwelling or other private places, in our tradition state is NOT omnipresent in the home, there are other spheres in individual activity outside of home that state should not be present, freedom liberty extends outside of our selves, an autonomy of self, the right to make decisions, not bound by space, instant case involves liberty of person in spacial and more transcendent aspects.” Ct. expands idea of what privacy is compared to what it found in Griswold. Ct. finds that the liberty of a person encompasses his (1) privacy within his home and (2) privacy /right to decide how person will live their life. Traditionally, state had power to regulate for public health, safety or morals. Ct. in discussing tradition, which is a place to start in a DP understanding, disputing Bowers historical reading stating that sodomy statutes were specifically targeting these types of behavior, b/c sodomy statutes were general and not targeting same sex couples. Relevant tradition is tradition of past ½ century. A fundamental right requires strict scrutiny. A non-fundamental right requires rationale basis review. Here, Ct. is suggesting that law that is only supportive of a particular moral view does NOT even pass Rationale Basis Test. Ct. takes issue with Bowers reading of the history. Ct. finds that the Sodomy laws were put in place to NOT let abnormal rapists got off the hook. However, here the Ct. looks at more recent tradition, NOT just what has been permitted for last two hundred years. Ct. is saying that state does NOT have a legitimate interest much less a compelling or important interest. Ct. finds that one specific belief system cannot be imposed, citing J. Stevens DISSENT in Bowers, says that state’s majority view is insufficient for imposing law. MAJORITY rejects morality a reason to justify such a state interest, finding that the if governing majority in a state has traditionally viewed a practice as immoral, it is NOT sufficient reason to uphold a law. Ct. says that the present case does NOT involve minors, leaving open possibility to prohibit such actions against children, NOT involve situations where consent may NOT easily be refused, does NOT involve public conduct (prostitution), does NOT involve formal recognition of homosexual relationship. DISSENT: J. Scalia in his DISSENT says that rejecting morality as a legitimate state interest says that state cannot pass laws against prostitution, fornication, masturbation, obscenity, bigamy, beastiality, etc. which are based on nothing more than moral disapproval. J. Scalia points out that Ct. does NOT identify whether this is a fundamental right; Ct simply states that TX law does NOT point out a legitimate state interest. Legitimate is associated with rationale basis review NOTE: Ct. does NOT articulate a specific level of scrutiny. Ct. does NOT mention strict scrutiny nor did it speak of a fundamental right. However, in discussing privacy cases, Ct. implied strict scrutiny standard. Further, since TX indicated it was advancing its moral judgment which is usu. met with a Rational Basis Review, but the Ct. rejected their argument, Ct. is again implying heightened scrutiny. NOTE: Ct. is NOT saying that same sex marriages have to be permitted; it is NOT implying anything about this subject. HOWEVER, does Loving v. VA (interracial marriage cannot be prohibited) and Lawrence v. Texas seal the deal in allowing same sex marriages. In Whalen v. Roe, (1977), a decision about the Control over Information, the Ct. rejected a privacy claim against a NY law that req‟d names/info on comp.database for those obtaining dangerous, legitimate drugs via prescriptions as NOT impinging on any liberty interest in making impt. decisions independently. NOTE: - 17 - CONSTITUTIONAL LAW II – OUTLINE VIII. SUBSTANTIVE DUE PROCESS – Unwanted Medical Treatment & Physician Assisted Suicide Cruzan v. Director of MI, Dept. of Health, 491 US 261 (1990) Right to Refuse Medical Care Cruzan was in a vegetative state and parents wished to starve her to death. Under MI law, a person can only be removed from life support if there was clear and convincing evidence of there intent, and the trial court said that there was, that if she were able to respond, she would want to be removed based on trial court‟s review of certain statements made by her. MI supreme Ct. reversed stating that the statements the trial court had relied on were too vague. ISSUES: Whether reqmt in MI law (that the intent of the person who wants to be removed from life support be proven by clear and convincing evidence) violates her DP liberty right? Do patients have a right to hasten their death with physician’s assistance? (Ct. does NOT answer this) Const. would grant a competent person a constitutionally protected right to refuse lifesaving hydration/ nutrition. State may impose higher evidentiary burdens prior to allowing a patient to refuse lifesustaining medical treatment. State may regulate and prevent family members from making such an impt. interest b/c family members may have conflict of interest (financial/emotional) HOLDING: Ct. holds that a person has a right to refuse medical treatment including life-sustaining medical treatment. (Recognized by 8 out of 9 judges – five MAJ and three dissenting – J. Scalia was only justice who did NOT believe interest should be recognize.). Ct. recognizes a liberty interest in refusing unwanted medical treatment inferring it from prior decisions. Ct. will assume that this right extends to unwanted life saving medical treatment (hydration/nutrition) and even assuming that, the MI reqm‟t that that intent that the desire be evidenced by clear and convincing evidence (heightened evidentiary standard), does NOT violate a liberty interest b/c the law is there to protect the individual from individuals who are actually going against the wishes of patient in vegetative state like Cruzan. State is seeking to ensure that a person‟s life is NOT terminated on a whim or flimsy evidence. However, neither Ct. nor state indicate what would be considered sufficient evidence of intent. J. Scalia believes that the Fed‟l Ct. has NO business in this field. American law has always accorded state to pevent, by force if necessary, suicide, which would include refusal of lifesustaining medical care. RULES: DISSENT: NOTE: Cruzan does NOT articulate a standard of scrutiny, but does invoke privacy cases; as such, the standard of scrutiny that the state must meet in order to interfere/burden a person‟s liberty interest in refusing lifesustaining medical treatment is strict scrutiny. - 18 - CONSTITUTIONAL LAW II – OUTLINE Washington v. Glucksberg, 521 US 702 (1997) NO Right to Physician Assisted Suicide under DP Πs/Petitioner in this case argue that they should have a right to decide when to end their life. Πs claiming that terminally ill, mentally competent patient have a right to physician assisted suicide. Against WA law to assist someone in committing suicide. (Law does NOT prohibit having life support withdraw; WA law deals solely with having someone assist you in ending your life). ISSUES: RULES: HOLDING: Do you have a fundamental right to physician assisted suicide? the right to assistance in committing suicide is NOT a fundamental liberty interest protected by DP. Ct. begins its analysis by looking at history and tradition and rejects right to suicide, with or without a physician b.c for over 700 years, all western nations have prohibited such an act. Further, the Ct. rejects the right to suicide under DP under Cruzan. The ct. finds that there is NO DP liberty interest to suicide. Ct. says that it has been reluctant to expand concept of substantive DP b/c guideposts are scarce and open-ended and by extending protection to an asserted right or liberty interest, Ct. to a great extent, places the matter in the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the DPC be subtly transformed into the policy preference of the members of this court…Ct is much more focused on history/tradition. There has always (over 700 years) been punishment for suicide and cannot now say that there is NO punishment for physician assisted suicide. WA must only satisfy a Rational Basis Review for a non-fundamental, non-protected liberty interest. Ct. finds that there is ample legitimate purposes to justify state regulation. Ct. finds that the law would protect vulnerable groups, and protect the integrity of medical profession. Further, Ct. notes that while some medication may result in death, the Doctor‟s intent is NOT to kill patient but to alleviate pain. So, where the Intent of doctor to alleviate the pain, and kills him, then there is NO crime, but in physician assisted suicide, the intent is to kill; and the cause of death is the “pulling the plug.” The persons does NOT die from a disease, as when a doctor gives a drug and patient dies from drug. The AMA files a brief talking about the role of the doctor. Physician assisted suicide (PAS) would confuse the role of the physician to heal. Now doctor‟s primary goal is to heal and if PAS is permitted, then the doctor‟s role becomes a little bit confused. State argues that it has an unqualified interest in preservation of human life, NOT quality of life but life in general. Π responds that it is at the end of the life and state should not have much interest in this old life. Ct. did NOT define judgments of what quality of life means. Ct. states that if a depressed individual could seek PAS then the state‟s interest would be interfered with. Further, disabled individuals would be vulnerable where there is PAS b/c they could be pressured and coerced into PAS.Ct. also argues that a slippery slope would result b/c it would allow the state to authorize murder and then could not make/enforce the distinction btw voluntary/involuntary euthanasia. DISSENT: J. STEVENS finds that PAS is more consistent with physician‟s traditional role than the MAJ. To the extent to what the doctor is doing is to help individual die with dignity and comfortably, then there is nothing inconsistent with the doctor‟s role as PAS. NO Right to Physician Assisted Suicide under EP Quill v. Vacco, (1996) NY law prohibited physician suicide. Doctors challenged law b/c it treated those NOT on life-support differently than those on life support who can refuse life-sustaining treatment. RULES: HOLDING: There is NO EP protection for physician assisted suicide. Ct. holds that the EPC does NOT provide protection for alleged discrimination to non-life support persons who seek to have physicians assist their life. Ct. finds that since there is NO fundamental interest, as indicated in Cruzan, the state must only satisfy a Reasonable Basis Review. Further, Ct. finds that there are numerous legitimate interests that the state can advance by regulating this area of individual choice, such as protecting minorities. NOTE: Ct. leaves open the issue in Glucksberg and Quill of whether there may be a fundamental interest of a terminally ill patient in severe physical pain to determine/control the circumstances of his/her death. - 19 - CONSTITUTIONAL LAW II – OUTLINE IX. EQUAL PROTECTION – Overview & Rationality Review Equal protection applies to the fed’l gov’t through judicial interpretation of the due process clause of the 5 th Amendment and to the state and local governments through the 14th Amendment. Further, the Equal Protection Clause does NOT protect against all discrimination. A violation exists if there is NOT a sufficient justification for that law and the trait chosen to single out does NOT have any relevance to the goal gpv‟t is trying to achieve. 14th Amendment, § 1: “No state shall…(make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law)…nor deny to any person within its jurisdiction the equal protection of the laws.” 5th Amendment: “No person …shall be deprived of life, liberty, or property without due process of law.” There are three levels of scrutiny: (1) Rational basis review. All laws not subject to strict or intermediate scrutiny are evaluated under this test. A law will be upheld if it is rationally related to a legitimate gov‟t purpose. Challenger has burden of showing irrationality and arbitrariness. This test grants huge deference to legislature allowing any conceivable purpose serve justification for the regulation. (2) Intermediate scrutiny. A law is upheld if it is substantially related to an important gov‟t purposes. The purpose need not be necessary. Gov‟t has burden of proof. Applies to sex and illegitimacy discrimination. (3) Strict Scrutiny. Law will be upheld if it is proved necessary to achieve a compelling gov‟t purpose. The classification has to be narrowly tailored to be relevant to the legitimate government interest without a less discriminatory alternative being available. Gov‟t has burden of persuading the court. Applies to race, national origin and alienage (with some exceptions). NOTE: Court applies a sliding scale of standards where it applies RBR with bite = IS; Deferential IS = RR; and IS with BITE = SS. Three Questions to Ask under Equal Protection Analysis: 1. What is the classification? 2. What is the appropriate Level of Scrutiny? 3. Does Gov‟t action meet level of scrutiny? LEVELS of SCRUTINY Race } Alienage } STRICT SCRUTINY National Origin } ______________________________________________________ Sex Legitimacy } } INTERMEDIATE SCRUTINY EQUAL PROTECTION CLAIMS -RECAP After Law /decision is challenged in Court dealing with a suspect classification (race, alienage, national origin), then ask (1) On its face, does the law discriminate/classify against a particular race? (2) If so, Strict Scrutiny applies; a. Is there a Compelling gov‟t interest to justify classification? b. Is law narrowly tailored to meet that gov‟t interest? (3) If not, conduct sensitive inquiry for circumstantial or direct evidence of a discriminatory purpose (Arlington Heights) (4) If NO discriminatory purpose, (per Washington v. Davis) then the gov‟t has to meet a rational basis review even if the law has a discriminatory effect on a specific race. (5) If there is a discriminatory purpose, then the burden shifts to the Δ to show beyond a preponderance of the evidence that Δ would have made the same decision or enacted the same policy or passed the same law regardless of the racial/discriminatory purpose (6) If Δ meets that burden, that decision would have been taken regardless of discriminatory purpose, then law does NOT deal with EPC claims, so rational basis review applies (7) If he fails to meet the burden, the Court will apply Strict Scrutiny and ask just the same as a law that discriminates on its face, whether there is a compelling gov‟t interest and whether law is narrowly tailored to meet the compelling gov‟t interest - 20 - CONSTITUTIONAL LAW II – OUTLINE Railway Express Agency v. New York, 336 US 106 (1949) Rational Basis Review Ads for jen‟s milk delivery on trucks. These trucks have billboard on the back on both sides. NY law prohibits advertising business on trucks that is NOT your business. Thus, someone cannot pay someone else to put ads on their trucks. However, NY allows businesses to place ads on their own trucks. RULES: Rational Basis Review: Whether law is legitimate? and Whether distinction is rationally related to the legitimate interest ? Desire to harm a particular group is NOT a legitimate govt’l interest Safety of public, concern for public welfare is a legitimate governmental interest Over-inclusive law targets some advertising that is not unsafe. Under-inclusive law fails target certain individuals who are unsafe. Rational Basis Review allows state to assert justification/legitimate interest after the fact. Also, law may be over and under inclusive. HOLDING: Ct. finds that the Law that tries to prohibit danger and promote safety for public/drivers. Thus, state is attempting to promote general welfare and improve driver safety. Under Rational Basis Review, a law can be under and over inclusive and still be constitutional; the question is whether the law is rationally related to the gov‟ts legitimate interest of promoting safety. Ct. finds that it is Rational for state to achieve its goal by drawing the distinction between ads for business and as a business. “It is rather b/c there is a real difference between doing in self-interest and doing for hire, so that it is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price.” Rational Basis Review US Railroad Retirement Bd. V. Fritz, 449 US 166 (1980) Dual benefits may or may NOT be available depending on how long RR workers were with company and when they left. Some people will be grand fathered in. Congress restructured the RR retirement system. The fact that they were NOT working in RR in 1974 is the determining trait. Complaint is that the state is violating EPC b/c state is treating these two people differently. Dual Benefits available where: (1) 10+ years and retired; (2) 10-24 years + NOT retired + worked in RR in 1974 (year law was passed); (3) Have NOT retired yet, but you were working in RR ou would get dual benefits; (4) 25 years + NOT retired. HOWEVER, No Dual Benefits where (1) < 10 years; OR (2) 10-24 years + NOT retired + NOT in RR in 1974. RULES: Social and economic legislation enacted by Congress will be upheld under EPC if it is rationally related to a permissible government objective. Subjective motivation of Congress is NOT relevant. Gov’t interest can be argued after the fact to justify the legislative distinction. HOLDING: Ct. holds that since the regulation does NOT classify race, alienage, national origin, sex, or legitimacy, Ct. must apply Rational Basis Review. First, the court acknowledges that under Rational Basis Review, Congress may pass over/under inclusive laws that are justified after the fact. Any conceivable justification is sufficient regardless of Congress’ actually motive/intent. See Schweiker v. Wilson. Ct. holds that under/over inclusive should NOT matter. Ct. does NOT need to determine the legislative intent or motive. Ct. says it does NOT want to tie Rational Basis Review to motivation behind a law b/c a Subjective motivation of Congress is NOT relevant. Ct. does NOT care why Congress passed it. Also, it would incredibly difficult to determine what the motivation of large senate body. Further, Ct. will be going outside of the purpose of judicial review in scrutinizing the legislative intent. NOTE: Management/Labor Unions drafted this and presented to Congress and they passed it without realizing what they were doing. Labor union wants more $ for its members who were in 1974. NOTE: RR v. NY and US RR v. Fritz show how deferential RB review is. Law can be over/under inclusive, but CANNOT be irrational or arbitrary, law must have some relevance what it is trying to accomplish. Rational Basis Review Standard grants a high level of deference to legislature. Ct. provides an amazing amount of deference and simply asks whether there is any reasonable conceivable state of facts that could support the legislatures judgment. - 21 - CONSTITUTIONAL LAW II – OUTLINE X. EQUAL PROTECTION – Suspect Classifications & Race Discrimination Classifications that are immediately suspect are race, alienage and national origin. STRICT SCRUTINY applies to those laws that discriminate on the basis of race, alienage or national origin b/c the classifications is irrelevant to the gov‟t interest. Where law distributes benefits or burdens on the basis of their race, THEN gov’t has to show that they have a compelling gov’t’l interest and law is narrowly tailored (necessary) to serve this gov’t’l interest. (1) Ct. looks to determine if the type of classification being used by the gov‟t. discriminate on protected class. (See Village of Willowbrook v. Olech (2000) where Ct. held that a “class of one” is sufficient to require EP claims b/c of gov’t discrimination). a. Facially Discriminatory Laws that expressly burden one race. i. Law that detain Japanese Americans on west coast for duration of war ii. Korematsu, first case where court comes out and explicitly says that discrimination on the basis of race will be subject to strict scrutiny. Ct. upholds law b/c of gov‟t‟s compelling interests in safeguarding national security during WWII. NOTE: Korematsu is regarded as the most incorrect decision that the court has reached. In 1988, Congress paid reparations to the ancestors of Japanese Americans who were detained in these camps in WWII. b. Neutral Laws that have a discriminatory impact to the law or discriminatory effects from its administration. i. A Law that instructs people of different races to sit in different places, eat at a different places does NOT explicitly burden/benefit, but tells people of different races where to go. ii. In Plessy v. Ferguson,( “Separate But Equal Doctrine”) the Court upheld segregation finding that these types of laws did NOT discriminate on the basis of race as long as the facilities were equal. Ct. found where facilities were separate but equal, there was NO equal protection claim that could be made. 1. As a result, many civil rights cases focused on the unequality of the facilities. NAACP legal defense funds challenged Plessy b/c of unequal facilities. For instance, the Ct. in Sweatt found that TX law school had to admit black students into white law school b/c black law school was unequal. iii. Discriminatory impact/effect is insufficient to prove a racial classification. Ct. requires that there be proof of discriminatory purpose. Washington v. Davis. iv. Challenger has burden to demonstrate to court the laws discriminatory purpose Ct. will subject the racial and national origin classifications/discrimination that are facially discriminatory or neutral laws that have been shown to have a discriminatory purpose/effect to Strict Scrutiny asking whether the law is narrowly tailored to meet a specific/compelling gov’t interest. Alienage is subject to Strict Scrutiny but there are some exceptions. a. Ct. will subject interest and law to an over/under inclusive test to determine whether it is narrowly tailored. i. Gov‟t end must be compelling ( Truly significant) 1. Compare with intermediary scrutiny which requires an important end/gov‟t interest; or rational basis review which only requires a legitimate purpose. b. Gov‟t must show that there is NO other, less discriminatory alternative, i.e. that the law is a very close fit and is NOT too over/under inclusive. i. Ct. recognizes that laws will usu. be under-inclusive b/c legislature may proceed one step at a time; Ct. strikes down any law that does not pass strict scrutiny as unconstitutionally discriminating on a suspect class. (2) (3) - 22 - CONSTITUTIONAL LAW II – OUTLINE Brown v. Board of Education (Brown I), 347 US 483 (1954) Class action challenging assignment of students on the basis of their race. At the time Brown was decided, there were 17 schools (+ D.C.) that operated segregated schools, in 1952, the Court sought a delay in decision of Brown b/c the Ct. wanted to have issue of Framers intent in 14th amendment as to abolishment of segregation. RULES: The “Separate but Equal” doctrine has NO application in the field of education, and the segregation of children in public schools based solely on their race violates the EPC. Segregation of public school is blatanly discriminatory b/c it creates an inferiority complex in black children and retards their education where public education is SO important to success and a fundamental right Public education is a fundamental and paramount right which promotes success among people. HOLDING: Ct. found that removal segregation was NOT intent of framers of 14 th amend. Many northern states had segregated schools or no education for blacks; the same congress who passed 14th amendment also segregated the district of Columbia; sponsors of civil rights act of 1866 which the 14 th amendment was specifically set to constitutionalize specifically disclaimed abolishment segregation; people who heard speakers present 14th amendment were seated in segregated sections; Schools had segregated schools in states were emancipation was the strongly supported. NONETHELSS, the Ct. in Brown holds that unequal facilities are blatantly discriminatory and impose inferiority complex on blacks. Court wants to reach the issue of whether separate but equal is a violation of the EPC. Ct. seeks to determine whether there is a discriminatory Effect of segregation on public education??? And whether the EPC is violated by the “Separate but Equal Doctrine.” Ct. finds that a great public education is necessary for success and happiness of its citizens. It is compulsory and a right that the states offer which is so paramount that it must be made available to all on equal terms. Thus, Ct. holds that “To segregate black students…generates a feeling of inferiority that will harm kids for the rest of their lives.” Additionally, feelings of inferiority makes it difficult to learn. In a racially integrated school system, they would NOT have feelings of inferiority. Ct. relies on social sciences including famous experiment where black children choose white dolls over black dolls. (Ct.‟s reliance on social science data is unreliable. Ct. does NOT get full briefing on these issues.) Further, where facilities are equal, the segregation of the races retards learning b/c there are beneficial intangibles that cannot be provided for with separate but equal facilites. See Sweatt (black law students allowed to attend white law schools b/c black law school did NOT provide the intangible beneficial aspects of the white school, namely alumni connections, library documents, etc.). Finally, Ct. holds that further briefing is required as to how to implement the decision that segregated schools are unconstitutional. Enforcement is an important issue. Brown was hard to enforce b/c it required integration. NOTE: Had the case been decided in 1952 when it was originally argued the Πs would have lost by 5-4 b/c there were 5 members that would have voted against it. Chief Justice Fred Vinson died in the intervening year in 1953. President Eisenhower replaced him by Earl Warrren who had previously been the governor of CA and in 1950 he had been a republican presidential candidate. Earl Warren comes onto Court and we get an entirely different outcome. Felix Frankfurter said that when Vinson died it was the first indication he had that there was a God. In Plessy, the Ct. states that the Law in Plessy does NOT stamp colored race with any inferior label, if this be so it is solely b/c the colored race chooses to put that construction on it. Plessy Ct. asserted that blatant unequal facilities that are separate are equal. J. Harlan dissents in Plessy, everyone knows that the law had its origin an purpose not so much to exclude whites from areas where blacks are present but to exclude blacks from white RR coaches. J. Blacks says that anyone with eyes can see the purpose of segregation (to keep blacks down). Should it be permissible for the court to reach a decision that is in conflict with the original understanding (textual support is lacking) of the Amendment? Lawrence, Griswold, and Roe go against original understanding (originalism) as a method of constitutional understanding, but NO ONE criticizes Brown. The result in Brown shows us that the court should sometime ignore original understanding. Does it suggest that the Court should always reject the original understanding of the constitution? Is originalism NOT a good method for constitutional interpretation? Brown is a BIG challenge to for advocates of originalism as the only proper method of constitutional interpretation. Ct. in Brown req‟d country to go along with what was right. Ct. could NOT force this on its own. Congress passed the Civil Rights Act in 1964 that tied federal funding to desegregation that was a catalysts to enforcing Brown. Thus, Brown demonstrates the weaknesses and limits of its abilities to impose social change. - 23 - CONSTITUTIONAL LAW II – OUTLINE Brown v. Board of Education (II), 349 US 294 (1955) Decision comes out in May 1955. Desegregation proceeded at an extremely slow pace. In 1964, only 1% of black children were going to school with white school children. Civil Rights Act in 1964 sped up desegregation by tieing federal funds to desegregation. By 1972, schools were desegregated. RULES: the cases are remanded to lower courts to enter orders consistent with equitable principles of flexibility and requiring the ∆/Def. to make a prompt and reasonable start toward full racial integration in public schools. Ct. requires that Brown I must happen with “all deliberate speed.” (What the hell does “WITH ALL DELIBERATE SPEED” mean?) 14th amendment only prohibits intentional discrimination HOLDING: Ct. holds that lower fed‟l courts will have primary responsibility to assess School authorities actions are in Good faith, implementation of governing const. principles. Courts should be guided by equitable principles of practical flexibility. Burden rests on ∆s/Def. to determine that such time necessary and consistent with GF compliance. Ct.