Con Law II Flashcards
Code of Conduct for Justices
- Code of Conduct, Canon 3 (A): A Justice should not be swayed by partisan interests, public clamor, or fear of criticism.
- Code of Conduct, Canon 3 (B: Disqualification): A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.
o (a): When Justice has personal bias or prejudice concerning a party - Code of Conduct, Canon 3 (B: Disqualification): Justice should disqualify himself when
o (C): Justice or their spouse has financial interest in subject matter
o (D): Justice’s spouse is a party to action, lawyer in proceeding, or has an interest that could be substantially affected by the outcome of the proceeding.
- Trump v. United States (2024)
o Roberts with Thomas, Alito, Gorsuch, Kavanaugh, Barrett (minus Sotomayor, Kagan, Jackson)
o Facts
* 2023: federal grand jury indicts Trump on criminal counts for “conspiring to overturn election”
False claims of election fraud, using DOJ to conduct sham election-crime investigations, tried to persuade VP to use his power
Includes January 6 “encouraging storming Capitol”
o Rule — Roberts
* A former president can be prosecuted for unofficial acts. He is not immune for those.
* Presidents have some immunity.
For “core constitutional powers,” president’s immunity is absolute.
* A former president has absolute immunity from criminal prosecution for official acts within the president’s exclusive constitutional authority
For other official acts, president has some immunity too.
* A former president has at least presumptive immunity for all other official acts
o Application — Roberts
* Congress cannot act on, and courts cannot examine, the president’s actions on subjects within his “conclusive and preclusive” constitutional authority.
* Separation of powers necessitate at least presumptive immunity from criminal prosecution for official acts within outer perimeter of president’s actions.
* President is immune from prosecution unless government can show that there is no danger of intrusion upon the authority of the executive branch.
President is immune unless government can show it would pose no dangers of intrusion on executive branch
* Summary
No immunity for unofficial
Absolute immunity for core constitutional powers
Presumptive immunity for other official acts
* Outer perimeter of acts is official unless not manifestly beyond his authority
* Not everything the president does is official.
* President is not above the law, but Congress cannot criminalize his conduct in carrying out executive powers.
* Constitution and separation of powers demands an energetic, independent executive.
* Court is leaving it to the lower courts to determine what is official and unofficial
* Courts cannot inquire into the president’s motives.
Court cannot ask the president his motives for doing something.
* An act is not unofficial just because it violates the law.
* President is absolutely immune for discussions with DOJ officials
Here, Trump’s discussions with Justice Department are under president’s exclusive constitutional authority to ensure that federal laws are faithfully executed.
* They were official acts, so Trump has absolute immunity for them
* Dissent does not understand the separation of powers and are not taking account of what we realize here
* Our perspective must be more farsighted– we aren’t just writing an opinion for this case. We are writing a case for the future– for every future president.
* Barrett didn’t join section III(C) of the opinion.
That section says:
* Parties are saying we should consider official acts as evidence of what’s going on for any prosecution. Majority disagrees with this. You can’t review the official acts of the president in any criminal act because that would be undermining his immunity. Allowing prosecutors to probe official acts would undermine this immunity. You can’t use evidence of official acts to prove your case.
* President’s authority to act must come from Constitution or Congress. (Youngstown)
* Congress cannot criminalize acts within president’s exclusive constitutional authority, and Courts cannot hear a criminal prosecution reviewing such acts.
So, president has absolute immunity from criminal prosecution for official acts taken under president’s exclusive authority.
* Some official acts are based on statutory authority granted by Congress or on constitutional authority shared with Congress.
* Trump’s discussions with VP are not exclusive authority but are official acts = presumptive immunity
Remand is necessary to determine whether government can rebut presumption
* Trump’s interactions with state officials and public might be to ensure integrity of federal election. = official act within exclusive authority. But, they might also be a private scheme for personal interests. Remand is necessary for classification.
* Trump’s speech related to January 6 might fall under president’s authority to speak to citizens. Or they might be speech concerning personal affairs, making them unofficial acts. Remand is necessary for classification.
o Conclusion
* Court of appeals’ judgment is vacated and case is remanded.
Regarding enlisting the VP, it will go back to the district court to see if they can rebut the presumption of immunity there.
About president’s conversations with state officials about state electors, court says they are remanding to conclude if the president’s conversations with states and other officials is official or unofficial.
Court is remanding on January 6 conduct to see what is going on
o Concurrence — Barrett
* Court leaves open possibility that constitution prohibits prosecuting president for any official conduct, instructing the lower courts to answer that first. She says we should answer the question now.
* It doesn’t violate article 2 of Constitution to prosecute the president sometimes.
Cites Youngstown and says Youngstown shows us sometimes, the president’s action may be a product of the president & congress working together.
* Regarding the “danger of intrusion” test, Barrett is more favorable to prosecutions going forward.
* Nothing gives the president the authority to tell the state of Arizona what to do with its electors. There is no authority for that, so we can decide that now. President has no authority over Arizona or its leadership, so prosecuting him for that doesn’t intrude on his executive authority because he doesn’t have the authority to do that.
* Barrett doesn’t join part III(C) that says you can’t use an official act as evidence because then you really can’t ever prosecute a president.
EX: Bribery. President cannot bribe. But if he bribed someone, then you have to ask about that official act.
* President gets immunity from criminal prosecution for official acts within exclusive constitutional authority.
* For all other official acts, two-step process to determine if prosecution is constitutionally permissible:
Court should determine whether official act falls within scope of conduct prohibited by relevant criminal statute
If act falls within criminal statute, prosecution should be permitted if applying criminal statute poses no danger to proper functioning of executive branch.
o Concurrence — Thomas
* Special counsel is not established by law. Special counsel doesn’t have the authority to bring this prosecution because he is just a private citizen named by the DOJ and not an official of the US. Because special counsel is not established by law, he is just a private citizen and cannot prosecute the president.
* Justice Cannon from a Florida case said Smith doesn’t have the authority to bring the lawsuit because he is not special counsel and not appointed.
* There is another way in which Trump’s prosecution might violate Constitution:
Attorney General appointed private citizen as special counsel to prosecute Trump.
Constitution’s appointments clause states that usual manner for appointing officers of US is nomination by president and confirmation by Senate.
Congress can authorize courts or others to appoint inferior officers. But, underlying office must first be established by congress via federal statute.
The Attorney General has not identified any statute creating an office for the special counsel position, nor has he identified a statute authorizing him to appoint officers
o Dissent — Jackson
* Joins Justice Sotomayor’s dissent.
* There is a paradigm shift here. It is next to impossible to know when the president can be prosecuted.
A hypothetical president that admits to ordering assassination or staging a coup might have a fair shot of getting immunity under this new rule.
* Now, the laws don’t apply to the president anymore.
* The rule of law not becomes the rule of judges.
* The court has taken away power from congress.
* Giving president immunity says that he is not subject to criminal laws. This goes against rule of law.
o Dissent — Sotomayor, with Kagan and Jackson
* Constitution does not free the president from answering for crimes or treason. President has to answer for crimes he commits.
* The majority here invents immunity through brute force.
* Presidents historically understood president to be subject to criminal prosecution, even for official acts.
President Ford pardoned Nixon and Nixon accepted the pardon = Nixon was subject to criminal liability.
* Court here is confusing civil and criminal immunity.
Nixon v. Fitzgerald – president cannot be sued for official decisions.
US v. Nixon – president could be prosecuted criminally.
Majority is erasing the difference between civil and criminal immunity.
* Trump was not acting within his core executive power. We don’t need to talk about core executive power in this case because that is not what is implicated here.
* Majority is ignoring separation of powers.
* This draconian approach to official acts evidence deprives prosecutors of any
* This decision has stark long term consequences.
o Special counsel has a new superseding indictment for the Washington DC case (the one that went to the court on immunity).
- New indictment is written post-SCOTUS decision on immunity
- New indictment differences
Claims about DOJ and person in AG’s office have been taken out of indictment - Can’t have lawsuits about DOJ due to immunity decision
Trump is a candidate, not a president
Contains information about President’s interactions with states
Section on VP
Section on how Trump exploited the violence of the day
- Dred Scott v. Sandford (1857)
- Missouri Compromise: Missouri was admitted as a slave state and Maine as a free state. Legislation passed prohibiting slavery in Louisiana Purchase except for Mississippi
- Dred Scott v. Sandford (1857)
o Facts - DS was born a slave in Virginia.
- In 1830, DS was taken to Missouri and purchased by Emerson, who took DS with him on assignments in different states— some of which outlawed slavery, like Illinois.
