Con Law

Question 1

Bill of Rights

Answer 1

The first ten amendments to the United States Constitution. Proposed following the often bitter 1787–88 debate over the ratification of the Constitution and written to address the objections raised by Anti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and rights, clear limitations on the government’s power in judicial and other proceedings, and explicit declarations that all powers not specifically granted to the federal government by the Constitution are reserved to the states or the people.

SCOTUS interpretation of 2nd AM, in particular, is a good intro to how the SCOTUS interprets the BoR and Incorporation

Question 2

Incorporation

Answer 2

The doctrine by which portions of the Bill of Rights have been made applicable to the states.

The only Amendments of the Bill of Rights that the Supreme Court has not addressed include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.

Question 3

2nd Amendment

Answer 3

“A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Question 4

D.C. v. Heller (2008)

Answer 4

The 2nd Amendment protects ownership of weapons typically possessed by law-abiding citizens for lawful purposes. 2nd Amendment can be restricted by certain types of weapons or certain places.

Facts: D.C. created three restrictions on handgun use: (1) requires a license to carry a handgun – NO ONE CHALLENGES THIS; (2) requires the weapon to be unloaded and disassembled; and (3) prohibits the registration of a handgun within D.C. The Supreme Court found the second two unconstitutional.

Majority (Scalia): focused on the operative clause and then whether the reading did not disrupt the reading of the prefatory clause.

1. Operative Clause: “codifies a right of the people.” Strong presumption that the 2nd Amendment right is exercised individually and belongs to all. “Arms,” “keep” arms, and “bear” arms all refers to keeping and carrying arms not solely for military use. Confirmed history.
2. Prefatory Clause: the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away all the people’s arms so this right had to be protected. The founders wanted to protect what they had created through a militia. Confirmed by State constitutions made after this amendment.
3. United States v. Miller only means the type of weapon at issue was not eligible for 2nd Amendment protection. The arms must have “some reasonable relationship to the preservation or efficiency of a well-regulated militia.” Cannot carry dangerous and unusual weapons (leads to argument about popularity as a result of being legal or not).
4. Lower court stated a Taser is an “arm” for purposes of the 2nd amend.

Dissent (Stevens): the majority needs to put more emphasis on the pre-amble. They are limiting the protected class to law-abiding citizens, which has never been done with other amendments. “Keep and bear” arms is one phrase and only applies to military activities. And Miller, signified the difference between military and nonmilitary use.

Dissent (Breyer): interest-balancing test should be “with the interests protected by the 2nd Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.”

Question 5

McDonald v. City of Chicago (2010)

Answer 5

The 2nd Amendment right is fully applicable to the States. Chicago could not ban handguns in homes for self-defense. Plurality issue (whether this is protected under the privileges and immunities clause or the due process clause).

Facts: Chicago refused all handgun registrations since 1982, when a citywide handgun ban was passed. Accordingly, McDonald was unable to own a handgun legally. As a result, McDonald joined in 2008 three other Chicago residents in filing a lawsuit against the city.

Majority (Alito):

1. Originally, the court held that first 8 amendments did not apply to the States. Barron ex rel. Tiernan v. Mayor of Baltimore (1833). And then the 14th Amendment came along.
2. 14th Amendment Section 1 provides: A State may not abridge “the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law.”
3. Current approach to determine whether an amendment is adopted in the 14th Amendment…the court (1) asks whether a particular bill of rights guarantee is fundamental to our scheme of ordered liberty and system of justice, or (2) whether the right is “deeply rooted in this nation’s history and tradition.”
4. There is no serious federalism concern here b/c experimentation by the States can still continue under the 2nd Amendment. Regardless, when rights apply to all and States must comply, there is no federalism concern.
5. The court did list areas that the 2nd Amendment would not apply such as felons and mentally ill.
6. Counter to Breyer Dissent: (1) there is no need for “popular consensus” that a right is fundamental; (2) this right will protect minorities; (3) this will limit State power, but that always happens when rights are incorporated; and (4) the court will not get involved b/c it cannot perform interest-balancing tests.

Dissent (Stevens): his test would be to determine (1) the nature of the right that has been asserted and (2) whether that right is an aspect of 14th Amendment “liberty.” He believes the interest in keeping a firearm in the home is not within the term “liberty.” He also thinks the 2nd Amendment should only protect military uses.
NOTES:
1. Black previously wanted the privileges and immunities clause of the 14th amendment to apply the bill of rights to the states, but this was rejected (“total incorporation theory”).
2. Bill of rights was originally created to JUST protect individuals from future federal government action, but not State action.
3. Right to keep and bear arms in home for self-defense. And in public, subject to various location restrictions. Certain types of weapons can be regulated. Certain people do not have a right to them.

Question 6

Substantive Due Process

Answer 6

A principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are unenumerated (i.e., not specifically mentioned) elsewhere in the US Constitution.

It was not until the case of Dred Scott v. Sandford (1857) that the Supreme Court found a statute unconstitutional based on an un-enumerated right enforced through the Due Process Clause

Question 7

14th Amendment

Answer 7

A reconstruction amendment addressing citizenship rights which passed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress.

14th Amendment: created three new constitutional limitations on states. They could not (1) abridge the privileges or immunities of citizens of the United States; (2) deprive any person of life, liberty, or property without due process of law; and (3) deny to any person within its jurisdiction the equal protection of the laws.

Question 8

Slaughter-House Cases (1873)

Answer 8

The Privileges & Immunities clause only protects those rights guaranteed by the United States, not individual states

Facts: A Louisiana law granted monopoly power to operate slaughter houses in an attempt to limit the refuge from slaughter houses in New Orleans. A group of butchers challenged the charter arguing that it violated the 14th AM b/c it deprived them of the privilege to pursue their vocation.

Majority (Miller):

1. This is different than Article IV privileges and immunities where states must give you equal privileges and immunities. These privileges and immunities only apply to rights arising out of federal citizenship (ie access to courts, to the seas, petition, habeas corpus, etc.).
2. The statute did not create a deprivation of life, liberty, or property (due process).
3. The last clause only applies to discrimination against African Americans (equal protection).

NOTES:

1. This case established that the privileges and immunities clause has almost no effect on the law. The exception was in Saenz v. Roe (1999) [under equal protection section]. The court found that it was unconstitutional when California put a limit on welfare benefits received by new residents to that which they would have received in their previous states. One privilege and immunity is the right of someone to become a citizen in another state with the same rights as other citizens of that state.
2. Good law regarding privileges and immunities, but bad law regarding the due process and equal protection clauses.
3. Federalism issue – this would be too much federal power if the privileges and immunities allowed more.

Question 9

*Lochner v. NY (1905) – BAD LAW NOW *

Answer 9

The Free exercise Clause prohibits laws that deprive a person the right to contract. Although this was basically overruled by Nebbia with established that price control is constitutional if arbitrary, discriminatory, or demonstrably relevant to the policy the Legislature is free to adopt.

Facts: In 1895, the New York State Legislature enacted a law known as the “Bakeshop Act” which prohibited bakery employees from working more than 10 hours per day or 60 hours per week. Lochner, a baker, sued claiming the law deprived him of a liberty w/out due process of law.

Majority (Peckham)

1. There is a Police Power exception to violating Due Process: the state has power to prevent the individual from making certain kinds of contracts, and in regard to them the Federal Constitution offers no protection. Powers which relate to the safety, health, morals, and general welfare of the public.
2. The court found there was no valid health reason here and that allowing this would permit states to hide any statutes behind a “health” reason. (1) The law itself does not directly help the baker and the baker does not have a special occupation such as miners that may need this; and (2) regulating labor is not a legitimate police power.

NOTES:

1. Labor laws unrelated to health or safety cannot be justified under the police powers of the state.
2. After this case, the court subsequently invalidated numerous state laws regulating labor.
3. Nebbia v. NY (1934) [signified the end of Lochner]. The court found a NY law that set a minimum retail price for milk was valid b/c its purpose was to assist dairy farmers and price control is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt.

Question 10

Rational Basis

Answer 10

.

Courts applying Rational Basis review seek to determine whether…“a law furthers a Legitimate Government Interest by means that are rationally related to achieving that interest.”

Question 11

Williamson v. Lee Optical of OK (1955)

Answer 11

A law that does not deprive a person of a fundamental right or deprive a suspect class of a liberty only needs to pass Rational Basis Review.

Facts: An Oklahoma law made it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or duplicate lenses. Lee Optical claimed the law violated Due Process by depriving him of the Liberty to do business

Majority (Douglas)

1. A challenger has the burden to prove the law cannot do any good.
2. A situation where the Court may give LESS Deference to States includes: United States v. Carolene Products Co. (1938), a state law banned the shipment in interstate commerce of skim milk (non-milk fats added). Led to cheaper milk, bad for dairy farmers. The court allowed this but noted that extreme deference to legislature may not be appropriate where (1) legislation appears on its face to be within a specific prohibition of the Constitution; (2) legislation restricts those political processes which can ordinarily be expected to bring about repeal of undesireable legislation; and (3) statutes are directed at particular religious or national or racial minorities or whether there is prejudice against discrete and insular minorities.

Contracts Clause: prohibits states from “impairing the obligation of contracts.” Article I, Section 10, Clause 1. Although this is an enumerated right, it is not strictly enforced as might be assumed. The one area it is strictly applied is when the government is a party to the contract itself.

Question 12

Strict Scrutiny

Answer 12

The highest standard of judicial review. when a court finds that a law infringes a fundamental constitutional right, the court may apply the strict scrutiny which requires that the law furthers a Compelling Government interest by means that are Narrowly Tailored to that interest.

1. Suspect Classifications:
   a. Race
   b. National Origin
   c. Religion (either under EP or Establishment Clause analysis)
   d. Alienage (unless the classification falls within a recognized “political community” exception, in which case only rational basis scrutiny will be applied).
2. Classifications Burdening Fundamental Rights
   a. Denial or Dilution of the Vote
   b. Interstate Migration
   c. Access to the Courts
   d. Other Rights Recognized as Fundamental

Question 13

Griswold v. Connecticut (1965)

Answer 13

Citizens have a fundamental right to privacy which is cognizable from the penumbra of the 1st Amendment. Moreover, reproductive medical advice falls under the privacy right. Therefore, laws cannot restrict access to private medical advice.

Facts: A Connecticut law criminalizing the assisting of married persons to use any drug, medicinal article or instrument for the purpose of preventing conception. A doctor and mother challenged the law on the grounds that a ban on contraception could, in certain situations, threaten the lives and well-being of patients.

Majority (Douglas): The court found a right to privacy by finding that the 1st and other amendments protect privacy from governmental intrusion because they have “penumbras” created by “emanations from these guarantees that help give them life and opinion.” Douglas did not want to characterize this as under the due process clause to avoid Lochner.

Concurrence (Goldberg): does not believe the 14th amendment includes the first 8 amendments, but thinks the concept of liberty protects privacy and is not confined to the specific terms of the bill of rights. He also believes the 9th amendment encompasses liberty not specifically mentioned in the first 8.

Dissent (Black): privacy is only protected if it is mentioned in an amendment and this type of privacy is not mentioned anywhere. And the court does not have the power to analyze state laws for validity b/c they would be using their judgment.

Dissent (Stewart): none of the amendments protects this kind of privacy and the 9th amendment does not encompass un-enumerated privacy rights b/c it was only to apply like the 10th to make sure nothing infringed on the rights of the states.

NOTES: subsequent cases broadened this.

1. In Eisenstadt v. Baird (1972), the court found an MA statute unconstitutional that prohibited the distribution of contraceptives, with an exception for doctors or licensed pharmacists distributing to married persons (unmarried people have a right to).
2. In Carey v. Population Services Int’l (1977), the court invalidated a NY law that prohibited the sale of non-prescription contraceptives except by licensed pharmacists and prohibited absolutely the sale of such contraceptives to persons under 16 years old.

Question 14

Roe v. Wade (1973)

Answer 14

A woman has a constitutional right to an abortion under her privacy right. According to Strict Scrutiny, the State may only regulate the abortion procedure to the extent that the regulation relates to the preservation and protection of maternal health AFTER the end of the first trimester.

Facts: “Jane Roe” wanted an abortion but could not have one under Texas anti abortion law. Pro-abortion advocates filed a suit on her behalf claiming that the Texas Law violated the Right to Privacy.

Majority (Blackmun):

1. The Right of Privacy is a Fundamental Right
2. “Privacy” includes “a woman’s decision whether or not to terminate her pregnancy.” The court finds that abortion is a privacy right b/c it is “fundamental” or “implicit in the concept of ordered liberty.” This is b/c of the health implications before and after birth. However, the state can limit privacy rights.
3. The court finds the fetus is not a “Person” as mentioned in the 14th amendment.
4. Strict Scrutiny Test: the State’s interest must be (1) a “compelling interest” and (2) the legislative enactment must be narrowly drawn to express only the legitimate state interests at stake. (a) The TX statute preventing abortion at any time with “health” as a state interest, does not pass strict scrutiny. (b) However, state does have an interest in protecting prenatal life – does not define “life.” The court determines the “compelling point” of this interest (end of 1st trimester - viability).
5. Holding: 1st trimester absolute right to abortion, 2nd trimester state can regulate in ways related to maternal health but cannot completely prevent abortion, 3rd trimester/at viability state can completely ban abortion.