‟s may consider whether administration, facilities, school transportation, personnel, revision of school districts, administration problems, physical condition of plant, compact units to achieve system of determining admission to public schools are proceeding to effectuate Court‟s decision in Brown I. Desegregation not only meant getting rid of the laws on the books but that school officials had to take an affirmative step to intergretation, not just desegregation on its face. NOTE: Communism. The decision in Brown would have never happened had this NOT been a tool of the communist to promote communism. For, as long as the USA had a segregated society, it was difficult to make the argument that a capitalist society was better than a communist society. Interest convergence: when the interest of white dominant society (capitalism) coincided with desegregation b/c of the need to fight communism, then desegregation was declared unconstitutional. In Green v. County School Board, (1968), the Ct. found that the school systems have an affirmative duty to bring about desired effects of Brown I & II. In Swann v. Charlotte-Mecklenburg Bd. Of Ed. (1972), the Ct. upheld a lower court‟s order in Charlotte, NC (where professor is from) that a judge can order busing in between schools as an important tool to fighting segregation. However, when it comes to remedying segregation that the gov‟t itself has contributed to, the court has req‟d that it take affirmative steps other than just get rid of law from the books. In years after Brown, the Court held that schools districts that had previously discriminated based on race were req‟d to do more than to just simply remove the laws off the books. Some districts offered a freedom of choice plans, but usu. segregation continued b/c blacks were pressured NOT to choose the white schools. Even though there was no discriminatory purpose in adopting Open Choice plan, the discriminatory effect is enough to establish a violation of the EPC. Once we have a constitutional violation, we can take effect into account in order to ermedy the past violation that has been established. At this point, the school must show results NOT just clean hands. If the ct. allowed gov‟t agency to remedy a violation of equal protection clause by simply getting rid of law and NOT remedying its effects, then there would be NO incentive for gov‟t officials to desegregate. The school desegregation cases, show the court‟s broad remedial powers, when it is hearing a case in equity; court has broad equitable powers to remedy the violation. The courts‟ continuing to monitor to ensure desegregation. In Milliken v. Bradley (1974), the court imposed a substantial limit on the Court‟s desegration powers. Ct. held that before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes, it must be first shown that there has been a constitutional violation within one district that produces a significant segregative effect on another district. There is a temporal limit on how long the court can regulate/monitor schools. Bolling v. Sharps (1954) DP Applicable to Fed’l Gov’t Segregation of schools in Dist. Columbia public schools. Ct. has to decide this case b/c EPC does NOT apply to the Federal Gov‟t. RULES: Equal Protection applies to the federal gov’t through the DP clause of the 5 th Amend. Strict Scrutiny will apply to fed’l laws. The 14th amendment says that “No State…shall deprive…” HOLDING: Ct. holds that the DPC embodies equal protection and that to discriminate on the basis of race is to deny people equal protection. Ct. finds that the discrimination may be so unjustifiable as to be violative of due process. Strict Scrutiny will apply to fed’l laws. Thus, EP applies to fed‟l gov‟t through jduciial interpretation of the DP clause in 5 th Amend. This is a direct Challenge to originalists. Ct. strikes segregation at beaches, buses, parks, airport restaurants and cites to Brown. Brown does NOT answer those questions b/c it is specific to education and places a lot of weight and emphasis on education and psychological effects on school children Loving v. Virginia, 388 US 1 (1967) Racial Classifications & Right to Marry Case is about two people (white woman and black man) who were VA residents but married in the District of Columbia and were convicted of miscegenation. Law prohibits black and whites equally for marrying outside of their race. VA gov‟t argues that law on its face treats people equally. RULES: any facially discriminatory racial classification is immediately suspect (even if it applies equally to both races) & requires compelling gov’t interest. HOLDING: Ct. holds that law is fundamentally founded on arbitrary classification by race. The mere equal application of a statute containing racial classifications is NOT enough to remove those classifications from the protection of the EPC. VA law rests on racial distinctions and statutes proscribe generally acceptable conduct. Restriction of freedom to marry solely on racial classifications violates the central meaning of EP. Ct. recognizes that any racial classification is highly suspicious b/c race is so highly irrelevant to any gov‟t objective that the court will presume that there is some prejudicial purpose behind the racial classification. Formally neutral laws also have the effect of subjugates one race. The facial symmetry of law is a mirage b/c law embodies a subordinating inequality. Ct. applies strict scrutiny and strikes it down holding that the gov’t has no compelling interest for racial discrimination. - 24 - CONSTITUTIONAL LAW II – OUTLINE Palmore v. Sidoti (1984) Facially Discriminatory Laws Judge gave custody to mother BUT then gave it to father when wife got married to black man; Ct. was worried that child would suffer discrimination. RULES: any law that uses race as a basis for a burden or disadvantage is a facially discriminatory classification Supreme Ct holds that even though the Ct. was trying to look out for the best interest of the child, the gov‟t cannot give effect to private biases. Otherwise, gov‟t can restrict grounds for adoption to racial characertistics. HOLDING: NOTE: In the case of prisons, segregation is allowed b/c of prisoner‟s and guard‟s safety. The only time the Ct. has upheld a law facially discriminating based on a racial classification was Korematsu v. US (1944) where Japanese Americans during WWII were forcibly uprooted and held in detention facilities on the West Coast due to national security concerns. Washington v. Davis, 426 US 229 (1976) Discriminatory Purpose Req’d not just Effects A qualifying test for positions as law officers in DC was failed by a disproportionately high # of Negro applicants. The law the required certain score on test for admission into police force; there is NO racial classification. Black people were disproportionately kept out of DC police officers b/c of a test that all federal EEs had to take. Π claim that this law has a disproportionate effect on African American applicants. Keeps out a higher percentage of the black applicants b/c these minority candidates fail the test than none-minorities. Effect of law has a Disproportionate discriminatory effect. ISSUE: Whether the discriminatory effect was a constitutional violation? A violation of the EPC solely on the basis of a disproportionate discriminatory effect? EPC: No state shall deny its citizens the equal protection of the laws Discriminatory EFFECT is insufficient to establish a violation of the EPC. A discriminatory purpose or intent is necessary before the court will apply strict scrutiny. Challenger has burden of establishing discriminatory purpose. Burden shifts to gov’t to satisfy strict scrutiny if discriminatory purpose is shown. If no discriminatory purpose is shown, then the Ct. will apply Rational Basis Review. RULES: HOLDING: Ct. holds that in order to violate the EPC the Π must show that it was passed with a discriminatory intent/motivation NOT that the law has a discriminatory effect. Thus, Ct. upholds the law despite it having a discriminatory effect. Ct. is focusing on a narrower range of laws that have a discriminatory effect on the basis of race. Ct. finds that discriminatory effect is insufficient to require strict scrutiny. Yik Wo v. Hopkins (1886) Proving Discriminatory Effects Law req‟d license to run laundry. However, all whites, but NO Chinese, got licenses to run laundries. Sup. Ct. reversed Yick Wo‟s conviction for violating the ordinance. RULES: HOLDING: Where administration by state officials of facially neutral law is tantamount to discrimination, the Ct. will find a discriminatory effect to exist, regardless of the actual intent of the law. Ct. found that the ordinance was being administered with a discriminatory purpose. The facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with the administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the state of equal protection of the laws. - 25 - CONSTITUTIONAL LAW II – OUTLINE Gomillion v. Lightfoot, (1960) Proving Discriminatory Effects All of the city‟s black residents, except for 4 or 5, were removed from city limits by a law redefining the city‟s boundaries of Tuskegee. Shape of city was altered from a square to an uncouth 28 sided figure. RULES: Disproportionate effects are so extreme that it justifies a finding that we have a discriminatory purpose behind a facially neutral law The Ct. found that the disproportionate effect was so extreme that it amounted to a mathematical demonstration that the purpose of the line drawing to exclude black residents despite lack of facially discriminatory law. HOLDING: Palmer v. Thompson, (1971) MS closed public swimming pool rather than integrate it. RULES: There is no affirmative duty to operate pool. Proof of Discriminatory Purpose & Effect The motivation of the legislature is irrelevant for EPC claims. Discriminatory PURPOSE alone is insufficient to prove that a facially neutral law constitutes a race/national origin classification. HOLDING: The Ct. held that there has been no case where a legislative act on its own violated EP b/c of the motivations of the legislature. Otherwise, law would be valid once it was repassed for different reasons. Arlington Heights v. Metropolitan Housing Corp, 429 US 252 (1977) Discriminatory Purpose A challenge to a Chicago‟s suburb refusal to rezone a parcel of land to allow construction of low and moderate income housing. Πs/challengers allege that this had the effect of excluding blacks from the city. RULES: Discriminatory Purpose can be shown by CIRCUMSTANTIAL and/or DIRECT evidence: (1) Impact of law (may be so clearly discriminatory such that there is NO other explanation) a. Providing court with patterns or statistics which evidences and can only be explained by a discriminatory purpose. Yick Wo, Gomillion v. Lightfoot. (RARE) b. Impact alone is NOT determinative (2) Historical background; a. Change in substantive policy (change in zoning laws); b. Specific sequence of events prior to/behind the decision ; i. Substantive departures (Sudden change in policy). Departure in terms of the substance of the policy; ii. Procedural Departure. In reaching the decision in the past, the governing body had always followed X,Y, and Z steps, but in this case they ceased to perform their routine tasks (notices, votes, etc.); (3) Legislative history; a. Minutes of meetings, records, reports; b. Testimony by legislators (rare); If law is neutral on its face, Π must show that racial discrimination was a motivating factor; although impact can be relevant, very rare case allows discriminatory impact itself to give rise to finding of discriminatory purpose of law. HOLDING: Ct. holds that in order to determine whether there was a discriminatory purpose, the Court must make a Sensitive inquiry into such CIRCUMSTANTIAL and/or DIRECT evidence of intent that can be made available. Π challenger bears the burden of proof to show that racial discrimination was a factor, NOT the factor. Π does NOT have to show that racial discrimination was the ONLY purpose behind the decision, just that racial discrimination was a factor. If Π/challenger shows that racial discrimination was a factor in the decision making process, then the burden shifts to the Δ to show by a preponderance of the evidence that the Δ would have made the same decision even without the racial discrimination/motivation. - 26 - CONSTITUTIONAL LAW II – OUTLINE XI. EQUAL PROTECTION – Affirmative Action in Education Regents of Univ. of California v. Bakke, 438 US 265 (1978) SS for Educational AA White applicants could only compete for 84/100 seats. 16 seats were reserved for minority applicants. Bakke did NOT get admitted and claimed it was a violation of equal protection based on race. Bakke had higher scores than some of the minority applicant‟s that were admitted. Would he be admitted? RULES: Race may NOT be made the SOLE criterion for an admissions decision All classifications based on race are subject to strict scrutiny regardless of whether program/classification is designed to benefit or burden the racial minority State universities are permitted to use RACE as a factor in admissions to increase diversity but CANNOT rely on numerical set asides or quotas for benefiting MIN race. HOLDING: There was NO MAJ decision in this case. Ct. holds that Strict Scrutiny will apply. There must be a compelling interest and the regulation would have to be narrowly tailored to serve gov‟ts interest. School argues that its interest in increasing # of positions in underserved communities, medical school profession, diversify the medical school, more minority doctors. Also, Univ. of California at Davis intended to benefit racial minorities. Nonetheless, regardless of whether the goal of the program was to help minority students rather than harm racial minority, the Ct. still subjects classifications to Strict Scrutiny. Ct finds that race is so rarely relevant to some purpose that the gov’t may have in mind. Further, the Constitution affords protection based on race b/c every time gov‟t makes race relevant demeans us all when handing out burdens or benefit. Further, J. Powell holds that numerical set asides are NOT constitutionally protected BUT it is permissible for universities to use RACE as a factor in admissions to increase diversity. Ct. recognized that educational diversity is a compelling interest. Ct. finds that a general desire to benefit minorities b/c of past discrimination is NOT sufficient. Further, Ct. finds that since Univ. of CA @ Davis had NO evidence of its past discrimination, then they cannot use affirmative action to remedy a harm they never commited. Ct. cites Harvard admission process as an example b/c race was only one factor in obtaining educational diversity. J. Powell spoke of Educational Diversity as a valid state interest. Thus, racial classification can sometimes be used in the afffirmative action/educational context. CONCURRENCE: Concurring Ct. holds that a number of considerations lead us to conclude that racial classifications designed to further remedial purposes must serve important governmental objectives and must be substantially related to achievement of those objectives. Ct. does NOT want Strict Scrutiny b/c it is strict in theory and fatal in fact (program will be struck down). NOTE: Initially, under Slaughterhouse Cases, the Ct. held that EPC was to protect slaves from discrimination, and a law that does NOT discriminate against african-americans is NOT protected under EPC, so strict scrutiny is NOT req‟d b/c intent of EPC was NOT to protect people other than blacks. HOWEVER, over the years, the 14th Amendment has come to stand for a broader principle that does NOT just extend to former slaves, but to ALL groups (race, national origin, alienage, sex, and legitimacy). - 27 - CONSTITUTIONAL LAW II – OUTLINE Grutter v. Bolinger, 539 US 306 (2003) SS = Narrow Tailoring Weak Sup. Ct. reviews affirmative action. Grutter had high credentials. Univ. of Michigan Law school is ranked highly. UM looked at law school community. Admissions Office read all the application files and in reading the files they were trying to put together a diverse class and took into account various characteristics that might contribute to the diversity of the class, and looked at many characteristics, including race. Further, school did NOT have a quota, but was aiming for a critical mass of African-Americans. Michigan Law program‟s class of 2000 had 14.5% minority students. School says that this number would have been 4% absent the program of diversity. Between 1993-2000, the % of minority students in each class of the lawschool ranged from 13.5% - 20.1%. In 2000, there were 67 non-minority students (white) who were admitted to the law school over minority students who had higher LSAT scores and GPA‟s. RULES: Any affirmative action program cannot unduly burden the non-minority applicants. Strict Scrutiny requires that a law be narrowly tailored to serve a compelling gov’t interest HOWEVER, narrow tailoring does NOT require exhaustion of all possible racial classifications in educational/affirmative action context. Narrow tailoring requires that they engage in serious good faith consideration of workable race neutral alternative that will achieve the diversity that the university seeks. (there may be other less discriminatory alternatives, but Ct. will uphold Univ. action)  In other areas, the Ct. has suggested that narrow tailoring necessarily requires a non-racial, race neutral alternative must be used. Educational diversity is a compelling gov’t interest Individualized consideration to determine whether person would contribute to the educaitonla diversity of the school is allowed. HOLDING: Ct. concludes that diversity educational diversity is a compelling gov’t interest. J. O’Connors states that “Context matters; although all gov’t uses of racial classification are subject to strict scrutiny, NOT all are struck down.” J. O‟Connor mentions something about 25 years for affirmative action to make its effects. Law school had NOT set aside a particular # of seats; rather they looked at how each applicant would contribute to diversity of student body; however, they paid some attention to the #s b/c school wanted to have a critical mass of minority students, NOT just a token representative. Ct. finds that educational diversity will ensure that discussions will be livelier, more engaging ; diversity will help develop cross-racial understanding; diversity benefits society after the student‟s graduate; diversity better prepares students for an increasingly diverse workforce and better prepares them for professionals. Ct. was Informed by amicus briefs (by military and Fortune 500 companies) - companies needed diversity to be competitive in 20th century they needed a workforce to be diverse and military needed to have minority officers b/c a large percentage of enlisted soldiers are minority. Ct. made a PRAGMATIC finding that educational diversity is a compelling gov’t interest. Ct. concludes that compelling gov‟t interest is narrowly tailored. Tension that law school wants to have a racially/educationally diverse class and having this highly selective law school. Ct. finds that non-minority students are NOT unduly burdened b/c white students have been admitted over higher qualified minority students. Some minority students are rejected b/c the white students would best contribute toward diversity DISSENT: J. Thomas said that lowering standards and holding a lottery would create a diverse class. If there is a way to get racial diversity without taking race into account, why does the Court NOT insistent on this alternative? J. Thomas says that they need a racially diverse class and an elite class. Having cake and eat it too. Usu. narrow tailoring makes a gov‟t action choose; Should Michigan Law have to sacrifice its elite status to achieve racial diversity before it can classify on a basis of race? Univ. of Mich. Only takes 10% of 3500 applicants. School has high standards and provides great education for a small # of seats. NOTE: Although these are the three levels, there is a continuum for affirmative action program. Ct. applies SS with less bite so as to justify educational affirmative action. Here, there is something less than strict scrutiny. Further, J. O‟Connor expects that in 25 years schools will NO LONGER need racial classifications to achieve goal of racial diversity. Other Judges see this as an aspiration but NOT as a deadline. - 28 - CONSTITUTIONAL LAW II – OUTLINE Gratz v. Bollinger, 539 US 244 (2003) Univ. of Michigan Undergraduate School of A&S. Admissions process gives various points for various categories (20 points for minority race). RULES: Achieving diversity in classroom is a compelling gov’t interest. Any particular admissions program must be narrowly tailored to achieve that compelling gov’t interest. The most prominent feature of a narrowly tailored program would be the individualized consideration taking into account race among other diverse factors. Ct. requires individualized consideration at graduate and undergraduate school level NO mechanical, automatic, systematic points systems are allowed. See Grutter & Gratz. Program cannot be a quota system.  In Bakke, the Ct. held that quota systems are impermissible b/c whites only compete for 84 seats. Minorities compete for all 100. University can pay some attention to numbers to achieve a critical mass, but schools cannot set a quota. School must take into account race neutral alternatives, but does NOT have to sacrifice selectivity. School must consider in good faith race neutral alternatives.  Ct. may be applying a relaxed strict scrutiny standard or recognizing that state has a compelling interest to obtain elite student body and racial diversity. Context matters. All racial classifications that are subject to strict scrutiny will NOT be invalidated. The Non-favored race cannot be unduly burdened by the admissions program.  In Gratz, some whites got in over smarter blacks. HOLDING: Ct. struck down admissions process b/c it was not narrowly tailored to achieve allowable racial diversity goal. Ct. points to the notion of individualized consideration b/c the program in Gratz fails narrow tailoring b/c it did NOT provide meaningful, individualized consideration of the applicants. Thus, Ct. finds that this program is worse than Grutter b/c it is an automatic mechanical, racial preference as opposed to the individual determination in Grutter. Undergraduate program favors race and seeks to establish a critical mass quota. Ct. finds that the mechanical point system is worse than the individual determination. In Grutter, diversity is more than just race, more value given to experiences than just race. In undergraduate program, the admissions process is NOT looking at each person individually and race becomes a defining feature which trumps all other experiences (20 pts.). Critical mass should be the goal NOT a specific numerical quota. DISSENT: J. Souter feels that it is unfair to treat candor of College as an Achilles heel. The DISSENTERS in these cases see EPC as protecting NOT just individual rights but protecting group rights. Ct. is looking at the status of a group which makes up of members of a race. Is EPC making sure that individual is treated without regards to race or whether a race should NOT be subjugated to another race. EPC mandates color blindness on the part of the gov’t. EPC is an anti-subjugation of any race to another race but does NOT necessarily preclude of taking race into account so long as it does NOT subjugate a race to another race. Dissent argues that the MAJ Ct. may be concerned about appearance and that there is MORE of an appearance of fairness when people are told that they will be considered as an individual rather than being placed on a point value grid. Further, DISSENT argues to remove affirmative action b/c a Stigma results to minorities b/c their acceptance is NOT based on merit but on point system. NOTE: Is Ct. punishing honesty? Law school is not being completely open about its admissions process. The college has been very forthright about its admissions process. Universities can use racial classifications to achieve racial diversity, but reqm‟t of individualized consideration may make it an impossible task. Wygant v. Jackson Board of education¸ 476 US 267 (1986) Remedial Purposes – Role Models Board had rule that said it would lay off white teachers over black teachers despite seniority to maintain racial balancing. School system argued that its compelling gov‟t interest was to provide minority role models to students. RULES: State/Univ. may NOT discriminate based on race past the point required for legitimate remedial purposes. Universities have a compelling gov’t interest in enrolling educationally diverse student body. Societal discrimination alone is INSUFFICIENT to justify a racial classification. HOLDING: J. Powell held that role model theory had NO stopping point and would allow school to act arbitrarily and discriminate against individuals. Ct. rejects the “Diversity in faculty as role models for minority students” argument because it fails to satisfy a compelling gov‟t interest. Ct. holds that even if there was a compelling gov‟t interest, the layoff program was NOT narrowly tailored b/c it imposed too high a burden on white teachers. Ct. draws a distinction in the hiring process and in layoffs. (When preferences given to minority in hiring, the burden imposed on non-minority candidates, the burden is placed on many white applicants; however, when preferences are given to minority workers in layoffs, the entire burden in achieving racial diversity falls on specific white workers.). Ct. holds that school should adjust hiring practices to maintain the balance of racial diversity. Ct. finds that Layoffs can never be narrowly tailored enough b/c such a large burden (loss of employment) must be met with a compelling interest, and usu. there is a less discriminatory alternative in the form of hiring practices. - 29 - CONSTITUTIONAL LAW II – OUTLINE XII. EQUAL PROTECTION – Affirmative Action Past Remedy = Compelling Interest Fullilove v. Klutznick, 448 US 448 (1980) Ct. upheld a preference program at a federal level where 10% had to be minority business. Congress picked a halfway point from the total % of minority population, which is similar to Richmond picking halfway btw 50% so they got 30%. Ct. found that there was/is a high # of minorities involved in construction industry who have been discriminated against, and that the affirmative action program was a justifiable remedy despite the remedy NOT being limited to those who had specifically suffered discrimination. NO SPECIFIC LEVEL OF SCRUTINY applied. Richmond v. J.A. Croson, Co., 488 US 469 (1989) SS for Race Conscious Remedial Measures City is 50% black but construction contracts were not going to minority businesses. Law passed allowed for City to consider race of contractor placing the bid. Primary contractor must guarantee that 70% of the dollar will go to minority business enterprises. However, the minority business does NOT have to be in Richmond in order to count toward the 30% of the subcontracting that has to go to minority businesses. White Contractor sues despite being the low bid b/c he did NOT meet the requirements that 30% of his sub-contracts will go to minority businesses. Richmond relies on the following statistics: Richmond indicates that only .67% of $ goes to minorities for construction contracts; Percentage of minority owned business getting gov‟t contracts and % of blacks in Richmond; Minorities are underrepresented in trade unions or construction associations; council member Marsh made a general statement about construction industry where race discrimination is wide spread; City council points to congressional findings about nationwide discrimination in construction industry RULES: a program that requires general contracts on city construction projects to subcontract at least 30% of the contract amount to minority owned business violates the Equal Protection Clause. Strict scrutiny applies to racial discrimination in employment and contract settings. Gov’t/state can remedy past discrimination, but must first prove that there is past discrimination. Program must be narrowly tailored, not over inclusive and broad, and city must consider race neutral alternatives. Strict Scrutiny will be applied to review race-conscious remedial measures. Seeking to remedy past gov’t discrimination is a compelling gov’t interest City’s racial discrimination attempting to remedy past harms may be upheld where City shows that there was a discrimination in construction industry and that it was a passive participant; or that there was general societal discrimination. Unyielding racial quota is NOT justified. (Ct. Overrules Fullilove) Affirmative Action may be used for the following purposes: (1) remedy past discrimination by erasing the effects of the past discrimination by providing a benefit to someone who personally suffered past discrimination; (2) remedying past discrimination with a broader meaning, where benefits are not strictly limited to those who suffered the discrimination; See US v. Paradise, where court upholds a law that requires one black hired/promoted for each white hired/promoted in AL. (3) remedying past discrimination requiring those in a field/industry where there is approved discrimination to provide a remedy, even if it is NOT demonstrated that the particular entity violated the law, and even though the recipient need NOT be show to have personally suffered discrimination. See Fullilove. HOWEVER, the Ct. will NOT allow for UNYIELDING racial quotas. See Croson. Ct. holds that Strict Scrutiny applies in any racial classification case. Ct. strikes down Richmond law as failing strict scrutiny‟s narrow tailoring reqm‟t. The law was enacted to remedy past harms against blacks was NOT narrowly tailored to serve that interest b/c it benefitted other minorities (Eskimos, latinos, etc.) and