- Emerson let DS marry in Wisconsin. After Emerson died, his widow got his estate, including DS.
- DS tried to buy his freedom from Emerson’s widow, but she refused.
- DS sued widow for his freedom.
o Procedure - DS sues for freedom, but Missouri Supreme Court upheld their slavery.
- DS sued again in 1853 in federal DC against Sandford, executor of Emerson’s estate.
Federal court relied on Missouri law to find that DS was still a slave
Circuit court of appeals affirmed
o Rule — Taney - Africans brought to the US as slaves and their descendants are not considered US citizens and are not entitled to protections of Constitution
o Application — Taney - Two leading questions:
Did Circuit Court have jurisdiction to hear and determine this case?
If it has jurisdiction, is the judgment wrong? - Court distinguishes slaves and their descendants from Indians
Indians were in the US before colonialism and were free, while slaves never had any rights given to them. Essentially, the Indians were foreigners not living under US government, which is different from slaves. - Indians are in a “state of pupilage”– signaling that they can’t govern themselves and that the US as white people need to step in and govern them.
- Citizens are people of the United States. Slaves are not people, they are property.
When framers wrote constitution, Africans were inferior race without basic protections. They were considered a subordinate class.
Even slaves that were emancipated were subject to US authority. - The court is not a political branch and it’s not its role to decide justice or injustice. The decision belongs to the legislative branch and the framers. The court’s job is to interpret the law, not to make the law.
- Each state can confer something upon a class, but a state cannot give US (national) citizenship to anyone. Congress only has this right. So, no state can naturalize an alien and give him the rights of US citizenship.
- Declaration of Independence says all men are created equal, but negative views of Africans means framers did not mean those words to include Africans.
If it was intended to include African Americans, then the framers themselves violated this. - Africans were always considered property
This case is about property– not citizens - There are two clauses in the Constitution that point to African Americans
Reserves the right to states to import slaves until 1808
Pledged themselves to each other to maintain the right of property of the master - If a slave is discharged, they should be delivered back to the owner
These clauses show that slavery was allowed. - DS was still property.
- Circuit court of appeals has no jurisdiction to consider DS’s claim because he doesn’t have citizenship rights, including right to sue
- Despite DS being moved to a free state, the slave is still the property of the owner, and Congress cannot change that.
Congress must have been authorized to pass this law under the Constitution. - Majority is saying that even though Congress passed Missouri compromise, whatever Congress does cannot supersede an individual’s property rights.
Missouri compromise conflicts with constitution.
No word in the Constitution gives Congress greater power over slave property. - The Congressional Acts that abolished slavery in the northern states where DS lived are unconstitutional
So, DS going to these states doesn’t make him free, even if DS’s owner took him to a free state with the intention of becoming a permanent resident. - Strader et al. v. Graham
Slaves were taken from Kentucky to Ohio (free state) and back to Kentucky. Court said Kentucky’s laws govern. - So, in the DS case, Missouri’s laws govern.
- DS is not a citizen, so there is no jurisdiction.
o Conclusion - Decision of court of appeals is affirmed
o Dissent — Curtis - During time of Constitution, there were free African Americans that would be considered citizens and electors equal to other citizens.
- In at least 5 states, African Americans could vote. So it is bizarre to say that African Americans were never citizens.
- Under the Constitution, every free person born on the soil of a state, who it is a citizen of that state, is a citizen of the U.S.
Precedent supports that everyone born or naturalized into a state gain privileges of national citizenship. So, if DS is a citizen of Missouri, he is also a citizen of the US and gets rights under Constitution. - Republican group cites Dred Scott ruling as the reason why Kamala Harris cannot be president.
o Article 2: No person except a natural born citizen or citizen of U.S. at time of adoption of Constitution shall be eligible to the office of the President.
o Argument is that Kamala’s parents were not born in the U.S. Argument is that presidents should be born to 2 natural-born citizens of the U.S.
- 13th Amendment
o Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
o Section 2: Congress shall have power to enforce this article by appropriate legislation.
- 14th Amendment
o Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
- Bailey v. Alabama (1911)
o Facts
* Bailey entered into a K with Riverside company, for Bailey to work as a farm hand for $12/month for one year. Bailey was given $15 in cash as consideration.
* Bailey stopped working after one month and refused to return the $15.
* Bailey was charged with a crime for breaching the contract
o Rule — Hughes
* A state statute violates the 13th amendment if it compels a person to labor for another in payment of a debt by punishing him as a criminal if he does not perform the service or pay the debt
o Application — Hughes
* Bailey argues that Alabama statute used to convict him violates 13th Amendment prohibiting involuntary servitude.
* The 13th amendment was a charter of universal civil freedom for all people, of whatever race, color, or estate, under the flag
Court is saying that 13th amendment is about more than just slavery or black people– the 13th amendment covers everybody and all forms of slavery
* Peonage is a term to define a situation where someone is compelled to work for his creditor until debt is paid.
* Section 2 of the 13th amendment states that Congress can enforce section 1
* State can impose involuntary servitude only as a punishment for a crime, but it cannot compel one man to labor another in payment of a debt, by punishing him as a criminal if he does not perform or pay.
* Alabama statute violates 13th Amendment
o Conclusion
* Judgment of Alabama Supreme Court is reversed and matter is remanded for further proceedings consistent with the opinion.
o Dissent — Holmes
* 13th Amendment does not prohibit contracts for labor
* Bailey breached contract. This is wrong. If a criminal fine can be imposed, then imprisonment can be imposed in case of failure to pay it.
13th amendment is not violated.
This statute has nothing to do with slavery and doesn’t make the laborer a slave because the debtor voluntarily chose to enter into the contract. Fraud should be a crime and committing fraud isn’t part of universal freedoms.
* Bailey falsely represented that he would perform under contract. Such an act can be punished like any other crime.
- Jones v. Alfred H. Mayer Co. (1968)
o Stewart with Warren, Black, Douglas, Brennan, Fortas, Marshall (minus Harlan and White)
o Facts
* Jones sued in federal district court against Mayer, alleging that Mayer refused to sell Jones a house simply because Jones is black.
* Jones relied on 42 USC 1982, which grants the right to all citizens of US to buy and sell property.
o Rule — Stewart
* Congress may make whatever laws are necessary and proper for enforcing the thirteenth amendment’s prohibition of slavery and the negative effects of slavery
o Application — Stewart
* Section 1982 is a valid exercise of congressional power to enforce 13A by prohibiting discriminatory conduct of private individuals.
* The 13th amendment is an absolute declaration that slavery cannot exist in any part of the U.S.
Without the enforcement clause, the 13th amendment would be an empty promise.
* The thirteenth amendment includes the power to eliminate all racial barriers to the acquisition of real and personal property.
* The thirteenth amendment is about universal freedom
* Nothing in 13A says it only applies to discriminatory conduct by state officials.
Amendment lets Congress pass laws addressing all forms of racial discrimination.
* Congress passed section 1982 to address race-based housing discrimination, even when performed by private individuals
o Conclusion
* Decision of lower courts is reversed
o Dissent — Harlan
* This decision opens the door to too much congressional power
* 13th amendment doesn’t apply to private discriminatory conduct.
* The government is intruding if it bans a person from refusing to enter into a contract with another for whatever reason
- Marsh v. Alabama
about a private corporate town. Town cannot violate the private rights of people that lived there. This corporate town is enough like a town that the constitution applies there.
- United States v. Morrison (SCOTUS 2000)
o Rehnquist joined by O’Connor, Scalia, Kennedy, and Thomas.
* Minority: Stevens, Souter, Ginsburg, Breyer
o Facts
* In 1994, Congress passed the Violence Against Women Act (VAWA), which contained a provision for a federal civil remedy for victims of gender-based violence, even if the victims did not file criminal charges.
Violence Against Women Act allowed women to file lawsuits against those who had committed violence against them.
* That same year, Christy Brzonkala, a female student at Virginia Tech University, was allegedly assaulted and raped by Antonio Morrison (defendant) and James Crawford.
Morrison was temporarily suspended from school, but a state grand jury did not find enough evidence to indict him.
* Brzonkala and the United States government (plaintiffs) brought suit against Morrison, Crawford, and Virginia Tech under the VAWA in federal district court.
o Rule – Rehnquist
* (1) Congress does not have the authority under the Commerce Clause to regulate violence against women, because it is not an economic activity.
* (2) Under § 5 of the Fourteenth Amendment, Congress may regulate the discriminatory conduct only of state officials, not of private actors.
o Application – Rehnquist
* (1) Congress does not have the authority under the Commerce Clause to regulate violence against women, because it is not an economic activity.