Concurrence (Burger): this decision does not mean this is abortion on demand.

Dissent (White): the majority is allowing women to abort for bad or no reasons at all (abortion on demand). The court should not be able to just place more value on the convenience of the pregnant woman over potential life.

Dissent (Rehnquist): this should not be a privacy interest b/c a transaction resulting in an operation such as this is not “private.” The court should not invalidate all restrictions on abortions in the first trimester.

NOTES:

1. In Doe v. Bolton (1973), the court allowed a GA statute that allowed abortions that would endanger life, where the fetus could be born defected, or where it resulted from rape or incest. It did invalidate procedural requirements though requiring it be performed in an accredited hospital, approved by abortion committee, and multiple examinations.
2. The court did not extend this to creating a right to government-funded abortions. Maher v. Roe (cannot use Medicaid). Harris v. McRae (no Medicaid funds except to save life or in cases of rape or incest).

Question 15

Planned Parenthood of Southeastern PA v. Casey (1992)

Answer 15

A woman still has a constitutional right to an abortion under her privacy right but now the time of viability replaces the First Trimester to determine when the state’s interest in the baby supersedes the woman’s right to an abortion. ALSO, the “undue burden” test replaces the Strict Scrutiny as used in other privacy issues…Restrictions requiring informed consent, a 24 hour waiting period, parental consent (with judicial bypass), and record keeping are NOT an undue burden.

Facts: Abortion clinics brought suit against a PA law requiring abortion patients to submit to a waiting period, spousal notice, and (for minors) parental consent prior to undergoing an abortion procedure

Plurality (O’Connor):

1. The ability to abort is protected by the Due Process clause of the 14th Amendment limiting the State’s right to interfere with basic decisions regarding family and parenthood (ie Privacy).
2. Pre-Viability Undue Burden Test: there “exists” an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the “purpose or effect” of the provision “is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”(ie “24 weeks)
3. Post-Viability Undue Burden Test: “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power” to regulate aspects of abortion procedures, “all in furtherance of its legitimate interests in regulating the medical profession.”
4. Informed consent, 24 hour waiting period, and parental consent with judicial bypass requirements are not undue burden.
5. Informing husband is an undue burden b/c women may not be able to safely.
6. Record keeping and reporting requirements allowed, except for disclosing whether husband was told.

Concurrence (Blackmun): all the provisions should not be allowed. Limitations on privacy rights should only survive if they survive Strict Scrutiny.

Concurrence (Rehnquist): Roe was wrongly decided and it should be overruled. Instead, the court is leaving an outer shell and creating a new “undue burden” standard. If they were following stare decisis, they would have to follow the “fundamental right” standard in Roe. Believes rational relationship test should be used.

Concurrence (Scalia): Abortion is not a liberty protected by the Constitution b/c the Constitution says nothing about it and the longstanding traditions of American society have permitted it to be legally proscribed by the legislature.

Question 16

Gonzalez v. Carhart (2007)

Answer 16

The Partial-Birth Abortion Ban Act of 2003 has a rational basis and does not impose an undue burden by (1) being too broad or (2) barring a procedure necessary for preservation of the health of the mother. However, the court stated as-applied challenges may still be had for health concerns of mother.

Facts: this act banned intact dilation & evacuation “late term” abortions (still pre-viability but in 2nd trimester). Standard D&E abortions, induction, hysterotomies, and hysterectomies are still allowed.

Majority (Kennedy):

1. The act expresses respect for the dignity of human life and has in interest in protecting the integrity and ethics of the medical profession (valid governmental interest).
2. The act attempts to draw a bright line that clearly distinguishes abortion and infanticide.
3. Not undue burden for mother’s health b/c there are other alternatives and defer to Congress when there is “uncertainty” in the medical community.

Dissent (Ginsburg):

1. This is not in line with precedent b/c in the past the court has held there must be a woman’s health exception.
2. Uncertainty in the medical community is a factor that signals the presence of risk, not its absence.
3. “In short, the Court upholds a law that, while doing nothing to preserve fetal life, bars a woman from choosing intact D&E although her doctor reasonably believes that procedure will best protect her.”

Question 17

Whole Woman’s Health v. Hellerstedt (2016)

Answer 17

The admitting-privileges requirement and the surgical-center requirement of Texas House Bill 2 were unconstitutional b/c neither of them confer medical benefits sufficient to justify the burdens upon access that each imposes.

Facts: Texas passed a law placing a series of restrictions on abortion clinics within the state, including the requirement that abortion clinics upgrade their buildings, safety, parking, and staffing to meet the standards of a hospital.

Majority (Breyer):

1. Courts must consider the burden a law imposes on abortion access together with the benefits those laws confer.
2. Court should weigh the medical evidence when there is “uncertainty” in the medical community.
3. The Admitting-privileges were an undue burden b/c there was no problem to address and the new law did not protect women’s health
4. Surgical-center requirement was an undue burden b/c it not benefit health and is unnecessary since many more risky procedures do not require this.
5. Maybe Kennedy agreed with this holding b/c the state clearly looked like its only purpose was to limit abortions.

Dissent (Thomas): the court is applying different standards to different constitutional rights. The majority is changing the undue burden test. Believes even if there is an undue burden, more than a legitimate state interest is needed.

Dissent (Alito): H.B. 2 was intended to shut down unsafe facilities. We don’t know if there is a burden b/c there could have been a number of reasons facilities shut down and not necessarily these requirements.

Question 18

Bowers v. Hardwick (1986) [OVERRULED]

Answer 18

Sodomy is not protected as a privacy right

Facts: A police officer entered Hardwick’s apartment with a non-valid warrant and witnessed him having gay oral sex. Hardwick was arrested for breaking Georgia sodomy laws. Hardwick claimed that the Texas law violated the 14th Am by depriving him of privacy w/out due process.

Majority (White):

1. None of the privacy rights announced in precedent bears resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.
2. There is also no separate fundamental right “to engage in acts of consensual sodomy” to be protected by the 14th Amendment, which is made clear by history. Determined whether “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”
3. Moral reasons of the State legislature are sufficient to provide a “rational basis” for the law.

Dissent (Blackmun): if the right to privacy means anything, it must include what people do alone together in their bedroom. Protection of privacy is not just for family matters, but for anything that is a central part of an individual’s life. In addition, there is no justification by the State for these laws.

NOTES: Broader conception of right can make it more fundamental, more specific right can make it less so. Scalia thinks it should be more specific b/c courts would be less involved and you can see better if there is a tradition.

Question 19

Lawrence v. Texas (2003)

Answer 19

A law that criminalizes sexual intimacy by same sex couples is unconstitutional b/c it violates Liberty and Privacy rights protected by the 14th Amendment.

Facts: The police in Texas arrested Lawrence whom they found engaging in homosexual sex after receiving phone call of a domestic disturbance at Lawrence’s home. Lawrence claimed the Texas law criminalizing gay sex was unconstitutional arguing that it deprived him if liberty
and privacy w/out due process.

Majority (Kennedy):

1. Kennedy never discusses whether this is a fundamental right.
2. “Liberty” includes the right of people to perform consensual sexual conduct without being criminalized.
3. Bowers should be overruled b/c the history was not correct. (1) Old laws were aimed at certain non-procreative conduct, not homosexuals, (2) these laws were often only prosecuted for non-consenting persons, and (3) same-sex laws came later.
4. Changes in society show liberty now encompasses this: nationally (ALI), internationally, post-Bower reactions by changes in State laws, and Supreme Court decisions (Planned Parenthood reaffirmed liberty protections and Romer v. Evans showed equal protection protects homosexuals).

Concurrence (O’Connor): The Texas law violated equal protection, but not necessarily due process.

Dissent (Scalia): this is not a fundamental right, and even if it was, the state may regulate if there is a compelling interest. Here, there is a compelling interest b/c the people may dislike homosexual activity. The court is being persuaded by the homosexual agency and this matter should be determined by the State, not the court.

NOTES: how can we apply this opinion to other cases? This case covers private conduct, non-commercial, between consenting adults. But why these categories?

Question 20

Cruzan v. Missouri Dep’t of Health (1990)

Answer 20

A State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state.

Facts: Missouri did not allow the Cruzan family to discontinue the life of their daughter even though a housemate had testified she would not want to live as a “vegetable” and her family felt she would want that.

Majority (Rehnquist):

1. Previously the court has recognized a right to refuse vaccination and right to refuse unwanted antipsychotic drugs. History and tradition of common law torts for battery and informed consent support there could be a fundamental right here.
2. The court assumes, for purpose of the case, there is a “constitutionally protected right to refuse lifesaving hydration and nutrition.” However, “whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.”
3. The state has an interest in the protection and preservation of human life and prevention of family members imposing their wishes on people, so the state is permitted to require clear and convincing evidence of the person’s intent. The state is also allowed to decline to make quality judgements about quality of life.

Dissent (Brennan): a person has a fundamental right to be free of unwanted artificial nutrition and hydration, which right is not to be outweighed by any interests of the State. A person is entitled to choose to “die with dignity.”

Question 21

Washington v. Glucksberg (1997)

Answer 21

The Due Process clause does not prohibit a law from stopping physicians from “causing” or “aiding” in suicide.

Facts: physicians, plaintiffs who have since died, and Compassion in Dying sued to facially challenge a Washington law preventing physician-assisted suicide.

Majority (Rehnquist): the Due Process clause does not include a right to commit suicide and the right to assistance in doing so. It is not a fundamental right b/c it has long been rejected in society.

1. “We have regularly observed that the Due Process Clause specifically protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed”; “we have required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.”
2. The court distinguished Cruzan, b/c in that case the common-law rule that forced medication was a battery, and there is a long legal tradition of protecting the decision to refuse unwanted medical treatment. The court’s assumption was thus consistent with constitutional traditions.

Concurrence: there is no right to “commit suicide,” but a competent person suffering may have a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. However, the state has an interest in protecting those who might seek to end life mistakenly or under pressure. There are many options to be able to eliminate pain before death (can even give so much to relieve pain that death results).

NOTE: Vacco v. Quill (1997) was decided on the same day, but the court found it did not violate the Equal Protection Clause.

Question 22

Family Liberties Cases

Answer 22

1. SCOTUS held iberty includes the right “to marry, establish a home and bring up children.” Meyer v. Nebraska (1923).
2. SCOTUS held liberty included right of parents “to direct the upbringing and education of children under their control.” Pierce v. Society of Sisters (1925) (attempted to make everyone attend public schools). But states can interfere with some things, such as requiring vaccination.
3. SCOTUS found Washington law unconstitutional which authorized grandparents’ visitation rights over the objections of the sole surviving parent. Troxel v. Granville (2000).
4. SCOTUS upheld a California law that created a presumption that a child born to a married woman living with her husband is the child of the husband. Michael H. v. Gerald D. (1989).
5. SCOTUS found unconstitutional Cleveland zoning ordinance limiting the occupants of a house to members of a family and defined “family” to exclude grandparents. Moore v. City of East Cleveland (1977). Plurality found this was an intrusive regulation of the family without any justifiable reason. Stevens found this was just an arbitrary restriction on an owner’s use of property, and other found this not to unconstitutionally interfere with family.

Question 23

Marriage Liberties Cases

Answer 23

1. SCOTUS Unanimously overturned Virginia’s law banning marriage between persons of different races on Equal Protection grounds and Due process b/c marriage is a “basic civil right of man.” Loving v. Virginia (1967).
2. SCOTUS overturned a Wisconsin law that prohibited a person from receiving a marriage license if the person was delinquent in supporting a non-custodial child that the person was under obligation to support by a court order b/c the means used to achieve this state interest was not necessary. Zablocki v. Redhail (1978).
3. SCOTUS found a state law prohibiting inmates from marrying to be facially unconstitutional. However, the plurality rejected this with a rational basis test the rest of the court did not agree with. Turner v. Safely (1987).

NOTE: These last two cases are complete bans on marriages, but what can the state limit? Can prohibit incest, marrying minors, and polygamy. Cannot prohibit marriages if the partners have STIs.

Question 24

Obergefell v. Hodges (2015)

Answer 24

Due Process Clause prohibits a law from depriving Same-sex couples the right to have be married. Therefore, a marriage lawfully performed in another State, must be given full recognition in the various states. Prohibition of same-sex marriages violates the due process clause and equal protection.

Facts: A group of various same-sex couples brought suit claiming that Ohio’s ban on same-sex marriage was unconstitutional.

Majority (Kennedy):

1. Marriage is important, which is exactly why the petitioners are seeking it. It has changed overtime (arranged, voluntary & male-dominated, women’s rights).
2. The fundamental liberties of the 14th Amendment “include most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy including intimate choices that define personal identity and beliefs.”
3. History is important to determine fundamental rights “but do not set its outer boundaries.” The Founders created the 14th Amendment and “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
4. Right to marry is fundamental liberty/right b/c (a) the courts precedent regarding the right to personal choice regarding marriage is inherent in the concept of individual autonomy (b) a two-person union unlike any other in its importance to the committed individuals (c) marriage safeguards children and families (4) marriage is a keystone of our social order and society supports it by giving benefits to marriages.