applied to MIN businesses outside of Richmond (over-broad program/law). Ct. holds that City could provide funding for minorities construction companies, or reduce limitations on contracting requirements. “Using strict scrutiny is a way to smoke out illegitimate purposes. Absent searching judicial inquiry into the justification to certain race based measures; there are simply no way to determine which racial classifications are benign or one motivated by racial inferiority without applying strict scrutiny.” Ct. does NOT want to create a difference or draw a line btw benign and racial discrimination, and strict scrutiny prevents drawing of lines, for if it did NOT, a finding that a discrimination was benign would require a lower standard of scrutiny. Ct. points the fact that 5 out of 9 city council members were black and they represented the MAJ, as an additional factor weighing in favor of strict scrutiny. Is it plausible to suggest that the majority city council would oppress the whites in the city? In past affirmative action cases, the argument has always been made, that where the majority imposes burdens on itself (whites) there should be NO need to apply strict scrutiny; BUT here the actual MAJORITY (blacks) is imposing burdens on perceived majority (whites). Ct. rejects claims of past discrimination based on statistics offered by Richmond b/c the Ct. finds that there is an unwarranted underlying assumption that the number of minority businesses for a particular trade will exactly match the population. HOWEVER, Ct. finds a compelling gov’t interest in that the City seeks to remedy past discrimination in construction industry. Ct. holds that city can take affirmative steps to dismantle system that finances evil of private prejudice. HOWEVER, Richmond must show that it was a passive participant in the construction industry to rectify/remedy past racial exclusion. Ct. is making clear here that Richmond does NOT have to show that it specifically discrimination and just show that City was a passive participant. MAJ states that under the DISSENT’s view, race will always be relevant in American life. However, DISSENT states that to stop focusing on race it is first necessary to take into account race. Color blindness will NOT get us to a point where race does NOT matter. J.O‟Connor found that similar to affirmative action in education, No Racial Quota is justified. HOLDING: DISSENT: Ct. finds that it is absolutely clear when racial classification is being used for remedial purposes and when it is being used to discriminate against races. - 30 - CONSTITUTIONAL LAW II – OUTLINE Metro Broadcasting, Inc. v. FCC, (1990) RULES: I-S for Congressionally Approved AA Race conscious measures mandated by Congress even those measures which are NOT remedial in the sense of being designed to compensate victims of past gov’t or society discriminations, are constitutionally permissible o the extent that they serve IMPORTANT Govermental objectives within the power of Cognress and are substantially related to the achievement of those objectives. Adarand Constructors, Inc. v. Pena, 515 US 200 (1995) SS for Affirmative Action Fed‟l gov‟t gave general contractors on gov‟t projects a financial incentive to hire subcontractors controlled by socially and economically disadvantaged individuals in particular the gov‟t use of racia based assumptions in identifying individuals. The fed‟l Gov‟t does NOT limit that the socially disadvantaged to minorities, but there is a presumption that minority owned businesses are socially and economically disadvantaged. RULES: Principle of Skepticism: all such racial classifications are inherently suspect. Principle of consistency: the std. of scrutiny should NOT depend on the race of group that is burdened or benefited Principle of congruence: 14th amendment only applies to state; EPC applies to Congress through DPC of 5th Amendment, and both should be congruent with same standard. Numerical set-asides must meet narrow tailoring under Strict Scrutiny standard. HOLDING: Ct. holds that strict scrutiny applies to all racial classifications adapted by any levels of gov’t. Ct. specifically overrules Metro Broadcasting. Ct. recognizes that 3 general propositions exist to respect gov‟t racial classifications. (1) skepticism: all such classifications are INHERENTLY suspect; (2) Consistency: the standard of review does NOT vary depending on race; (3) Congruence: that which applies to the states must apply to the nat‟l gov‟t as well. Ct. remands case to lower courts to answer the question of whether this program will survive strict scrutiny. CONCURRENCE: J. Scalia in Adarand Concurrence holds that the kind of racial classification used here is the same way of thinking that produced race slavery, race privilege, etc. Unless we stop taking race into account, we will fall back into that kind of thinking. Congress can never have a compelling interest in discriminating on the basis of race. DISSENT: Argues for structural reasons to allow for a lower std. citing Federalist # 10. Less likely that prejudices against a minority will be enacted in national legislature. - 31 - CONSTITUTIONAL LAW II – OUTLINE XIII. EQUAL PROTECTION – Race Preference in Electoral Districting Principle of “One person, one vote” requires fair, equal # of representatives; thus electoral districting cannot be drawn so that people in one part of the state cannot have more voting power than people in another part of the state. Further, population shifts within the state might require you to redraw districts to have an equal amount of representation. Some state have attempted to create some legislative districts where the members of the minority are the majority. Shaw v. Reno, 509 US 630 (1993) NC population grew, so NC legislature had to redraw the districts to accommodate a newly added 12th seat. In doing so, NC legislature created 2 MINMAJ districts. The initial plan had only one minority majority districts, but they had to comply with the voting rights act and they had to create another minority majority district. If you redraw the legislative districts to reduce the # of MIN-MAJ districts, or place some minorities in each of the 11 districts, then there would be NO minority representatives. First Minority Majority District is District #1 in upper right NC with some fingers sticking out. Second minority majority district is narrow and goes west and then south. New district extends approximately 160 miles and at some point is no wider than the highway. It goes through 10 counties an five of them become cut into 3 districts. White voters are complaining about District 12. White voters argue that #12 dilutes their votes. The entire idea behind segregation is to separate based on race. Despite arguments that racial /voting gerrymandering violates the equal protection clause, Ct. finds that everyone can still vote. The voting strength of white voters across the state has NOT been diluted. It is true that they will have less voting power than if there was just one minority majority district. But relative to their population they will NOT have their voting strength diluted b/c they still have 80% of right to vote; 20% of NC is black voters. Π argue that districts should be drawn in a color blind fashion. They are arguing that they have lost their right to participate in a color blind electoral process b/c voters have been segregated by race. District #12 had 51% of minorities, so that any representative would also have to deal with whites to get votes. ISSUE: RULES: Can state legislature draw the district in such a way so that a particular district may have the MAJ of a MIN population? Facially neutral laws that have a discriminatory impact/effect are subject to Strict scrutiny. Race conscious districting can violate the EPC if (1) the use of race was a predominant factor such that traditional districting principles were subjugated (compact, contiguous, and respect for political boundaries); OR (2) where the district has a shape so bizarre that the shape in itself makes clear that the race was the basis for drawing the lines; AND the state cannot show that they have a narrowly tailored law for a compelling gov’t interest;  A compelling gov‟t interest may be complying with an AG‟s finding of the Voting Rights Act, but in Shah, Ct. finds that AG made an incorrect interpretation. Shah does NOT answer the question of Whether or not it would be a compelling gov’t interest to comply with a correct interpretation of the voting rights act? Race in electoral districting is permissible be, where it meets strict scrutiny and provided that three principles of electoral districting are upheld: (1) Compactness – all together is a traditional principle of electoral districting (people will have similar interests) (2) Contiguity – district is connected and NOT separated (People will have similar interests) (3) Respect for political subdivisions (Respect for a smaller gov’t’l unit than the state, by keeping Newark, Trenton, together; People living in political subdivision will have common interests). Where the shape of the district is so weird, that the mere shape will lead us to applying strict scrutiny b/c race would probably be the reason for such a drawing  If the discriminatory effect is so great, we can infer from the discriminatory impact that there was a discriminatory purpose. Appearances matter; this looks so bad and so much like apartheid that strict scrutiny will be applied Ct. holds that remedying past discrimination is ONLY a compelling interest if state has enough evidence to show that this remedial action would remedy past discrimination  After remand, after Dist. Ct. strikes it down, the Supreme Ct. affirms and concludes that NC did NOT pass strict scrutiny and law was NOT narrowly tailored to serve a compelling gov‟t interest Voting Rights Act § 2 prohibits election systems or districts that have a discriminatory impact on racial minorities. (Cannot draw legislative districts that would have a discriminatory impact on racial minorities. Congress passes the Voting Rights Act under power of 15th Amendment § 2. Congress can enforce provision of this amendment where states have history of diluting minority votes requires that the AG review the redrawing. AG said that NC had to have 2 minority majority districts. NC tries to create two majority minority districts.). Voting Rights Act § 5 requires that the Attorney General must approve the redrawing of districts prior to the new districts for states that have a history of discrimination of voting rights. (Congress does NOT trust the states, so it passed this law). HOLDING: Ct. finds that the creation of such a district was invalid in this situation. Ct. parallels it to political apartheid. Ct. holds that this type of legislative districting might reinforce racial stereotypes; (African Americans have different political interest than white voters. Ct. assumes that members of a particular racial group think alike regardless of work, education or success and vote/follow the same candidate; Ct. also holds that exacerbation of racial, bloc voting results. Ct. is stating that drawing lines this way and taking race into account suggests that they are sending the message to representatives that they only represent voters based on race. (Racial bloc voting – people vote in line to whatever race they belong to). Ct. states that by drawing lines like this, they will be perpetuating racial bloc voting. Racial bloc voting may continue in congress b/c these representatives were elected by blacks. Ct. finds that this is NOT a compelling gov‟t interest to comply with AG. Ct. finds that AG is incorrect in requiring two districts. Ct. finds that voting rights act does NOT require to have two MIN-MAJ districts; so AG was incorrect. Ct. notes that electoral districts are based on location so people are classified on the basis of geography. On its face, the legislative redrawing is neutral, but the shape of the district is indicating that the legislature is drawing around minority residents. Also, legislative redrawing are clearly based on racial characteristics. Legislatures are always conscious of race when they draw districts; legislators know the state and where minorities live. - 32 - CONSTITUTIONAL LAW II – OUTLINE District #12 - 33 - CONSTITUTIONAL LAW II – OUTLINE Miller v. Johnson, (1995) RULES: The state may not, absent extraordinary justification, separate its citizens into different voting districts on the basis of race. If it is NOT obvious from the shape of the district that race was used in drawing its lines, the judiciary should use strict scrutiny if it is demonstrated that race was a predominant factor in districting. Π can meet his burden of proof by showing that the legislature subordinated traditional race-neutral districting principles (compactness, contiguity, and respect for political subdivision or communities defined by actual shared interests), to racial considerations. HOLDING: Ct. finds the state may not separate its citizens into different voting districts on the basis of race. A district need NOT look bizarre for it to be subject to Strict Scrutiny. Bush v. Vera, (1996) RULES: Strict Scrutiny does NOT apply merely b/c redistricting was performed with a consciousness of race OR b/c of the creation of MAJ-MIN districts. Πs/challengers must prove that other legitimate districting principles were subordinated to race. HOLDING: Ct. finds that legislative redrawing are clearly based on racial characteristics. Legislatures are always conscious of race when they draw districts; legislators know the state and where minorities live. Hunt v. Cromartie, 526 US 541 (1999) NC congressional district redrew the District #12. RULES: Legislature motive must be predominantly racial, NOT political for SS to apply Burden of proof is on the Πs who attack the district to show that at a minimum the legislature subordinated traditional race-neutral principles to racial considerations. See Miller v. Johnson. Race MUST NOT simply have been a motivation for the drawing of the MAJ-MIN district, but the predominant factor motivatingt he legislature’s districting decision. See Bush v. Vera. Πs must show that a facially neutral law is UNEXPLAINABLE on grounds other than race Since the underlying districting decision is one that ordinarily falls within the legislature’s sphere of competence, the Ct. MUST exercise extraordinary caution in adjudicating claims that a state has drawn district lines on the basis of race. Caution is especially appropriate where the state has articulate d a legitimate political explanation for its decision and the voting population is one in which the race and political affiliation are highly correlated. HOLDING: Ct. holds that it is true that this district has a funny shape, and court notices that there was an effort to put blacks into this district. Ct. also finds evidence that the reasons that minorities were put into this district to create a safe democratic district. Ct. finds that in a case as this one where MAJ-MIN districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show (1) @ least that the legislature could have achieved its legitimate political objectives in alternative ways that (2) are comparably consistent with traditional districting principles; AND THAT (3)those districting alternatives would have brought about significantly greater racial balance. NOTE: it is safe for a democratic to win, but NOT a republican to win. Its okay to draw a district in such a way to make sure that one party wins, but NOT the other. Partisan gerrymandering is okay, but NOT racial gerrymandering. - 34 - CONSTITUTIONAL LAW II – OUTLINE XIV. EQUAL PROTECTION – Sex & Illegitimacy Craig v. Borren, (1976) Intermediate Scrutiny for Gender Classifications Men could not buy 3.2% beer until they are 21. Women could drink 3.25% beer @ age of 18. Law prohibited the purchase but NOT the consumption. Men could get older girl/friends to buy beer. Beer is NOT that intoxicating. 2% of males at that age get arrested for drunk driving. 1.8% of women get arrested for drunk driving. RULES: Intermediate Scrutiny requires that law be substantially related to an important gov’t interest for discriminations based on gender classifications (men or women). Administrative ease is NOT an important gov’t interest. Under rational basis review, an over-inclusive and under-inclusive law will survive rational basis b/c a perfect fit is NOT req’d. Under strict scrutiny, a perfect fit is req’d so an over-inclusive/ under-inclusive law will kill it. Intermediate Scrutiny requires something in between specific but NOT perfectly targeting group. (Means need to be substantially related, BUT not narrowly tailored). HOLDING: Ct. holds that Intermediate Scrutiny is the standard of review. (Intermediate with respect to end (gov‟t interest) and means (way gov‟t goes about it)). Ct. finds that law fails intermediate scrutiny b/c the law is over and under inclusive, not sufficient statistics, not substantially related to traffic safety b/c men could get women to buy the beer, etc. Court is applying heightened level of scrutiny b/c classification based on Sex is BUT is NOT a fundamental right nor a suspect classification. EPC does NOT mention anything about sex. Ct. finds that sex is very rarely relevant to any gov‟t interest; there is a history of discrimination; and it is an immutable trait. Ct. presents the following arguments for HIGHER Std.: (1) Traditionally, women have been discriminated against and there has been a power imbalance; (2) Sex is an immutable classification; you are born with it; (3) Sex is rarely important to some gov't interest; (4) gov't can classify people by a more relevant classification; (5) Sex classfications are usu. stereotypes and overbroad classifications. HOWEVER, Ct. finds that gender classifications are NOT similar to racial classifications b/c: (1) Discrimination against women has NOT been as severe African-Americans; (2) Women are NOT literarlly a MIN, but they make up a MAJ; (3) Although sex is usu. irrelevant, there is SOME instances where sex would be a legitimate way to classify people to achieve some interest based on REAL differences than is the case for racial classifications. Thus, Ct. finds that there are sufficient reasons to apply a heightened level of scrutiny above rational basis review BUT not enough reasons to apply strict scrutiny as with racial classifications. Mississippi Univ. of Women v. Hogan, (1982) Nursing school denied admission to men propagating stereotypes that women are nurses. Ct. applied IS and declared unconstitutional a state nursing school that was available only to women. J Brennan says that it is NOT putting women on a pedestal in protecting sex classifications but they are being harmed b/c law is reinforcing stereotype that Women should be nurses and Men should only be doctors. - 35 - CONSTITUTIONAL LAW II – OUTLINE U.S. v. Virginia, 518 US 515 (1996) Intermediate Scrutiny requiring Real Differences VMI is a state sponsored university and had a policy of excluding women from attending. VMI has an intense physical training method. School has an adversative method. VMI wants to preserve this way of educating its students. VMI argues that in excluding everyone but men, the school states that it wants to model programs and training with more diverse courses with the assumption that all classmates are MEN. Educational Diversity: menu of colleges in state of VA, VA wants to have lots of different things to choose from, diverse range of experiences, single sex education will be beneficial to the citizens of VA. RULES: Intermediate scrutiny will apply to sexual classifications Burden of justification is demanding and rests on the state; Gov’t must actually demonstrate an exceedingly persuasive justification Under intermediate & strict scrutiny, the purpose has to have been thought of prior to the classification, gov’t cannot rely on justifications after the fact, but can only base the law on those things that were its actual purpose. Compare with rational basis review where the state‟s interest asserted in litigation did NOT matter at all and could be made up the fact. See Lee Optical Laws that are based on overbroad generalizations (men benefit more from adversative method, and women are NOT suited for this method) are INSUFFICIENT to establish substantial relation to important gov’t interest. Separation by sex requires that the Substantial relation be an accurate proxy for what state is trying to achieve. Sexual classifications require that they meet intermediate scrutiny and be based ON REAL DIFFERENCES. (Biological differences, reproductive capacities, hormones, height). Remedy has to eliminate so far as possible, the discriminatory effects of the past and must put the people whose rights are denied into same place as if there was no violation. 14th amendment only applies to gov’t/state actors, NOT individuals or private entities (Private actors can have single sex institutions.) HOLDING: Ct. finds that there are pedagogical benefits that can be gained from having single sex education. BUT Ct. says that it does NOT buy that this is why VMI is all male. VMI was NOT opened to offer diverse range of education b/c in 1839 there was NO schools for women. Ct. finds that the adversative method is important for citizens, but law cannot be based on overbroad generalization. Some women may be suited for the adversative method and NOT all men are suited for this method. Law is over inclusive and under inclusive. Ct. finds that it is these types of stereotypes that have been used to keep women down. Ct. finds that you can classify on the basis of sex for real differences of sex, but NOT hypothetical differences. After Hogan case, VA appointed a commission whether VMI should be all male and in that commission‟s report there is NO mention that VMI should be kept all male b/c VA wants to advance interest in educational diversity. Further, Ct. noted that the supposedly similar women‟s school did match VMI‟s status or history. VMI is assuming that men and women do NOT physically match up. B/c of privacy issues, they would have to change the whole method. VA tried to remedy this violation by creating an institution for Women. VWIL (Virginia Women‟s Institute of Leadership). NOT live in military style residents, not same physical rigor, courses are different. According to the Court, the only suitable remedy is to allow women to go to VMI. Ct. finds that it is NOT enough that state has NOW setup a women‟s school that provides an opportunity that is single sex. There are Some women would rather go to VMI and they are being denied that right. Remedy has to eliminate so far as possible, the discriminatory effects of the past and must put the people whose rights are denied into same place as if there was no violation. Further, VMIL does NOT provide a comparable opportunity, VMI has a history and training ground. THERE ARE NON-TANGIBLE benefits that cannot be provided in a separate school In evaluating single sex education, Ct. cares about whether the single sex program being challenged is a unique opportunity and only one sex is permitted, then the other sex is being denied that opportunity. With respect to Single Sex Education, the MAJ Ct. insists that it is NOT ruling out completely the possibility of single sex institutions. J. Ginsberg suggests that the state might run single sex schools as part of an evenhanded and diverse educational menu. As long as a state has all male and all female schools and neither sex is being denied a unique opportunity, these single sex institutions might be upheld. The Devil would be in the details b/c state would have to make sure that neither sex is being disadvantaged. Ct. has NOT dealt with a case like this since VMI DISSENT: the law may be a little over/under inclusive and it is good enough for intermediate scrutiny, b/c substantially related just means that it is a pretty good fit, and this is a pretty good fit for VMI to say that men benefit/learn more from adversative method. NOTE: Burden of Proof. Π/challenger must establish that sexual discrimination is a motivating factor and burden would shift to the other side (∆s/state), and if they can show that they would have made decision for another reasons, than rational basis review is the standard as with Gedulig. If the state cannot show that it would have made the same decision absent sexual classification, then intermediate scrutiny applies. See Arlington Heights. - 36 - CONSTITUTIONAL LAW II – OUTLINE REAL DIFFERENCES AND NOT BASED ON OVERBROAD CLASSIFICATIONS Geduldig v. Aiello, (1974) Biological Differences – Pregnancy CA disability law provided payments for disabilities lasting > 8 days and < 26 weeks, but denied coverage for disabilities caused by pregnancy. HOLDING: Ct. held that it was NOT a classification warranting more than Rational Basis Review. Ct. held that it was NOT a denial of equal protection for a state‟s disabilities insurance system to excklude pregnancyrelated disabilities, but include disabilities for men. There is NO risk from which men are protected and women are NOT. Likewise, there is NO risk from which women are protected and men are NOT. The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. Program divides potential recipients (pregnant women and NON-pregnant persons). While the first is exclusively female, the second is for members of both sexes. Pregnancy is NOT a sex-based discrimination. NOTE: Congress specifically overruled Gedulig with the Pregnancy Discrimination Act. Michael M. Case, (1989) Biological Differences & Stereotypes Justified CA statutory rape case that punishes the boy or man who is under 18 who is NOT his wife can be prosecuted for statutory rape even if the boy is also under 18, and yet the female is NOT prosecuted, even assuming that it is consensual. HOLDING: Ct. upholds this b/c the real differences exist, b/c the consequences of pregnancy fall more heavily on the women, and State has interest to prevent underage pregnancies and women will naturally be deterred. Ct. finds that Punishing women will make it less likely for women to report men. Law was clearly adopted based on racial stereotypes; however, initially, the law was passed b/c the premise was that young women, NOT men, were deemed legally incapable of consenting to an act of sexual intercourse. Young women‟s chastity was considered particular precious and had to be uniquely protected by the State. J. Rehnquist said that the state has a substantial interest in and can attack the problem of teenage pregnancy and sexual activity by regulating and punishment men, NOT women. Pregnancy acts a deterrent for women. Roskter v. Goldberg, (1981) Biological Differences & Military Affairs Ct. accepts stereotypes as basis for gender classification benefiting women. The Law does NOT say that gov‟t can choose only men and NOT women; it requires that Only men register for the draft. HOLDING: Ct. upholds this law b/c @ the time only men could be drafted. Ct. found that the need for healthy deference to legislative and executive judgments in the area of military affairs. Ct. holding is premised on the fact that women, unlike men, are NOT eligible for combat and that Congress/President had evidenced an intent to retain that policy in the future. Ct. Did NOT answer Whether just drafting men is constitutional? Nguyen v. INS, (2001) Real Differences & USC Citizenship Where father is USC but unmarried, the child must prove paternity and being raised prior to 18 years old. However, where mother is NOT USC and father is, the child is automatically USC. HOLDING: Ct. upholds law that treats children of unmarried parents where father is NOT a US Citizen and mother is an American citizen differently. Ct. finds that Congress‟ determination that it was easier to trace mother‟s relationship and easier to prove who the mother was and to figure out whether she was a citizen b/c she necessarily has to be present @ the birth of the child. - 37 - CONSTITUTIONAL LAW II – OUTLINE XV. EQUAL PROTECTION – Alienage & Illegitimacy | LEVELS of SCRUTINY Justifications for Higher Std. of Scrutiny: 1. Politically powerless; 2. Discrete and insular minority; 3. Immutable characteristic; 4. Past discrimination; 5. Relevant to legitimate goals?; 6. Prevalence of Stereotypes CLASSIFICATIONS Race } Alienage* } STRICT SCRUTINY National Origin } ______________________________________________________ Sex Legitimacy } } INTERMEDIATE SCRUTINY ILLEGITIMACY Ct. waivered for a while as to what level to apply to laws that determined whether or NOT you were born in or out of wedlock. Ct. holds that Intermediate Scrutiny will apply when settling whether child was born in and out of wedlock. The following are Justifications for using HIGHER Scrutiny: (1) Immutable characteristics; (2) Past discrimination; (3) Relevance to legitimate goals (Dealing with inheritance, Proof of family relationship, BUT Usu. not relevant. Levy v. Louisiana, (1968) Right to Sue – Illegitimacy State law allowed All marital children to sue but NO marital children could sue. HOLDING: Ct. declared unconstitutional a state law that prevented nonmarital children from suing under wrongful death statute for losses because of a mother‟s death. Ct. found this difference unreasonable stating that legitimacy or illegitimacy of birth has NO relation to the nature of the wrong allegedly inflicted on the mother. Ct. finds the classification to be invidious in discriminating against children when no action, conduct