The United States argues that Congress may regulate gender-based violence because it is an activity substantially affecting interstate commerce.
* A key consideration in Lopez was the criminal, noneconomic nature of the conduct at issue.
* Similarly, gender-based violence is a noneconomic activity.
* (2) Under § 5 of the Fourteenth Amendment, Congress may regulate the discriminatory conduct only of state officials, not of private actors.
It is a well-settled principle from the precedent decisions in United States v. Harris, 106 U.S. 629 (1883), and The Civil Rights Cases, 109 U.S. 3 (1883), that the Fourteenth Amendment prohibits only discriminatory state action, not discriminatory private action.
* In Harris, the Court considered a challenge to § 2 of the Civil Rights Act of 1871.
* That section sought to punish “private persons” for “conspiring to deprive any one of the equal protection of the laws enacted by the State.”
* We concluded that this law exceeded Congress’ § 5 power because the law was “directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers.”
* We reached a similar conclusion in the Civil Rights Cases.
* In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the § 5 enforcement power
The VAWA attempts to provide a remedy against private individuals accused of gender-based violence and not against state officials. Thus it is an unconstitutional exercise of both Congress’s Fourteenth Amendment and Commerce Clause powers.
The victim here can get justice. But, under our federal system, victim must seek justice through the state– not through the federal government.
o Conclusion
* According to other cases under section 5, Congress’s actions must be congruent and proportional to the 14th amendment problem being solved.
* Court said Congress may not use section 5 to govern private individuals. Congressional power under section 5 is limited to state action.
But why can Congress not provide a remedy against private actors? Because the constitution doesn’t mention private actors. Letting the federal government regulate private actors might go too far.
o Dissent – Breyer with Stevens, Souter, Ginsburg
* The Federal Government’s argument, however, is that Congress used § 5 to remedy the actions of state actors, namely, those States which, through discriminatory design or the discriminatory conduct of their officials, failed to provide adequate (or any) state remedies for women injured by gender-motivated violence
VAWA is not just about private actors– it is tied back to the failure of the states.
Neither Harris nor the Civil Rights Cases considered this kind of claim
* Court in Harris specifically said that it treated the federal laws in question as “directed exclusively against the action of private persons, without reference to the laws of the State or their administration by her officers
* In the Civil Rights Cases, the statute did not refer in any manner to any supposed action of the State or its authorities
* Congress at least sometimes can enact remedial “[l]egislation … [that] prohibits conduct which is not itself unconstitutional
o Oral argument
* Lawyer challenging congress said “With respect to section 5, this Court has not yet held that Congress can remedy violations of the section 1 prohibition against State denials of equal protection by regulating purely private behavior that could not possibly violate section 1.”
* Kennedy: Suppose Congress finds that when black people are offended, the crime isn’t taken as seriously. Could Congress pass a law criminalizing assaulting black people and giving black people a civil remedy to sue the white person under the 14th amendment?
Lawyer says no because the text of the provision states that Congress shall enforce provisions of section 1, which is about states.
Breyer: Wouldn’t Kennedy’s suggestion be a good remedy for a state’s failure to follow the equal protection clause?
* Lawyer says no because it would be nothing about enforcing the 14th amendment.
* Lawyer always comes back to the distinction between the states and private action. This was a huge textualist argument– the 14th amendment is about states, not private parties.
* Scalia – Congress can’t use its section 5 powers to override the states’ powers.
- Fifteenth Amendment
o Section 1
* The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
o Section 2
* The Congress shall have power to enforce this article by appropriate legislation.
- 19th amendment
you can’t deny right to vote based on sex
- 26th amendment
you can’t deny right of citizens 18+ to vote.
- Article 2, section 1, clause 2
Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the congress; no senator or representative shall be an elector.
- 12th amendment
Electors meet in their states and vote for president and VP, one of whom at least shall not be an inhabitant of the same state with themselves. If no person gets a majority of votes for president, then the house of representatives shall choose the president (this didn’t happen in Bush v. Gore).
o One of the selected candidates must be someone who is not from the same state as the elector. So, president and VP, in practice although not really impossible, can’t be from the same state.
- 23rd amendment
DC gets electoral college votes, but not more than the least populous state
- 24th amendment
The right to vote shall not be denied/abridged by reason of failure to pay poll tax or other tax.
- The Voting Rights Act
was passed to enforce the Fifteenth Amendment
o Section 2 of the Act bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen … to vote on account of race or color.”
* There is a violation if the political process is not equally open to participation by members of a class in that their members have less opportunity than others to vote.
o Section 4 of the Act applied the requirement of section 5 to some states.
* Section 4 provides the “coverage formula,” defining the “covered jurisdictions” as states or political subdivisions that maintained tests or devices as prerequisites to voting and had low voter registration or turnout in the 1960s and early 1970s.
o Section 5 required states to obtain federal permission before enacting any law related to voting.
* In the areas covered under § 4, § 5 of the Act provides that no change in voting procedures can take effect until approved by specified federal authorities in Washington, D.C.
This procedure is called “preclearance.”
- Shelby County v. Holder (2013)
o Majority by Roberts, joined by Scalia, Kennedy, Thomas, Alito
* Minority: Ginsburg, Breyer, Sotomayor, Kagan
o Facts
* In 1965, Congress passed the Voting Rights Act.
Prior to the enactment of this statute, several states maintained test or devices, such as literacy and knowledge tests, good-moral-character requirements, and voucher requirements for registered voters.
* In several states, White citizens were registered to vote at a rate approximately 50 percent higher than African American citizens, as a percentage of total eligible voters in each classification.
* Because of these conditions, Congress determined that racial discrimination in voting restrictions was entrenched and pervasive.
Section 2 of the Voting Rights Act prohibited any standard, practice, or procedure imposed or applied to deny or limit the right to vote on account of race or color.
In the states with the most severe restrictions, Congress required any changes in voting procedures to be preapproved by either the attorney general or a court of three judges in Washington, DC, under § 5 of the act.
* These states were determined through a formula set forth in § 4(b).
The VRA allowed states to “bail out” of coverage if they don’t have tests to deny voting rights for 5 years straight.
* Alabama hadn’t bailed out of this case.
Both § 4(b) and § 5 were temporary and were set to expire after five years.
In 2006, Congress again reauthorized § 5’s restrictions for another 25 years and did not change § 4(b)’s coverage formula.
* However, by 2004, the voter-registration figures were nearly equal between White citizens and African American citizens.
o Rule – Roberts
* A federal law that departs from the fundamental principles of federalism must be justified by current needs.
o Application – Roberts
* The history of the 15th amendment before the VRA was failure– states requires literacy tests, etc. That’s why Congress passed the VRA.
VRA section 2 bans any procedure/standard that denies voting based on race/color. Section 2 was meant to be permanent.
* Section 5 of the Voting Rights Act requires covered jurisdictions to obtain federal approval before enacting any changes to voting procedures.
This requirement impacts the sovereignty of only a few states.
* This is a departure from the principle of equal sovereignty among the states.
* The drastic measures of these provisions were warranted in 1965.
However, there is no longer a substantial disparity in voter registration or turnout between White citizens and African American citizens in the states covered by the formula contained in § 4(b).
* This coverage formula is based on 40-year-old data and does not reflect modern reality.
* Congress must justify these restrictions using the current conditions, not those of 40 years ago.
conditions that originally justified these measures no longer characterize voting in the covered jurisdictions
* voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.”
* Under the 10th amendment, States retain broad autonomy in structuring their governments and pursuing legislative objectives. States have the power to regulate elections.
* You don’t need section 5, because if your voting rights are abridged, you can sue under section 2.
* Congress said the same when it reauthorized the Act in 2006, writing that “significant progress has been made in eliminating first generation barriers experienced by minority voters
* In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction.
Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
* The Amendment is not designed to punish for the past; its purpose is to ensure a better future
* Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2. We issue no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.
* Therefore, § 4(b) of the Voting Rights Act is unconstitutional.
o Conclusion
* The Court ruled that § 4 of the act, which requires certain states and counties to get preclearance for voting changes from the federal government before they went into effect, was illegal because it was no longer needed.
* Accordingly, the judgment of the appeals court is reversed.
o Concurrence – Thomas
* The same reasons that support the decision that § 4(b) is unconstitutional establish that the restrictions in § 5 are also unconstitutional.