Dissent (Roberts):

1. 11 states have allowed same-sex marriage, but this is not for the courts to decide. “Judges have the power to say what the law is, not what it should be.”
2. History: the reason for marriage was to allow for procreation and protection of children. Although there have been changes in history, the core structure of marriage as the union between a man and a woman has never changed.
3. Precedent: should be characterized as “particular restrictions on access to marriage as traditionally defined violate due process.”
4. Slippery Slope: this could lead to polygamy, which is even more accepted in some societies than same-sex marriage.
5. Equal protection does not apply and the majority provided no independent support that it does.

Dissent (Scalia): the majority’s opinion robs the people of the most important liberty: the freedom to govern themselves. Even if the Founders left the liberty question open to interpretation, it should not be by the courts, but by Constitutional amendment or the legislature.

*Dissent (Thomas): liberty has been understood as freedom from government action, not entitlement to government benefits. Liberty is historically just a freedom from physical restraint. “Freedom from, not freedom to.”

Dissent (Alito): the court is imposing its own beliefs on all Americans and now those who disagree will not want to speak their minds and risk being labeled as bigots and treated as such. Not really a result of the court’s opinion though.

Question 25

Armour v. City of Indianapolis, Indiana (2012)

Answer 25

Equal Protection Clause does not protect a classification neither involving fundamental rights nor proceeding along suspect lines. Accordingly, rational basis review is used to determine the constitutionality of such laws.

Facts: An Indianapolis Law allowed lot owners to pay a lump-sum or installments for sewer project costs. However, in 2005, the city adopted a new assessment and payment method and forgave any installments that lot owners had not yet paid. However, those that had already paid in full claimed the new policy violate the 14th am b/c it denied some lot owners the Equal Protection of Laws

Majority (Breyer):

1. A classification neither involving Fundamental Rights nor proceeding along Suspect Lines cannot run afoul of the Equal Protection Clause if there is a Rational Relationship between the disparity of the treatment and some legitimate governmental purpose.
2. The court finds this a legitimate governmental purpose b/c it is in line with the law (comparable to amnesty programs), and would overall benefit taxpayers. The court finds petitioner did not negate it but stated other systems would be better.
3. Distinguished Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty (1989), where there was no rational basis for a property valuation practice b/c the state constitution required valuation be equal.

Question 26

Korematsu v. United States (1944)

Answer 26

A law discriminating on the basis of race may be constitutional if the law passes Strict Scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions but racial antagonism never can.

Facts: An American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded. Korematsu argued that the law deprived him of his liberty in violation of Due Process

Majority (Black): The evacuation order met Strict Scrutiny b/c removing the Japanese was an imperative military initiative, not racial prejudice and it was narrowly tailored b/c there was no other practical way to further the compelling interest.

Question 27

Plessy v. Ferguson (1896)

Answer 27

Laws that discriminate or separate on the basis of race, but separate equally, are held to be constitutional

Facts: Octoroon, Homer Plessy, boarded a “white’s only” car in violation of Louisiana law. Plessy argued that the Louisiana law was unconstitutional b/c denied him equal protection of the laws.

Majority (Brown):

1. The purpose of the Equal Protection Clause was to enforce the equality of the two races, but not to abolish distinctions based on color.
2. The State can use police power but it “must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.” Here, it is reasonable because it prevents conflict and keeps the races happy.
3. Strauder is distinguished b/c there is a “distinction between laws interfering with the political equality of the Negro and those requiring the separation of the two races.”
4. Hyper-legalistic – there is no evidence of discrimination so this is allowed.

Dissent (Harlan): the Constitution is color blind. This will be as outdated as Dred Scott someday.

Question 28

Brown v. Board of Education (1954)

Answer 28

The Equal Protection Clause forbids separate educational facilities based on race b/c the separate facilities merely masquerade as being equal and cause psychological harm to black students.

Facts: Parents filed a class action asserting that the system of racial separation in all schools, while masquerading as providing separate but equal treatment of both white and black Americans, instead perpetuated inferior accommodations, services, and treatment for black Americans

1. The intent of 14th Amendment is difficult to determine because there was widespread acceptance and hatred of it and public schools did not exist yet.
2. The impact on Public Education is very important in society now. Segregation deprives the minority group of educational and mental development and makes them inferior.
3. Court found evidence this time that the people being discriminated against felt inferior, and psychological studies reinforced this.
4. Does not necessarily overrule Plessy, but it has essentially been overruled. Any case with similar facts after have just been referred to Brown.

Question 29

Green v. City School Board Of New Kent City (1968)

Answer 29

The Equal protection clause places a duty on states that violate the clause to correct the unconstitutional act and not place the duty on citizens to do so.

Facts: The Virgina school board’s of New Kent City adopted a “freedom-of-choice” plan, where students could choose what school they wanted to attend, Previously, Virginia tried to abolish the whole public school system, but it violated the state constitution. Then Virginia amended the state Constitution, but that was struck down by a federal court.

Unanimous Majority (Brennan):

1. New Kent County’s freedom of choice plan did not adequately comply with the school board’s responsibility to determine a system of admission to public schools on a non-racial basis
2. Race conscious remedies, including numerical targets and busing were upheld. Swann v. Charlotte-Mecklenburg Bd. Of Ed. (1971).
3. Where de facto segregation of schools was not the result of racial discrimination but of living choices, it was not unconstitutional (as opposed to discrimination de jure). However, if the school system had put schools in locations to keep schools segregated, this was unconstitutional. Keyes v. Sch. Dist. (1973).

NOTE:

1. The Sup. Ct. eventually said a school district has no duty to remedy an imbalance caused by demographic factors. A district court CANNOT order a school district to do anything in these circumstances. Freeman v. Pitts (1992).
2. Essentially, once a district is 50/50 and the constitutional violation is remedied, then the court also cannot order any type of action as long as the school system does not take any additional unconstitutional actions.
3. Japanese-American racial targeting was found constitutional b/c deference was given to the military. However, the Sup. Ct. eventually found an executive order and statute did not authorize the detention of loyal Japanese-Americans, but avoided the Constitutional issue. Ex parte Endo (1944).

Question 30

Yick Wo v. Hopkins (1886)

Answer 30

The Equal Protection clause prohibits laws that though neutral on their face, invidiously discriminate on the basis of race when applied.

Facts: A San Francisco policy prohibited the operation of a laundry in wooden buildings without a permit. Incidentally, virtually all of the Chinese laundries were in wooden buildings and only one applicant of 80 got one.

Majority (Matthews)
1. Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their right, the denial of equal justice is still within the prohibition of the constitution.

Question 31

Washington. v. Davis (1976)

Answer 31

The Equal Protection Clause does not automatically prohibit a law that disproportionately impacts different races. However, disproportionate impact may trigger Strict Scrutiny when considering in the totality of the circumstances.

Facts: Test 21 was a written personnel test required to become a police officer in D.C. and more whites than blacks passed the test.

Majority (White): disproportionate impact is only a factor to consider in the totality of the circumstances.
1. SCOTUS also clarifies that the Ct. of Appeals was wrong to apply the Title VII standard (discrimination in the workplace), which is lower and shifts the burden to the employer. Title VII forbids even accidental discrimination. At the time Title VII did not apply to the federal government, but it now does.

Concurrence (Stevens): “the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical” as the majority’s opinion makes it seem. When disproportionate impact is as dramatic as in Yick Wo, it does not matter what the purpose was.

Question 32

Regents of Univ. of Ca. v. Bakke (1978)

Answer 32

A school admissions program violates the Equal Protection Clause if it has target quotas for race. However, an admissions process can consider race as a factor for admission, assuming that doing so also promotes a substantial state interest.

Facts: The UC Berkeley medial school set aside a certain number of seats for minorities and white people could not compete for those seats. Bakke applied several times to the medical school but was denied. Bakke sued arguing the admissions quota violated the Equal Protection Clause

Plurality (Powell) – now the law:

1. Title VI of the Civil Rights Act of 1964 provides, any entity that receives federal money cannot deny benefits on the basis of race.
2. Equal protection applies to all races, including whites. And Strict Scrutiny must be used in all cases [Not majority position here, but it is now].
3. The court discounted the schools purposes as not compelling enough to justify this: (i) reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession; (ii) countering the effects of societal discrimination; (iii) increasing the number of physicians who will practice in communities currently underserved (iv) obtaining the educational benefits that flow from an ethnically diverse student body

Concurrence (Brennan): evaluated this under Title VI and the rational relationship test should be used and not strict scrutiny. White people are not part of a “suspect classifications” subjected to strict scrutiny. The Harvard plan is really no different than this and it does not matter whether there is a publicly disclosed “quota” or a preference that excludes whites.

Marshall: the state of the African American class is still so bad that more needs to be done. The 14th Amendment should give them greater protection.

NOTES:

1. 35 years after Bakke, the court upheld a school’s affirmative action plan like the Harvard plan (Grutter v. Bollinger (2003)), but struck down another affirmative action plan that used numerical criteria and gave extra points for race (Gratz v. Bollinger (2003)).
2. After these cases, the court in another pair of companion cases, struck down two school district attempts to maintain integrated schools where demographic factors did not make it unconstitutional in the first place. The first district had a freedom of choice plan with tie-breakers based on race. The second district would deny reassignment if it would negatively affect the race balance. Parents Involved in Community Schools v. Seattle School District (2007).

Question 33

Fisher v. Univ. of Tex. at Austin (2016) [Fisher II]

Answer 33

The Equal Protection clause may permit A school admission system to take race into account if (a) the admissions process can withstand Strict Scrutiny, (i) there is a, principled explanation for why the admissions wants diversity, (ii) race neutral alternatives which are both available and workable do not suffice.

Facts: The University used an admission system based on the top 10% plan to make up 75% of the class and the following system to make up the remaining 25%: (1) academic index, and (2) personal achievement index: (a) score on two essays, and (b) score on potential contributions – including “special circumstances,” which takes race into account. The University’s goal was to get a “critical mass” of minority students. The Sup. Ct. first required a remand in Fisher I b/c strict scrutiny must be applied. On remand, the 5th Cir. again affirmed summary judgment in favor of the University. Curiously, however, upon rehearing the case, the Sup. Ct. did not apply Strict Scrutiny.

Majority (Kennedy):

1. Fisher I Principles: (a) Race may not be considered by a university unless the admissions process can withstand Strict Scrutiny. (b) If there is a reasoned, principled explanation for why they want diversity, deference must be given to the University’s conclusion that a diverse student body would serve its educational goals. But cannot use quotas. (c) University has a burden of demonstrating that race neutral alternatives are both available and workable do not suffice.
2. “It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”
3. 4-3 opinion & mentions that this case is unique and may not apply to others so it is not strongly persuasive.

Dissent (Thomas): strict scrutiny should have been used and it was not. Race should never be allowed in the admissions process.

Dissent (Alito): Critical mass is not a clear interest. The University never proved that the plan was narrowly tailored. Essentially just counters all of the majority’s argument and claims they are not following precedent. Accuses Texas of social engineering.

NOTE: Petitioner (white, non-admitted student) arguments:

a. “Critical mass” is not a clear and compelling interest with sufficient clarity – BUT University should not have to state some number since they cannot use quotas. They had clear goals demonstrated by the admission policy and 39 page proposal;
b. No need to consider race b/c it had already “achieved critical mass” by using race-neutral holistic review – BUT studies show they have not achieved this goal and minority students have reported feelings of loneliness and isolation;
c. Considering race was not necessary b/c such consideration has had only a “minimal impact” in advancing interests – BUT minimal impact is enough to be narrowly tailored and there is proof of increased minority enrollment;
d. There are numerous other available race-neutral means of achieving the interest – BUT the University did attempt other means petitioner mentions and they did not work

Question 34

Equal Protection & Voting Cases

Answer 34

1. Although the 15th Amendment prohibited denying the right to vote on the basis of race, state’s still attempted to deny that right to African Americans, but the court often found it unconstitutional.
2. At first, literacy tests did not violate the constitution. Guinn v. U.S. (1915) & Lassiter v. Northhampton Cty. Election Bd. (1959). But later banned with the 1965 Voting Rights Act.
3. Section 4 of the Voting Rights act has since been found unconstitutional b/c it was necessary at the time, but not now. It identified which states were subject to the “preclearance” procedure in section 5, which would identify states on the basis of their past discrimination, but now it is hard to prove these states are doing anything wrong. Shelby Cty. v. Holder (2013).

Question 35

Intermediate Scrutiny

Answer 35

The second highest level of Judicial Review. In order to meet Intermediary Scrutiny the law must further an Important Governmental Interests by means that are Substantially related to achieve those Interests.”

This approach is most often employed in reviewing limits on commercial speech, content-neutral regulations of speech, and state actions discriminating on the basis of sex.

Quasi-Suspect Classifications:

1. Gender
2. Illegitimacy

Question 36

Gender & Equal Protection Cases

Answer 36

1. For constitutional purposes, discrimination on the basis of pregnancy does not equal discrimination on the basis of gender.
2. First equal protection case, upheld a law prohibiting women from being bartenders. Goesaert v. Cleary (1948).
3. Upheld the automatic exclusion of women from jury pools. Hoyt v. State of Fla. (1961).
4. Unconstitutional state practice of preferring men over women when appointing administrators of estates. The state interest of admin. ease and convenience was deemed of insufficient importance. Reed v. Reed (1971).
5. Unconstitutional federal law that provided a dependency allowance to male members of the military, but female members would have to prove their husbands were dependent on them. Frontiero v. Richardson (1973).