or demeanor of theirs is possibly relevant to the harm that was done to the mother. Trixon v. Gordon, (1977) I-S + BITE IL law allowed for governing intestate succession that barred inheritance by non-marital children from their fathers. HOLDING: MAJ Ct. struck down law b/c state interest (promotion of legitimate family relationships) which was NOT substantially related to this important interest. Ct. finds that a mere stating of an important interest is NOT enough. Lalli v. Lalli, (1978) I-S + BITE NY law held that a child may only inherit from his father if paternity was established during father‟s lifetime. HOLDING: Ct. upheld law b/c paternity had to be established in order to receive inheritance. Ct. found that some nonmarital children could inherit (those who established paternity) and others could NOT. State‟s interest in preventing fraud was sufficient and substantially related so as to make receipt of inheritance contingent on establishing paternity during father‟s life. - 38 - CONSTITUTIONAL LAW II – OUTLINE ALIENAGE (* NOT always subject to Strict Scrutiny). Alienage is a discrete and insular minority similar to that described in Carolene Products, FN 4, as a group cannot vote so court needs to intervene to protect them. Alien‟s are a special MIN who cannot Vote. It is an immutable Characteristics b/c they are legal aliens by merely existing. Further, past Discrimination (Africans, Italians, Germans, Irish, Hispanics, and Asians) is evident. Alienage usu. is NOT relevant to a gov‟t interest with the exception of state gov‟t jobs that are substantial, important gov‟t function. Ct. typically addresses laws that discriminate against lawful non-citizens, usu. does NOT apply to classifications against illegal aliens. However, this classification does NOT apply to Illegal aliens b/c they choose to be here unlawfully. Graham v. Richardson, (1971) Strict Scrutiny – Federal Preemption RULES: classifications based on race, national origin and ALIENAGE are inherently suspect and SS applies HOLDING: State law denies welfare benefits to aliens. Ct. declared law unconstitutional. Ct. found that law violated EPC. Aliens as a class are a prime example of a discrete and insular minority b/c they cannot vote. In Takahashi v. Fish & Game Comm‟n (1948), the Ct. states that the power of a stat to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits. Ct. offered an additional reason for invalidation of restriction b/c the area was that of fed‟l-state relations. Congress has NOT seen fit to impose any burden or restriction on aliens who become indigent after entering the USA. Thus, Ct. finds that this law was preempted by federal control over the field of immigration law. In Re Griggiths, (1973) Ct law prohibits LPRs from practicing law. HOLDING: Strict Scrutiny with LESS BITE Ct. holds that law does NOT have a sufficiently substantial interest. (neither interest in high professional standards nor the role of lawyers in protecting clients interest or as officers of court). Ct. applied strict scrutiny as indicated by Graham v. Richardson. Sugarman v. Dougall, (1973) Strict Scrutiny – Impt. Gov’t Function EXCEPTION NY law provided that only American citizens can hold permanent positions in competitive classified civil service. RULES: State may condition employment on citizenship, where requirement meets strict scrutiny. Dougall EXCEPTION: Ct. finds that a less stringent form of SS will be applied where State is requiring citizenship, and thus classifying on the basis of alienage, for employment in a gov’t employment state position that (1) has discretionary duties and carries authority; (2) influential position such as teacher; (3) policymaking position such as officials/reps/governor. Functions must go to the heart of representative gov’t HOLDING: Ct. finds that the restriction was under-inclusive and fails Strict Scrutiny b/c state‟s interest in having an undividedly loyal EE was NOT met by narrow tailoring. Further, Ct. states it has NOT held that state MAY NOT require citizenship as a qualification for office. Ct. is recognizing a State’s historical power to exclude aliens from participation in its democratic political institutions. NOTE: In Foley v. Connelie, (1978), Ct. upholds Dougall exception indicating that state troopers are clothed with authority but DO not formulate policy per se; also, they exercise an infinite variety of discretionary powers. In Ambach v. Norwick, (1979), the Ct. upheld the Dougall exception as recognizing a special significance in teachers who promote and teach citizenship. Toll v. Moreno, (1982) Federal Preemption Ct. strikes down state law that declines to grant domicile to aliens and had the effect of NOT granting in-state tuition fees. Ct. holds that Congress granted domicile to aliens, and state is pre-empted and cannot deny them domicile. Hampton v. Mow Sun Wong, (1976) Rational Basis review for Decision by Congres/President Ct. strikes down law requiring citizenship for federal employment. Ct. finds that RBR will be standard when Congress/Pres. pass law but NOT fed‟l agencies. Matthews v. Diaz, (1976) Medical Benefits Ct. upholds law making receipt of Medicare based on alien classifications. Ct. shall apply a deferential standard of review b/c Congress has a broad power to make rules re: alienage. Further, the treatment here did NOT demonstrate invidiousness; law is NOT irrational and serves legitimate purpose. - 39 - CONSTITUTIONAL LAW II – OUTLINE XVI. EQUAL PROTECTION – Disability, Age and Poverty Mentally Retarded – RBR + Bite Cleburne v. Cleburne Living Center, Inc., 473 US 432 (1985) TX Zoning ordinance that req‟d permit for a home for mentally retarded. Special permit application was req‟d for developer. Reqm‟t did NOT apply to other sorts of group homes. Developer challenges this reqm‟t under violation of EPC. The Lower Ct. applied an Intermediate Scrutiny standard. Lower Ct. held that mental retardation is a quasi-suspect classification. Justification for this quasi-suspect status: (1) Politically powerless; (2) Discrete and insular minority; (3) Immutable characteristic; (4) Past discrimination; (5) Relevant to legitimate goals (not so b/c gov‟t may have interest). RULES: Supreme Ct. adopts only RATIONAL BASIS REVIEW for discrimination against mentally retarded State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary and irrational. U.S. Dept. of Agr. v. Moreno Ct. assumes that they have a rational justification (post-hoc) and Ct. will grant much deference. Gov’t cannot give concern to private biases. NOT A legitimate gov’t interest.  Similar to case where Ct. took away custody from mother and gave it to father when mother married black man, so as NOT to subject child to stigma of such a bi-racial bias HOLDING: Ct. holds that Rational Basis Review is the standard for reviewing classifications based on mental retardations. Ct. holds that the TX zoning ordinance does NOT pass rational basis review. Concerns for floods, fires, etc. and singling out homes for mentally retarded are NOT rationally related btw concerns and zoning ordinance. Further TX argues that it does NOT want HS students to harass retards; however, HS had 30 retards. Ct. finds that these justifications were based on prejudices against retards; Ct. concludes that Negative attitudes, unsubstantiated concerns are NOT SUFFICIENT GOV’T INTEREST. (People usu. do NOT want these homes. NIMBY (not in my back yard) problem). Ct. holds that mentally retarded persons are a vast, diverse group and judiciary has an interest classifying such individuals but it would need qualified professionals to do so. Thus, the Gov‟t will have to pass laws that classify on the basis of mental retardation and when gov‟t does that the court is NOT in a good position to determine whether such classifications are discrimination or helpful. Further, Gov‟t has passed anti-discrimination laws that benefit the mentally retarded, so they are NOT as politically powerless as other MIN groups; so Ct. does NOT need to step in with a higher standard to scrutinize laws that are passed. NOTE: Rational basis review is NOT toothless. Every time the court has held rational basis review was to give the gov‟t a free pass, but here the Ct. struck it down, which indicates that (1) rational basis review with bite ensures that gov‟t cannot take advantage of rational basis review b/c here it is Rational basis review WITH BITE. all five justifications for a heightened scrutiny are met in this case, but court only applies RBR + Bite. Ct. does NOT want to pass judicial scrutiny over policy decisions that determine classifications of mentally retarded. Ct. does NOT want to and does NOT trust itself to distinguish policy btw invidious classifications. AGE Ma Board of Retirement v. Murgia, (1976) Rational Basis Review Ct. will apply rational basis review and defer to legislative judgments so long as the law is rationally related to any conceivable, legitimate gov‟t interest. POVERTY & WEALTH Ma Board of Retirement v. Murgia, (1976) Rational Basis Review Poverty and Wealth are NOT suspect classifications and do NOT require strict scrutiny. Disadvantageous impact on the poor does NOT suffice to invoke review. - 40 - CONSTITUTIONAL LAW II – OUTLINE XVII. EQUAL PROTECTION – Sexual Orientation Romer v. Evans, 517 US 620 (1996) RBR + Bite Colorado passed a law that prohibited laws that protected gay people from discrimination. CO is a conservative state, but has liberal enclaves. Boulder, CO had enacted laws that protected gays, blacks, spics, women, etc. There are laws in CO that protect people on the basis of age, military status, parent, pregnancy, political party, BUT being gay cannot be protected from discrimination. CO passed a law that said that no GOVT unit of the state (legislature, school board, commissioner) could pass laws that prohibited discrimination on the basis of sexual discrimination. All current laws must be erased and NO future laws could be passed. RULES: Rational basis review is applied. (Whether or not the law is rationally related to a legitimate gov‟t interest) Rational Basis Review + Bite (continuum from automatic acceptance  automatic rejection. Animus against gays, lesbians, even when presented as a purported moral basis for a law, is NOT sufficient to meet rational basis test. HOLDING: Ct. holds that this law does NOT pass rational basis review. B/c the other interests that the state asserts are so unconnected to the law that the only real interest in passing this law was a gov‟t desire to harm a politically unpopular group, as in the sodomy case. Ct. does NOT take post-hoc asserted rational purposes. The Ct. questions what the gov‟t says its asserted interest is. MAJ holds that gays are denied equal protection b/c if they want to get anti-dsicrimination laws protected, they have to get a constitutional amendment, which is more onerous than just going to city or county council. Other people can get anti-discrimination laws protected through a simpler process. Ct. found that in this case, the law prevented the gay community from getting ANY protection from discriminatory practices without a constitutional amendment. This law is so overly broad b/c the state‟s interest in protecting freedom of association prevents gays from getting ANY protection. Here the law will be struck down where bare desire to harm an unpopular political group will be struck down. Also, under Lawrence, the Ct. will NOT allow moral interests to be sufficient interests. DISSENT: J. Scalia says that gays and lesbians are NOT being denied EPC equal protection of the law. They just cannot get special protection. There are NO laws that say Con. Law Professors cannot be discriminated against. J. Scalia holds that GAYS are NOT politically powerless. Have high disposal income. Possess political powers much greater than their numbers. NOTE: Ct. does NOT decide the issue of whether or NOT classifications on the basis of sexual orientation might be subject to a higher level of scrutiny, so the Ct. has NOT definitely answered this question. Ct. has NOT decided whether discrimination based on sexual orientation requires heightened scrutiny. (1) Sexual Orientation discrimination affects a Discrete or insular minorities (numerically -10% of population); (2) there is evidence of Past Discrimination; (3) Immutable Characteristics (up for debate - even among gays); (4) Politically Powerless (geographically dispersed); (5) Prevalence of Stereotypes; (6) Relevant to legitimate gov‟t goals (Preserve marriage, Protect moral/social goals of state); - 41 - CONSTITUTIONAL LAW II – OUTLINE XVIII. EQUAL PROTECTION – Fundamental Interests SS - Denial & Dissolution Of Voting Rights State charged that everyone who was 21 years or older a poll tax that was $1.50. Π/challenger claims that this is a violation of equal protection based on a right to vote. Π must rely on something other than specific amendments, so Π claims that poll tax of $1.50 violates the 14th Amend., Equal Protection Cl. RULES: 15th amendment says that African Americans or slaves cannot be denied on that basis (Some protection for right to vote under the 15th amendment). 19th amendment gave the right to vote to women (Cannot discriminate with respect to gender in voting) 24th Amendment prohibited poll taxes in elections for federal elections (the right of citizens of the US to vote in any primary or other election for Pres., VP, for electors for Pres. And VP, or for senator or representative in congress, shall NOT be denied or abridged by the US or any state by any reason of failure to pay any poll tax or other tax). Protects federal elections, NOT state elections 26th Amendment - NO age discrimination in voting if you are over 18 years of age (Right of citizens of US who are 18 years or older shall NOT be denied to vote by fed‟l gov‟t or state by account of age). 14th Amendment, § 2 – If state denies the right to vote to any males over the age of 21, the state’s representation in Congress shall be reduced accordingly. (HOWEVER, does NOT guarantee a right to vote to males. Merely states that representatives shall be accorded by population, but when the right to vote is denied to any of the males of the state being 21 years of age, the basis of representative therein shall be reduced in proportion shall bear the whole number of male citizens 21 years of age in that state). Ct. finds a FUNDAMENTAL INTEREST in franchise right should be in a free and unimpaired manner that is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. HOLDING: Ct. finds that the TEXT of the Constitution makes reference to voting and prohibits discrimination on the basis of race, sex, or age and prohibits poll taxes in fed‟l elections, and that state‟s representation will be reduced accordingly if state denies males over age of 21, BUT THERE IS NO EXPLICIT wording granting a fundamental right to vote. Here, the Court is NOT dealing with laws that discriminate against particular groups of people, but with laws that discriminate with regards to particular activities. Ct. holds that to introduce poll tax would have a discriminatory effect on voters. In contrast, the State can impose a fee for getting a driver‟s license b/c driving is a privilege where voting is a fundamental right. Ct. finds that being able to pay the $1.50 poll tax has NO rational relation to voting. Ct. rejects state‟s argument that someone who is willing to pay is someone who is willing to vote ($1.50 = $10 today). 40 Year Old Virgin – Right to Vote Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) Kramer v. Union Free School District No. 15, (1969) Law says to vote for who is on the school board the person must be a parent of a child in district or own or lease real property in the district. Kramer does NOT qualify to vote in this district b/c he is 30 year old virgin living with parents who really wants to vote. RULES: A compelling state interest and statute must be narrowly tailored. A close and exacting examination of the statute is req’d to ensure that it meets a compelling state interest. Strict Scrutiny applies to protect fundamental interest of voting rights. Under strict scrutiny, the law/statute cannot be over-inclusive or under-inclusive. Law must be narrowly tailored and match up perfectly with the compelling goal that the gov’t is trying to achieve. Law cannot be over/under-inclusive When gov’t denies the right to vote, the Ct. will apply strict scrutiny regardless of whether of the classification is based on sex, race or age. Ct. applies strict scrutiny for burden on voting. HOLDING: Ct. finds that Strict Scrutiny should be applied and that rational basis is insufficient to protect this standard. Ct. finds that Restrictions on right to vote was used as a specific illustration as a restriction of the breaking down of the political process. Ct. finds that property ownership is NOT sufficient or narrowly tailored for interest of ensuring voters concerned with school affairs b/c classification burdening right to vote. Ct. applies Carolene Products FN 4, so strict scrutiny will apply where a fundamental interest (right to vote) is being rigged/tampered with, interfered with. Further, the very assumption that we are working on (that voters and political process are working fine) is at issue here. In this case, there would be no remedy b/c right to vote would prevent voters from making changes. Ct. does NOT think that this restriction on voting is narrowly tailored to this particular interest, BUT did NOT rule on whether interest on voting is compelling. Ct. finds that the law was NOT tailored with sufficient precision as to school District‟s Interest in maintaining the value of homes increases with perception of school‟s quality. Ct. finds that law is Under-inclusive b/c it excludes 31 year old bachelor or over-inclusive b/c they own a second home or do NOT have kids in the school, etc. - 42 - CONSTITUTIONAL LAW II – OUTLINE NOTE: Ct. in Harper does NOT specifically state that there should be a heightened standard (Strict Scrutiny) b/c it concludes that law should be carefully scrutinized, yet also says that law is NOT rationally related. Normally, Rational basis review would be sufficient b/c it is based on an assumption that the political process is working and that c the gov‟t is promoting the people‟s interest. Under RBR, the Ct expects that people are represented and that they can cast their views and they are not being denied a vote or say on how things are done, i.e., those affected would have ability to make changes in the political process. Thus, judicial review is anti-democratic, and Const. establishes democratic gov‟t so court does NOT want to interfere with democratic processes. Ct. does NOT want to intervene with democratic processes when political process is working okay. HOWEVER, as in Carolene Products, FN 4, when laws interfere with the proper function of the political process, the Ct. should apply Strict Scrutiny. Ct. states that the justification for double standard is the interference with the political process, which normally would provide sufficient protection. Ct. should NOT try to place substantive limits on what the branches of the gov‟t can do. Ct. places procedural limits. Ct. intervenes when political process breaks down. Reynolds v. Sims, 377 US 533 (1964) Vote Dilution AL legislature based voting districts on 1900 census. In the meantime from 1900-1964, the population probably had grown disproportionately with more urban areas being populated. Initial election districts which have NOT been changed the situation is that there are fare more people living in some districts than other districts. Πs claim that their vote was diluted b/c they live in a more crowded district where the voting districts apportioned representatives based on population of voting districts. A heavily populated urban area has one representative where lesser populated area has the same or more representatives RULES: One person, One vote is the governing principle. (More representatives for areas with more population)  Geographic Disparity in the size of the districts, but equality in the # of people represented by each representative States must update their census prior to drawing legislative election districts Mathematical precision is impossible (usu. there will be an odd number that would have to be divided equally, but state must make good faith effort to achieve mathematical equality (i.e., 1000 votes – 1 representative)). A good faith effort toward the goal of electoral districting. (based on population, NOT race) Drawing of election districts can be divided so long as respect is paid to traditional districting principles (where the division based on mathematical precisions are NOT possible). Voter approval does NOT justify a violation, an individual’s const. protected right to cast an equally weighted vote cannot be denied even by a voted of a MAJ of a state electorate. HOLDING: Ct. agrees and holds that vote dilution violates the EPC. “To the extent that a citizen’s right to vote is debased he is that much less a citizen.” Ct. finds that there is NO justification for the state to give less representation to voters in other parts of the state; i.e. give more weight to some people from a certain part of the state than other people from other part of the state. Ct. states that the legislature represents people NOT land, so a economically powerful district (large – tobacco farmers) does NOT require more representation. Ct. holds that legislatures represent people NOT trees or acres. State is anti-environment; all that counts is the people NOT the physical entity of the state. Places a premium on the interest of the people NOT the land. Discounts the interests in the physical geography of the state apart from the people. Representative gov‟t must give people equal voting strength. Ct. holds that it is very hard to achieve the “One person, one vote is a background districting” principle. It is a standard that makes it very difficult for state to comply, and may result in a snake cutting through N.C. NOTE: Cases enfranchised minorities/African-americans to vote and be represented. Largely white rural voters were having more say than poor black urban citizens. In Kirkpatrick v. Priesler (1969)¸ where state draws up districts for House of Representatives (Congressional districts), the Ct. looks @ this very closely and demands mathematical precision. Ct. rejected district that was 2.8% off from population. Ct. demands something very close to mathematical precision. HOWEVER, where states drawing their state electoral districts, they have more flexibility b/c they greater interests in drawing their districts, and Ct. has upheld districting based on a 14% variance or 9.9% variance. - 43 - CONSTITUTIONAL LAW II – OUTLINE Davis v. Bandemer, 478 US 109 (1986) Political Gerrymandering Democrats won MAJ of popular vote. Districting Lines were drawn by state legislature that was controlled by the republican party & at next election the Democrats received 52% of the total house vote and 53% of the senate vote. Democrats got 43/100 house seats (NOT 52% of vote). Democrats got “only” 13/25 senate seats (approximately 53% of seats). Democrats claim is that there voting strength has been diluted, NOT that they have been denied the right to vote or that obstacles have been placed in their way. If the lines had been drawn properly to represent voting strength, they would have gotten 53, not 43, of the House Seats. Incumbents draw districts to retain control. RULES: One person, one vote. Where there is a continued frustration of the will of the MAJ of voters, Πs must show Intentional discrimination and actual discriminatory impact by political districting Ct. will infer intent from effect.  However, remember that Ct. in Washington v. Davis, the Ct. will NOT infer intent from impact unless impact is extraordinary, as in Yick Wo (chiness laundry licenses NOT given to any Asians. Whether over time the system has been arrange in a manner so that it will consistently degrade a group of voters influence on the political process as a whole. Π must show “Continued frustration of the will of MAJ of voters or effective denial to a minority of voters of a fair chance to influence the political process.”  Ct. is worried about opening the floodgates, does NOT want to redraw maps throughout the country. Π must show more than just discriminatory impact where democrats that were elected did NOT get all seats they should have received. Π must show consistent degradation of ability to evoke change/influence political process. HOLDING: Ct. holds that these claims are justiciable and DO NOT present a political question. Ct. can apply one person, one vote standard. Under Baker v. Carr, there are judicially discoverable and manageable standard. Ct. finds that some form of political gerrymander is okay and inevitable, so districts must be drawn and redrawn, and ct. is reluctant to get involved in these cases where political districts have been redrawn. Ct. holds that there was intent to discriminate by accepting District Court‟s findings that there was intent to discriminate. Ct. proceeds to address discriminatory effect/impact issue (where only 43 votes were obtained instead of 53 votes). Ct. finds that it is NOT enough that in this one election, the dilution of the democratic representation is NOT enough impact b/c the District Court declined to hold that the districting in 1981 predicted the consequences of the 1982 election. It would have to be something conclusive, NOT just swing voters. Whether over time the system has been arrange in a manner so that it will consistently degrade a group of voters influence on the political process as a whole. Π must show a Continued frustration of the will of MAJ of voters or effective denial to a minority of voters of a fair chance to influence the political process. Ct. is requiring (1) Influence in the political process different from being able to elect the person of your choice; OR (2) Not just look at one election and cite to the difference in seats and votes. Ct. holds that overtime there will be swings, and since different political parties go back in forth between holding seats, the Ct. will NOT get involved b/c they can gerrymander each other. NOTE: A recent case, Vieth v. Jubelirer, (2004), the Ct. finds that these claims MAY NOT be justiciable. J. Kennedy withheld opinion and did NOT rule finding of non-justiciability out right. Further, Ct. will not strike down political redistricting within the decade when a census has NOT been conducted. Challengers sought to have redistricting invalidated b/c it reaked of political gerrymandering. However, Ct. believes political process will protect the citizens. NOTE: In Baker v. Carr, the Ct. answer question of whether this is a political question? Ct. held that these were NOT political questions and could indeed review whether this was a proper voting district and stated the six principles of a political question doctrine. Prior to Baker, Ct. could not review these courts b/c these cases were NOT justiciable as political questions, but Baker allowed Ct. to review AL judicial district - 44 - CONSTITUTIONAL LAW II – OUTLINE XIX. EQUAL PROTECTION – Fundamental Interests (cont’d) Griffin v. IL, (1956) Appellate Review of Criminal Trials RULES: right to an appeal from a conviction of crimes is established today that is is fundamental to the protection of life and liberty as a necessary ingredient of due process of law state is NOT req’d by Const. to provide appellate Ct or a right to appellate review at all. State (who grants appellate review) must provide a trial transcript or its equivalent to an indigent criminal defendant appealing a conviction on non-federal grounds State is prohibited from pricing out indigent defendant from appellate review. HOLDING: Ct. holds that a state must provide a trial transcript or its equivalent to an indigent criminal defendant appealing a conviction on non-federal grounds. Π challenger had attached the failure to provide him with free transcript and claimed that the refusal robbed him of appellate reviews due to his poverty. Ct. held that DP and EP call for procedures in criminal trials which allow NO invidious discrimination. In criminal trials a state can NO more discriminate on acct of poverty that on act of religion, race, color. Ct. finds that there is NO meaningful distinction btw a rule prohibiting poor from defending themselves @ trial and a rule that in effect denies the poor an adequate appeallte review. Further, state is NOT req’d by Const. to provide appellate Ct or a right to appellate review at all. HOWEVER, if state grant‟s appellate review, it must do so in a way so as to NOT discriminate against poor. Ct. holds that destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts. Douglas v. CA, (1963) Appointment of Counsel Ct. held that the gov‟t must provide indigent criminal defendants free counsel on appeal, at least for their initial appeal which state law requires the courts of appeals to hear. Ct. held that appeals process should be meaningful; otherwise, indigent defendant will be going through motions without legal research, arguments, examinations of record, etc. Ross v. Moffet, (1974) Right to Counsel Declined Ct. holds that where state has provided indigent defendant with attorney for initial appeal, the state is under no obligation to provide indigent defendant with attorney for discretionary appeals, or collateral attacks on conviction. Ct. is only concerned with indigents access to a fair and meaningful appellate process. Boddie v. Conneticut, (1971) Access to Courts RULES: right to divorce is a subset of a right to marry b/c failure to get divorced prevents marriage to another person. HOLDING: Ct. finds that marriage involves interests of basic importance in our society. Ct. finds that it is UNconstitutional to deny indigent individuals access to the courts for filing a divorce petition b/c of their inability to pay. Thus, preventing individuals from obtaining a divorce (by requiring indigents to pay high fees) precludes them from exercising their right to marry someone else. Ct. held that state may NOT preempt a right to dissolve this legal relationships without affording all citizens access to the means it has prescribed for doing so. Ct.