Subjecting states to preclearance violates federalism principles
o Dissent – Ginsburg with Breyer, Sotomayor, Kagan
* Congress determined that the requirements in the Voting Rights Act were still necessary to ensure equal voting rights in order to continue progress and prevent a return to discriminatory voting restrictions.
* Congress’s judgment regarding exercise of the power to enforce the 14th and 15th amendments warrants substantial deference.
* The success of the Voting Rights Act is being used to find it unconstitutional.
* Additionally, minorities are facing barriers other than attempts to simply block the ballot, such as vote dilution through gerrymandering, at-large voting, and discriminatory annexations.
* The majority is setting us up to repeat the past.
* Under McCulloch, Congress can choose any means appropriate and plainly adaopted to a legitimate constitutional end
* Congress has already developed a record to support the initial legislation and has built in a periodic-review requirement.
* “Voting discrimination still exists; no one doubts that.” But the Court today terminates the remedy that proved to be best suited to block that discrimination
* Oral argument
o Scalia said people won’t vote against voting rights because this is “perpetuation of racial entitlement.” When a society adopts that, it’s hard to get rid of it. The name of the Voting Rights Act sounds wonderful– nobody will vote against that.
* Scalia questioned whether Congress could just pick out specific states without a rational basis. He commented, “It’s sort of extraordinary to say Congress can just pick out, we want to hit these eight States…”
o Roberts uses the expression “congruent and proportional.” This term is always used around the amendments. What Congress does has to be congruent and proportional.
* The 15th amendment is limited to intentional discrimination, and the preclearance requirement is not that limited.
o Kagan says it is new that the court is getting the power to decide whether racial discrimination has been solved. She doesn’t think the court should have this power.
* Justice Antonin Scalia:
Selection of States: Scalia questioned whether Congress could just pick out specific states without a rational basis. He commented, “It’s sort of extraordinary to say Congress can just pick out, we want to hit these eight States…”
- Proposed updated Voter Rights Act
o States that discriminate in voting must get preclearance before changing their voting laws, but we will use modern/updated data to identify these states.
o If some of the following types of voting changes are made or recommended (e.g., gerrymandering against minorities, altering multilingual voting materials, changing polling places), then you also have to go through preclearance
Elections Clause
- The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
o Does this mean by the legislature only??
Section 2 of VRA:
- 2(a): You can’t have any law with a result of denying the right of vote based on color.
- 2(b): There is a violation of 2(a) if based on the totality of circumstances, the political processes are not “equally open” to participation by members of a class of citizens in that its members have less opportunity than others to participate in the political process.
o Nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
- Brnovich v. DNC (SCOTUS 2021)
o Majority by Alito, joined by Roberts, Thomas, Gorsuch, Kavanaugh, Barrett, minus Breyer, Sotomayor, Kagan
o Facts
* Arizona voting laws permitted residents to vote by mail for 27 days before an election using an early ballot.
Residents were also permitted to vote in person at an early-voting location or in person on election day.
* Counties could conduct election-day voting by using the traditional precinct model.
* Voters who chose to vote in person on election day in a county that used the precinct voting system had to vote in their assigned precinct.
You must vote in your own precincts or else it won’t be counted.
* To prevent overcrowding of voting centers or a shortage of ballots, Arizona required that if a voter cast a ballot in the wrong precinct, the vote was not counted.
* To prevent mail-in voting fraud, in 2016 the Arizona state legislature enacted House Bill 2023 (HB 2023), which made it a crime for any person other than a postal worker, elections official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot.
o Rule – Alito
* A state’s voting law does not violate the Voting Rights Act if it imposes the usual burdens of voting and voting is equally open to participation.
o Application – Alito
* Argument about Native Americans having less access to cars and can’t drive to another precinct or drive to drop off their mail-in ballots.
* Section 2(a) of the VRA provides that no state may implement a voting rule that discriminates against people based on race.
States may establish nondiscriminatory voting rules that advance state interests.
* Under § 2(b), a violation of § 2(a) is established if, based on the totality of the circumstances, it is shown that voting in the state is not equally open to participation by members of the relevant protected group in that the group’s members have less opportunity than other residents to vote.
Any circumstance that has a logical bearing on whether voting is equally open and affords equal opportunity may be considered, but the court will focus on:
1. the size of the burden imposed by the challenged voting rule
2. The degree to which a voting rule departs from what was standard practice when section 2 was amended in 1982
3. the size of any disparities in the rule’s impact on members of different racial and ethnic groups
4. the opportunities provided by a state’s entire system of voting
5. the strength of state interests served by the voting rule (including the prevention of fraud)
* We don’t use the Thornburg v. Gingles factors/test because that was for vote dilution cases. This is not a vote dilution case, this is a section 2 VRA case.
* The dissent is rewriting section 2 by turning it into a disparate impact test.
* Arizona’s requirement that voters who choose to vote in person on election day must do so in their assigned precincts was established to promote polling-place efficiency.
The rule is facially neutral and does not exceed the usual burdens of voting– having to identify your polling place and get there.
o Conclusion
* Arizona had not violated Section 2 when it required out-of-precinct ballots to be discarded and limited the ability of third parties to help people mail their ballots.
o Gorsuch concurrence with Thomas
* The court assumes that § 2 of the VRA furnishes an implied cause of action.
Lower courts have treated this as an open question, but because no party argues that the DNC lacks a cause of action, the court will not address the issue at this time.
o Kagan dissent with Breyer and Sotomayor
* The language of § 2 is extremely broad and applies to any policy that results in disparate voting opportunities for minority citizens.
* Section 2 prohibits facially neutral laws, regardless of the existence of bad motive, if the laws make voting harder for members of one race than for another.
* A strong state interest served by a voting rule, no matter how compelling, cannot support the rule unless a state can prove that the interest could not be served by any other means.
Asking only whether a discriminatory law reasonably pursues important state interests is not enough to satisfy the goals of § 2.
* Here, Arizona’s policy creates a significant disparity between minority and white voters.
Hispanic and Black voters are having their ballots thrown out at statistically higher rates. The ballot collection ban has made it more difficult for Natives to vote.
* The majority did not appropriately address the totality of the circumstances by failing to consider the disparate impact of Arizona’s policy on voting opportunity and the specific burdens it places on minorities.
* Arizona’s voting laws violate § 2 because they result in disparate voting opportunities for minority citizens.
* The judgment of the court of appeals should be affirmed.
- Allen v. Milligan (2023)
o Roberts majority with Sotomayor, Kagan, Kavanaugh, Jackson, minus Thomas, Alito, Gorsuch, Barrett
o Facts
* After the 2020 census, Alabama created a redistricting plan for its seven seats in the U.S. House of Representatives.
One of the districts in the plan is a majority-Black district.
Lawsuit that based on increase in black population, Alabama should have two black majority districts.
o Application – Roberts
* The Court’s decision in Thornburg v. Gingles, 478 U.S. 30 (1986) sets out a three-part framework for evaluating claims brought under Section 2 of the Voting Rights Act.
First, the plaintiffs must prove that the minority group is sufficiently large and geographically compact to constitute a majority in a reasonably configured district (measured by criteria such as contiguity and compactness).
Second, the plaintiffs must show that the minority group is politically cohesive.
Third, the plaintiffs must show that under the totality of the circumstances, the political process is not “equally open” to minority voters.
* The majority applied that three-part framework to the facts in the record and agreed with the district court that the plaintiffs were likely to succeed on their challenge.
* State says that it has a race-neutral benchmark– computers draw the redistricting maps, so it’s not racist.
* Roberts is critical about whether the map makers can use race-neutral criteria.
* The plaintiffs submitted maps demonstrating the traditional districting criteria, and the district court found “no serious dispute” that Black voters are politically cohesive or that the challenged districts’ white majority consistently defeated Black voters’ preferred candidates.
o Concurrence – Kavanaugh
* We need to look again at Gingles.
o Dissent – Thomas with Gorsuch, Barrett, Alito
* This case is another part of this court’s wrong voting rights jurisprudence. The majority here is setting up a proportional representation scheme.
* Believes that the computers are race-neutral.
* Thomas wants to get rid of Gingles.
o Dissent – Alito with Gorsuch
* We need to remand this case for the lower court to apply Gingles.
o Conclusion
* The district court correctly applied binding Supreme Court precedent to conclude that Alabama’s redistricting map likely violates Section 2 of the Voting Rights Act.
- Moore v. Harper (2023)
o Roberts with Sotomayor, Kagan, Kavanaugh, Barrett, Jackson; minus Thomas, Alito, Gorsuch
o Facts
* By 2020, North Carolina’s population had increased to the point that the state was entitled to an additional seat in Congress.