Question 37

Craig v. Boren (1976)

Answer 37

A law discriminating on the basis of gender must pass Intermediate Scrutiny

Facts: A law that prohibited selling beer to men under the age of 21, but allowed the sale to women over the age of 18. A man that wanted to buy beer claimed the law was unconstitutional because it denied equal protection of the laws based on gender.

Majority (Brennan)

1. The state’s alleged objective was “traffic safety,” but the court found this means used to reach this end was not allowed under equal protection.
2. The states objectives were Improper: administrative ease and convenience and outdated misconceptions concerning the roles of men and women.
3. Using statistical evidence to prove broad sociological propositions is a dubious business.

Dissent (Rehnquist): only the “rational basis” equal protection analysis should be used and the law is constitutional under that. A higher level of scrutiny should not be used to protect this complaining class: men.

NOTE: Unconstitutional: exclusion of men from the state nursing school. Mississippi Univ. for Women v. Hogan (1982). Sex-based distinctions in the Social Security laws. Califano v. Goldfarb (1977). AL law that imposed alimony obligations on husbands but not wives. Orr v. Orr (1979).

Constitutional: AL regulation barring women from being correctional officers in a male prison. Dothard v. Rawlinson (1977). CA law making it a crime for a man to have sex with a woman under 18, but not the other way around. Michael M. v. Superior Ct. (1981). Exemption of women from draft requirement. Rostker v. Goldberg (1981

Question 38

United States v. Virginia (1996)

Answer 38

Equal Protection Law requires that law which discriminates on basis of gender pass Intermediate Scrutiny…In this case the there must be an“exceedingly persuasive justification” for that action and the justification must be “genuine” and must “not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”

Facts: VMI was male only military academy. Female applicants sued claiming that VMI denied them equal protection of the laws by discriminating on the basis of gender

Majority (Ginsburg): Virginia’s justifications are not supported by persuasive evidence –

1. Single-sex education provides important educational benefits & diversity – however, there is no proof this was a goal of VMI.
2. Admitting women would require modification of the program, which would hurt men and women – however, VMI cannot exclude individuals based on fixed notions concerning the roles and abilities of males and females. Some women want this program exactly the way it is and can handle it. It doesn’t matter that most women wouldn’t choose this, just that some may. Fears for the future of VMI are not solidly grounded.
3. In addition, the alternative program suggested for women is not the same.

Concurrence (Rehnquist): does not agree with the “exceedingly persuasive justification” requirement the majority added. He thinks the violation is the maintenance of an all-men school without providing any-much less a comparable-institution for women. However VWIL is not sufficient to accomplish this.

Dissent (Scalia): when there are “constant and unbroken national traditions” the court should not decide these questions. Or if going off precedent, intermediate scrutiny should be used – without the “exceedingly persuasive” requirement.

Question 39

Alienage & Equal Protection Cases

Answer 39

Equal Protection Clause requires that Laws discriminating on alienage must pass Strict Scrutiny b/c LEGAL aliens are inherently a suspect and subject to close judicial scrutiny.” Graham v. Richardson (1971).

1. Laws cannot deny aliens welfare benefits, ban from civil service, bar from admission to the bar, w/out Strict Scrutiny.
2. Rational Relations test is proper for classification of Illegal aliens.
3. Governmental Functions Exception: just rational relationship scrutiny. Requirements for government exception include (a) being an elected or important unelected position AND (b) involving applying, interpreting, enacting broad public policy. (c) SCOTUS has allowed exclusion from police force (including probation officers), and elementary or secondary school teachers.
4. Federal law Exception: if the alienage classification is in federal law, then the Rational Basis test is used b/c Congress needs to draw lines between citizens and aliens. Mathews v. Diaz (1976).

Question 40

Illegitimacy & Equal Protection Clause

Answer 40

Equal Protection Clause requires laws discriminating on the basis of denying benefits to illegitimate children pass Rational basis and laws regarding illegitimacy and citizenship are also evaluated under rational basis.

1. SCOTUS using Rational Basis review upheld provisions of Social Security Act that denied benefits to certain illegitimate children (b/c they only had to prove they were actually dependent). Mathews v. Lucas (1976). Upheld a provision of the Immigration & Nationalization Act that granted special preference to alien children of U.S. mothers, but not fathers. Fiallo v. Bell (1977).
2. SCOTUS used Intermediate Scrutiny to strike down state law that required child support actions to be brought within six years of the child’s birth. Stated test is the same as for gender. Clark v. Jeter (1988). BUT, SCOTUS upheld a provision of the Immigration & Naturalization Act that made requirements for citizenship for illegitimate children of mothers easier than for fathers (but this was evaluated for discriminating on the basis of sex). Nguyen v. INS (2001).
3. Lower courts have reverted back to the Rational Basis test when it involved immigration law. Many laws to allow someone to state someone is your father have been upheld.

Question 41

Cleburne v. Cleburne Living Center (1985)

Answer 41

Rational Basis (w/a bite) applies to laws that discriminate on the basis of disability or irrational fear.

Facts: The Texas city of Claiborne refused to grant a disability group home a permit to operate in a residential neighborhood. The disabled sued arguing that the city violated the constitution by denying them equal protection of the law.

Majority (White): Rational Basis review should be used b/c “mental retardation is a characteristic that the government may legitimately take into account b/c both State and Federal Governments have recently committed themselves to assisting the retarded. . . . Even [legislation] that disadvantages retarded individuals” may be presumed not in violation.

1. However, the ordinance is invalid b/c (1) the fears of the people is not a legitimate reason, (2) the safety of the mentally retarded is not legitimate b/c these reasons apply to any other type of facility that would be allowed there.
2. This really isn’t regular rational basis though b/c burden on defenders of the ordinance.

Concurrence (Stevens): The law should be unconstitutional under Rational Basis.

Concurrence (Marshall): he thinks the majority is not really using the real rational basis test and that this has heightened scrutiny mixed in. This causes problems and could lead to a more probing test than required for usual rational basis review of things such as economic laws. His test would apply different levels of scrutiny based on the constitutional and societal importance of the interest adversely affected.

Question 42

United States v. Windsor (2013)

Answer 42

Section 3 of the Defense of Marriage Act is unconstitutional under the 5th Amendment’s equal protection. Section 3 defined marriage and spouse, which is typically left to the states.

Facts: In this case, a couple married in Canada and moved back to NY where their marriage was recognized later. When one died, the other could not receive the estate tax deduction b/c he was not a “spouse.”

Majority (Kennedy): the interest that is being harmed is the state’s ability to define what marriage is and the same sex couples who are deprived of a valid federal marriage while having a valid state marriage. The federal government’s interest in preserving the definition of marriage cannot deprive the state and people of these things.

Dissent (Roberts): DOMA was created with no bad motive, they were only defining what has always been defined. The actual definition of marriage has never been left to the states. There will probably be challenged on state definitions of marriage now.

Dissent (Scalia): the majority’s opinion is not really based on anything, especially equal protection. Clear purpose for defining this to assist with applying federal laws. Now there may be choice of law issues.

Dissent (Alito): section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. It only states who the federal law will not extend for purposes of receiving benefits.

Question 43

Reynolds v. Sims (1964)

Answer 43

The Right to vote is fundamental and its denial or dilution by a state requires Strict Scrutiny. Unlike the federal senate, both houses of a state’s legislature must be apportioned on a population basis.

Facts: Voters in Alabama’s biggest city challenged the apportionment of senators that only granted one senator per county.

Majority (Warren)

1. There is a fundamental right to vote and it deserves Strict Scrutiny. Unlike the federal government, both houses of state legislatures need to be apportioned on a population basis.
2. “Any suggested criteria for the differentiation of citizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant to the permissible purposes of legislative apportionment.”
3. Dissent (Harlan): Federalism concerns b/c the Constitution does not allow control of the States on these matters. Proofs include (1) section 2 of the 14th Amend. allows states to deny voting, (2) the history of the Amend. proposal shows it would not have been adopted if States could be controlled, (3) after Amendment, the States retained power, (4) now almost all State Constitutions will be struck down regarding this, and (5) why did we need the 15th and 19th Amendments if this was a fundamental right.

Question 44

Harper v. Virginia State Bd. of Elec. (1966)

Answer 44

Equal Protection Clause prohibits states from fixing voter qualifications that invidiously discriminate like pole taxes. HOWEVER, notions of what constitutes equal treatment for the purposes of equal protection may change over time.

Facts: Annie Harper, a Virginia citizen and a person of limited means, attempted to register to vote and was asked to pay a poll tax as a condition of registering. Annie claimed the state violated the constitution by denying her equal protection of the law

Majority ()
1. 24th Amendment prevents this exact thing, but only applied to federal elections. Same argument as the dissent above (is voting fundamental if we need amendments).

2. Dissent (Black): this is overruling precedent and is nowhere based in the Constitution. There is a Rational Basis for the state’s actions.
3. Dissent (Harlan): these requirements have been mostly abolished in all but 4 states and it should be left to them to finish it off. But regardless, there is a Rational Basis.
4. The court found the legitimate interests asserted by Hawaii by its write-in voting ban are sufficient to outweigh the limited burden imposed on Hawaii’s voters (the right to cast a meaningful vote for the candidate of one’s choice).
5. There is a presumption that write-in bans are permissible if the State’s ballot access laws are otherwise constitutional.
6. Dissent (Kennedy): disagrees with the presumption and thinks b/c the write-in ban imposes significant burdens on voters, they must put forward interests that justify it, which they have not done. In addition, there is no interest that would support this.
   NOTE; lower courts often use this balancing test b/c the burdens are less.
   Restrictions on Access to the Ballot: state classifications are subject to strict scrutiny but the State does have a legitimate (and presumably compelling) interest in limiting the number of candidates on a ballot in order to avoid confusion. And can require voters to be residents.

Question 45

Equal Access to the Courts & Equal Protection Cases

Answer 45

1. Criminal Cases: 6th Amend. requires appointment of counsel for indigents in federal criminal trials. Johnson v. Zerbst (1938). This also applies to states. Gideon v. Wainwright (1963). Required appointed counsel for indigents in first appeal. Douglas v. Cal. (1963). Do not have to provide appointed counsel in discretionary appeals following initial appeals of right. Ross v. Moffitt (1974).
2. Civil Cases: Welfare recipients could not be denied access to the courts in order to seek a divorce b/c they could not afford court fees. Boddie v. CT (1971). But no right to file for bankruptcy if you cannot afford the fees. United States v. Kras (1973). And no right to appeal reduction of welfare benefits without paying filing fees. Ortwein v. Schwab (1973). Have to provide blood test to defendant in paternity action where he could not afford it. Little v. Streeter (1981). Must be able to appeal order terminating parental rights even though they cannot afford. MLB v. SLJ (1996).

Question 46

Shapiro v. Thompson (1969)

Answer 46

The Equal Protection Clause requires that laws discriminating on the basis of a Fundamental Right pass Strict Scrutiny. The right to travel among the states is a fundamental right.

Interstate movement is a fundamental right and laws that discriminate against foreign state citizens must pass Strict Scrutiny.

Facts: Thompson, a resident of DC wanted to move to Connecticut but the state discriminated against new arrivals by not offering them state benefits until they had lived in the state for a year. Thompson sued arguing that Connecticut violated the constitution by denying her Equal Protection of the laws.

Majority (Brennan):
1. “Neither deterrence of indigents from migrating to the State nor limitation of welfare benefits to those regarded as contributing to the State is constitutionally permissible state objective.” Certain administrative and related governmental objectives are not compelling interests (does not facilitate planning of the welfare budget, does not provide an objective test of residency, other ways could be used to minimize the opportunity for the fraud of receiving duplicate welfare, and the fact that it could encourage entry into the workforce could be applied to current residents also.

2. Dissent (Warren): The Connecticut law is as a residence requirement and the court is imposing limitations on States’ abilities to have residence requirements. Slippery slope.
3. Dissent (Harlan): Strict Scrutiny should not be used for Fundamental Rights.

NOTES:

1. Denial of privileges & immunities to only allow welfare recipients to receive what they received in their previous state. The only case on 14th amendment federal privileges & immunities. Saenz v. Roe (1999).
2. The court has upheld two one-year residency requirements. (1) To qualify for in-state tuition at a state university, and (2) for a petitioner for divorce (if the respondent was not a resident of the state).

Question 47

1st Amendment & Speech

Answer 47

Congress shall make no law… 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

Some think freedom of speech refers to the freedom that persons enjoyed in their states at the time and others think it refers (a) some natural or God-given right…(b) the idea of a marketplace for ideas where the truth will win out, but there has to be regulation also (c) The idea of needing freedom of speech for a democratic society (d)The idea of needing freedom of speech for individual autonomy and expression.

Ways to Prohibit speech include:

1. Prior Restraint
2. Criminal punishment after the fact
3. Injunction from publication

Question 48

Schenck v. United States (1919)

Answer 48

The 1st amendment protection of speech depends upon the circumstances in which it is done. If the speech is used in such circumstances so as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent, then it is not protected.