‟s decision turns on the importance of underlying interest. Ct. finds that resort to judicial process is only place where you can get divorced. Further, Ct. finds a waiver of fees for FUNDAMENTAL INTERESTS such as right to marry. - 45 - CONSTITUTIONAL LAW II – OUTLINE M.L.B. v. S.L.J., 519 US 102 (1996) Waiver of Fees – Quasi-Criminal Context – Fundamental Right Appellant had to come up with records to proceed with the appeal. Women wanted to appeal decision to lose her children. Appeal court wants everything up to the order being appealed to Supreme Court. She is appealing a final decision that will deny all her rights to her children. Π argues that DPC is violated b/c inability to afford appeal = inability to appeal = failure of 3 basic DP duties. Π challenger argues that EPC is violated b/c some criminal cases cover costs for appeal, but in civil state does not provide the record. Π argues that this line draws a line btw those who can afford and those who cannot afford the appeal. RULES: DP usu. means that before anything is taken away, certain protections are given to the individual before gov’t takes away life liberty or property; (1) NOTICE; (2) opportunity to be heard; (3) Neutral decision maker No constitutional right to an appeal a civil or criminal case. Thus, there is right to appeal for free. Ct. has already held that there is NO right to appeal, so there is NO right to have transcripts provided or have state pay for preparation of the record. Rational basis review applies unless there is a suspect classification, i.e. where gov’t has drawn lines to make court suspicious. Race, alienage and get strict scrutiny. Sex and get intermediate scrutiny. Classifications based upon wealth only get Rational Basis Review. Generally, rational basis review is standard to apply when reviewing access fees; however, where fundamental right is at issue, the Ct. will apply the EXCEPTION that access to judicial process in cases criminal or quasi-criminal in nature, may NOT turn on ability to pay. HOLDING: Ct. finds law unconstitutional and state cannot require that parents pay a fee for preparation of trial record for termination of custody to children (where fundamental rights are at issue). Ct. applies the Griffin standard in this case b/c the removal of her two children results in a quasi-criminal status. State does NOT have to provide the appeal, but if it does decide to provide appeal, then state is barred from barring indigents from this appellate process. Ct. stresses that A FUNDAMENTAL RIGHT IS INVOLVED (choice about marriage, family life, upbringing of children), are among associational rights ranked as of BASIC importance in our society. Ct. indicates that generally, rational basis review is standard to apply when reviewing access fees; however, where fundamental right is at issue, the Ct. will apply the EXCEPTION that access to judicial process in cases criminal or quasi-criminal in nature, may NOT turn on ability to pay. . Ct. finds that termination adjudications involve the awesome authority of the state to destroy permanently all legal recognition of the parent/child relationship. NOTE: In Griffin, the case was purely criminal and court finds that prohibitive fees violates equal protection despite there being no constitutional right to an appeal. ∆‟s inability to pay is NO indication of his guiltiness. Ct. acknowlwedes that people who have money will have met requirement for an appeal. In Harper, there is NO rational basis to pay a fee than to get a driver‟s license. - 46 - CONSTITUTIONAL LAW II – OUTLINE San Antonio Independent School Dist. v. Rodriguez, 411 US 1 (1973) No Fundamental Right to Education School district had two different amounts for school funding which are based on property value for school board. Higher property values then more money per pupil. People are paying more taxes. State boosted the dollar value for each poorer child from $26 $356 and for richer kids $333$594. Gap is narrowed somewhat but there is a large disparity btw per pupil funding among poor and rich districts. Πs challenge that the quality of education is of such a lower level in poorer district. Πs state that the quality of education is based upon wealth (rich get better schools). Unequal quality of education is in violation of const. b/c they burden a fundamental interest. In other cases, court found that state cannot discriminate on the basis of wealth. Π challenge law as violating EPC b/c it infringe a fundamental interest. ISSUE: Whether Π was absolutely deprived of a benefit? RULES: Education is NOT a fundamental interest. Poverty is NOT a suspect classification and therefore discrimination against the poor only need meet Rational Basis Review. HOLDING: In the past the ct. does NOT strictly scrutinized wealth discrimination. Also, Ct. recognizes that this group of persons; Poor people usu. live near commercial centers so they have better schools b/c of high property taxes that Corp. pay to gov‟t. Ct. finds that education is NOT a fundamental right b/c Ct. cannot create substantive rights; further, education is NOT as socially significant as housing/subsistence. Ct. finds that there IS NOT RIGHT TO EDUCATION implicit/explicit in Constitution. Ct. does NOT find any basis for saying that such a right should be implicitly protected. While education is linked to right to exercise of franchise, and free speech, the Ct. finds that education is NOT a fundamental right so as to deserve Strict Scrutiny protection. Dispositively, Ct. notes that the gov‟t was NOT denying education, but merely providing unequal education. Finally, Ct. upholds TX district funding regime as satisfying RBR and being rationally related to a legitimate gov‟t interest. Ct. is concerned with extending this rationale to other issues. Ct. does NOT want to second guess all social/ economic/ policy decisions that gov‟t makes and reading in fundamental interests and going down Lochner road where everything is subject to rational basis review. (Rodriguez came down 3 years before Washington v. Davis; In Washington v. Davis, ct. was concerned with opening up floodgates by allowing Πs to challenge gov‟t classifications under EPC by showing discriminatory impact). Ct. puts a cap on recognizing fundamental interests that are NOT explicitly stated in Const. NOTE: Alternate Reasons Why Education may be protected, although, not explicitly so, in Constitution: (!0 Education may be protected by the 1st amendment right to free expression so as to take full advantage of the 1 st amendment; (2) There is NO ABSOLUTE Right to vote but you should be educated to make an informed choice; (3) in Brown v. Board of Ed, Ct. recognized an exceedingly impt. need for equal education b/c of its pivotal role in success of citizenry Plyler v. Doe, 457 US 202 (1982) TX law had was passed so that Children of illegal immigrants were denied public education. RULES: RBR + Bite When there is a discrimination on the basis of wealth, where there is an Absolute deprivation of the interest at stake, then it will apply Strict Scrutiny Rational Basis Review for educational funding/wealth classifications Public education is NOT a right granted to individuals by the Const. Neither is it merely some gov’t benefit indistinguishable from ther forms of social welfare legislation HOLDING: Ct. holds that since children did NOT have any participation in the act of living illegally in the USA b/c they crossed with their parents and the children should NOT be prevented from participating as full citizens. State argues that preventing public education deters illegal immigration. In Rodriguez, Ct. finds that education is NOT a fundamental interest (must be provided to children of illegal immigrants under Plyler); HOWEVER, Ct. in Brown establishes the paramount importance of education. Here, Ct. talks about the importance of the education in becoming citizens but did NOT go so far as to say that Education is a fundamental interest and apply strict scrutiny when education is burdened. Ct. focuses on the great harms to large #s of children if denied education; unfairness for penalizing them for parent‟s choices. Ct. invalidated the TX law WITHOUT declaring education a fundamental right or using SS. NOTE: Ct.‟s holding in Plyler is consistent with the Ct.‟s general unwillingness to find that there are Constitutional rights to affirmative services by the gov‟t. Further, there is a Sliding Scale of Scrutiny. In discussing different tiers of scrutiny, there might be a spectrum from strictest type to most lenient type of scrutiny. Grutter bears that out. J. Marshall argues for that kind of gradation. At this time, Ct. had only developed strict scrutiny and rational basis review. Intermediate scrutiny developed with sex discrimination cases. J. Kennedy did NOT clearly state what the review standard was but just compared state‟s interest versus the deprivation on the individual‟s interest. Romer. Ct. moves in between the tiers and does NOT stay directly in between them. - 47 - CONSTITUTIONAL LAW II – OUTLINE XX. CIVIL RIGHTS UNDER CONSTITUTION – State Action Doctrine Private Actors – Discriminatory Conduct Civil Rights Cases, 109 US 3 (1883) Cases that came about b/c blacks were being discriminated from hotels, theaters and railroads. Πs claim that their Rights are protected by Civil Rights Act. Congress passed this law (Civil Rights Act of 1883) b/c they are concerned about discrimination even after the passage of 13-15th amendments throughout parts of country and Congress wants to help deal with it by ensuring that former slaves were NOT discriminated with respect to these types of facilities. Congress sought to Protects blacks discrimination from inns, theaters, buses, places of public amusement. Law provides an enforcement mechanism. Violation of statute is misdemeanor and there is a civil penalty. RULES: 14th Amend. does NOT reach private acts of discrimination by encompasses only state action which is discriminatory; does NOT confer on Congress the power to reach individual actors; §5, Congress has power to enforce by appropriate legislation this article Congress lacks the power under 14th Amend. § 5, which regulates STATE action, b/c MAJ finds that 14 th amendment only protects discrimination from STATE. NOT private action. Civil Rights Act 1875– fed’l statute passed by Congress in the wake of the civil war to address the situation of the freed slaves (unconstitutional law b/c applies EP to private actors). Fed’l gov’t does NOT have power to restrict freedom of association. Private actors will occasionally be found to be state actors. Thus, NON-governmental entities will be declared to be state actors such that requirements under 13-15th amendments apply to them and held to Const. stds. of conduct. Private Actors = State Actor: (1) Public Function EXCEPTION to state actor reqm’t. (a) Whether private operation is sufficiently a public function and if so it will be treated as a state actor. (i) Private entity is a state actor such that the 13 th/14th amendment applies b/c private actor has stepped into the shoes of a state/gov’t actor (1) Gov‟t should NOT be able to avoid constitutional limits by delegating its task by outsourcing all of its function to private entities; (2) Where action is usu. a public function then there is an argument that the persons is a state actor (ii) Ct. has held that it applies only when private entity exercises powers traditionally/exclusively reserved to these states. Ct. will only find state action if a private entity is exercising functions that were exclusively state functions. (1) Are they exercising public function that by tradition has been the exclusive province of state? (A) Running of a park; town; or elections. Running of a shopping mall is NOT considered a public function. In Marsh v. AL, a company town. A town in AL that is owned by the Company. Everything in town is run by the Company. Outsourcing prison to private company will make the prison a state actor. Further, Ct. has held that a private park are state functions (traditionally been the kind of thing that the States have exclusively done (2) Entanglement EXCEPTION. (a) Sufficient state connections or NEXUS to impose constitutional restraints btw state & private actor. Relationship is close enough such that we want to conclude either Const. applies to private actor and that state should separate from private actor (b) Symbiotic relationship. Burton v. Parking Garage, Ct. is looking for sufficient points of contact btw state and private entity to find state action. APPEARANCES MATTER. HOLDING: Congress claims it gets its power from 13th Amendment that gives Congress power to pass all laws necessary to enforce the amendment. Ct. holds that the purpose of the 14th Amendment was to prevent state action. The 14th amendment only applies to state action. Individuals that feel that they are wronged should redirect their efforts to the states to regulate such conduct. The public places protected are in the hands of private parties. Ct. finds that under 14th amend., § 5, Congress is allowed to remedy, protect, correct that which is prohibited by § 1, which says that STATES cannot discriminate; § 5 is limited to what § 1 prohibits. Further, Ct. finds that Gov‟t cannot limit autonomy of individuals to choose who we want to associate with.. Right of association – 1st amend. – implicated if const. itself prohibited us from who we want to associate with. HOWEVER, the states are free to regulate interactions btw individuals within the states. Such a reqm‟t promotes the states interest in maintaining the sovereignty and limiting the power of the federal gov‟t. It is important to note that Private individuals make more actions that affect us NOT of the state; principally, private ERs. Finally, Ct. finds that § 2 of 13th amendment states that slavery shall NOT' occur under fed‟l union. State or private cannot discriminate regardless of whether or NOT it is private/state conduct. While the power is broad, it requires slavery to be the result of the state action and here there is mere discrimination, which is outside the scope fo this power. DISSENT: J. Harlan is only dissenter and believes that these public places should come under § 1 and therefore Congress should have power to limit what these quasi-public entities should do. NOTE: Ct. decision left private individuals subject to private discrimination. State turns a blind eye to it. Cases had huge impact on white, southern states. Jim Crow laws were put in place to maintain segregation/discrimination - 48 - CONSTITUTIONAL LAW II – OUTLINE Shelly v. Kramer, 334 US 1 (1948) Direct State Action Petitioners/Πs are the blacks who have purchased the homes. Πs/challengers are the ones appealing from below. State upholds racial property covenant. Πs get into state court b/c property owners wanted to get blacks from moving in. Other members of community sue to enforce the covenant. Restrictive covenant prevented neighbors from selling property to black people. Covenants run with the land (50 year covenant). State ct. enforces the covenant and that means black persons cannot buy it and this covenant is enforceable under state law. The Covenant itself does NOT violate the 14th amendment; state‟s enforcement does. Prospective purchasers/Petitioners argue that the covenant will only be enforced judicially and that involves state action. For state to enforce covenant, it must meet state action requirement and court must dismiss, and the involvement of the state court puts case under 14th amendment as an action by state. ISSUES: Is there state action where state facilitates something that promotes racial discrimination as in enforcing racially restrictive covenant? RULES: Judicial enforcement of a private racially restrictive covenant is considered state action. Legislative bodies at all levels and their enactments are state actions. Rules and decisions by gov’t agencies at all levels are state action State is responsible for the actions of anyone to whom the state provided services (1) Where Rights are being denied through direct involvement/action by the state; AND (2) State’s action itself brings about the denial of the rights; HOLDING: Ct. holds that there is state action in this case. Supreme Ct. holds that state ct. has to refuse to enforce racially restrictive covenant on the grounds that it would violate the constitution. Ct. holds that but for state action, the individuals would have been able to purchase homes. The state denied to petitioners enjoyment of homes based on race. Buyers and sellers are ready to enter into negotiations. But for the role of the state court, these people would be able to afford it and live in home. “It is gov‟t employed judges enforcing the contract law of the state, which does NOT forbid racial discrimination, that implements discrimination by enforcing a racially restrictive covenant.” Burton v. Wilmington Parking Authority, 365 US 715 (1961) Substantial Nexus = State Actor Declaratory and injunctive relied against Eagle Coffee b/c rest. Refused to serve food and drink b/c he is black. Coffee shop was leasing parking space in publicly owned space. In Burton, there was NO ALLEGATION that the state had affirmatively approved the discriminatory action; the state was so involved that it could be recognized as being closely intertwined with private actor. ISSUES: Is there significant involvement / connection btw the public & private entity such that we can say that there exists state action? RULES: Ct. requires Significant involvement by the state to find that state acts in discriminating against private individual Racial discrimination by a business which is located in and constitutes a part of a state-owned public facility, is considered to be state action and is forbidden by the 14 th Amend. Look at all points of contact btw private actor and state to determine whether we have sufficient connection btw the state and private actor. It will be a matter of degree to determine how much involvement is required. Profits are NOT dispositive. HOLDING: Ct. finds that the gov‟t was so entangled with the restaurant as to create a symbiotic relationship sufficient to create state action. Ct. looks for significant involvement by the state in the private conduct. There is more than a simple lease arrangement. Café does NOT want to serve blacks b/c it claims it will hurt business. Here, the lease contributes to the overall profit of the public parking lot. This is a physical commingling b/c the Coffee shop is located within building dedicated to public uses. NOTION OF APPEARANCES IS VERY IMPT. There is a flag in coffee shop. It looks more like we have a mingling of private entity with public space. It looks more like state is approving what is going on in coffee shop. Lease contributes to the cost of building. Simply leasing from gov‟t is insufficient to find that private entity is a public actor such that the EPC and 13th amendment applies to their actions. Public ownership of public parking lot. As in Grutter, it did NOT look so bad when law school made its diversity decision but in Gratz it looked worse b/c of pointage system. If profits were dispositive, then all leasing arrangements would constituted sufficient connection btw state and private entity; Ct. holds that profits is NOT enough and requires more (physical commingling and dedication of building to public uses). Symbiotic relationship. APPEARANCES MATTER. Ct. is looking for sufficient points of contact btw state and private entity to find state action. Building is publicly owned. Land acquisition, maintenance, and operation costs are being defrayed by profits from discriminatory coffee shop. Parking garage and coffee shop is physically integrated. State looks to be significantly involved with coffee shop. - 49 - CONSTITUTIONAL LAW II – OUTLINE Jackson v. Metropolitan Edison Co., 419 US 345 (1974) Monopoly Alone =/= State Actor MET gets certificate to sell utility. State approves rates and tariffs for MET along with provisions as to how company will be run. MET cuts off Πs electricity for failure to pay. Π claims b/c of the heavy regulation, the electricity utility company is a state actor, and she was entitled to procedural due process (deprivation of life liberty or property) without due process of law. (notice, hearing or an opportunity to be heard before neutral decision maker). Π claims that since MET is a monopoly, then she is a state actor. She is claiming that DP clause requires notice, hearing before electricity can be cut off and she is claiming that DP clause applies to Metropolitan Edison b/c it is a state actor that is bound by the reqmt’s of the constitution, i.e., the Due Process Clause. If the state were the provider, she could raise this claim, but she might lose on the merits b/c state is NOT discriminating against her based on a suspect class and is thus subject to rational basis review. ISSUES: What degree of state authorization is sufficient to create state action? Action by the state that authorizes, encourages, compels or approves of private action, such that the private action is state action? Public function requires that the service is exclusively reserved to the state. If state did NOT create monopoly, then it is probably NOT a public function traditionally reserved to state. Gov’t regulation of utility does NOT constitute state action. State action arises where there is more than mere general approval. There must be specific approval of discriminatory procedure. Mere approval of or acquiescence in the initiatives of a private party is NOT sufficient to justify holding the state responsible. RULES: HOLDING: Ct. rejected claims where public functions are NOT traditionally reserved for state /public functions. Ct. holds that the public function argument will NOT work b/c provision of electricity was NOT traditionally reserved for state action. Ct. finds that the electricity provider is a NATURAL monopoly, NOT a state created a monopoly; in this situation, the startup costs and infrastructure maintenance costs are prohibitively high. Ct. holds that state created monopoly may NOT be enough. Ct. in Pollak, specifically disclaimed reliance on monopoly status as sufficient for establishing state action. Ct. finds that there is an insufficient reliance btw the challenged actions of the companies and the grant of the monopoly status. State might grant monopoly status, but that does NOT mean that state has authorized company to take discriminatory actions. Further, Ct. holds that the state‟s review of the MET‟s tariffs did NOT specifically reject the termination procedure and rates. This procedure was NEVER challenged. Ct. holds that where the state did NOT introduce the challenged action (termination), state failed to specifically address the termination provision, and state did NOT perform any analysis as to the termination procedure; so Ct. cannot find that the state‟s inaction was sufficient to transform the private companies termination procedure into state action. At most, the Commissions’s failure to overturn this practice amounted to no more than a determination that the utility was authorized to employ such a practice if it is so desired. State action arises where there is more than mere general approval. There must be specific approval of discriminatory procedure. This was a general approval of the tariff. NOTE: Initially there were 3 networks when TV came out. Gov‟t gave right to broadcast to a couple companies to get certain signals to broadcast. Gov‟t granted a monopoly to these companies to broadcast television programs. ABC, CBS and NBC. Ct. is NOT going to INTERPRET STATE ACTION in extremely broad terms, but keep it somewhat NARROW. If MET been discriminating on the basis of race, then the outcome would have been different, and court will be hard pressed to NOT reject such discriminatory actions by public utility whose tariffs are authorized by state. If the court did conclude that this was state action, then that would mean that any quasimonopoly status, private company that serves a public utility, would be regulated as state actors. WATER companies, telephone, etc. NOTE: Moose Lodge No. 107 v. Irvis, (1972) Licensing =/= State Actor RULES: state grant of license is NOT sufficient to constitute gov’t entanglement exception to invoke Const. HOLDING: Ct. holds that license is insufficient to constitute a state actor. Ct. emphasized fact that PA liquor board did NOT establish enforce membership policies. There was NO control other than licensing reqmt‟s. Ct. found that there was NO symbiotic relationship. While state could place reqm‟t that business NOT discriminate, it is NOT req‟d to do so. Receipt of Funds =/= State Actor Blum v. Yaretsky, (1982) Private nursing home receiving reimbursements from state for Medicaid payments. Π challenged his transfer from one facility to another facility. Ct. finds that this was the decision of private party. RULES: The mere receipt of the money from the gov’t to fulfill a function is NOT going to convert a specific decision into state action. J. Rehnquist holds that the mere fact of extensive state regulation does NOT trigger 14th amendment guarantees. Constitutional standards are invoed only when it can be said that the state is responsible for the specific conduct of which the Π complains. Here, by contrast, the complaining party seeks to hold the state liable for the actions of private parties. A state ca be held responsible for private decision when it has exercised a coercive power, or has provided such significant encouragement either OVERT or COVERT, that the choice must in law be deemed to be that of the state. Mere approval of or acquiescence in the initiatives of a private party is NOT sufficient to justify holding the state responsible. HOLDING. - 50 - CONSTITUTIONAL LAW II – OUTLINE Reitman v. Mulkey, 387 US 369 (1967) Voter Amendment of Const. = State Action CA passes law prohibiting discrimination on the basis of race with respect to housing. CA voters pass const. amendment that bars such laws preventing/prohibiting housing race discrimination. Π challenges Const. Amendment Proposition 14 under fair housing law. HOLDING: Supreme Ct. agrees with CA state court and finds state action in having voters authorize Proposition 14. The mere fact that the voters got this Proposition 14 amended the state constitution, constitutes state action. Proposition 14 says go ahead and discriminate. Rather than just repealing the antidiscrimination laws, they did MORE and had discrimination protected by constitutional amendment, so state was affirmatively authorizing and approving this action. Rendall Baker (1982) Receipt of Funds =/= State Actor Ct. holds that a private school whose income derived primarily from public sources, regulated by public authorities, is NOT a state actor. Just getting some federal money is NOT enough to become state actor. Brentwood Academy v. TN (2001) Ct. found there was Substantial involvement by state actors in the organization such that the make up of the organization makes it a state actor. It was a single school in a single district that was being controlled by local gov‟t. NCAA v. Tarkanian (1988) Private action =/= State Action Ct. found that there is NOT enough state involvement to convert it into state action. This was predominantly a private matter where NCAA shaped its policies, NOT Univ. of Nevada. U.S. Olympic Committee (1987) Fed’l Inc., Funding =/= State Actor Ct. cannot hold that its decision are controlled by congress despite specific privileges given to committee, where gov‟t paid funded and specially incorporated under fed‟l law. Lugar v. Edmonson (1982) Private Party + State Actor = State Action Creditor attaches debtors property in ex parte proceeding. Creditor went to court and got court to seize property of debtor to satisfy any debts that he owes to creditor. Ct. holds that this is state action b/c a private party’s actions in participation with STATE officials makes it state action. Edmonson v. Leesville (1991) Preemptory Jury Selection Challenges = State Action State action results where the court or other state officials are affirmatively acting on behalf of private entities in discriminatory conduct. Here, private individuals were using racially discriminatory preemptory challenges for jury selection. Ct. recognizes Batson v. KY, which held that preemptory challenges in criminal cases were prohibited by EPC. Shelley v. Kramer, Lugar and here where private entity uses racially preemptory jury challenges. - 51 - CONSTITUTIONAL LAW II – OUTLINE XXI. CIVIL RIGHTS UNDER CONSTITUTION – Congressional Protection of Voting Rights Katzenbach v. Morgan, 384 US 641 (1966) Scope of Congressional Power to Enforce Voting Rights: Remedial/Substantive Lassiter was good law at the time the court made this decision. Voting Rights Act: Congressional law provides that someone who passed the 6th grade, in accredited school in Puerto Rico, cannot be barred from Voting in NY b/c of failing to pass literacy test. Voting Rights act does NOT entirely violate NY law for someone who only got to 4th grade or someone who passed high school BUT in Mexico, would NOT be able to vote. NY literacy reqm‟t cannot be applied to the limited group (6th grade Puerto Ricans). NY voters sued; its laws are invalidated; NY law says that in order to vote you have to be able to read and write in English. They argue that Congress has exceeded its power. Congress claims that § 5, 14th Amendment gives power to enforce § 1, and Voting Rights Act enforces EPC. At this time, the NY English literacy reqmt is NOT unconstitutional b/c Lassiter upholds literacy requirements. Ct. does NOT consider the constitutionality of the NY law. ISSUES: RULES: Can Congress prohibit action that the Ct. has found NOT to violate the Constitution? YES. Ct. will defer to what Congress finds necessary and proper for 14th Amend., § 5 power. MAJ states that Congress can only provide prophylactic protection, and expand its scope as a means as protecting the core right. 