* North Carolina’s legislature decided to redraw the state’s congressional districts and, in 2021, adopted three new maps.
* Voters (plaintiffs) sued state legislative representatives (defendants) in state court, alleging that each map constituted an impermissible partisan gerrymander in violation of the state constitution.
* The North Carolina Supreme Court agreed, finding that it had authority to review the matter, that the legislative representatives had violated state law beyond a reasonable doubt, and that the maps substantially infringed on the voters’ fundamental right to equal voting power.
The state supreme court remanded the matter to the trial court to oversee the redrawing of maps.
* The legislative representatives petitioned the United States Supreme Court for review, claiming that the North Carolina Supreme Court violated the Elections Clause in reviewing the action of the state legislature. The United States Supreme Court declined to grant emergency relief but granted certiorari.
o Rule – Roberts
* Rule: The Federal Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.
* The Elections Clause does not exempt state legislatures from the ordinary exercise of state judicial review.
o Application – Roberts
* Elections Clause does not insolate the state legislatures from review by state courts
* Cites Marbury about the power of judicial review
* Judicial review is not purely federal in character.
* Cite Bush v. Gore, but doesn’t adopt Rehnquist or Souter’s tests
* State courts may review challenges to the state legislature’s actions that implicate the Elections Clause, and federal courts may then review the state-court decisions to ensure that the state court has not violated the Elections Clause.
* Here, the North Carolina Supreme Court was entitled to judicially review the state legislature’s newly drawn congressional districts in the context of a claim of gerrymandering.
o Conclusion
* Accordingly, the judgment is affirmed.
o Concurrence – Kavanaugh
* Would follow Rehnquist’s view of state court – in reviewing state court interpretations of state law, we should examine the law of the state as it existed prior to the action of the state court (Bush v. Gore, Rehnquist concurrence)
The best test to take from that case is that we usually defer to state court interpretations of state law, but sometimes we have to take independent review of what they do. We wouldn’t give the laws effect if the state courts impermissible distort them beyond what a fair reading required.
o Dissent – Thomas with Gorsuch and Alito
* This is an advisory opinion– the court shouldn’t be deciding this here.
At this point, North Carolina has already redrawn its maps, and the case should be dismissed as moot.
* The Elections Clause of the United States Constitution provides that a state’s “legislature”—not the state—prescribes the time, places, and manner of congressional elections.
o Oral argument
* Alito: The usual burdens of voting– are they the same as in 1982? Do they change? How do we determine what they are?
* Sotomayor: “Equal opportunity” isn’t anywhere in the statute.
Rucho v. Common Cause
- Case about partisan gerrymandering
- Roberts with Thomas, Alito, Gorsuch, Kavanaugh. Minus Kagan, Ginsburg, Breyer, Sotomayor.
- Court said partisan gerrymandering claims are non-justiciable political questions.
o In contrast, racial gerrymandering is justiciable
- Alexander v. South Carolina State Conference of the NAACP (SCOTUS 2024)
o This case is about what happens when partisan gerrymandering and racial gerrymandering cross over
o Alito with Roberts, Gorsuch, Kavanaugh, and Barrett, minus Sotomayor, Kagan, Jackson
o Facts
* South carolina republicans enacted a congressional map after the 2020 census that moved Black voters to a different district, making the current district safe for republicans
* One side argued that this is a racial gerrymandering, and the other said this is a partisan gerrymandering.
o Rule – Alito
* To prove unconstitutional racial gerrymandering, a plaintiff must show that race was the “predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.”
o Application – Alito
* This map was not racial gerrymandering.
* Four part analysis here:
Set out legal standard for reviewing DC’s factual findings in racial gerrymandering cases
* We must exercise special care in reviewing relevant findings of fact
Explain why DC’s factual findings are clearly flawed with respect to challengers’ circumstantial evidence
* District courts must presume that legislatures acted in good faith in drawing a districting map. We assume that the maps were not racially motivated.
Examine four expert reports that challengers presented below
* The four experts whose testimony the plaintiffs proffered, and on which the district court relied, are flawed because they “ignored certain traditional districting criteria” such as geographical constraints and the legislature’s partisan interests.
* Expert erred in not evaluating/discussing whether the districts were compact and continuous (not an island)
* Dr. Ragusa should have analyzed districts based on net democratic votes rather than total votes
Explain that DC erred by not drawing an adverse inference from the challengers’ failure to submit an alternative map
* Further, the plaintiffs failed to provide a substitute map that shows how the State “could have achieved its legitimate political objectives” while producing “significantly greater racial balance.”
* An alternative map of this sort is crucial in helping plaintiffs disentangle race and politics
* In light of the weak circumstantial evidence of racial gerrymandering and the absence of an alternative map, the district court’s finding that race predominated the redistricting map was clearly erroneous.
* Challengers raised an independent vote-dilution claim
A vote-dilution claim is different from a racial gerrymandering claim. P can’t prevail by showing that race played a predominant role in districting process. P must show that state enacted a particular voting scheme as a purposeful device to minimize voting potential of racial minorities.
Vote-dilution claim is remanded.
o Conclusion
* The district court’s finding that race predominated in the design of South Carolina’s first congressional district was clearly erroneous, so its racial-gerrymandering and vote-dilution holdings are reversed.
o Thomas concurrence in part, dissent in part
* This case is unique because it is about the 15th amendment– not the Voting Rights Act
* Court has no power to decide these types of claims (racial gerrymandering and vote dilution). Drawing districts is a task for politicians, not judges.
* I disagree with the majority reviewing the expert reports. the Court’s review of the expert reports exceeds the proper scope of clear-error review.
the district court’s failure to evaluate evidence reflecting the correlation between race and politics with the necessary presumption of legislative good faith and its failure to properly account for the plaintiffs’ failure to produce an alternative map are alone reversible legal errors.
* When nearly all black voters are democrats, sorting democrats is distinguishable from an effort to sort black voters.
Conflating democrats with black people is racial stereotyping
* Vote-dilution claims are also nonjusticiable political questions.
o Kagan dissent, with Sotomayor and Jackson
* criticizing the court “picking and choosing evidence to its liking.”
* rather than giving the district court’s view of the evidence “significant deference” as is required by “clear error” review, the majority inverts the clear-error standard by using the presumption that a legislature acted in good faith and by treating any “possibility” that favors the state as “dispositive.”
* A former case of Cooper rejected a similar demand that a plaintiff alleging gerrymandering must submit an alternative map
* Voters moved were disproportionately black
o Oral argument
* Gore: District One is not a racial gerrymandering. It is a political gerrymandering where they used political data to achieve political goals. Partisan gerrymandering claims are non-justiciable.
* This was the first post-Rucho case of this time.
* Elena Kagan: We can show you that black and white democrats are not being treated the same way. Black democrats are being excluded from the district at a far greater proportion.
* Samuel A. Alito Jr.: If you care about your political party, you’re going to have a certain black population percentage.
* Sonia Sotomayor: There were alternative maps here that showed that if race wasn’t used, the map would not look like this.”
Fourteenth Amendment
Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Equal protection
* The test steps
- What is the classification?
- What is the appropriate level of scrutiny?
- Does the government action meet the level of scrutiny
* Equal protection is always about classifications
* Equal protection is involved when you have a classification (a group of people) being treated differently than other classifications
Equal Protection
* Levels of scrutiny
o Rational basis
* This is for almost everything else
* Level of government interest required: the interest is not irrational
* Level of tailoring required between the individual’s interest and the individual’s right: none
o Intermediate scrutiny
* This is for gender classifications
* Level of government interest required: it is important
* Level of tailoring required between the individual’s interest and the individual’s right: substantially related
o Strict scrutiny
* This is for racial classifications
* Level of government interest required: it is compelling
* Level of tailoring required between the individual’s interest and the individual’s right: narrow tailoring
- Plessy v. Ferguson (1896)
o Facts
* In 1890, the State of Louisiana passed a law that provided for separate railway cars for Caucasian and African American persons.
* Plessy (defendant) was seven-eighths Caucasian and one-eighth African American, but he was considered African American under Louisiana law.
* Plessy challenged the law by taking a seat in a Caucasian railway car and was asked to move to the African American car by the conductor.
When Plessy refused, he was forcibly ejected and imprisoned.
o Rule – Brown
* Public accommodations that are segregated according to racial classifications do not violate the Equal Protection Clause of the Fourteenth Amendment as long as such accommodations are “separate but equal.”
o Application – Brown
* Separate but equal accommodations doesn’t violate the 13th amendment, which bans slavery and involuntary servitude. Just because it is separate, doesn’t mean its unequal.