Facts: While the United States was at war with the German Empire, the defendants, Schenck and Baer, circulated leaflets that urged for insubordination in the military and naval forces of the United States.

Majority (Holmes)

1. Test: “The question in every case is whether the words 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 (what Congress has criminalized). It is a question of proximity and degree.”
2. Freedom of speech is not confined to bans on prior restraints (prior censorship or licensing and injunctions against publication), even if that was the intent of the Amendment.
3. Note: prior restraints such as censorship is the most likely to be prohibited by the 1st Amendment. Currently, prior licensing in the form of permits are commonly required for the use of public resources (like streets and parks) for demonstrations, parades, or protests.

Question 49

Abrams v. United States (1919)*

Answer 49

1st amendment doctrine establishes that a speaker has to be held to have intended, and to be accountable for, the effects that his speech was likely to have produced.

Facts: Defendants were charged with conspiring, when the United States was at war with Germany, to publish disloyal language about the form of government of the United States, in violation of the Espionage Act. The defendants claimed that they did not violate the Espionage Act b/c their only intent was to prevent injury to the Russian cause

Majority (Clarke).

1. There is sufficient evidence that the men intended harm in violation of the espionage
2. Dissent (Holmes): he found they did not have an intent, they only wanted to help their home country, Russia, who the U.S. was attacking.
3. Notes: SCOTUS subsequently reasoned that by making statutes, Congress had determined there was a “clear and present danger” so the Court upheld statutes at this time. “Criminal anarchy” laws (prohibiting speaking in favor of anarchy). Gitlow v. New York (1925). “Criminal syndicalism” laws. Whitney v. California (1927)[OVERRULED]. The Smith Act (communist prevention) is a clear and present danger, but it is up to the courts to decide, not the legislature by making the law. Dennis v. United States (1951).

Question 50

Brandenburg v. Ohio (1969)

Answer 50

The 1st Amendment may protect speech that calls for violence or violation of the law if such advocacy is not inciting imminent or not likely to occur.

Facts: Ku Klux Klan member was convicted by the Ohio courts after a television news report was aired broadcasting speeches made by petitioner where he advocated for crime, sabotage, and terrorism. The KKK member, argued the law was unconstitutional b/c it abridged his freedom of speech

Majority (Warren)

1. The statute’s board abridgment of speech was unconstitutional
2. CURRENT TEST: “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy for the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Mere teaching is not the same as preparing a group for violent action.
   a. (1) Intent
   b. (2) to Incite Imminent lawless action
   c. (3) AND the action is likely to occur

Question 51

Holder v. Humanitarian Law Project (2010)

Answer 51

Congress’s prohibition of “material support or resources” to certain foreign organizations that engage in terrorist activity does not violate the First Amendment.

Facts: Nonprofit organizations wished to provide lawful legal education to two groups that were designated as foreign terrorist organizations in violation of Federal law. The nonprofits sued the government arguing that it abridged their freedom of speech.

Majority (Roberts):

1. The executive and Congress is given deference in this situation b/c it implicates sensitive and weighty interests of national security and foreign affairs.
2. Congress was careful to not harm First Amendment rights while writing and amending § 2339B: (1) only applies to designated terrorist organizations that can appeal their designation, (2) provided narrow definitions, (3) limited exceptions to the ban on material support, and (4) avoided all restrictions on independent advocacy and activities not coordinated with the organizations.
3. Congress deferred to when determining whether something is going to incite imminent lawless action (here they determined any material support would help terrorist activities).

Dissent (Breyer): Strict Scrutiny should be used and the test from Brandenburg. The distinction between independent and coordinated activities is useless. Independent activities can give more legitimacy to organizations than coordinated in some circumstances.

Question 52

Chaplinksy v. New Hampshire (1942)

Answer 52

The States are free to ban “fighting words” speech without a demonstration of additional justifying circumstances. Fighting Words are personally (i) abusive epithets which, (ii) when addressed to the ordinary citizen, are inherently likely to provoke violent reaction, and (iii) are spoken face to face.

Facts: Chaplinsky, a Jehova’s Witness demonstrator, accosted an officer verbally. He was then arrested. The complaint against Chaplinsky stated that he shouted: “You are a God-damned racketeer” and “a damned Fascist”. Chaplinsky argues that the law abridged his freedom of speech

Majority (Murphy)
1. To qualify as “fighting words” the speech needs to be face to face, directed at the person, and such that it would cause an average addressee to fight.

2. Not Protected: lewd [now narrowly defined], obscene [now protected], the profane [now protected], the libelous [not all], and the insulting or “fighting” words which by their very utterance inflict injury or tend to incite an immediate breach of the peace [ONLY GOOD LAW REMAINING HERE].

Question 53

Feiner v. New York (1950)

Answer 53

1st Am allows a law to prevent a speaker from intentionally provoking a given group to hostile reaction.

Facts: A political activist was arrested on charges of disorderly conduct, “by ignoring and refusing to heed and obey reasonable police orders issued…to control said crowd and to prevent a breach or breaches of the peace and to prevent injury to pedestrians.” The police arrested the activist b/c the crowd he addressed in his speech was going hostile toward him and each other.

Majority (Vinson)
1. The Court affirmed the exercise of the police officers’ proper discretionary power to prevent a breach of the peace.

Dissent: the acts do not support that violence was imminent. What really happened was that Feiner was arrested because of what he said. It is the police’s duty to protect the right to speak even if others threaten to interfere.
1. This ruling creates a “Heckler’s veto” problem, where anybody who does not like the speech can threaten it with violence.

NOTES:

1. The court later overturned an ordinance that required a permit to demonstrate b/c it could not be tied to a crowd’s expected reaction to protected speech (Ku Klux Klan).
2. Now, if the threat of violence can be prevented it should be to protect the speech. If it cannot, the speech can be stopped.

Question 54

Cohen v. California (1971)

Answer 54

The 1st Am protects both the speech and also the way the speech is conveyed, if the way it is conveyed adds emotive quality.

the idea involved but also the WAY the message is conveyed (ie shock value).

Facts: “*** the Draft” printed on appellant’s jacket was “offensive conduct” that might provoke others to violence against appellant. The appellant was convicted by the trial court for disturbing the peace by offensive conduct.

Majority

1. California can not convict a man for wearing a shirt in a courthouse that said “Fuck the Draft.” This is dstinguished from Chaplinsky and Feiner.
2. The mere presence of unwitting listeners or viewers does not automatically justify curtailing all speech capable of giving offense.
3. Exception: the court has sometimes made exceptions for captive audiences (cannot leave the space). A city could ban political ads on transit b/c the people on transit are a captive audience. Also can prohibit protested at an abortion doctor’s house.

Question 55

United States v. O’Brien (1968)

Answer 55

Conduct might be protected by the First Amendment as speech if the conduct is an expression. Conduct is an expression if (a) the actor intends that the conduct be an expression; and (b) a reasonable person would perceive the conduct as an expression…HOWEVER expression is NOT protected from incidental limitations by government regulations IF…

a. The regulation is sufficiently within the constitutional power of the Government;
b. The regulation furthers an important governmental interest by means substantially related to achieving that interest;
c. The interest being furthered is unrelated to the suppression of free expression;
d. The incidental limit on the expression is essential to the furtherance of that interest.

Facts: O’Brien was convicted when he burned his draft certificate. O’Brien claimed the arrest violated the constitution by abridging his freedom of speech.

Majority (Warren)

1. Preliminary Test to determine whether Conduct is an expression: (a) intent: for conduct to be an expression; and (b) perception: a reasonable person would perceive the conduct as an expression.
2. . IF conduct qualifies as an expression, a sufficiently important governmental interest regulating the expression can justify incidental limitations on First Amendment freedoms. IF…
   a. The regulation is sufficiently within the constitutional power of the Government;
   b. The regulation Substantially furthers an important or substantial governmental interest;
   c. The interest being furthered is unrelated to the suppression of free expression; and
   d. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Question 56

Texas v. Johnson (1989)

Answer 56

The government cannot limit expressive speech solely b/c of the viewpoint of the expression.

Facts: Johnson participated in a political demonstration where he doused the American flag with kerosene and set it on fire as a means of political protest. Respondent was charged by the state and convicted of desecration of the flag. Johnson claimed his conduct was speech and therefore was protected by the 1st Am.

Majority (Brennan)
1. the State’s purpose to preserve the flag as a symbol of nationhood and national unity was related to the suppression of free expression.

2. Slightly Different Test than O’Brien: (1) is the restriction on speech incidental; (2) if yes, ask important government interest & directly furthered (soft heightened scrutiny); (3) if no, outside of O’Brien test and use strict scrutiny

Dissent (Rehnquist): the flag is very important and 48 of the states had law preventing its burning. This history should be controlling. Johnson could have expressed himself some other way. It was his use of this symbol, and not the idea that he sought to convey for which he was and should be punished.
Note: Congress attempted to pass a law to override this opinion, but the court again found the law unconstitutional.

Question 57

Paris Adult Theatre I v. Slaton (1973)

Answer 57

Obscene material has no protection under the 1st Amendment and states may have a legitimate interest in maintaining a decent society; banning public adult theaters is allowed.

Facts: Georgia state officials claimed that certain movie theaters showed “adult” films and therefore brought criminal suits according to Georgia obscenity laws. The theaters claimed the law was unconstitutional b/c it abridged their freedom of speech.

Majority (Burger): Rejected petitioner’s arguments: (1) States don’t need to prove to society that adult films cause damage b/c states have a legitimate interest regulating obscenity; (2) he state is not controlling the minds of people – the state is protecting people’s minds; and (3) though the constitution should protect activities between consenting adults, this is not a blanket exception to obscenity.
Dissent (Douglas): Obscenity is protected by the 1st Amendment. These matters turn on too personal, too emotional, and too vague to people to apply. In addition, the colonies had no law excluding “obscenity” from freedom of expression.

Dissent (Brennan): higher scrutiny should be used. “Obscenity” cannot be defined with enough clarity.

Note:

1. Potential Reasons Why Obscenity is Unprotected: (1) has effects on society at large; (2) has no redeeming social value – this is just the court’s opinion; (3) does not appeal to the mind or intellect, but has a physical effect; and (4) negative effect on women.
2. More Recent Commission on Pornography: has found that we should only regulate violent pornography b/c there is a “coincidence” of related violent acts.

Question 58

Miller v. California (1973)

Answer 58

Obscenity is defined as conduct or speech that (a) as a whole, appeals to the prurient interest, according to the contemporary community standards (b) depicts or describes sexual conduct defined by law; and (c) lacks serious literary, artistic, political, or scientific value.

Facts: Miller mailed brochures containing sexually explicit activities to people who had not request the material. Law enforcement charged him with violating obscenity law. Miller argued the law was unconstitutional b/c it abridged free speech.

Majority (Burger)

1. The new test for obscenity replaces the old test that was more lenient in definition
2. Difficult for states to prosecute these matters: appellate court reviews facts & cannot seize the movie. A court must see it first and determine it is not protected before seizing it.

Question 59

New York v. Ferber (1982)

Answer 59

A state can prohibit the distribution and “promotion” of material depicting children engaged in sexual conduct without requiring that the material be legally obscene.

Facts: In this case, a man was convicted of a felony for selling films depicting young boys masturbating. New York officials charged him with violating their obscenity law. The higher New York courts found that the state laws defining the “obscenity” were unconstitutional and so the child pornography was not definitionally “obscene.”

Majority (White):

1. States are entitled to greater leeway in the regulation of pornographic depictions of children than the Miller test b/c (i) safeguarding the physical and psychological well-being of a minor is a compelling interest; (ii) this is related to sexual abuse of children b/c depictions are (a) a permanent record of the child’s participation and (b) the distribution network must be closed to stop the production of child pornography; (iii) advertising and selling child pornography provide a motive for production; (iv) there is little or no value in child pornography; and (v) holding that child pornography is outside 1st AM protection is in line with precedent.
2. Overbreadth Doctrine: even if a statute is not unconstitutional as applied to the plaintiff, in 1st Amendment cases, plaintiffs may challenge its facial application to other parties. The overbreadth must be “substantial” before the statute is invalidated. The court found this statute not overbroad.
   a. Confused with vagueness doctrine – a concern of the due process clause. Ex. obscene depictions meeting the obscene test but unlawful if “tends to the corruption of morals.”
   b. Ex. all depictions of nude women are prohibited. What is being prosecuted is obscene, but they can challenge this (and would win) for being overbroad.

Notes: definition of “child” is different in different states and can lead to prosecution in some states regarding works in other states.

1. Ashcroft v. Free Speech Coalition (2002) – the Child Pornography Prevention Act of 1996 was unconstitutional in its criminalization of virtual child pornography created through computer simulation. The state interest is in protecting children, not preventing adults from viewing child pornography.
2. Osborne v. Ohio (1990) – Prosecuted for the possession of child pornography in his home. The court distinguished Stanley b/c this law’s purpose is to protect children and hope to destroy the market for it, not prevent him from doing things in his home.

Question 60

New York Times v. Sullivan (1964)

Answer 60

1st Amendment does not protect libelous speech regarding a specific public official relating to his official conduct IF the speech was made with knowledge that the statement was false or with a reckless disregard for the truth

Facts: the Commissioner of the city police in Alabama brought a libel action against four individual petitioners (Negroes & clergymen), and the New York Times regarding an “advertisement” protesting the actions of the police. It contained false statements.