14th amend. § 5, gives Congress powers than just enumerated clauses in 14 th Amend. In order to make 14th amend. underlying rights, Congress can go further, BUT not shrink the 14 th amend. protections Only requirements in exercising 14th Amend., § 5 power is that the law be plainly adapted to enforcing § 1 of 14th amendment and that it be within the letter and spirit of the Const. (Whether the law is plainly adapted to the enforcement of § 1 and is consistent with the letter and spirit of the Constitution). (Similar to McCulloch, deferential view to Congress). Under Lassiter, Ct. will apply rational basis review. State argues that its legitimate interest in requiring literacy is to ensure informed voters and full exercise of right of franchise. Lassiter would be upheld and NY reqm’t would be deemed constitutional. HOLDING: Ct. upholds Congress power under § 5 of 14th Amend. to prohibit denying right to vote to anyone educated in PR and thus prohibits actions that are NOT unconstitutional.5 Questions is NOT whether or NOT this prohibited action violates the constitution, but whether this law is plainly adapted to the necessary and proper enforcement of the 14th amendment. Necessary does NOT mean essential. “Let end be legitimate and within the scope of the const. And all means which are plainly adapted to that end, are okay. Katzenbach Ct. is adopting McCulloch role of Judicary for exercising its 14th Amendment enforcement power. Ct. will defer to what Congress finds necessary and propery for § 5 power. Only requirements are that the law be plainly adapted to enforcing § 1 of 14 th amendment and that it be within the letter and spirit of the Const. (English literacy reqmt‟s are NOT prohibited by the 14 th amend. It does NOT actually violate the 14th Amendment.) Ct. finds that the Voting Rights Act provision is Plainly adapted b/c it will increase Spanish speaking voters and increase Spanish speaking public voters and eliminate invidious discrimination under mask of voter qualifications. (NOT all Spanish speakers will vote.) Voting Rights Act was plainly adapted b/c: (1) law which would have enabled more Puerto Ricans to vote in NY would have given them more political power and thereby gain non-discriminatory treatment in public services; AND (2) help to eliminate any invidious discrimination in voting; their rights will be respected. Ct. holds that Congress is using power under 14th Amend, to provide these people the right to vote means that they will vote and the people who are elected will be more concerned with their vote and their will be more public services available with people of Spanish descent. Ct. finds that Congress can choose how large steps it can take to remove discrimination. Under rational basis review, one step at a time approach is acceptable from Congress. DISSENT: J. Harlan is concerned that if Congress is allowed to change the meaning of the XIV amendment through broad interpretation of § 5 power thus diluting/negating constitutional rights. NY law is NOT in violation of 14th Amend. and the Voting Rights Act is thus deteremining the meaning of the 14th amend., what is the limit/bar preventing Congress from restricting 14 th Amend. However, MAJ holds that Congress can expand out the boundaries of 14 th Amend, but Congress does NOT have power to restrict the 14th amendment boundaries. NOTE: Under Katzenbach, Congress is NOT limited to enforcing § 1 as it has been interpreted by the Supreme Ct. (BROAD POWER) Congress does NOT have to pass laws to prohibit a small number of laws, so long as the remedial or prophalactic laws are plainly adapted to the spirit of Const. In Katzenbach v. Morgan, (1966) whether Voting Rights Act § 4(e) was an appropriate legislation under Congress‟ 14 th Amend, § 5. NOTE: In Lassiter, (1959) Ct. held that literacy tests for voters do NOT violate the 14th amendment. Ct. articulated rational basis review. State had interest in having voters being informed. Literacy and being informed had close enough related for rational basis review and thus did NOT violated constitution. In Harper, (1966) and Kramer (1969), Ct. struck down laws, under fundamental interest prong, despite lack of suspect classifications, b/c state was discriminating against a fundamental interest in voting. Ct. articulated heightened scrutiny in these later cases. Under the higher standard, it would be hard to say that a literacy test was necessary to ensure informed voter. 5 Under Lassiter, the Ct. had upheld literacy tests @ this time. Fundamental interest strand had NOT been developed. Under the fundamental interest test, when state denies someone the right to vote would be subject to strict scrutiny. At the time, the NY voting law even though it would have satisfied the rational basis test, would be overturned even though it did NOT violate the 14th amendment. Ct. shows significance deference to Congressional actions under 14th Amend, § 5. - 52 - CONSTITUTIONAL LAW II – OUTLINE Confinement of Congress’ Civil Right Enforcement Power to Proportional and Congruent Remedies City has a historic preservation zoning ordinance that limits renovation and building. A church is being affected by this law. They cannot get the building permit; the church says that the zoning ordinance violates the Religious Freedom Restoration Action of 1993. Congress invoked its power under § 5 of 14th Amendment. In Smith, the Ct. rejected Employment Div. Dept. of Human Resources of Ore v. Smith, (1990), and held that native Americans who used peyote for religious reasons could NOT receive unemployment benefits b/c of an OR law making use of drugs criminal. Supreme Ct. rejected the challenge by Native Americans and upheld the OR law. Ct. in Smith held that a neutral, generally applicable law may be applied to religious practices even when NOT supported by a compelling governmental interest. Law was NOT passed targeting peyote. OR had passed law outlawing many types of drugs. There was NO purpose behind this law to burden the religious practices of the Native Americans. Ct. rejected Sherbert v. Verner which held that a balancing test must be applied asking whether the State’s prohibition substantially burdened a religious practice, and if it did, whether the burden was justified by a compelling government interest. Congress passed RFRA 1993 in response to Ore v. Smith. Congress believes that States should meet strict scrutiny, which existed prior to Smith, so the states should only be able to burden religion even if burden is incidental, if they can show that the law is narrowly tailored to serve a compelling governmental interest. Congress passes RFRA of 1993. City of Boerne v. Flores, 521 US 507 (1997) RULES: Congress may use its § 5 power to remedy and prevent any law that is NOT unconstitutional, AND any law that congress passes under § 5 must be congruent and proportional to remedy/prevent injury and the means to that end. Laws that are NOT enacted with any purpose to burden religious practice will ONLY be subjected to rational basis review. 14th Amendment guarantees the 1st amendment liberty of free exercise of religion. (DPC incorporates the 1st Amend, DP protects life, liberty of property. 14th Amend. provides equal protection. Ct. has interpreted that to mean that one of the liberties protected is one of the liberties under the 1st Amendment.) Where law is generally and facially neutral, that nonetheless has effects (IMPACT/BURDENS) on religious practices, absent a discriminatory purpose, the Law will only be subject to rational basis review even if law has incidental effect on religious practices. There must be a Congruence or proportionality between the injury to be prevented or remedied and the means adopted to that end CONGRUENT AND PROPORTIONAL: Congruence means one thing corresponds to the other. Proportion means properly related in size or degree. Law is congruent or proportional to a violation of § 1 if it corresponds to the violation and is properly related to the violation; in other words, the remedy has to match the injury and NOT be an overreaction. Law and remedy must be connected (CONGRUENT) and cannot be an overreaction (prohibited state conduct that is NOT actually prohibited by the Constitution). (1) identify the unconstitutional conduct on the part of the states. Here, Congress has NOT identified a constitutional violation. It has NOT identified a pattern and practice of unconstitutional conduct; (2) Laws are proportional where Many of the laws affected have a significant likelihood of being unconstitutional. Since Ct. has imposed rational basis scrutiny then the strict scrutiny burden imposed by Congress, the RFRA encompasses TOO many state laws that would probably be constitutional. HOLDING: The Ct. does NOT overrule Katzenbach, but the plainly articulated standard is NO LONGER LAW. IT is NOW the congruent and proportional test articulated in Boernes. Under the Ct.‟s hold in Smith, the state would be enabled to pass laws that have discriminatory effects on religion as long as there is NO discriminatory purpose. (Rastafarians are discriminated incidentally where marijuana is outlawed; Bans on head gears can have a burden on jews and muslims; Sunday closing laws burdens Jews b/c they have to be closed on Sat. and Sunday). Ct. finds that Congress has exceeded its 14th Amend, § 5 power b/c it holds that there must be a Congruence or proportionality between the injury to be prevented or remedied and the means adopted to that end. Ct. finds that Congress has sought to change the meaning of the 14th Amend. which is NOT congruent/proportional to injury/remedy. Ct. indicates that RFRA attempts a substantive change of constitutional protections. Ct. holds that the Supreme Ct. is the interpreter of the Const. Congress CANNOT use § 5 power to overrule the Supreme Ct. Ct finds that this law is SWEEPING i.e., NOT proportional. Geographically too BROAD b/c it applies to ALL state. It is too broad b/c it applies to city and states. Also too broad b/c it burdens the states excessively by prohibiting them from intentionally burden religion AND PROHIBITS THEM FROM PASSING FACIALLY NEUTRAL, generally applicable laws. The states could NOT even show that the neutral law is absolutely necessary a compelling governmental interest. EXTREME burden on the states that is NOT proportional to any unconstitutional violation. Laws are proportional where Many of the laws affected have a significant likelihood of being unconstitutional. Since Ct. has imposed rational basis scrutiny then the strict scrutiny burden imposed by Congress, the RFRA encompasses TOO many state laws that would probably be constitutional. In Smith, all that violates the DPC, is things that specifically target religious practices. Congress in RFRA is saying that even discriminatory impact laws absent discriminatory purpose are prohibited. Congress cannot go outside § 1 of 14th Amend. and it CANNOT do that. HOWEVER, Ct. does NOT say that Congress is limited to prohibiting conduct that is within § 1 circle. Legislation that deters or remedies constitutional powers, falls within sweep of § 5 powers, even if in it self it is NOT unconstitutional, otherwise, Congress could only pass a law that says “states cannot violate constitutional law as interpreted by the Supreme Court.” See Katzenbach. Ct. says that Congress can pass laws to remedy violations of § 1, remedy future violations of § 1, and prohibit some state action that is NOT unconstitutional, BUT whatever Congress does must be congruent and proportional to the injury to be prevented or remedied to the law it passed. Congress CANNOT pass a law that changes the substantive meaning of the 14th Amendment. NOTE: Ct. in City of Boernes, shows that the Ct. adopts the BROAD MEANING OF Marbury b/c it holds that the other branches do NOT have a role in interpreting the Const. Ct. said what the Const. means and stick by it under the principles of stare decisis and will NOT apply congressional interpretation. (P. 967). Separation of powers is violated if we concluded that it is the Court‟s job to interpret the Constitution and it is Congress‟ job to pass laws. Congress CANNOT change the constitution otherwise Constitution would be on the same level of regular laws. Ct. holds that its job is to say what the law is; Congress’ job is to just to pass laws. In Marbury v. Madison, Ct says that “it is emphatically the duty of the Court to say what the law is. Ct. will put law against the law and if it conflicts, the Supremacy clause will tell Ct. that const. trumps federal law.” OR legislature amended law to provide that criminal charges could NOT be filed against a ∆ who possessed peyote for a genuine religious practice. - 53 - CONSTITUTIONAL LAW II – OUTLINE Rome v. United States, (198) 15th Amend. Ct. held that challenge to City law did not require evidence ofa law that was motivated by a discriminatory purpose. See City of Mobile v. Bolden. Further, Congress could prohibit changes that have a discriminatory impact. Under Katzenbach, Ct. had suggested that the Congress had sufficient power to restrict state activity, but was overruled indirectly by City of Boerne, where Ct. holds that congress may use its § 5 power to remedy and prevent any law that is NOT unconstitutional, AND any law that congress passes under § 5 must be congruent and proportional to remedy/prevent injury and the means to that end. NOTE: Rome may be interpreted narrowly or broadly. If Narrow, Ct. can only approve remedy for violations of voting rights. If broad, Congress can independently interpret the meaning of the 15 th Amendment. United States v. Morrison, 529 US 598 (2000) Private Actors =/= State Actors VAWA of 1994, authorized victims of gender based violence a cause of action in federal court. Congress felt that these victims were NOT getting enough attention under state law. Ct. rejected the Commerce Clause argument and held that it exceeded the C/C power b/c the activity. Congress can only regulate economic activity that has a substantial effect on interstate commerce. HOWEVER, Congress also passed the law under § 5 of 14 th Amend. Congress can argue that women who make claims of gender based violence are NOT being treated seriously in state courts. The state laws are NOT being applied equally to them and are THUS being denied EQUAL PROTECTION OF THE LAW. Congress argues that VAWA 1994 is designed to prevent/remedy the denial of Equal protection of the laws. Assertion is supported by a voluminous congressional record. Many decisions in state are perpetuating a discriminatory stereotypes and assumptions. Congress had task force reports of at least 21 states documenting constitutional violations RULES: Under 14th Amend., § 5, Congress only has power to regulate state actors. In determining whether a law is a proper exercise of Congress’ power under §5 of the 14 th Amend. the Court will look to see if the law is congruent and proportional between the injury to be prevented or remedied and the means adopted to that end. (It is a joint test and both must be met) HOLDING: Ct. holds that even though Congress has evidence of state discrimination, but this law regulates private individuals. Even thought the violence against women act was promulgated by state actors, the law restricts regulates the private actors who committed the violence. Ct. holds the § 5 limitations strictly; the entities actually being regulated are private individuals NOT state actors. VAWA provides a federal civil remedy against state actor. HOWEVER, this case is ONLY dealing with private action of private actors. The Ct. strikes down the private actor regulation, NOT where the state actor is creating the gender motivated violence. Law is unconst. b/c it regulates private conduct and NOT state conduct. Further, since law has some evidence from some state evidence, and the law applies NATIONWIDE, it does NOT have evidence that all states are denying equal protection for gender based violence discrimination. Law is over-inclusive and under-inclusive. Ct. finds that the VAWA is incongruent and disproportional. CT does NOT break apart the congruence & proportionality test. The test is to basically determine whether the law is TOO over inclusive and as such, Congress is attempting to change the substantive meaning. Ct. strikes down the VAWA as exceeding congress‟ power under 14th Amend, § 5, b/c it regulates private conduct and is too sweeping b/c it applies nationwide. - 54 - CONSTITUTIONAL LAW II – OUTLINE CONGRESS’ POWER UNDER § 5 TO ABROGATE STATE SOVEREIGN IMMUNITY Sovereign Immunity Doctrine affirms that sovereigns (including states and federal gov‟t) cannot be sued without its consent. Further, the Supreme Court has held that the States also enjoy sovereign immunity. An individual CANNOT sue a State unless the State gives consent to be sued OR unless Congress abrogates state sovereign immunity by stating so explicitly in law and having proper power to do so. However, Congress does NOT have the power under the C/C to get rid of the state sovereign immunity. (Congress can regulate employment laws, BUT cannot give EEs a cause of action under C/C against the states). Supreme Ct. held that Congress cannot use C/C powers to abrogate 11 th amend. b/c it came before it, but Congress can abrogate 11th amendment sovereign immunity under § 5 of 14th amend. Congress does have power under § 5 of 14th Amend to abrogate state sovereign amendment. So, if Congress sees that states are violating the Const. and it wants to give people a cause of action for violation of Const. then Congress can create cause of action against states, so long as the Law that is passed is congruent and proportional to the unconstitutional conduct Congress seeks to prevent. FLOW CHART for Determining Congress ability under § 5 to abrogate state sovereign immunity 1. What kind of constitutional violation is Congress targeting? a. Equal protection? b. Due process? 2. What must a party show to establish that kind of Constitutional Violation? a. Strict scrutiny; OR b. intermediate scrutiny; OR c. rational basis review; 3. Has Congress provided evidence that states engaged in a pattern/practice of unconstitutional conduct? a. Evidence must satisfy the applicable level of scrutiny i. Evidence must be the kind of evidence to satisfy the standard of review 1. Strict scrutiny requires evidence to show that the state discriminated without a compelling interest 2. If rational basis review, evidence must show that the state discriminated irrationally b. Congress cannot rely on general societal discrimination; i. It must show that the states themselves have engaged in this conduct ii. Congress under § 5 can only target state action iii. Are the actions of local governments sufficient to satisfy Congress’ burden here? 1. can accounts of local governments satisfy the evidentiary burden of proving state actions a. J. renhquist, initially held that NO, local gov‟ts lack sovereign immunity and do NOT act for the state b. Recently, with J Stevens in MAJ, ct. has held that Congress can rely on some local gov‟t conduct 2. dispute has NOT been finally resolved 4. Is whether the law is congruent and proportional to the unconstitutional conduct that Congress is addressing? a. Even if Congress show pattern/practice, triggering § 5 power b/c it can remedy or prevent unconstitutional conduct on the part of the states, can it satisfy the congruence and proportionality test; i. Law is okay if it sweeps outside of what the 14th amend. prohibits as part of its power to remedy 14 th amend. 1. Law cannot go so far beyond the violation of 14 th amend. such that it changes the meaning of § 1 of 14th amend, 2. Congress can remedy/prevent; but court will determine what violates § 1 of 14th amendment ii. Congress must pass congruent and proportional law; cannot change the meaning of the 14 th Amend. - 55 - CONSTITUTIONAL LAW II – OUTLINE Florida Prepaid Post-Secondary Expensive Board v. College Savings Bank (1999) In this case, Congress had abrogated state sovereign immunity for patent infringements, so the people can sue state for patent infringement. HOLDING: Ct. strikes this law down b/c Congress has NOT identified any UNCONSTITUTIONAL conduct on the part of the states. LAW IS NOT CONGRUENT and PROPORTIONAL. Ct. finds that Congress does NOT provide evidence that state is infringing patents, much less evidence that the patent infringement is unconstitutional in such a way that it violates the DPC. NO evidence that the state‟s have been infringing patents. Congress identified NO PATTERN of patent infringement much less unconst. Patent infringement. Accordingly, congress cannot abrogate SSI. Kimel v. FL Board of Regents, (2000) Congress passed Age discrimination and Employment Act (ADEA) prohibits ERs from discriminating EEs on the basis of age. Congress held that this law also applies to the states and IN ADDITION, Congress wanted to give people a cause of action for violation of this law; Congress attempted to abrogate state sovereign immunity. HOLDING: Ct. strikes the law down and holds that it is NOT an appropriate exercise of Congress‟ § 5 of 14th Amend. power. Congress has failed to identify a pattern and practice of unconstitutional age discrimination on behalf of the states. Age is NOT a suspect classification so when a state discriminates on the basis of age it only has to meet rational basis review. Age discrimination is ONLY unconstitutional when it is irrational. HARD TO show that state‟s are discriminating irrationally on the basis of age. Board of trustees of AL v. Garrett, (2001) ADA applies to state and private ERs. Under C/C congress can regulate state as private employers. If state discriminates against disabled worker or fails to provide reasonable accommodations, than that worker can sue the states and state does NOT have sovereign immunity. HOLDING: Ct. strikes it down. Congress lacks evidence of pattern or practice of UNCONST. Discrimination by states. There is evidence of PRIVATE ERS. Again, Congress would have to show that the discrimination was IRRATIONAL b/c classifications on the basis of disability are NOT a suspect classification where the standard is ONLY RATIONAL basis review. Even if Congress did HAVE evidence, the remedy is NOT congruent or proportional to any remedy, b/c the law requires that the ERs provide reasonable accommodations, where Const. only requires rational discrimination Tennessee v. Lane, (2004) Denial of Access to Court Another part of ADA, permits people to sue states for denying public services to the disabled. Parapalegic had to crawl up two flights of stairs. HOLDING: Ct. upholds this law as applied to this case b/c state is violating DPC by NOT providing access to courts and that there is ENOUGH evidence to show that states are doing this. Congress has greater latitude to legislate under § 5 when dealing with claims that receive heightened scrutiny. Denial of access to the courts is SUBJECT TO A HIGHER LEVEL OF SCRUTINY – strict scrutiny, so it is easier to prove. Congress has to show that states are denying people access to courts without a compelling interest. Level of scrutiny determines whether there is enough evidence and whether law will be upheld NOTE: The underlying right under TN v. Lane and Dept. of NV HR v. Hibbs, the ct. is protecting a more fundamental right. Easier for Cognress to establish that the states have acted unconstitutionality when the conduct at issue is subject to a heightened level of scrutiny b/c a heightened level of scrutiny means that the state has to do more for a state to justify its behavior. Nevada Dept. of HR v. Hibbs, (2003) Family medical leave act guarantees pregnancy leave. Congress est. a pattern and practice of unconst. Sex discrimination by the states. HOLDING: Ct. holds that since Sex discrimination is unconst. B/c it must be rationally related to an important gov‟t interest so it is easier to show this type of discrimination and SHOW unconst. Discrimination. There is a very closely divided court. 5-4 decisions with the exception of Hibbs. Easier for Cognress to establish that the states have acted unconstitutionality when the conduct at issue is subject to a heightened level of scrutiny b/c a heightened level of scrutiny means that the state has to do more for a state to justify its behavior. NOTE: It will be much easier for Congress to give people the right to sue the states for racial or sex discrimination than it is for congress to remove state sovereignty for discrimination that is non-suspect classification subject to rational basis standard of scrutiny - 56 - CONSTITUTIONAL LAW II – OUTLINE XXII. FIRST AMENDMENT – Freedom Of Speech FIRST AMENDMENT - 1791 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances ESTABLISHMENT CLAUSE: Congress shall make no law respecting an establishment of religion, FREE EXERCISE CLAUSE: Congress shall make no law prohibiting the free exercise of religion;  Congress cannot interfere with people‟s ability to practice their religion.  Interplay btw establishment clause; people will make their own choices FREE SPEECH CLAUSE: Congress shall make no law abridging the freedom of speech  Right of association is an additional right that the Ct. has read into free speech clause. Right to associate with who you want, and congress cannot tell you otherwise. FREEDOM OF PRESS CLAUSE: Congress shall make no law abridging the freedom of the press First Amendment Encompasses: 1. Incitement to Unlawful Conduct; 2. Libel & Obscenity; 3. Free Exercise & Establishment a. Under Establishment Clause – 10 commandment cases Free Speech & First Amendment History The author of 1st amendment was James Madison. There was little debate by Congress and by the States when the amendment was passed. What was the understanding @ that time? Licensing is a scheme under which the gov‟t requires those that want to print to get a license. That license would be renewed from time to time; gov‟t could revoke that license. This was an English practice in 15th and 16th century. Licensing was inconsistent with free government. @ the time of American Const. licensing was banned in England. @ a minimum, 1st Amend. was probably supposed to ban licensing. Con. Law scholars infer from the fact that in England licensing was banned, Congress & framers wanted to prevent licensing. Also, Seditious Libel – criticizing the gov‟t or a gov‟t official, likely to bring the gov‟t official into disrepute. Many people in England were subject to convictions under seditious libel @ the time that Const. was written. You were NOT protected in English law if you said something critical of English gov‟t. According to Blackstone, freedom of speech, press allowed you NOT to get a license, but if punished something bad, then you could be punished for seditious libel. Some American juries did NOT and refused to convict for seditious libel. 1st amend. may have been passed to prohibit gov‟t from persecuting under seditious libel. Supreme Ct. has since concluded that the 1st amend. does protect citizens from seditious libel. You can only be punished for certain, rare circumstance for making statements that are critical of the gov‟t. Throughout history, Ct. has attempted to identify categories of speech that are NOT or less protected by freedom of speech. Ct. talks about 1st Amend. in terms of what is NOT protected b/c where the kind of speech is protected by 1st amend. are easy cases and do NOT make it to Sup. Ct. Ct. has resolved border line cases, so it focuses more on what is NOT protected. Initially, the Ct. finds that Incitement is NOT protectable, but over time Ct. gives slightly more protection. - 57 - CONSTITUTIONAL LAW II – OUTLINE XXIII. FIRST AMENDMENT - Incitement Incitement is speech that encourages other people to break the law 1. Difficult challenge to Const. law of 1st amend. protection of freedom of speech a. Provide protection for people who are encouraging others to break the law 2. Ct. began to consider what Freedom of Speech means in these types of cases. a. Prior to 14th Amend, and the incorporation of the Bill of Rights into 14 th Amend, so 1st Amendment violations could not sue i. So people did NOT have a right of action b. Congress is concerned with Criticism of the WWI; laws promoted war effort and made it difficult for people to say what they wanted to say Schenck v. United States, 249 US 47 (Spring 1919) Clear and Present Danger Defs. /∆s are accused of conspiring to violating the Espionage Act of 1917, which prohibited insubordination in military, conspiring to commit obstruction of military services, and prohibits use of mail for the same. “Willfully convey false reports/statements with INTENT to interfere with success of US military or promote enemies success; Whoever when US is @ war, shall willfully cause insubordination, mutiny, or refusal of duty in US Armed forces; Willfully obstructing the recruiting or enlistment services of the US”. Def./∆s are accused of Trying to get people who are already in the military to defect or to get those who are drafted to NOT become part of Armed Forces. They printed leaflets quoted 13th Amend. Defendants made rhetorical arguments equating draft to slavery are encouraging people to NOT submit to the draft and violate the law. Schenck received six month sentences and she received 90 day sentence. Supreme Ct. affirms the sentence. ∆s argue that their leaflets were protected by the 1st Amend. and the law violates the 1st amend. printing these leaflets are within their constitutional rights RULES: The test to determine the Constitutionality of a statute restricting free speech is Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question is a proximity or degree.  