* DC has segregated schools and that is OK and not challenged here, and this separate but equal railways is not worse than that.
* Although the object of the Fourteenth Amendment is to promote the equality of all races before the law, it cannot have been intended to abolish all distinctions based on color, or to enforce social (as opposed to political) equality if African Americans and Caucasians do not actually want to be commingled.
* Laws permitting or requiring the separation of the two races are supported by precedent and do not necessarily imply the inferiority of either race to the other.
If the African American race feels inferior because of the laws, that inferiority construction is placed on the race by itself.
* Legislative judgments forcing commingling cannot be used to improve race relations, and if the two races are to meet on terms of social equality, it has to be the result of an organic process.
* We must give discretion to the legislature
* The laws of each state should determine how to classify people based on race
* The Louisiana law is upheld on the grounds that if the civil and political rights of both races are separate but still equal, one cannot be considered inferior to the other either socially or politically.
o Conclusion
* The decision of the Louisiana Supreme Court is affirmed.
o Dissent – Harlan
* The Constitution itself is color-blind
* White race considers itself dominant in this country, but in the eye of the law and the constitution, there is no superior, dominant, ruling class of citizens.
The destinies of the two races are linked
* The destinies of the two races are linked
* The Chinese race are so different from our own that they cannot become citizens. They are excluded from our country. But, by the law in question, they can ride with whites while black people, who risked their lives for the union, cannot.
* Louisiana’s law should have been invalidated as unconstitutional.
- Korematsu v. U.S. (1944)
o Facts
* While the United States was at war with Japan during World War II, an executive order was issued stating that success in the war effort required protection against espionage and sabotage related to national-defense materials and premises.
Pursuant to that executive order, an army commander issued Civilian Exclusion Order No. 34 (the exclusion order), which excluded all persons of Japanese ancestry from San Leandro, California, a military area.
* Korematsu (defendant), an American citizen with Japanese ancestry, defied the order by remaining in his home within the military area.
Although nothing suggested that Korematsu was disloyal to the United States, Korematsu was charged under a federal statute that criminalized remaining in a military area in defiance of an exclusion order.
o Rule – Black
* Government restrictions targeting a specific racial group are inherently suspect and subject to strict scrutiny.
o Application – Black
* Legal restrictions impacting the civil rights of a single racial group are inherently suspect.
Such restrictions are unconstitutional unless they satisfy the most rigid scrutiny.
* In a prior Supreme Court case, Hirabayashi v. United States, 320 U.S. 81 (1943), the Court upheld a conviction of a Japanese American for violating a curfew order that required persons of Japanese ancestry in military areas to remain inside their homes between 8:00 p.m. and 6:00 a.m.
It was determined in Hirabayashi that the curfew order was intended as a protection against espionage and sabotage during the war effort.
It therefore addressed a pressing public necessity, namely national security, and that necessity satisfied strict scrutiny.
* The concepts from Hirabayashi apply to the present case.
It is within the power of Congress and the executive branch to exclude Japanese Americans from the West Coast military area while the United States is at war with Japan.
The exclusion order, like the curfew order, addresses a pressing public necessity sufficient to justify differential treatment based on ancestry.
* Court defers to military authority
* Further, the government does not have the resources to make individualized determinations of loyalty during the war effort.
* Consequently, exclusion of Korematsu from the military area based on his ancestry, without evidence of his personal loyalties, is constitutional.
* when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger
* These are not concentration camps
o Conclusion
* The court of appeals’ judgment is affirmed.
o Concurrence – Frankfurter
* “To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.”
o Dissent – Jackson
* Korematsu is a citizen
He was convicted of an act that is not a crime
* The authority of the military to enact provisions like the exclusion order is not unlimited.
* The judiciary is ill-equipped to evaluate the reasonableness of military decisions; however, it should not acquiesce to the decisions of military superiors if these decisions are clearly unconstitutional.
o Dissent – Murphy
* Congress and the executive exercised unconstitutional authority, and the exclusion order itself is motivated by racism.
* With Germans and Italians, we separated the loyal from the disloyal.
* Applying this standard, the exclusion of all Japanese people from their homes, without any individualized findings of disloyalty, is not reasonably related to preventing the asserted dangers.
* sionary measure that affects all Japanese Americans.
o Dissent – Roberts
* The undisputed facts exhibit a clear violation of Korematsu’s constitutional rights.
* The total exclusion of Japanese Americans from the military area for the duration of the war is a far more significant violation of their rights than the curfew provision in Hirabayashi.
* Additional executive orders were issued that severely restricted the travel of Japanese Americans, and thus Korematsu found himself in a predicament in which he was faced with violating the travel restrictions or being detained because he unlawfully remained in his home in violation of the exclusion order.
The existence of two laws with which equal compliance is impossible effectively deprives Korematsu of his due-process rights under the Constitution because it makes him a criminal regardless of what action he chooses.
* The exclusion order should have been held unconstitutional.
o Notes
* The U.S. government had withheld information from the Court, specifically a report that said very few Japanese were a risk to the government and that the dangerous few were already in custody
* Trump v. U.S.
The Justices referred to Korematsu in a 2018 decision upholding President Trump’s decision to bar immigrants from primarily Muslim countries
Roberts’ majority
* Korematsu has nothing to do with this case
* relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful
* it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission
* Korematsu is overruled
Justice Sotomayor’s dissent
* stark parallels between the reasoning of this case and that of Korematsu
- Bolling v. Sharpe
o Bolling was from the District of Columbia schools.
* The District of Columbia is not a state and so is not subject to the Fourteenth Amendment.
o The Court ruled that DC schools were regulated by the Fifth Amendment, which does not have an Equal Protection Clause.
* Yet, the Court read an equal protection analysis into the Fifth Amendment.
- Brown v. Board of Education of Topeka (Brown I) (1954)
o Unanimous
o Facts
* In all instances, Brown and other minor African American children (plaintiffs) had been denied admission to public schools attended by white children under laws requiring or permitting segregation according to race.
They alleged that this segregation deprived them of equal protection of the laws under the Fourteenth Amendment.
o Rule – Warren
* Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment.
o Application – Warren
* Plessy doesn’t apply to education
* The basic language of the Fourteenth Amendment suggests that it was passed to prohibit all forms of discriminatory legislation against African Americans.
* In this Court, there have been six cases involving the ‘separate but equal’ doctrine in the field of public education
In none of these cases was it necessary to reexamine the Plessy doctrine
Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education
Cumming v. Board of Education of Richmond County and Gong Lum v. Rice
* validity of the doctrine itself was not challenged
* Gong Lum v. Rice
* (Court ruled that a student of Chinese descent was colored, and there-fore could not attend white schools according to Plessy v. Ferguson. Since the student was of “the Mongolian or yellow race,” she could not be considered white)
Sweatt v. Painter
* Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors.
* (Court ruled that Texas had to admit Sweatt to the University of Texas law school and not to its new separate law school for Blacks)
* Because there were tangible differences between the regular law school and the black law school (which was not part of the University of Texas)
Gaines v. Canada
* (Missouri did not have a Black law school and refused admission to a Black student who applied to the segregated University of Missouri law school. The Court ruled this violated equal protection)
Sipuel v. Board of Regents of University of Oklahoma
* (Court ruled a Black student was denied equal protection when she was not admitted to the state’s only law school, which was at the University of Oklahoma)
McLaurin v. Oklahoma State Regents
* (Court ruled that Oklahoma could not deny admission of a Black student to the University of Oklahoma’s education department)
* In the present case, all basic attributes of the Caucasian and African American schools are essentially the same.
* To determine whether the segregated schools violate the Fourteenth Amendment as interpreted, it is necessary to examine the actual effect of this segregation on the institution of public education as a whole.
Children can hardly be expected to succeed in life if they are not educated.
* Thus, if an opportunity for education exists and the state has undertaken to provide it, that opportunity must then be made available to all students on equal terms.
* In the present case, the opportunity for education is not equally provided to minority students, because the existence of segregation has a profound and detrimental effect on their hearts and minds.
Modern studies confirm that the children experiencing segregation feel inferior, become less motivated, and perform at a lower standard than children who do not experience segregation.
* To the extent to which Plessy held to the contrary regarding the psychological effects of segregation, it is hereby overturned.
Separate educational facilities are inherently unequal
* The African American students are deprived of equal protection of the laws under the Fourteenth Amendment because of the segregation in their public education.