Majority (Brennan)
1. No evidence was presented to show that the New York Times acted with actual malice in publishing the false statements, and as a result, could not be held liable in an action for libel.

Notes:

1. Public official to public figure: includes a supervisor of a publicly owned ski resort, b/c he could “appear to the public to have substantial responsibility for or control over the conduct of government affairs.” Rosenblatt v. Baer (1966). Extended to “public figures” “involved in issues in which the public has a justified and important interest. Curtis Publishing Co. v. Butts (1967). This includes celebrities, but not a particular person b/c of wealth or status. Time, Inc. v. Firestone (1976). It may include an alleged rape victim if it is highly publicized. Street v. National Broadcasting Co. (6th Cir. 1981).
2. Official conduct: includes “anything which might touch on an official’s fitness for office.” Garrison v. Louisiana (1964).
   (2) No Public Figure, Public Issue: where a person was not a public figure, but was tangentially involved in a public controversy, the court held that liability could not be imposed without a showing of falsity as a result of fault. (1) Can show actual malice for punitives or (2) falsity & fault by preponderance . Gertz v. Robert Welch, Inc. (1974).
   (3) No Public Figure, No Public Issue: the 1st Amend. does not restrict state libel laws. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985).

Question 61

Hustler Magazine v. Falwell (1988)

Answer 61

The 1st Amendment prohibits laws that abridge False speech where it is clear such speech is not true.

Facts: The magazine depicted Falwell (a nationally known minister) in a liqueur ad as interviewing and stating that his “first time” was with his mother in an outhouse. The ad made clear it was not true.

Majority (Rehnquist)
Reasoning: although falsehoods have little value in and of themselves, they are nevertheless inevitable in free debate and we don’t want a chilling effect by allowing these claims. The “outrageous” standard is good for tort actions in states, but not for 1st Amendment claims.

Question 62

United States v. Alvarez (2012)

Answer 62

1st Am does not protect false claims that are made to effect fraud or to secure moneys or other valuable considerations (eg offers of employment) the Government may restrict speech. However the Stolen Valor Act of 2005 seeks to control and suppress all false statements on this one subject in almost limitless times and settings.

Facts: Alvarez violated the act when he stated publicly that he was a Congressional Medal of Honor recipient for no reason other than a pathetic attempt to gain respect.

Plurality (Kennedy):

1. Test: need compelling interest with chosen restriction on speech that is “actually necessary” to achieve the interest. There must be a direct causal link between the restriction imposed and the injury to be prevented. The restriction must be the “least restrictive means among available, effective alternatives.”
2. The Government has a compelling interest related to the integrity of the military honors system. However, the means chosen was not “actually necessary” b/c the truth can counter it and something like a government-created database listing the award members is an effective alternative. Consequently, the Stolen Valor Act is unconstitutional

Concurrence (Breyer): because false statements are less likely than true facts to make a valuable contribution to the marketplace of ideas, intermediate scrutiny should be used (interest and then ask whether it is possible substantially to achieve the Government’s objective in less burdensome ways). Here, the Act should be more specific and insist on something such as a showing that the false statement caused specific harm or at least was material. And maybe no criminal punishment, but the truth through a database.

Question 63

Virginia State Bd. of Pharm. V. Virginia Citizens Consumer Council, Inc. (1976)

Answer 63

1st AM prohibits laws that limit truthful speech about entirely lawful activities b/c it is fearful that information’s effect upon its recipients.

Facts: Virginia law forbade pharmacists from advertising drugs directly to patients in order to uphold the integrity of the profession and reduce drug price information. Virginia pharmacists claimed the law abridged their freedom of speech.

Majority (Blackmun):

1. There is a strong interest in society to have the free flow of commercial information. The state also has a strong interest in preserving the professionalism of pharmacists and to prevent competition amongst them. However, the court found the public’s interest to be stronger and that the state can attempt to prevent their concerns in different ways.
2. This opinion only applied to products currently, not professional services [now it applies to services also]. Cannot restrict advertisements by lawyers now.

Question 64

Central Hudson Gas v. Public Service Comm’n (1980)

Answer 64

The 1st Amendment prohibits laws that limit commercial speech which (i) concern lawful activity and (ii) are not misleading,UNLESS there is (a) a substantial government interest and the law directly advances that interest/ and it is narrowly tailored to serve that interest.

Facts: During the winter, in the time of a fuel shortage, the Public Service Commission of the State of New York ordered electric utilities in the state to cease all advertising promoting the use of electricity because the state’s interconnected utility system did not have sufficient fuel stocks or sources of supply to meet all customer demands for the winter. Three years later, once the fuel shortage had eased, the Commission proposed to continue the ban on advertising. The utility provider sued the city for abridging commercial speech in violate of the 1st Am.

Majority (Powell):

1. Intermediate Scrutiny Test applies:
2. In this case, the state’s interest in energy conservation was “substantial” and the law “directly advanced” the interest b/c they would not be challenging unless prevention of the ban would help sales. However, this is not the least restrictive means b/c they could advertise energy efficient products if there was no ban.

Concurrence (Blackmun): the state should be able to directly prohibit the sale of air conditioners rather than prevent advertising regarding it.
Notes:
1. The first cases applying this test to vices such as alcohol, cigarettes, and gambling received a light touch from the courts (upholding bans), but the court has lightened up now.
2. Currently, sometimes the court does not even apply this test and uses no test.

Question 65

Rubin v. Coors Brewing Co. (1995)

Answer 65

The 1st amendment protects commercial speech, UNLESS, the government policy passes heightened scrutiny.

Facts: The government forbade brewers from publishing alcohol content to prevent “strength wars” among brewers. Coors sued arguing that the regulation was unconstitutional b/c it abridged its right to free speech

Majority (Thomas): The government regulation does not meet the 3rd and 4th prong of the Central Hudson test: (1) not unlawful or false information; (2) preventing “strength wars” by beer brewers who might seek to compete for customers on the basis of alcohol content is a substantial interest; (3) gov’t has burden to show it “directly advances” interest – points to malt industry & history, but the court finds there is an irrational regulatory scheme b/c the FAA allows alcohol content on labels of liquor and allows advertising alcohol content; (4) there are less restrictive means – could directly regulate content allowed or just regulate the malt industry.

Note: In a later case, Thomas concurred that attempts by a state to reduce demand for a lawful product or service by restricting advertising is per se unconstitutional. Four other justices said if the state can directly regulate, it fails the Central Hudson test b/c there is then a less restrictive means. 44 Liquormart, Inc. v. Rhode Island (1996).

Question 66

Lorillard Tobacco Co. v. Reilly (2001)

Answer 66

Constitutional regulations of commercial speech must be substantially related to furthering (directly advance) an important government interest.

Facts; Massachusetts regulations regulations prevented outdoor advertising/indoor of tobacco products visible from the outdoors within 1,000 feet of schools and preventing advertising lower than 5 feet inside stores. Tobacco companies claimed the law was un

Majority (O’Connor):

1. Massachussets regulation failed the 4th prong of Central Hudson.
2. The state does have a substantial interest in preventing the use of tobacco products by minors;
3. The rule does “directly advance” b/c if children see ads less they will be less likely to buy;
4. The rule is not narrowly tailored b/c too broad, too geographically broad and too broad a range of communications. In addition, the inside ad ban does not “directly advance” b/c many kids are taller than 5 feet so it would do nothing.

Note: three justices would get rid of the Hudson test and just use strict scrutiny. Would reduce discretion amongst judges and prevent excessive government regulation.

Question 67

Buckley v. Valeo (1976)

Answer 67

Individual limits to political campaign contributions and candidates do not violate the First Amendment. However, governmental limitation of campaign expenditures DO violate the First Amendment b/c they restrict the ability of candidates, citizens, and associations from engaging in political expression.

Facts: he Federal Election Campaign Act of 1971 set a $1,000 limit on individual contributions, an aggregate limit of $25,000 contribution by one person, and $1,000 limit on individual expenditures in order to prevent corruption and the appearance of corruption. Opponents of the law complained that it abridged the freedom of speech.

1. The use of money in this way is speech, not conduct, so O’Brien test does not apply. Even if it did, it would fail the test b/c the governmental interests advances involve suppressing communication.
2. Distinction between contribution and expenditures b/c limiting contribution involves little direct restraint on political communication b/c the act of contributing, no matter what amount, is what is important. However, limiting expenditures limits what each individual wants to do. The potential for quid pro quo corruption distinguishes the two.
3. Governmental Interest is “weighty”: prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.

Question 68

Citizens United v. Federal Elections Commission (2010)

Answer 68

The First Amendment prohibits laws that abridge corporate political speech or contributions UNLESS the limit regards quid pro quo corruption or the appearance of such corruption.

Facts: Citizens United, a nonprofit corporation, wanted to show the movie Hilary within 30 days of the primary election. Complainants argued that Federal law unconstitutionally prohibited corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate.

Majority (Kennedy):

1. The present case overrules Austin, which held that political speech may be banned based on the speaker’s corporate identity. Also overruled McConnell, which was based on Austin, which upheld electioneering communication limits.
2. Political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Bellotti.
3. Three Important interests are rejected: (1) anti-distortion – prevention of the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and have little or no correlation to the public’s support for the corporation’s political ideas; (2) anti-corruption interest: the court says only quid pro quo corruption (bribing) is of concern and it is not present here; (3) shareholder-protection interest: no shareholders in this nonprofit.

NOTE: The only justifications for contribution limits is avoiding quid pro quo corruption or the appearance of such corruption. McCutchen v. Federal Election Commission (2014)

Question 69

Cox v. New Hampshire (1941)

Answer 69

1st Am does not prohibit a municipality that has authority to control the use of its public streets from making Time, Place and Manner restrictions in relation to speech if the policy is content neutral and discretion is narrow. States can also charge an administrative fee depending on the size of the procession.

Majority (Hughes)
1. The court upheld the statute (which the State court had narrowly construed to not give wide discretion to permitting authority) b/c state’s have traditional authority over public streets and the statute was not aimed at any particular group.

NOTES:

1. Streets on a military base are not a public forum. Greer v. Spock (1976).
2. Sidewalk that provided access to a post office and was entirely on Postal Service property was not a public forum. United States v. Kokinda (1990).
3. The right to speak does not include the right to establish a permanent monument. Pleasant Grove City v. Summum (2009).

Question 70

Heffron v. Int’l Soc. For Krishna Consciousness, Inc. (1981)

Answer 70

Reasonable Time, Place, and Manner restriction on Speech Test:

1. Restriction is content neutral: Cannot be based on the content or subject matter of the speech.
2. There is “Significant” public interest in making the restriction;…Three interests suggested: (i) orderly movement of the crowd), (ii) anti-fraud, (3) inconvenience – NOT significant. However, captive audience (in other cases) may be
3. Adequate alternative avenues for expression.

Facts: The Krishna religious society challenged a fair permit, which required exhibitors to conduct its sales, distribution, and fund solicitation from a rented booth only. The society asserted that selling religious literature amidst the fair traffic was one of their religious rituals. Krishna challenged the permit requirement as abridging their 1st AM right

The court upheld the rule.
Reasonable Time, Place, and Manner restriction Test (relatively lax after finding restriction is content neutral & weak narrowly tailored requirement b/c preventing passing out of literature is not necessary for crowd control):
1. Restriction is content neutral: Cannot be based on the content or subject matter of the speech.( Not so here b/c it applied to everyone and the method of allocating space) was first-come, first-served.
2. “Significant” public interest;…Three interests suggested: (i) orderly movement of the crowd (the majority only used this and found that considering a forum’s special attributes is relevant such as fair v. street & religious reason is not sufficient); (ii) anti-fraud (the dissent would use only this and find all but the distribution of literature to be restricted & the dissent would use a more strict narrowly tailored requirement); (3) inconvenience – NOT significant. However, captive audience (in other cases) may be – restrictions have been upheld in front of abortion clinics and outside people’s homes.
3. Adequate alternative avenues for expression.
a. There are other means to express opinions, does not prohibit them completely.

Note:

1. If a Time, Place, or Manner restriction is not content neutral, use strict scrutiny.
2. in McCullen v. Coakley (2014), the court struck down a state law that listed the only people that could be within 35 feet of an abortion clinic. This was unanimous with concurrences in the result. Some said it was not narrowly tailored (applied more strictly) b/c it was too broad, some said it was not content neutral, and one said it was not viewpoint neutral.

Question 71

Perry Education Ass’n v. Perry Local Educators’ Ass’n (1983)

Answer 71

Not all government properties are Public Forums. The right to speech may be restricted depending on whether the government property is a Public Forum, Designated Forum, or Non-Public Forum

Facts: PEA is the school district’s exclusive union and has exclusive access to the inter-school mail system. PLEA, a competing union, challenged its exclusion from the mail system. The court found the mail system was a non-public forum and that exclusion of PLEA was permissible.

Different Tests for Different Forums:

1. Public Forum: traditional Time, Place, and Manner test.
2. Designated Forum (limited forum): same test but the government may decide the identity of those for whom the space is designated or the subject matter for which the space is designated.
3. Non-Public (limited forum): reasonable government regulations are constitutional if they are viewpoint neutral.