J. Holmes makes example stating that “no interpretation of free speech let the law protect someone who falsely shouts fire in a [crowded] theater, causing a panic”  An empty theater does NOT harm anyone  Falsely shouting fire in a crowded theater will result in immediate harm that court cannot address Freedom of speech may NOT be absolute b/c freedom of speech can cause some harms, so Congress should be able to regulate those harms. 1st Amend states that CONGRESS SHALL MAKE NO LAW abridging the freedom of speech. Const. does NOT say that Congress can make some laws. CONGRESS CAN MAKE NO LAW… If the harm is NOT going to happen immediately, then there is time for others to counteract the harmful speech so that the harm might NOT come to bear at all;  J. Holmes does NOT state that Clear and present danger affects jaywalking =/= evil of avoiding the draft (clear/present evil) Bad Tendency Test. If speech had a tendency of bad act, then speech will NOT be protected. (Old test). Bad tendency must NOW have a clear and present danger. A clear, actual danger. A present, immediate danger, NOT in the future. Look @ the circumstances and the nature of the words. What is said and the context. “The character of every act depends upon the circumstances in which it is done.” HOLDING: Ct. affirms the convictions of the violation of the Espionage Act. Ct. finds that the leaflets were evidence of a conspiracy to violate the law and interfere with the draft and enlistment. Further, Ct. finds that there is a clear and present danger. J. Holmes simply articulates the standard and finds that the ∆s speech is NOT protected. Ct. finds that there is a clear and present danger b/c the fliers were sent to those who had been called up for the draft. In applying the test, there is NO in depth discussion. Fliers had very little if any effect on the draft. 11 witnesses of the prosecution did NOT remember of the flier. Some recv‟d it but did NOT affect it. J. Holmes focuses on the likely or probable effect, whether it poses a clear and present danger. NOTE: In Frohwerk v. US (1919) and Debs v. US (1919), Ct. upholds Espionage act and affirms ∆s convictons for its violation. - 58 - CONSTITUTIONAL LAW II – OUTLINE Abrams v. US, 250 US 616 (Fall 1919) J. Holmes – Context/Circumstances/Imminence Def./∆s are Russian immigrants. ∆s sent fliers to people working in munitions factories telling them to stop producing weapons to be used in Russia. Russian workers revolution may be interfered with if the US goes into Russia. Prior to russian revolution, Russia was an ally with US in WWI. Revolutionaries have made peace agreement with German. US sends troops to put down Russian Revolution to regain Czar control in Russia and get our ally back. Fliers criticize the US for sending military into Russia. Pres. is coward; US and Germany will kill Russian revolution, bullets will kill Russian Comrades. Supreme Ct. affirms the convictions. RULES: The US may constitutionally restrict speech that has the intended effect of hindering the US in a war effort by means of riots and sedition. Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question is a proximity or degree. HOLDING: DISSENT: J. Clark holds that individuals may be held accountable for their role in hindering US war effort. J. Holmes dissents from the MAJ. Having articulated standard in Schenck, and upheld similar convictions in Frohwerk and Debs. J. Holmes NOW finds that as a matter of statutory interpretation, the ∆s/Defs did NOT have the relevant intent b/c they wanted to stop interference with Russian Workers Revolution, but NOT with war against Germany. In Schenck, the leaflet quoted the 13th Amend. and indicated that the gov‟t violated the Amend. rights; here, the fliers were an encouragement to strike, stop making bullets, but NOT as strong incitement as the Schenck fliers. In Schenck, the writers were prominent members of the Socialist Party who received presidential votes even in prison. Here, J. Holmes considers it a silly leaflet by an unknown man. For example, a Newspaper article present no immediate danger and News article is More adept to exchange of idea. J. Holmes holds that speech cannot be restricted for a bad tendency alone, but that is has a clear and present danger that would lead to some evil that legislature has a right to prevent. J. Holmes requires a greater degree of certainty that the harm will actually occur, NOT MERE bad tendency. J. Holmes reuses words of “clear and present, immediate danger.” J. Holmes looks at the circumstances in which the words were said. No immediate danger. there was NO clear and present danger b/c there was NO IMMINENT, IMMEDIATE danger from a silly leaflet. Expression of opinions should NOT be restricted unless they so immediately threaten to create an immediate danger. Thus, the “Clear and present danger” test requires a clear danger, NOT speculative or hypothetical. Further, the danger must happen soon; Imminence matters for J. Holmes b/c counter speech could rebut any harms. J. Holmes holds that the Purpose of 1st amend. is to (1) protect search for truth. Search for truth is best realized if we allow the ideas to compete in a marketplace of ideas. History and experience should indicate that men do NOT have the truth esp. when they assert they do. Congress should protect the speech, unless the speech will result in some immediate harm. (2) Freedom of speech serves self-goverrnment. People must be able to discuss policies, bring out political change, challenge gov‟t; AND (3) Freedom of speech promotes autonomy, self-fulfillment. People should be able to say our ideas and opinions helps make us more fully realized individuals. Search for truth, self-gov‟t and promoting autonomy are three (3) reasons usu. cited for freedom of speech. J. Holmes dissented from the MAJ holding that J. Holmes lays out for first time a rationale for protecting speech. “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants *631 making any exception to the sweeping command, „Congress shall make no law abridging the freedom of speech.‟ Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.” NOTE: Originally, Ct. applied the bad tendency test, so gov‟t had authority to restrict speech that was critical of gov‟t or gov‟t officals b/c it might lead to some unlawful conduct or harmful result. With bad tendency test, there was NO reqm‟t that the harm that resulted happened under some period of time. - 59 - CONSTITUTIONAL LAW II – OUTLINE Masses Publishing v. Patten, 244 Fed. 535 (1917) J. Learned Hand – Words Used US Post Office General Patten refuses MPC magazine access through mails for violating the 1917 Espionage Act. NOT A Supreme Court case! Dist. Ct. in NY. J. Learned Hand is a Dist. Ct. judge who later went on to 2nd Cir. J. Hand has a test about the same time btw J. Holmes. They corresponded and discussed it. J. Hand has a different test from clear and present danger and bad tendency test. Masses involved the prosecution of the individuals under the espionage act. RULES: Speech is protected by the 1st Amend unless you counsel or advise others to break the law. If you counsel or advise others to break the law, your speech is NOT protected. You urge them that it is in their interest or duty to violate the law. J. Hand is interpreting the reqmt‟s of the espionage Act and saying that the gov‟t did NOT establish a violation. J. Hand holds that speech is protected by the 1st Amend unless you counsel or advise others to break the law. If you counsel or advise others to break the law, your speech is Not protected. You urge them that it is in their interest or duty to violate the law. J. Hand looks at the words that people use; speech is NOT protected if they advise/counsel to break the law, the speech is NOT protected regardless of clear and present danger. If the speech stops short of counsel/advising breaking law, then speech is protected. Ct. finds that the publications were opinions and NOT publications of Facts. HOLDING: NOTE: J. Holmes is looking at the speech and trying to predict what will potentially happen. J. Hand is NOT trying to predict future consequences, only looking at what is being said and the speakers goals HYPO 1:  Rowdy group of protesters right outside of the recruiting office  Says that war is a travesty and people who recruit for the war are evil  Under J. Holmes, Increased imminence b/c of proximity to recruiting office, the person will probably result in harm; so then the speech will probably NOT be protected  Under J. Hand, the speaker has NOT urged people that it is in their interest or their duty to break the law; there was NO overt encouragement; speech would be protected HYPO 2:  Knitting club speech addressed to 85 year old women  Professor argues that the war in Iraq is a travesty and that they have a duty to forcibly oppose the occupation of Iraq  Under J. Holmes, the speech is protected b/c the imminence is far away and there is NO clear and present danger, so there forcible opposition is NOT as a likely anti-war protesters  Under J. Hand, the speech is NOT protected b/c the speaker urges the listeners to violate the law as a duty in their interest  Hand test focuses on word used  Holmes test focuses on probably consequences Indirect Inciter  Brutus agrees that Marc Anthony can address the crowd and never says a bad word, but the impact of his speech and what he says about Cesar is so moving, the crowd rises up against Brutus. He is an indirect inciter.  J. Hand‟s test has a problem for smart, indirect inciters  J. Hand‟s test does NOT protect the silly pamphetleer- he does NOT take into account futile speech - 60 - CONSTITUTIONAL LAW II – OUTLINE Gitlow v. New York, 268 US 652 (1925) Stricter Standard that C&PD when Overthrowing Gov’t Gitlow was convicted from violating NY law that criminalized anarchy. He wrote Left Wing Manifesto. Anarchy statute prohibits individuals from advocating advising teaching the duty necessity of overthrowing the gov‟t by unlawful means. The defs/∆s argue that their convictions are punishment for their views, so they have their DP rights have been violated. RULES: Under its police powers, a state may validly forbid any speech or publication which has a tendency to produce action dangerous to public security, even where such speech or publication presents NO clear and present danger to the security of the public. 1st Amendment says that Congress shall make no law abridging the freedom of speech. 1st amendment is protected by Due Process Clause b/c the 14th amendment incorporates the 1st Amend. No state shall deprive any person on life, liberty or property without due process of law Clear And Present Danger only applies to laws that prohibit certain types of acts, but not that laws prohibit certain types of speech. When law prohibits speech, the ct. will assume that the legislature has already made the judgment that the costs of the speech outweigh the benefits of the speech Clear and present danger does NOT apply when speech encourages violent overthrow of the gov’t, in this case there is NO IMMINENCE reqm’t HOLDING: Ct. holds that for the present purposes that freedom of speech and from the press which are protected by the 1st amendment , are one of those Fundamental personal rights, liberties protected by the 14th amendment from state regulations (Substantive Due Process – NOT procedural –Protections). Gov’t cannot deprive you of your liberty for saying certain things no matter what procedures they provide. There was NO clear and present danger. The gov‟t being overthrown would NOT happen soon; thus, the overthrow of US gov‟t is NOT an imminent threat. HOWEVER, the Ct. upholds the conviction and does NOT apply the clear and present danger. NY Statute prohibits language, NOT ACTS. Ct. concludes that clear and present danger only applies to laws that prohibit certain types of speech, but not that laws prohibit certain types of conduct. Ct. finds that (1) Law was written targeting speech, not conduct. As such, Ct. will defer to the legislature‟s judgment. The Ct. finds that legislature is in the best position to determine within their own citizenry as to the potential for overthrowing the gov‟t. In prohibiting acts, the legislature has NOT made the judgment that certain speech should be prohibited, and the Court will determine what types of speech to be protected. Ct. cites Marbury v. Madison, for principle that “it is emphatically the province of the court to say what the law is and Ct. will NOT let Congress determine what will be unconstitutional.” Finally, Clear and present danger does NOT apply when speech encourages violent overthrow of the gov’t, and in this case there is NO IMMINENCE reqm’t. Violent overthrow of the gov‟t is TOO great a danger to apply “clear and present danger.” Clear and Present Danger applies to speech that implies run of the mill danger/crime. This Speech threatens ultimate revolution and State cannot be required to analyze each statement DISSENT: J. Holmes says that if in the long run the belief of proletarian promoters becomes a MAJ then they can overthrow the political system. If MAJ can determine what will or not be protected, then speech that is NOT popular will NOT be protected, so MAJ can suppress MIN ideas and stifle critical self-gov‟t. Can they Overthrow of the system that gives them the right to freedom of speech? NOTE: Schenck was a case where the law prohibited certain conducts/acts (interference obstruction with war effort) - 61 - CONSTITUTIONAL LAW II – OUTLINE Whitney v. California, 274 US 357 (1927) Clear & Present Danger + IMMINENCE Whitney, an organizer and member of the Communist Labor Party of CA was convicted of aiding in that organization‟s violation of criminal syndicalism Act. RULES: a state may, in the exercise of its police power, punish abuses of freedom of speech where such utterances are inimical to the public welfare as tending to incite crime, disturb the peace, or endanger organized government through threats of violent overthrow. Ct. holds that freedom of speech, secured by Const., does NOT confer an absolute right to speak, without responsibility. State may punishes abuses that are against the public welfare where they incite crime, disturb the peace, or endanger the organized gov‟t by violent overthrow threats. The essence of the Ct. upholding the conviction was b/c Whitney combined with others to accomplish desired ends through advocacy and the use of criminal means. Criminal conspiracy involves greater danger than individual acts. CONCURRENCE: J. Brandeis articulates the values of freedom of speech (disagrees with standard, but concurs with judgment). He defines IMMINENT as “right now”; state can only suppress speech in order to avert an emergency; as long as there is time for counter-speech the remedy to be applied is counter-speech. He adds a seriousness component; he says that the danger to be averted must be clear and present but also relatively serious. Cannot punish speech that would lead to a clear and present TRIVIAL danger. A law encouraging people to trespass would violate the 1st Amend, but speech must lead to some serious evil. J. Brandice‟s justification for protecting speech. He articulates the three justifications. For autonomy, the final end of the state is to make men free to develop their faculties NOTE: The :urging of action for forcible overthrow is necessary before punishment will be imposed. Further, the urging of action is the modern test of clear and present imminent danger as espoused by J. Brandeis. HOLDING: Dennis v. US, 341 US 494 (1951) Defs./∆ was convicted of violating Smith Act for organizing a communist party. Prosecution of the leaders of the Communist Party in the USA. Created an organization for teaching four books of overthrow of gov‟t. (Books: Foundations of Leninism by Stallin; Communist revolution by Marx; State and Revolution; History of Communist Revolution of Soviet Union). RULES: where an offense is specified by statute in nonspeech and nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech of publication created a clear and present danger of attempting or accomplishing prohibited crime. whether the gravity of the evil, discounted by the probability, some likelihood of it happening HOLDING: Ct. affirmed the conviction b/c the gov‟t does NOT have to wait for harm to be forthcoming. In Gitlow, Ct. held that the fire is almost in full blaze. Unlike Gitlow, Ct. holds that it will apply the clear and present danger test. (NO one liked the Masses test and no one agreed with J. Hand.). (30 years later on 2nd circuit). Ct.‟s must ask whether the gravity of the evil, discounted by the probability, some likelihood of it happening. (similar to his Torts Test). As danger goes up, likelihood can go down. As danger goes down, the likelihood must go up. IMMINENCE IS NOT REQ’D. Ct. will look at how serious the danger is and how likely the danger is. Beer haul puch of 1932, a coup, ct. refers to hitler‟s coup suggesting that the gov‟t does NOT have to wait until that time. However, Hitler would be able to NOT be punished as Dynamic speaker who will convince people to overthrow the gov‟t. Ct. Modifies CLEAR AND PRESENT DANGER b/c it says gov‟t does NOT have to wait (NO imminence). Ct. talks about volatility of world events, back to back world crises, highly organized sleeper communists waiting to strike. Danger is great enough, that even though the likelihood may be small, the speech suppression can be justified. NOTE: Dennis represents the latest speech protective approach that the Ct. has taken. After Dennis, the Ct. gradually became more protective of free speech. In Smith, it was the leader of the communist party. In Yates, the Ct. overturned convictions under Communist acts, and distinguished btw two types of speech (1) teaches people a doctrine is protected; (2) encourages people to do something is NOT protected. - 62 - CONSTITUTIONAL LAW II – OUTLINE Brandenberg v. U.S., 395 US 444 (1969) Ku Klux Klan guy convicted under OH criminal syndication. Leader of Ku Klux Klan in OH. Offends blacks and jews. They “Will march on congress if the laws do not change and continue to suppress the white race some re-vengeance will be taken.” He said this b/c he invited local news organization. RULES: Speech is protected even if it advocates violation of the law, unless it is both (a) directed to inciting imminent lawless action and (b) it is likely to produce imminent lawless action Likelihood is NOT ITSELF enough. Must prove that both that speech was directed at inciting imminent lawless action and that it is LIKELY to produce imminent lawless action HOLDING: Ct. holds that he is teaching and NOT urging everyone to take up arms. Ct. articulates a NEW TEST: “Principle that the const. guarantees of free speech or free press do NOT permit a state to proscribe…except where such direct speech is directed an Inciting such action.” Speech is protected even if it advocates violation of the law, unless it is both (a) directed to inciting imminent lawless action and (b) it is likely to produce imminent lawless action. Speech will only be prohibited if it leads to a clear and present harm. You can encourage someone to break the law in the future unless you encourage them to do so now. If (b) is clear and present danger (HOLMES - consequences), then speech must (a) be directed to producing an imminent lawless action (HAND – intent of speaker/what is said). Likelihood is NOT ITSELF enough. Must prove that both that speech was directed at inciting imminent lawless action and that it is LIKELY to produce imminent lawless action Brandenburg Test (Test that applies to Speech that encourages other people to break the law)  Speech that encourages people to break the law is protected unless the speech is directed to (INTENT) inciting imminent lawless action or is likely to incite imminent lawless conduct. o Focuses on what is actually said o Interprets the test to applying as to INTENT  Combines Hand & Holmes Test o Brandenburg puts both together o Most speech protective tests o Combines best parts of hand and holmes test (imminence and words used)  Brandenburg does NOT say HOW imminent the speech must be in order to justify unprotected speech  The only case which court has applied this test since Brandenburg, o In Hess, police put protestors off street; he said that they‟d get the street later;  The Ct. struck down the conviction b/c it found that he was NOT inciting IMMINENT lawless action; it was inciting action @ some future indefinite time o In a street protest, and he says “we‟ll take the street later” DOES NOT MEAN next week, must mean later in the day o Hess suggests that the IMMINENCE reqm‟t is really close  If he was advocating taking street right then, his speech was NOT protected, but if advocating taking street later in the afternoon, then his speech would be protected o In order for speech to be protected, then speaker must advocate lawless action that must take place within minutes, hour or two, etc.  In Whitney, J. Brandice concurrence suggests that the gravity the gov‟t is trying to prevent is a relevant factor o The IMMINENCE reqm‟t varies with respect to the gravity of the harm  Maybe a more significant harm like encouraging someone to shoot the governor, then it would be sufficient to do so within a day or two b/c the HARM IS SO GREAT  Maybe encouraging terrorism within a few days is sufficient Brandenberg TWO PART Test: A. Directed to Lawless & Imminence (INTENT) 1. Is it directed to producing lawless conduct? 2. Is it directed to producing it imminently? B. INTENTION OF LANGUAGE (J. Hand) & Likelihood of Lawless and Imminent Conduct IMMINENCE OF HARM (J. Holmes) 1. Is it likely to incite lawless conduct?  People are more likely to charge the clinic, but NOT commit murder 2.    Is it likely to do so imminently?  Ct. does NOT look @ what actually happened to answer the question of imminence Perform analysis and it could cut both ways. There are some Well-defined and narrowly limited classes of speech the prevention and punishment of which did NOT ever become any problem o Lewd, obscene, libelous, Ct. has gradually provided some sorts of protection by these types of speech - 63 - CONSTITUTIONAL LAW II – OUTLINE XXIV. FIRST AMENDMENT –Injury to Reputation and Sensibility (Libel) Libel. A defamatory statement expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast. • Libel is classified as both a crime and a tort but is no longer prosecuted as a crime. -- Also termed defamatory libel. Black‟s Law Dictionary. They are state law causes of action. They are torts. HYPO: G.W. Bush planned attack on WTC. Can this be protected? If you mean it? If statement is satirical, then it may protected. Hustler case. However, if you say something that you know is untrue, then there is NO protection under 1 st Amend.. These statements do NOT promote truth, self-fulfilment, self-gov‟t. NY Times v. Sullivan, 376 US 254 (1964) NYT published an editorial advertisement with false statements that were made concerning Sullivan. NY times published an AD by the Committee to protect MLK and protect freedom in the South with numerous statements in the article Mr. Sullivan was a police commissioner in Montgomery, AL. He alleges that the statements injured his reputation; he alleged that certain statements were inaccurate (# of times of Dr. King‟s arrests). Sullivan says that they did NOT ring the campus (statement of fact). HOWEVER, the Article does NOT mention Sullivan himself. He had witnesses to testify that the article . BUT under AL, state law, any criticism of a gov’t dept. was presumed to criticize the officials in the dept. He says it was false that they were starved into submission. 35 copies of the paper were distributed in Montgomery, AL. Sullivan sues the Times and black clergy man who took out the ad. In AL state court, Sullivan won in the AL courts and recv‟d substantial damages ($500K). Under AL law at the time, if you were libeled, damages were presumed. He did NOT have to prove any damages; he didn‟t have to provide any evidence of how libel caused financial loss. ISSUE: LIMITED ISSUE: RULES: Extent to which Const. protections for speech applies toward state’s power to award damages for libel action. Damages in a libel case brought by public official for statements made of public officials that are critical of their official duties Under AL law, the ∆ had burden to prove that the statements were true and that was a proper defense to libel action Libel requires: 1. False; 2. Statement in a fixed medium; 3. of FACT a. NOT OPINIONS b. Unless something you say is provable false, you cannot be punished for libel. Opinions are NOT provably false. Must be the kind of thing that could be proven false 4. concerning the Π; 5. defamatory; a. brings someone into ill-repute, damages their reputation Reckless disregard means that you in fact entertain serious doubts as to the truths of the statements  If you know it is false, then you can be sued; If you entertain serious doubts, then you can be sued, but ignorance is bliss NO DUTY TO FACTUALLY CHECK INFORMATION, and ignorance is bliss  Actual malice is req’d – either you have knowledge that it is false or you act with reckless disregard as to whether or NOT it is true or false. So if you are negligent as to whether or NOT something is false, you cannot be punished.6 Under Ct.’s standard in time, you are protected as long as you did NOT entertain reasonable doubts, and YOU have no duty to check. (Supreme Ct. requires that we go up to recklessness or knowledge and under that you are protected) Ct. protects false, defamatory statements as long as the person who made the statements did NOT know they were false or act with reckless disregard as to the fact that they were true or false Ct. holds that the 1st amend. was designed to protect seditious libel. You cannot be punished for criticizing the gov’t, even it is false and defamatory, unless you did so with knowledge or reckless disregard Finding of negligence based on the evidence is insufficient to hold defendant liable HOLDING: Ct. did NOT find actual malice, times, ad buyers does NOT show knowledge of misstatements. Finding of negligence based on the evidence is insufficient to hold defendant liable. Later justices have held that this is too much protection for 1st amend. where ct. extends protection for negligent statements. (Tabloids get away with saying anything of public figures). NY Times v. Sullivan protects Statement of public figures (D. Trump & Paris Hilton), and public officials (Bush, McGreevey). NY Times v. Sullivan, Ct. holds that this much protection was given to provide breathing space to promote critical self-government, personal fulfillment, and promotes truth. Ct. provides an actual malice test. Further, Under AL law stating that Presumption that criticism of public agency criticizes public officials; Ct. finds that this is UNCONSTITUTIONAL under 1st Amend. had to directly concern the public officials. Under AL law, damages were presumed and harm was presumed; Ct. finds that damages cannot be presumed and Π must prove injury. NOTE: After NYT v. Sullivan, Πs want to get notes and record of reporter to determine whether or NOT reporter was reckless, what the reporter knew at the time of the publication. Since NY Times v. Sullivan, Ct. has held other protected speech. Ct. has extended the Times rule to public figures: A false defamatory statement of fact about a public figure, the Π cannot for libel unless they show actual malice. Public figures are influential to economy, culture as public officials and usually have adequate access to media to counter any false statements made against them. Two categories of public figures: (1) All purpose public figures – people who have achieved general fame or notoriety or pervasive involvement in the affairs of society They are public figures for all purposes ; i.e., DONALD TRUMP, Paris Hilton, Michael Jackson, Bill Gates; People who anybody in the country would likely know who they are; (2) Limited Public Figures Voluntarily injected or thrusted them; Only with respect to the controversy or issue for which they have become known, i.e., Collin Finnerty, Larry Burkehead (father of anna nicole‟s child). Ct. is NOW saying that the 1st amendment protects people who go around negligently saying some things that are false Ct. promotes tabloids. NOTE: 6 Mens Rea: Intent; Knowledge; Recklessness; Negligence; Strict liability – AL law, b/c only defense was truth. - 64 - CONSTITUTIONAL LAW II – OUTLINE Roth v US Roth, (1957) Obscenity A publisher and a mail order business are convicted under federal and state statutes for mailing obscenity for lewdly keeping for sale obscene and indecent books and for publishing an obscene advertisement. State sought to protect children from seeing obscenity and protecting adults who didn‟t want to see it. RULES: Obscenity is NOT a constitutionally protected expression and if the material, taken as a whole, has a dominant theme which appeals to prurient 7 interest as judged by contemporary standards, then it may be proscribed. When an average person applying contemporary community standards feels that the dominant theme of some material, taken as a whole, appeals to prurient interests the government can without offending the constitutional guarantee of freedom of speech regulate that material. HOLDING: Ct. holds that 1st amend. DOES NOT protect every phrasing unconditionally. However, ideas that have even the slightest degree of socially redeeming value are fully protected unless they encroach upon the limited area of more important interests. The 1st amendment was not intended to protect every utterance and there is sufficient contemporaneous evidence to show that obscenity is outside of the protections of freedom of speech. Things to look for – Does it? (1) Promote the self for truth; (2) Promote self government; (3) Autonomy or self fulfillment. The court narrowed the test for obscenity as anything that would raise prurient thought (excite lustful thoughts) in the most susceptible person. Because the court believed that material dealing with sex in a legitimate non-prurient way should be protected, the court adopted a less restrictive standard which looked to the effect that the material would have not on a susceptible person but on an average person holding contemporary community standards. Miller v California, (1973) Obscenity Miller sent out ads brochures for adult books to unwilling recipients. Distributor of unsolicited obscene advertising by mail was prosecuted under and anti obscenity law. Miller was convicted of violating California Penal Code a misdemeanor when he knowingly distributed give unsolicited advertising brochures by mail. The brochures advertised the sales of illustrated adult books and themselves contained descriptive printed materials as well as drawings and pictures that explicitly depicted men and women in groups engaging in a variety of sexual activities. ISSUES: Whether the state legislature can pass legislation regulating the dissemination of obscene material without offending the 1 st amendment. Material is obscene and NOT protected by the 1 st Amend. if: (1) the avg. person applying the contemporary community standards would find that the work, taken as a whole, appeals to the prurient interests; (Appeals to the prurient interest (apply local standard) – Roth(morbid and shameful) ) (2) the work depicts in a patently offensive way sexual conduct specifically defined by the applicable state law; (It also has to be patently offensive (depicts or describes in a patently offensive way) (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value (Lacks serious value) If material meets this definition of obscenity then the state can prohibit its distribution if the mode of distribution entails the risk of offending unwilling recipients or exposing the material to juveniles. RULES: HOLDING: Ct. holds that the burden of proof of the Memoirs Test is utterly impossible for prosecution to meet and must be abandoned. THERE is NO national standard of what is a prurient interest. THESE first two factors must be judged by the jury applying contemporary, community standards. If state law that regulates obscene material is thus limited as written or construed the guarantees of the 1 st amendment are adequately protected so long as the appellate courts can conduct an independent review of the constitutional claims. In this case, the Califoria statute does not meet with these constitutional requirements. 