Debate over whether this sets up a right to education
o Conclusion
* The decision of the district court is reversed.
o Notes
* The doll test
Even black students preferred the white dolls
o Oral argument
* State’s lawyer said Plessy v. Ferguson was the rule.
He said it was inconceivable that Congress, who was insistent on applying separate but equal in DC schools, would get rid of DC schools.
Mentioned the pre-Brown cases and said none of them modify the doctrine of separate but equal
* Thurgood Marshall (before he was a justice) argued that segregation harms the child.
- Gong Lum v. Rice
- (Court ruled that a student of Chinese descent was colored, and there-fore could not attend white schools according to Plessy v. Ferguson. Since the student was of “the Mongolian or yellow race,” she could not be considered white)
Sweatt v. Painter
- Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors.
- (Court ruled that Texas had to admit Sweatt to the University of Texas law school and not to its new separate law school for Blacks)
- Because there were tangible differences between the regular law school and the black law school (which was not part of the University of Texas)
Gaines v. Canada
- (Missouri did not have a Black law school and refused admission to a Black student who applied to the segregated University of Missouri law school. The Court ruled this violated equal protection)
Sipuel v. Board of Regents of University of Oklahoma
- (Court ruled a Black student was denied equal protection when she was not admitted to the state’s only law school, which was at the University of Oklahoma)
McLaurin v. Oklahoma State Regents
- (Court ruled that Oklahoma could not deny admission of a Black student to the University of Oklahoma’s education department)
- Brown II
o Unanimous
o Facts
* In its original decision in Brown v. Board of Education (I), 347 U.S. 483 (1954), the United States Supreme Court held that racial discrimination in public education was unconstitutional.
* However, in deciding the original case, the Court left open the question of the appropriate remedy for plaintiffs based on its holding.
o Rule – Warren
* Adequate compliance with the Court’s previous holding that racial discrimination in public education is unconstitutional requires public schools to desegregate “with all deliberate speed.”
o Application – Warren
* Individual school officials are responsible for implementing constitutional principles in good faith, but the various district courts that originally heard the cases against all schools involved in Brown are best equipped to determine whether a good faith effort is being made.
The case is remanded to those courts.
* In rendering decisions on the cases, each respective district court is guided by principles of equity.
Each court would retain jurisdiction over the cases
The courts are responsible for furthering the interest of plaintiffs in gaining admission to public schools as soon as possible on a nondiscriminatory basis.
* The ultimate date of compliance by schools with this interest is up to the discretion of individual courts, which should require schools to desegregate “with all deliberate speed.”
o Conclusion
* Ultimately, the continuing responsibility of monitoring compliance with the Court’s 1954 ruling is left to the district courts.
- Cooper v. Aaron
Arkansas asked the Court to stop integration in the Little Rock schools. The Court refused the state’s request, citing Marbury v. Madison and stating “the federal judiciary is supreme in the exposition of the law of the Constitution.”
* Court gets the last word on interpretation of Constitution
Court insisted that the states could not nullify Brown
- Goss v. Board of Education
the Court ruled that students were not allowed to transfer from a school where they were a racial minority to one where they were a racial majority
- Griffin v. County School Bd.
Court ruled it was illegal to close the schools instead of integrating them
- Green v. County School Board
Court ruled that a “freedom of choice” plan was unconstitutional because it undermined the integration of the schools
- Island Trees School District v. Pico
Court nodded toward a potential right to education in a First Amendment case addressing whether books could be removed from libraries due to their content
Gilmore v. City of Montgomery, Ala., 417 U.S. 556 (1974)
- the Court ruled that the government could not give exclusive control of its athletic facilities, like swimming pools, to all-White private schools because it created segregated conclaves that deprived Blacks of equal access to recreational facilities
- Heart of Atlanta Motel, Inc. v. U.S. (1964)
o Facts
* In 1964, Congress passed the Civil Rights Act (CRA).
Title II of the CRA forbids racial discrimination by places of public accommodation such as hotels and restaurants.
* The Heart of Atlanta Motel, Inc. (Heart of Atlanta) (plaintiff) in Atlanta, Georgia, advertises to and hosts primarily out-of-state guests.
The motel practices a policy of refusing to rent rooms to African Americans and brought this suit against the United States government (defendant) in the District Court for the Northern District of Georgia to challenge the CRA as an unconstitutional extension of Congress’s power to regulate interstate commerce.
o Rule – Clark
* Congress may enact regulations that prevent racially discriminatory policies in hotel accommodations because of the negative effects of those policies on interstate commerce.
o Application – Clark
* Emphasis on (1) individual action vs. state action, and (2) commerce vs. civil rights
* Under the Commerce Clause, Congress has the power to remove obstructions and restraints to interstate commerce.
* People aren’t commerce but they engage in activities that have a substantial affect on interstate commerce
* The unavailability to African Americans of adequate accommodations interferes significantly with interstate travel.
Moreover, evidence shows that racial discrimination has a disruptive effect on commercial intercourse.
* Local activities can be regulated if they have a sufficient relationship to interstate commerce
* The commerce power invoked here by Congress is a specific and plenary one authorized by the Constitution.
The only questions are:
* (1) whether Congress had a rational basis for finding that racial discrimination by motels affected commerce, and
* (2) if it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate
* Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress not with the courts
Congress can choose whatever policy is constitutional
* Passage of the CRA is a constitutional use of Congress’s plenary power to regulate interstate commerce.
o Conclusion
* The decision of the district court upholding the CRA is affirmed.
o Concurrence – Black
* Congress has the power to regulate the motel’s activities because of the potential for its discriminatory policies to have a substantial effect on African American travel and thus interstate commerce.
* Heart of Atlanta operated a very large establishment.
Its continual discrimination would ultimately have a large impact on interstate commerce.
* Congress concluded that restaurants which purchase a substantial quantity of goods from other States might well burden and disrupt the flow of interstate commerce if allowed to practice racial discrimination, because of the stifling and distorting effect that such discrimination on a wide scale might well have on the sale of goods shipped across state lines
* Additionally, Heart of Atlanta’s argument that the CRA violated its due-process rights under the Fifth and Fourteenth Amendments is rejected.
The purpose of provisions such as the Fifth and Fourteenth Amendments is largely to protect marginalized groups from discrimination.
African Americans have been exposed traditionally to significant discrimination, which was largely the reason Congress passed the Fourteenth Amendment.
Hence it would be highly inappropriate and ironic to permit Heart of Atlanta to use the guarantee of due process under the Fourteenth Amendment to strip Congress of its power to protect African Americans from further discrimination.
o Concurrence – Douglas
* 14th amendment section 5 is about civil rights
* The majority should have rested its decision on § 5 of the Fourteenth Amendment, which protects the right of all persons to move freely from state to state.
This reasoning is sounder than resting the Court’s decision on the Commerce Clause, which has traditionally been interpreted to allow Congress to pass regulations promoting the free movement of goods and commodities.
The right of people to be free of discrimination has to be more protected than the movement of goods
o Oral argument
* Clark:
You say people are commerce?
* No, the movement of people from state to state is commerce.
- Loving v. Virginia (1967)
o Facts
* In June 1958, Mildred Jeter, an African American woman, and Richard Loving, a Caucasian man (defendants), were married in the District of Columbia pursuant to its laws.
They later moved to Virginia (plaintiff) and resided in Caroline County.
The laws of Virginia, however, banned interracial marriages within the state.
* In October 1958, the Lovings were indicted for violating the Virginia law.
o Rule – Warren
* A state may not enact a statute that prevents marriages between persons solely on the basis of racial classification without violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
o Application – Warren
* A state may not enact a statute that prevents marriages between persons solely on the basis of racial classification without violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
* State bans on interracial marriages were passed as a reaction to slavery and have been present since the colonial period.
* Virginia’s statute is motivated solely to restrict marriage based on race, and by precedent, such laws have been found to be a threat to equality.
* At the very least, such race-based classifications are subject to strict scrutiny and cannot be upheld unless they are shown to accomplish a permissible state objective independent of the racial discrimination.
In the present case, there is no legitimate overriding purpose independent of invidious racial discrimination that justifies Virginia’s classification.
restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause
* Law also violates due process
freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men
freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men
* To deny someone this is to deprive all of the state’s citizens of liberty without due process of law
A due process means when there is a fundamental right, the state shouldn’t be intruding on it. There is a debate about what rights DP protects.
o Conclusion
* The Virginia statutes violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and the judgment of the court of appeals is reversed.
o Oral argument
* Equal protection vs due process
Due process is emphasized more in gay marriage cases than it is here in interracial marriage
* Having a law that prevents ALL races from intermarrying would violate due process, but it might not violate equal protection.