Question 72

ISKCON v. Lee (1992)

Answer 72

A constitutional regulation restricting speech in a non-public forum need only be rationally related to furthering a legitimate government interest and be viewpoint neutral.

Facts: New York City’s airport authority banned solicitation of money within airline terminals. However, solicitation was permitted outside the terminals. The International Society for Krishna Consciousness solicits funds in public places. It challenged the regulation

Majority()

1. Creating a public forum must be done “by intentionally opening a nontraditional forum for public discourse.” Airports are not traditionally public spaces and have never been open for speech activities.
2. Regulation is reasonable in light of the location. Need to manage crowd control. Interest in assuring travelers are not interfered with unduly.
3. Lee v. ISKCON (1992) – companion case, struck down ban on distribution of literature in airport terminal.

NOTES:

1. Government speech can have a viewpoint. Specially created license plates are “government speech” rather than private speech so the state can ban certain plates with a Confederate flag. However, the dissent thought the State cannot adopt privately created specialty plates (designated public forum) and make it government speech. Walker v. Sons of Confederate Veterans (2015).
2. In Reed v. Town of Gilbert, six justices found a sign ordinance not content neutral and therefore required strict scrutiny and was unconstitutional. It listed “qualifying events” and required signs not be put up more than 12 hours before the event and taken down one hour after. Strict scrutiny is default with content based, but not used when in commercial speech cases. Should be used when it may interfere with the free marketplace of ideas or shows government hostility (only 3 justices agree).

Question 73

Young v. American Mini Theatres, Inc. (1976)

Answer 73

The 1st Amendment does not protect against Zoning ordinances that disperse the location of certain speech related to adult establishments if the market for the commodity is essentially unrestrained and any limit on speech is incidental.

A Detroit zoning ordinance requiring adult theaters to be dispersed and at least 1,000 feet away from any other “regulated use.”

Majority( Stevens)
The mere fact that the commercial exploitation of material protected by the 1st Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.”

Concurrence (Powell) THIS OPINION PREVAILS TODAY: The policy is just a case of land-use regulation and only incidentally implicates the 1st Amendment. The adult theaters are affected no differently from other commercial enterprises subject to land-use regulation. The O’Brien test is met (time, place, and manner).

NOTES: the court overturned a ban on all live, nude entertainment in the commercial area of a city. Schad v. Mount Ephraim (1981). However, it upheld an ordinance that required concentration of adult theaters rather than dispersal after applying the Time, Place, and Manner test even though its effect would be to diminish the availability of adult films. Renton v. Playtime Theatres, Inc. (1986).

Question 74

West Virginia State Board of Education v. Barnette

Answer 74

The 1st Am forbids the state from requiring anyone to affirm a belief the person does not wish to affirm.

Facts: In 1942, the Board of Education adopted a resolution ordering that the salute to the flag become “a regular part of the program of activities in the public schools” that all teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the Flag” and that the refusal to salute to the flag shall be regarded as “an act of insubordination,” resulting in the child’s expulsion and their parents being subjected to prosecution.

Majority (Jackson)
The action of the local authorities in compelling the flag salute and pledge transcends the constitutional limitations on their power and invades the sphere of intellect and spirit which is the purpose of the First Amendment to reserve from all official control.

NOTES:

1. This case does not prevent the government from requiring persons to speak against their will in commercial speech areas, officer oaths, and disclosure requirements. However, the government cannot require a person to provide money if used to support speech the person does not agree with (member dues contributed to political campaigns).
2. Abood v. Detroit Bd. of Ed. (1977) - held that state employees who choose not to join a public-sector union may nevertheless be compelled to pay an agency fee to support union work that is related to the collective-bargaining process. Cannot demand money for political activities though. Reasoning being to choose a single employee representative and prevent free riding on that union’s efforts.
3. Harris v. Quinn (2014) – 5-4 - refused to extend Abood to private employees (personal assistants) deemed to be public employees solely for the purpose of unionization and the collection of an agency fee. The agency-fee provision does not serve a compelling state interest that cannot be achieved through means less restrictive. It also suggested Abood is bad law. Another case came up, but Scalia died so there is no answer on this yet.

Question 75

Roberts v. United States Jaycees (1984)

Answer 75

The Right to Associate for expressive purposes is not absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.

The Jaycees threatened to revoke the charters of two of its chapters in Minnesota because they were admitting women as regular members in accordance with Minnesota law.

Majority (Brennan):

1. Two lines of association cases: (1) Intimate Association - protection as a fundamental element of personal liberty – those that attend the creation and sustenance of a family such as marriage, childbirth, the raising and education of children, and cohabitation with one’s relatives; AND (2) Expressive Association - right to associate for the purpose of engaging in those activities protected by the First Amendment.
2. The Constitutional Test for Expressive Association: compelling state interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive on associational freedoms
3. The test is met here b/c of anti-discrimination interest and narrowly tailored b/c including women will not impede the organization’s ability to engage in its speech. Have to let everyone in, but CAN require they agree with the message.

Question 76

Boy Scouts of America v. Dale (2000)

Answer 76

1s Am may protect group’s association if the group’s association is expressive. ALSO the government cannot force the inclusion of an unwanted person in the group if the presence of that person significantly affects the ability of the group to express its viewpoint.

Facts: New Jersey law prevented Boy Scouts of American from excluding homosexual members. The Boy Scouts challenged this law by claiming it abridged their free speech by affecting the way it wanted to express its viewpoint.

Majority (Rehnquist): forced inclusion of an unwanted person in a group infringes on freedom of expression if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints. This association had adopted requirements to be “morally straight” and “clean” which they are free to interpret as preventing homosexuals. Allowing an avowed homosexual and gay rights activist harms their freedom of speech b/c it sends the opposite message.

Dissent (Stevens): the Boy Scouts made no policy regarding homosexuality and even advised that sexual matters not be discussed with Scoutmasters. In addition, a 1978 policy statement only created an exclusionary membership policy, which past cases have always allowed State antidiscrimination laws to affect. There is no burden to the Boy Scouts b/c they have not even expressed a view on this matter.

NOTE: the majority and the dissent both relied on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), where the court did not require the parade council to allow this group to participate b/c it would violate their right to not be compelled to convey a message it did not agree with. They were not preventing homosexuals from being in the parade, just from expressing pro-gay ideas.

Question 77

Tinker v. Des Moines Independent School Dist. (1969)

Answer 77

Conduct that is expressive and entirely divorced from disruptive conduct by those participating in it is closely akin to pure speech which, is entitled to comprehensive protection under the First Amendment.

Facts: The Des Moines attempted to punish students for wearing black arm bands to publicize their objections to the hostilities in Vietnam and their support for a truce.

Majority (Fortas)
1. Schools can and need to prescribe and control conduct in schools. However, this was Pure Speech and a prohibition is only allowed if the expression would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Here they expressly wanted to stop the expression itself and thought schools were no place for a demonstration.

Question 78

Bethel School Dist. No. 403 v. Fraser (1986)

Answer 78

Schools have the authority to impose sanctions upon a students in response to lewd and indecent speech if the penalties imposed are unrelated to any political viewpoint.

Facts: Bethel school suspended Fraser after he gave a lewd speech at a student body assembly.

NOTES:

1. Schools now have broad discretion. A school could prevent an article on teen pregnancy. No first amendment right violated b/c it is the school’s paper and its first amendment right is the only one at risk. Materially interferes with what the school wants to teach. Hazelwood School Dist. v. Kuhlmeier. A school could also prevent a student from holding a sign that said “BONG HiTS 4 JESUS” behind the Olympic torch runner b/c they had let the students out of school to see this event. The court found this was a school activity and against the school’s anti-drug policy. Morse v. Frederick (2007).
2. A school can punish a student for wearing a Pepsi shirt when taking a school photo with Coca-Cola supplier. Can prevent students from passing out student created magazine on school grounds. Courts are split on whether they can prevent off campus distribution.

Question 79

Garcetti v. Ceballos (2006)

Answer 79

The First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.

Facts: Ceballos, a deputy DA for LA County DA’s Office wrote an internal memo disagreeing with a warrant, which was later found to be sufficient. The court found his memo was not protected speech.

Majority (Kennedy): Pickering Balancing TEST
1. Apply the Pickering Balance TEST: (i) Determine whether the employee spoke as a citizen on a matter of public concern; When employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes. (ii) If yes, then determine whether the relevant government entity had an adequate justification (good and sufficient) for treating the employee differently from any other member of the general public.

NOTE:
1. in Lane v. Franks (2014), the court found testimony a person gave in a criminal case pursuant to a subpoena was protected by the First Amendment even though he testified about information he had gained in the course of his government employment b/c he was providing this information as a citizen and not an employee – the lower court got this wrong.

Question 80

Rust v. Sullivan (1991)

Answer 80

Government speech does NOT have to be viewpoint neutral. The government may selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way

Facts: Title X funds, which provide funding for family-planning services, are conditional on (1) not being used to provide counseling or referrals for abortions; (2) cannot encourage, promote or advocate abortion – lobbying, disseminating materials, provide speakers, use legal action, or pay dues to a group; AND (3) Title X projects must be physically and financially separate from abortion activities. Opponents argued that the government doesn’t have a speech right to encourage certain activities at the expense of others.

Majority (Rehnquist): this is not discrimination on the basis of viewpoint, it is just a prohibition on a project grantee or its employees from engaging in activities outside of the project’s scope. Grantees are not prohibited from speaking on these matters, it must just be separate from Title X funds. And the statute does not necessarily prohibit a doctor from referring an abortion in the case of a medical emergency.

Dissent (Blackmun): this is content based regulation of speech. By refusing to fund family-planning projects that advocate abortion because they advocate abortion, the government plainly has targeted a particular viewpoint. In addition, this harms the doctor-patient relationship b/c the doctor cannot provide the full scope of options.

Question 81

Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. (2013)

Answer 81

The 1st AM prohibits the government from telling people what they must say. Conditions that define government patronage cannot regulate speech outside of the contours of the purpose of the aid.

Facts: Congress authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to combat HIV/AIDS worldwide. However, the funds were conditional on the requirement to have a policy explicitly opposing prostitution and sex trafficking.

Majority (Roberts)

1. In Regan v. Taxation with Representation of Washington (1983), the court allowed the condition that 501(c)(3) status is conditional on not influencing legislation b/c the corporation could simply not claim this status when lobbying and claim it for other activities.
2. In FCC v. League of Women Voters of California (1984), the court struck down a condition on funds that prohibited all editorializing, including with private funds.

Dissent (Scalia): the policy requirement is nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy to eradicate HIV/AIDS. And the First Amendment does not mandate a viewpoint-neutral government.
NOTE: Solomon Amendment required schools to allow military recruiters on campus if they wanted federal funding. The court upheld it even though the law schools did not want to allow them on campus b/c they would not allow gays to enlist. The court stated these amendments only required the school’s to perform certain conduct, not speech.

Question 82

Establishment Clause

Answer 82

“Congress shall make no law respecting an establishment of religion.”

1. Equality/neutrality – treating believers and non-believers alike.
2. Wall of separation between church & state – no aid for religions.
3. No coercion (Kennedy) – government cannot coerce anyone to be religious; no majority thinks coercion should be the tipping point.

Question 83

Everson v. Board of Education (1947)

Answer 83

The Establishment Clause does not forbid Government financial support used in the furtherance of religious activities if the support is comparable to a public benefit like firemen and police and is neutral among believers and non-believers.

Facts: A township board of education authorized reimbursement to parents of money that they expended for the bus transportation of their children to and from parochial schools. Appellant, in his capacity as a district taxpayer, filed suit challenging the right of the board to reimburse parents of parochial school students.

Majority:

1. The policy of reimbursing bus fare for all children attending schools in the town did not constitute support for religion prohibited by the Establishment Clause. The court compared this aid to providing fire and police protection to church schools. A taxpayer challenged this appropriation, but whether a taxpayer can challenge this type of thing now is uncertain.
2. the establishment clause is intended to erect “a wall of separation between Church and State.” The clause requires states to be neutral in relations with groups of believers and non-believers, but not their adversary.

Dissent: tax money should not be spent to support religions. In this case, the town resolution only allowed the transportation reimbursement to nonprofits including catholic schools, which happened to be the only private not for profit schools in the town.
Dissent: same as the other dissent. Providing fire and police support is different than this.

Question 84

Zelman v. Simmons-Harris (2002)

Answer 84

Where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.

Facts: the Cleveland school district was in a crisis and was under state control. The Pilot Project Scholarship Program provided (1) tuition aid for students in K-8 to attend a participating public or private school of their parent’s choice and (2) tutorial aid for students who choose to remain in public school. Some people challenged the use of the funds as violating the Establishment Clause.

Majority (Rehnquist):
1. Rehnquist TEST: where a government aid program is neutral with respect to religion, AND provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. Unclear whether you need BOTH individual choice AND it be neutral.