7 having, inclined to have, or characterized by lascivious or lustful thoughts, desires, etc.; causing lasciviousness or lust; having a restless desire or longing - 65 - CONSTITUTIONAL LAW II – OUTLINE Paris Adult Theater I v. Slaton, (1973) RULES: a state can forbid the dissemination of obscene material to consenting adults in order to preserve the quality of the community and to prevent the possibility of resulting anti-social behavior. HOLDING: Ct. upheld ban on adult theaters even though those theaters were NOT open to children and had warnings to prevent un-consenting adults from entering. In addition to concern for protecting children and unconsenting adults, there are two additional interests that support ban on adult theaters: (J. Burger finds that) (1) Preserving morality in a society (seeks to prevent moral laxness, and gov‟t is entitled to preserve it; Preserving particular tone in a community); AND (2) Even if shown in private to consenting adults, might make people immune to this type of material and make them more likely to engage in various types of sexual assaults. Most recent reports suggests that exposure to violent obscenity contributes to sexual assaults. Thus, prohibition of obscenity is NOT limited to preserving gov‟t interests in preventing children from seeing it, but also maintaining tone of community and preventing unlawful conduct that might result from viewing this material In addition to holding that obscenity is NOT protected by 1st amendment, Ct. holds that any material that depicts sexual conduct between individuals under the age of 16 (child pornography) is NOT protected by 1st amendment (Frimburger). Ct. has held that child pornography regardless of whether or NOT it is obscene is NOT protected by 1st Amend. and carved out of 1st amend. There is a need to prohibit it to prevent the market from this material; gov’t can ban distribution of it to cut off the market so that there will be NO INCENTIVE in making this material. NOTE: Ct. struck down fed‟l law banning virtual child pornography . Digital images that are made to look younger. Youthful looking adults. Ct. found that the law was not justified by policy concerns protecting children does NOT apply b/c there are no CHILDREN. Congress argued that (1) virtual child porn might wet the appetite of pedophiles and (2) Might be used to incite or persuade children.   Child pornography is unprotected; the possession of child porno is NOT protection. Ct. seeks to remove all incentive for this market Obscenity is NOT protected; possession of obscenity is protected - 66 - CONSTITUTIONAL LAW II – OUTLINE FREE EXERCISE CLAUSE Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… Sometimes a gov‟t attempt to avoid an establishment of religion looks like it burdens exercise of religion and sometimes an accommodation looks like gov‟t establishment (Religious headdress). If gov‟t prohibits or requires people to wear religious head dress. Permission to wear headdress may be viewed as an establishment (favoritism) or prohibition (School prayer). Establishment or prevention due to permission to pray (Gov‟t may be seen as favoring or establishing religion; Gov‟t may be prohibiting prayer). How can gov‟t navigate btw two guide posts: (1) Respecting people ability to exercise religion AND (2) NOT showing any favoritism in establishing religion. Church of Lukumi Babalu Aye v. City of Hialeah, 508 US 520 (1993) Hialeah is a suburb of Miami. Wanted to make a Santeria religion. Religion involved animal sacrifice. Local community became aware of church formation and cast a resolution 87-66. Inconsistent with basic morals/peace of community. Did NOT name Santeria specifically. Ordinance said certain religions. Ordinance attempted to define sacrifice (to unnecessarily kill, torment, torture for ritual or public ceremony, NOT for consumption). However, law WOULD NOT apply to slaughterhouses, butchers, or jewish kosher practices b/c these are for food consumption. Π argues that animal sacrifice is essential to Santeria religion practice and therefore violates free exercise of religion. Law does NOT prohibit any beliefs. RULES: Free exercise clause protects ability to believe and PRACTICE religious beliefs. It is the carrying out of the religion  With respect to freedom of speech, Speech is protected, but conduct is NOT protected; symbolic conduct, equivalent of speech is protected  Both belief and conduct is protected by free exercise of religion clause Threshold question is whether practices and beliefs was a RELIGION?  There was a NEO-american church religion with ordained ministers (BUBUS) and they presented evidence that taking psychedelic drugs would lead to mystical experiences (weed and LSD) If a law’s object/purpose is to infringe upon or restrict religious practices, it must be justified by compelling interest and be narrowly tailored to advance that interest. Religious criteria: (1) Moral teachings; (2) Historical records; (3) Sincere and meaningful belief; (4) Supreme being (?); (5) Objective beliefs; (6) Spiritualism; (7) Alternative sovereign (not something you can pick and choose; you need to feel there are some sort of (extra-temporal) consequences fro disobeying/violating your religious beliefs) Ct. states that the facial neutrality of the law is NOT dispositive, but the question is whether this law discriminates members of the Santeria religion, and law violates free exercise clause, if the object/purpose of the law is infringes upon or restrict religious practices; General/netural laws infringing on religion NEED NOT Meet higher scrutiny. HOLDING: The free exercise clause protects conduct. Assuming that Santeria is a religion; and we have religious conduct, so Ct. must address that the law violates the religious conduct. Ct. applies strict scrutiny, and the ordinance does NOT carry a sufficient gov‟t interest to overcome strict scrutiny. DC court expresses skepticism, what is lacking, supreme being, religious discipline, religious tenet, is missing. Does a religion who practices murder, unconstitutionally prohibited religious practice by general law banning murder? Ct. holds that a generally applicable law that incidentially burdens free exercise clause, does NOT infringe people’s free exercise law. Further, Ct. states that religious belief may be preposterous! NO NEED to have everyone believe it. BUT THERE NEEDS TO BE A SINCERE and meaningful belief. Ct. states that the facial neutrality of the law is NOT dispositive, but the question is whether this law discriminates members of the Santeria religion, and law violates free exercise clause, if the object/purpose of the law is infringes upon or restrict religious practices. Ct. can look at (1) the text; (2) , background (3) and operation of the law to determine whether law discriminates against religious practices. Ct. holds that the TEXT OF THE LAW does NOT single out or even mention the Santeria religion. Ct. Looks at the BACKGROUND OF THE LAW to establish evidence of purpose of law (who proposed the law; Records of emergency meeting shows much hostility to Santeria religion; Background of decision helped tell us that law was targeting Santeria religion). Ct. looks at the OPERATION OF THE LAW (Religious gerrymandering; Law operates in such a way that the only people who are affected are members of Santeria religion). Ct. looks at the LEGISLATIVE HISTORY (Only four members of court endorse legis. History as to determining object of law is to prohibit a religious practice). Similar inquiry as racial discrimination, is object of the law to discriminate someone of a particular (race) religion. Free exercise clause Operates as an anti-discrimination provision. Ct. concludes that the object of the law is to discriminate against Santeria religion and that the standard of scrutiny is strict scrutiny, so law must be narrowly tailored to compelling gov’t interest. Further, Ct. holds that law is over-inclusive and that there is a Lesser stricter alternative: Licensed butchers can slaughter animals; Santeria can follow butcher procedures or jewish religion member. Thus, generally applicable law whose object would NOT be to target a religious practice. Then question might be does generally applicable law target/discriminate their religious practices. CONCURRENCE: J. Scalia believes that the object of the law cannot be to target Santeria religion b/c if it turns on motives, then law would be hard to determine . NOTE: Lukumi stands for proposition that the Gov’t violates free exercise clause where object of the law is to infringe the free exercise of religious practice. C. will dteremine whether object of law is to target/infringe free exercise of religion by looking at (1) The text of the law; (2) The background of the law; (3) The operation of the law; (4) The legislative history (supported by only 4 members of the Ct.). - 67 - CONSTITUTIONAL LAW II – OUTLINE Locke v. Davey, (2004) State sponsored scholarship program. It was the WA state and chose NOT to distribute scholarships to one specific kind of student activity. Devotional theology groups. NO THEOLOGICAL EDUCATION. Students get scholarships and choose where to go to school. You could go to a religious school but you were prohibited from studying to become a minister. WA state did NOT permit students to take these scholarships and use them to study devotional theology. The state const. says that NO public money or property shall be appropriated to any religious instruction or establishment of religious practices. Allowing students to study theology would violate the state constitution. Πs claim that the WA law infringes on his freedom of religion and it violates the free exercise clause of the 1 st Amendment. Scholarship is based on academic performance. NO scholarship if you want to study to be a minister. RULES: the 1st Amendment Free Exercise Clause is NOT violated by a state’s scholarship program which excludes pursuing a degree in devotional theology. Establishment and free exercise clause is designed from favoring one religion over all religions, or prevent gov’t from favoring religion over atheism. HOLDING: Ct. holds that this law preventing devotional theology for scholarship recipients does NOT infringe/targeting free exercise of religion. MAJ Ct. states that WA could offer these scholarships without violating the establishment clause, but WA state chooses NOT to do so. Ct. is giving WA state some leeway to determine whether it wants to fund religious studies from tax payer funds. J. Rehnquist does NOT view this on infringement of free exercise of religion (p. 1519-1520) DOES not IMPOSE criminal or civil sanctions on any type of religious practices, BUT only withholds a benefit for state funds. Here, the scholarship allowed for practicing of religion, go to religious school, take courses and learn more, but cannot study to be a minister. Here, becoming a minister is NOT something that is central to practice of religion DISSENT: J. Scalia holds that under Lukumi, the object of this law is to target people who want to study to become ministers. Once scholarship is available generally, and you cannot get it to study religion, then it operates as a burden b/c you are unable to compete for this money which is functional equivalent of a civil penalty. NOTE: Both Lukumi and Locke v. Davie, involve laws that target religious study or practice either on their face or in their operation (make it harder to practice the religion). However, gov‟t‟s rarely pass laws that on their face that burden/infringe free exercise. Gov‟t usu. pass generally applicable laws that incidentally burden a religion. Question becomes whether or NOT gov’t is prevented from targeting religious practice only or is it also prohibited from passing generally applicable laws that incidentally burden religious practices? Sherbert v. Verner, (1963) Strict Scrutiny Π was a 7th day Adventist. Her Sabbath was Saturday. She was denied employment b/c only ERs req‟d her to work on Saturday. State was forcing her to choose btw religion and work. She cannot get unemployment benefits. If she does NOT work on Saturday, she will NOT receive civil or criminal penalty. If she says she will NOT work on Saturday, then she will NOT get unemployment. Π argues that the law had a discriminatory impact/effect b/c it is generally applicable, and incidentally burdens her religion DOES NOT single her out B/c she refused to take suitable work, and law is generally applicable b/c it refused benefit to all people who refused suitable work. RULES: Laws that are generally applicable, that does NOT single out a particular religion, and has a discriminatory impact/effect VIOLATES free exercise of religion b/c gov’t interest do NOT meet strict scrutiny and equates the generally applicable laws with laws that single out religion  There are other ways for gov‟t to satisfy these interests; gov‟t is simply speculating that people would submit fraudulent claims if it did NOT impose this reqm‟t. Under strict scrutiny, the Ct. strikes down this law HOLDING: Ct. holds that it is an unconstitutional burden on worker‟s free exercise of religion for a state to apply eligibility requirements for unemployment benefits so as to force a worker to abandon her religious principles. Here, the withholding a benefit, unlike Locke v. Davey, constitutes an infringement on free exercise clause. Ct. finds that the only people who could NOT get unemployment if you refused to work on Saturday, but if you refused to work on Sunday, then you could get unemployment benefits. In Locke v. Davie, Ct. found that denial of benefit was NOT an infringement b/c Locke required students to NOT study religion, which was NOT reqm’t of the religion to study. Here, it would be a burden on her religious practice b/c her religion requires her NOT to work on a Saturday. Further, the law does NOT single out this particular religion, but puts a burden on her free exercise. State does NOT show any compelling interest to justify the burden. NOTE: Smith overturns Sherbert. Smith was the basis for City of Boerne. - 68 - CONSTITUTIONAL LAW II – OUTLINE Employment Div. of HR v. Smith, 494 US 872 (1990) Rational Basis for Generally Applicable Laws Infringing on Religion Two workers smoked peyote due to their religious beliefs and were fired. They were drug counselors and fired from job for doing drugs. OR State law made it unlawful to use drugs. Πs could NOT get unemployment benefits under state law if you were fired for violating the law. Al Smith was 70 year old native American who had been an alcoholic and drug addict as a young man and got his life together, and became a counselor. He worked a lot with drinking among native Americans. Use of peyote for religious purposes, he was skeptical, but a peyote priests suggested he try it and he thought it helped his rehabilitation. He got job at clinic who had strict rule that relapses are fired. A counselor asked him about using peyote as a way to maintain his sobriety. The guy used peyote and word got around his ERs told him that if he did it again he‟d be fired. They warned Smith NOT to use Peyote; and although he did NOT use it for a while, he used it to show them his religious beliefs. They were denied unemployment b/c of the basis for their termination. ISSUE: Is this an infringement of their rights under the free exercise clause?  Law was NOT designed to target religion of Native Americans  General anti-drug law, outlaws many drugs, NOT like Hiyaleah Given that the law is generally applicable, whether or not it infringes upon Smith’s rights under free exercise clause  Ct. finds that it does NOT infringe on his rights. RULES: Where there is a generally applicable law that incidentally burdens religious purpose, the law will be subject to rational basis review.  Lower standard b/c the law is NOT targeted to the religious practice FIRST AMENDMENT, (1791) Congress shall make no law…(respecting an establishment of religion, or)…prohibiting the free exercise thereof; HOLDING: Ct. rejects Sherbet‟s strict scrutiny approach and holds that when there is a generally applicable law that incidentally burdens religious purpose, the law will be subject to rational basis review. Leave it to the political process. Since peyote is a central aspect of their religion, and peyote is a valid religious practice for a valid religion; why can Ct. find that it does NOT prohibit free exercise? J. Scalia, MAJ - “the rule respondent‟s favor (Sherbert) would open the prospect of constitutionally required religious exemptions from civic exemptions from civic obligations of almost every conceivable kind – ranging from compulsory military service, payment of taxes, to health and safety regulation, manslaughter, and child neglect laws, compulsory vaccination, wage laws, drug laws, animal cruelty laws, social welfare legislation…” THE PERSON WOULD BECOME A LAW UNTO HIMSELF, b/c every person could argue for and find any exception for obeying of the laws. J. Scalia thinks that the Ct. should NOT make determinations about what is a true religious practice; what is or is NOT a religious practice being burdened. Gov‟t does NOT have to justify the law in that case but can argue that there is a good reason for the law. DISSENT: J. O‟Connor thinks that this is the Ct.‟s job, the sounder approach, the one more consistent with role as judges, and determining case on its merits; and should determine whether in each case, the religious practice is being burdened by the generally applicable law. Per, FN 4, Carolene Products, Ct. does NOT get involved in judging law on substantive validity, but should make sure political process is working well and when we have minority groups that cannot be protected by the political process, the Ct. should get involved and protect these religious practices. J. O‟Connor finds that generally applicable OR law satisfies strict scrutiny b/c gov‟t interest is to prevent drug use and upholding drug laws. In Gonzales v. Reich, the gov‟t argued that it could NOT make an exception b/c in order to enforce nationwide prohibition it had to ensure NO local grown marijuana gets into national market b/c it would under cut entire system o DICTA: Where you challenge free exercise claim and another claim, similar to Yoter, rational basis to generally applicable law burdening religious practices does NOT just apply, strict scrutiny applies and we are under Yoter, b/c of the hybrid rights claims. (J. Scalia is describing Yoter after the fact, and using it for his benefit). Amish challenges has Ct. apply strict scrutiny for compulsory education laws. Yoter invoked rights of parents to raise your children. - 69 - CONSTITUTIONAL LAW II – OUTLINE SUBSTANTIVE DUE PROCESS RIGHTS. OLD ARTICULATION. J. Scalia says that Yoter involved two rights Substantive due Process and free exercise claim, but Smith only has one interest. J. Scalia voted in dissent in numerous substantive due process cases and post-hoc argues that Yoter was a hybrid two right cases. Unemployment cases use Sherbert, and J. Scalia finds that unemployment justifies higher standard of scrutiny b/c unemployment is a system of individualized assessment (individual hearing and assessment of reasons for not accepting work) and in a situation like that the gov‟t cannot refuse to consider religious reasons. Distinguishes Sherbert on the grounds that those unemployment cases involve individual considerations and state cannot refuse to take into account religious practices. Since Criminal law is an across the board prohibition and there IS NO INDIVIDUAL CONSIDERATION, Sherbert requires strict scrutiny to ensure that state is NOT infringing on free exercise clause. J. Scalia and 4 other members state that if a religion wants an exception from a generally applicable law, then that religion should lobby the legislature to provide an exemption from the law. MIN religions may be less able to protect their religion in the political process. A fringe religion would NOT have as much influence as a Christian religion. NOTE: In Hiyaleah, Judaism had an exemption for kosher, but NO exemption for Santeria It may fairly be said that leaving accommodation to the political practice, it would put at a disadvantage to those MIN religions, but that disadvantage is fact of life of democratic gov‟t as opposed to the alternatives of where you have anarchy b/c everyone is a law unto himself or STRICT SCRUTINY, which means that the judges will weigh the benefits of the laws against the burdens or weigh social important of all laws against the centrality of all religious beliefs (P. 1537) In making these decisions, the Ct. suggests that Democratic governance/political process is to be preferred over (1) Anarchy and (2) Judicial intervention. NOTE: Pervasive question about the role of courts in a democratic society; how great a role court‟s will play in regulating the actions of a MAJ in society. Judges against judicial intervention: in Lochner, J. Holmes is arguing that we should NOT restrict hours of bakery workers, conservative justices allowing democratic government is preferred. Liberal justices saying hands off – democratic government over judicial intervention. NOW IT IS FLIPPED!! NOTE: After Smith, there is a broad, bipartisan coalition which passes the Religious Freedom Restoration Act (RFRA), which prohibits fed‟l state laws from burdening religious practices, without satisfying a compelling gov‟t interest and having law narrowly tailored. In City of Boerne, the Ct. strikes down the RFRA b/c Congress exceeds its power under § 5 of 14th Amendment to impose strict scrutiny. It is important to NOTE that the Political process takes place to protect religions, but Ct. strikes down law. Ct. struck down part of the act that Congress had applied to the states. RFRA said that neither state NOR fed‟l gov‟t could pass a law that burdened. City of Boerne only dealt with law to state gov‟t, NOT fed‟l gov‟t. RFRA had a self-restraint on fed’l gov’t laws, requiring that any fed’l LAW that is generally applicable that burdens religion must satisfy strict scrutiny. RFRA has teeth when applied to laws passed by Congress. But invalidated with respect to state government - 70 - CONSTITUTIONAL LAW II – OUTLINE FREE EXERCISE CLAUSE      Hiyaleah Case, ct. will apply strict scrutiny to laws that on their face or in their operation target religious practice. If object of law is to target religious practice, the ct. will apply strict scrutiny (compelling gov‟t interest and narrow tailoring) generally applicable laws get what standard? Sherbert Case were women denied work on Saturday and sought unemployment, Ct. held that the law which was NOT passed to target her or her religion, but because it burdened her ability to practice her faith, it would only be upheld if it passed strict scrutiny and it did NOT pass it Cases like Sherbert, in several cases, the Ct. upheld free exercise claims brought by individuals who srought unemployment b/c they targeted their religion In Addition, Yoter Case, the Ct. said that the state‟s interest in universal education has to be strictly scrutinized when it infringes on religious practice o Amish children get out of school after 8th grade; Compulsory education laws struck down as to Amish Upheld Claims 1. Unemployment benefits 2. Compulsory Education Laws Denied Claims  @ same time, Ct. denied numerous free exercise challenges after Sherbert o (1) Satisfies strict scrutiny despite targeting religious practices  (A) An amish farmer said he did NOT want to pay Social Security Tax b/c Amish take care of their elderly  Gov‟t had compelling interest in collecting SS fund and mandatory participation was necessary to fiscal viability for program – need everyones money to pay for those over 65 years old  (B) Anti-discrimination laws  Bob Jones University, part of their religious beliefs and practices of University was racial discrimination  State has a compelling interest in ensuring that state and universities abide by anti-discrimiantion law o (2) Ct. applies lower level of scrutiny in special context – DEFERENCE IN SPECIAL CONTEXT  (A) military given great deference  (B) in prison, laws that burden religion would be measured by REASONABLENESS standard NOT by strict scrutiny o (3) Internal governmental operations  Ct. rejected free exercise claims b/c it concluded that Πs were complaining about the way the gov‟t went about in doing its job  Use of SS# in food stamp programs would rob the children of her spirit  NOT something that the gov‟t making the individual do, but simply assigning a number  Indians fight against development of property that was traditionally used for religious practices  It would NOT infringe on tribes b/c it was gov‟t prerogatives to do what it wants to do with its property HYPO  Wickens perform rituals naked  Hindus find it offensive to be naked  Is there a conflict btw two groups? o A law that banned nudity would interfere religious exercise of Wickens  Do you have right to practice religion? Do you have right to NOT have your religion offended by what other people do?  Free exercise clause gives people the right to do what they have to do to perform/practice their religion - 71 -