Concurrence (O’Connor):
1. Lemon Test (modified by Agostini): a law effecting an establishment of religion is constitutional IF (i) the law has “A Secular Legislative Purpose,” (ii) the law’s “principal or primary effect” was one that “neither advances nor inhibits religion,” AND TWIST (a) the effect does not result in the indoctrination of religion, (b) The law does not define its participants by religion (c) the law does not excessively entangle government with religion”

Dissent (Stevens): thinks the court should not focus on (1) the educational crisis of Cleveland – this program only helped 5% of students enrolled; (2) the amount of public school options – the only distinction is public v. private; and (3) the voluntary nature of the private choice to prefer a parochial education over a public b/c it is irrelevant to whether the government’s payment of it is permissible.
Dissent (Souter): the program does not really provide a free choice between secular and sectarian private schools b/c there are not enough secular private school openings, and the voucher is not enough to pay the tuition at any but the parochial schools.

Dissent (Breyer): assuring religious schools comply with program requirements (no discrimination or teaching of hate, etc.) is difficult b/c different religions preach different things. The voucher is different than other aid b/c it is financing the choice to be educated in a religion and not simply helping to provide transportation, books, and computers.

NOTES:

a. In Mueller, the court rejected an EC challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tuition costs, even though the majority of the program’s beneficiaries were parents of children in religious schools. Similar to Nyquist but applicable to all schools.
b. In Witters, the court rejected an EC challenge to a vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor.
c. In Zobrest, the court rejected an EC challenge to a federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools.
d. Distinguished Nyquist, where a NY program gave a package of benefits exclusively to private schools and the parents of private school enrollees.

Question 85

Engel v. Vitale (1962)

Answer 85

The Establishment Clause is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-believing individuals or not.

Facts: The Board of Education of New York, adopted a program of daily classroom prayers in public schools. The prayer was brief, denominationally neutral, and its observance on the part of the students was voluntary. Certain parents challenged the constitutionality of the state law authorizing the school district to direct prayer in public schools.

Dissent: “I cannot see how an ‘official religion’ is established by letting those who want to say a prayer say it.”

NOTES:

1. A school cannot open the school day with reading verses from the Bible or reciting the Lord’s Prayer. Abington School Dist. v. Schempp. And a state could not amend the law to add “or voluntary prayer” to an earlier law that required a one-minute period of silence at the beginning of the day. Wallace v. Jaffree – unconstitutional under first prong of Lemon Test.
2. Schools can also not hold a graduation prayer at a middle school b/c the plurality found it was coercive. Four justices thought it was unconstitutional even if not coercive and the others thought it was constitutional b/c it was not coercive. Lee v. Weisman. This was later extended to a student-led prayer before a high school football game.
3. A state cannot prevent teaching of evolution b/c the state’s right to prescribe curriculum for its schools does not authorize it to ban the teaching of a scientific theory b/c it conflicts with some particular religious doctrine.
4. BUT schools cannot prevent religious groups from using the school space – violation of 1st amendment rights.
5. The court has also strictly applied the EC in cases involving injection of religious groups into the governmental process (cannot allow church to veto liquor store placement and cannot create special school district restricted to one religion).

Question 86

Lynch v. Donnelly (1984)

Answer 86

The establishment clause does not prohibit the government from having religious decor in a public square if by doing so the city is not ESTABLISHING a religion.

Facts: The city of Pawtucket, Rhode Island would annually erect a Christmas display in a park owned by a nonprofit organization and located in the heart of the city’s shopping district. ACLU members, brought an action in Federal District Court, challenging the inclusion of the crèche in the display on the grounds that it violated the Establishment Clause of the First Amendment

Majority: explained how an absolutist approach is not used to evaluate government action but the court must determine if the government action establishes a religion or religious faith, or tends to do so.

1. Lemon Test: inquire whether the challenged law or conduct has a secular purpose; whether its principal effect is to advance or inhibit religion; AND whether it creates an excessive entanglement of government with religion.
2. The nativity scene in the context of the holiday is comparable to religious paintings located in government buildings.
3. Political divisiveness alone cannot be excessive entanglement.
4. In McGowan v. Maryland (1961), the court rejected EC claims against Sunday closing laws.

Concurrence:

1. two ways to violate the EC: (1) excessive entanglement with religious institutions or (2) direct infringement by government endorsement or disapproval of religion. The Lemon [Twist] Test is used to determine if these are violated – with a focus on the intent of a lawmaker and the effect on a viewer with respect to endorsing religion.
2. Some government acknowledgements of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying government approval of particular religious beliefs.

Dissent: maintaining the crèche does not reflect a clearly secular purpose. The city had other means to reach its goal of encouraging holiday shopping. The primary effect of the crèche (by itself, not in context) is to place approval on particular religious beliefs exemplified by the crèche. A city can endorse religion.

NOTES:

1. In Allegheny County v. ACLU (1989) – 5-4, the court found it unconstitutional to have a nativity scene ONLY at the county courthouse. However, in a companion case, the court found 6-3 that a display of a Christmas tree and menorah was constitutional.
2. In Capitol Square Review Board v. Pinette (1995), the court found the city could not deny the Ku Klux Klan to place a large cross in a public square but the justices disagreed on why.

Question 87

McCreary County v. ACLU of Kentucky (2005)

Answer 87

The Establishment Clause prohibits the display of religious symbols if they do not have a secular purpose. Secular purpose can be assessed by context and if a government repeatedly attempts to put up religious displays despite court rulings the government betrays a religious purpose.

Facts: After the ACLU sued to enjoin the counties’ displays of the Ten Commandments in their courthouses, the counties adopted resolutions calling for more extensive exhibits to show that the Ten Commandments were Kentucky’s “precedent legal code.” Plaintiffs then sued for injunctions for violation of the Establishment Clause.

Majority (Souter): The court found that although placing the 10 commandments in a governmental display may be constitutional, it is not so here. The counties put multiple displays in the courtroom of the 10 commandments and repeatedly attempted to change them and alter their reasoning so the court found there was a predominantly religious purpose for the displays.

Dissent (Scalia): the history of the U.S. shows the First Amendment cannot mandate neutrality between religion and non-religion. In addition, the 10 commandments are all believed in by multiple religions which make up 97.7% of all believers. Governmental invocation of God is not an establishment. Scalia also viewed the perception of the displays in context with all the walls of the courthouse.

Note: In Van Orden v. Perry (2005), the 10 commandments were engraved on a 6-foot high monument at the Texas State Capitol. The court found it constitutional. The monument included other symbols of the history of the U.S. government. Breyer swing vote b/c it had been there a long time, no one complained, provided by private organization, etc.

Question 88

American Legion v. American Humanist Ass’n (2019)

Answer 88

The passage of time creates a strong presumption of constitutionality to a given religious symbol on government property or otherwise government act giving religious effect.

Facts: In 1918, residents of Maryland formed a committee for the purpose of erecting a memorial for the county’s soldiers who fell in World War I. The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war. The cross was erected on public property. Nearly a 100 years later, the American Humanists sued arguing that viewing the cross on public land offended them.

Majority (Alito): The Court decided not to apply the Lemon Test to longstanding monuments for four reasons (1) the passage of time makes it difficult to identify a monument’s original purpose (2) multiple overlapping purposes may emerge as time goes by (3) the primary effect of a monument may change as it becomes embedded in a community’s sense of place (4) And fourth, court ordered removal of a longstanding monument may create the appearance of a government “aggressively hostile to religion.”

Plurality (Alito): The Lemon Test should be abandoned b/c it failed to create a grand unified theory of the Establishment Clause

Plurality (Kavanaugh): For a government action to be constitutional w/regards to EC, the action cannot be coercive AND there must be one of three additional actions if (1) rooted in history OR (2) treats religion/non religion equally OR (3) is a permissible legislative accommodation (History and Tradition means history and tradition from the Founding).

Concurrence (Breyer and Kagan): Longstanding monuments do not threaten secular tolerance. However, history and tradition create license to erect new religious monuments in the old style.

Concurrence (Thomas and Gorsuch): Being an offended observer is not grounds for standing. Moreover, the establishment clause hasn’t been incorporated anyway

Dissent (Ginsburg): All crosses displayed on public property are a presumptive unconstitutional endorsement of Christianity.

Question 89

FREE EXERCISE CLAUSE

Answer 89

Congress shall make no law…prohibiting the free exercise [of religion]

At first, government could interfere with practices but not beliefs. And then cases like Sherbert v. Verner required unemployment benefits for a person fired for taking Saturdays off b/c she was a Seventh Day Adventist (indirect burden – apply strict scrutiny) and Wisconsin v. Yoder allowed the Amish to keep their kids out of school even though there was a general criminal law. Many other cases did not accommodate the religion individually though.

Question 90

Employment Division v. Smith (1990)

Answer 90

The Free exercise clause does not prohibit a law that incidentally limits a religious practice if the law us otherwise generally applicable or neutral.

Majority (Scalia): the 1st Amendment is not violated if prohibiting the exercise of religion is not the object of the tax or regulation, but merely the incidental effect of a generally applicable and otherwise valid provision. Need a combination of another constitutional provision to find the law making the conduct illegal invalid – Wisconsin v. Yoder case. Rejects the strict scrutiny test b/c the court has never used it to invalidate a law.

Concurrence (O’Connor): the majority, by allowing the government to prohibit conduct as long as it is generally applicable, but prohibiting conduct, DOES prohibit the free exercise of religion.

1. O’Connor would use Strict Scrutiny. Whether making an exemption from the general criminal prohibition will unduly interfere with fulfillment of the governmental interest. She would find uniform application of the law, prevention of drug trafficking, and keeping people healthy overrides the petitioner’s need for the religious exemption.
2. The court does not determine how central a particular practice is to a religion, just if the person holds a sincere belief.

NOTE: congress passed the RFRA to require a Strict Scrutiny test for states making laws like these. In City of Boerne v. Flores, the court held this law was unconstitutional toward states but it remains in effect for the federal government. Congress then passed the RLUIPA to require strict scrutiny in states for land use rules, such as zoning, or as to prisoners in state prisons or jails.
1. We now don’t get free exercise cases, but RFRA cases instead. In Burwell v. Hobby Lobby Stores, Inc. (2014), the court held that a closely-held for profit corporation was a “person” for purposes of RFRA and that requiring them to engage in activity contrary to their religious beliefs (paying insurance for reproductive services they did not agree with) burdened their exercise of religion (compelling interest, but not narrowly tailored). So the government had to make the same exception for them as for non-profit corporations. Passing the RFRA has made the strict scrutiny test stricter

Question 91

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)

Answer 91

Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by Strict Scrutiny.

Facts: The church and its president, applied for and received licensing, inspection and zoning approvals to establish a church including a ritual of animal sacrifice from respondent city. In response, an emergency public session of respondent’s city council was held and ordinances were passed which prohibited animal sacrifice. The couch alleged that the city prohibited the free exercise of their religion.

Plurality (Kennedy): the ordinances were facially neutral even with using the words “sacrifice” and “ritual,” but as-applied they were not neutral and targeted Santeria as evidenced by meetings before their enactment. Also found it not generally applicable. If Smith test is not met, use Strict Scrutiny. In this case, the state’s interests were protecting the public health and preventing cruelty to animals, but the ordinances were both over-broad and under-inclusive.

Concurrence (Scalia): there should not be a distinction between neutrality and general applicability. And the court should not seek to determine the intent of the city in making the ordinances.

Question 92

Locke v. Davey (2004)

Answer 92

The Free Exercise Clause does not forbid a State from refusing to grant scholarship money for someone who wants to enter the ministry.

Facts: A student who had been awarded a scholarship under the program wished to pursue a degree in pastoral ministries at a private, church-affiliated college. However, by laws for the state scholarship forbade use of the scholarship for pursuit of a ministerial degree.

Majority (Roberts)
1. The prohibition was not violative of the federal constitution since the exclusion of such funding placed a relatively minor burden on the student. Moreover, the student is still free to attend whatever college he chooses.

Question 93

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012)

Answer 93

The Free Exercise Clause excludes religions from Employment Discrimination laws between a religious institution and its ministers.

Facts: Petitioner church was sued by respondent Equal Employment Opportunity Commission (EEOC) for violating the Americans with Disabilities Act (ADA) b/c they fired a teacher who developed narcolepsy. The church invoked what is known as the “ministerial exception,” arguing that the suit was barred by the First Amendment.

Majority (Roberts): There is a ministerial exception grounded in the Religion Clauses of the First Amendment – it ensures that the authority to select and control who will minister to the faithful is a strictly ecclesiastical matter and the church’s decision alone. Therefore, a terminated minister could not file an EEOC suit b/c the church is allowed to terminate her for not following internal procedures. This is interfering with the religion’s free exercise of religion itself, not just an individual.

Concurrence (Thomas): whether a person is a minister should only depend on whether the religious organization considers them to be one.

Concurrence (Alito): the exception should apply to any employee who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.

Question 94

Trinity Lutheran Church of Columbia v. Comer (2017)

Answer 94

The Free Exercise Clause of the First Amendment protects religious observers against unequal treatment and subjects to the Strict Scrutiny laws that target the religious for “special disabilities” based on their religious status.

Facts: Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because the Missouri Constitution states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity church sued arguing the state constitution was unconstitutional b/c it prohibited the free exercise of religion

Majority (Roberts): The United States Supreme Court has confirms that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.

Concurrence (Gorsuch): the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use.

Dissent (Sotomayor): The court’s ruling slights both precedent and history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both. The Court changed that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.