* Warren:
Wouldn’t you concede that if the law provided that the other races must not intermarry, then the law would be good? Because you argued that they were denied equal protection because there was not the same prohibition against intermarrying of the other races.
- Affirmative Action
- Affirmative action programs are set up to help disadvantaged groups that have suffered discrimination in the past.
o Is affirmative action, where you give benefits to people that have been discriminated against, a different legal argument from saying that everybody needs to be treated in the same way?
o Two approaches to the equal protection clause - One approach to the equal protection clause says that any racial classification must be subjected to strict scrutiny
- Alternative approach says that bad racial classifications (discrimination) must be subjected to strict scrutiny, but good ones do not
o Does equal protection require that those who were discriminated against be made equal by affording them affirmative action?
- Richmond v. J.A. Croson Co., 468 U.S. 469 (1980),
the Court ruled 6–3, in an opinion by Justice O’Connor, that there should be a strict scrutiny standard for all racial classifications.
o Richmond was about state policies
o Justice Thurgood Marshall was one of the dissenters.
o “good” and “bad” racial classifications both get strict scrutiny
- Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990)
o Marshall was in the majority and O’Connor in the dissent, ruling that the federal FCC’s minority policies were constitutional
o Metro was about federal policy, while Richmond was about state policy
Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)
- Metro Broadcasting was then overruled by Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)
o in a 5–4 opinion by Justice O’Connor. O’Connor was joined by Justice Clarence Thomas, who was Marshall’s replacement on the Court. - The Court held that all racial classifications, whether imposed by federal, state, or local authorities, must be judged by a strict scrutiny test.
In other words, they must meet a compelling interest and be narrowly tailored to that interest, including laws intended to remedy racial discrimination. - For racial classification policies, the government often argues that the “compelling state interest” is to remedy past discrimination.
o Justice Stevens “long adhered to the view that a decision to exclude a member of a minority because of his race is fundamentally different from a decision to include a member of a minority for that reason. - See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 243, 248, n. 6, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (STEVENS, J., dissenting); Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 316, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (same
- Grutter, involved the University of Michigan’s law school, and a second, Gratz, involved its under-graduate program
o Court upheld the law school program but invalidated the undergraduate program
o The opposition to a quota is a critical mass. You can take account of race to get a critical mass, but not a quota based entirely on race.
- Grutter v. Bollinger (2003)
o O’Connor with Breyer, Souter, Ginsburg, Stevens; minus Thomas, Kennedy, Scalia, Rehnquist
o Facts
* The University of Michigan Law School (law school) followed an unofficial policy that sought to achieve student-body diversity by giving substantial weight to the race of each applicant in making admissions decisions, in addition to its consideration of other academic and nonacademic variables.
o Rule – O’Connor
* Consideration of race as a factor in admissions by a state law school does not violate the Fourteenth Amendment, because supporting student-body diversity is a compelling state interest; however, the school must demonstrate it previously made a serious, good-faith consideration of workable, race-neutral alternatives to achieve the sought-after racial diversity.
o Application – O’Connor
* The Court previously addressed the use of race as a consideration in higher-education admissions in its decision in University Regents v. Bakke, 438 U.S. 235 (1978).
Bakke – Bakke was white and wanted to go to med school at UC Davis and was rejected. Davis reserved 16 places in each class for qualified minorities. Bakke sued.
In Bakke, the Court was unable to reach a majority on the question of whether it was unconstitutional to consider race as an important factor in admissions for the purpose of remedying past discrimination against minorities.
* Bakke says quotas aren’t allowed. Whenever you see a quota, it’s not allowed. But, you can have a critical mass.
* Bakke involved a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups
* The only holding for the Court in Bakke was that a “State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin
* Student body diversity is a compelling state interest
* The proper standard for reviewing this issue is strict scrutiny.
The law school cites significant benefits as reasons for its policy, including the promotion of cross-racial understanding, the breaking down of racial stereotypes, and the enabling of students to better understand persons of different races.
* Any one of these benefits constitutes a compelling state interest for strict scrutiny.
Additionally, the law school uses narrowly tailored means to accomplish its purpose because it does not employ a quota system as outlawed in Bakke to achieve diversity.
* The law school provides an individual, holistic review of each of its applicants and reasons that alternative methods of achieving the law school’s purpose risk sacrificing both academic excellence and other types of diversity in the school.
* To be narrowly tailored, a race-conscious admissions program cannot use a quota system—it cannot “insulate each category of applicants with certain desired qualifications from competition with all other applicants.”
* Instead, a university may consider race or ethnicity only as a “‘plus’ in a particular applicant’s file,” without “insulating the individual from com-parison with all other candidates for the available seats.
The law school’s goal of attaining a critical mass is OK
Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.
* Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups.
* Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks
However, the law school should cease racial consideration in its admissions policies after instances of past discrimination have been sufficiently remedied.
o Conclusion
* The admissions policy does not violate the Fourteenth Amendment, and the decision of the court of appeals is affirmed.
o Concurrence – Ginsburg, with Breyer
* The majority’s conclusion is correct, but the majority should have required the law school to adopt sunset provisions, which would require the race considerations in the law school’s admissions policy to be phased out as racial discrimination ceases to be a problem in the admission of minorities to higher-education institutions.
o Concurrence/Dissent – Scalia with Thomas
* The effect of the majority’s holding would be to uphold any type of program that purports to teach such values, even if it is discriminatory in some way and does not further a compelling state interest.
* It is the correct result given the specific facts at issue.
* The holding might be overly fact-specific and difficult to apply to future cases.
* today’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation
Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant “as an individual,” and sufficiently avoids “separate admissions tracks,” to fall under Grutter rather than Gratz
* The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception
o Concurrence/Dissent – Thomas with Scalia
* Additionally, the majority determines incorrectly that the admissions policy is necessary for furthering a compelling state interest.
* We shouldn’t defer to the schools
under strict scrutiny, the Law School’s assessment of the benefits of racial discrimination and devotion to the admissions status quo are not entitled to any sort of deference
* Plessy v. Ferguson establishes that Constitution is color blind as to everything regarding race in schools
o Dissent – Rehnquist with Thomas, Scalia, Kennedy
* Minorities are admitted in relatively precise ratios, suggesting that the law school’s admissions department makes deliberate balancing efforts to create a certain racial composition within the student body.
This constitutes the exact type of behavior the Court outlawed in Bakke.
* Law School’s admissions practices with respect to these groups differ dramatically and cannot be defended under any consistent use of the term “critical mass
No difference between quotas and critical mass
* The Court is unprecedented in its deference to the schools here
o Dissent – Kennedy
* The majority did not properly apply strict scrutiny.
* the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas
* The Law School has the burden of proving, in conformance with the standard of strict scrutiny, that it did not utilize race in an unconstitutional way.
o Oral argument
* O’connor
The court has upheld the use of race in making choices in certain contexts, like to remedy prior discrimination
* Breyer
If Justice Powell’s opinion in Bakke can be viewed as, yes, you can used race as a plus factor, where the program is not against anyone, but you cannot go too far, and it says individualized consideration is necessary there, what in your opinion would be going too far, other than quotas?
* Scalia: opposes affirmative action and basing admissions on race
- Gratz v. Bollinger (2003)
o Rehnquist with Thomas, Breyer, O’Connor, Kennedy, Scalia; minus Stevens, Souter, Ginsburg
o Facts
* Undergraduate-admission decisions were based on multiple factors, one of which was race.
The university admitted almost all applicants of certain races deemed underrepresented if the applicants met academic qualifications.
* In 1998, the university adopted a point-based admissions system.
* Different point values were assigned to different factors, and an applicant could score up to 150 points.
Point bands generally delineated the admission decisions.
* Some applicants received additional personal consideration, but most were admitted or denied based solely on their numerical score.
* If an applicant was a member of an underrepresented minority, then the applicant was automatically awarded 20 points, a fifth of the total points needed to be almost guaranteed admission.
o Rule – Rehnquist
* A university admissions policy that automatically gives preference to minority students on the basis of race, without additional individualized consideration, violates the Equal Protection Clause.
o Application – Rehnquist
* Considering race in admission decisions makes a racial classification, treating some applicants differently than others based on their race.
Racial classifications, regardless of which race they negatively impact, violate the Equal Protection Clause unless they satisfy strict scrutiny.
* The discriminatory law or policy must serve a compelling government interest and be narrowly tailored to achieve that interest.
* Here, under the university’s point-based system, applicants are not afforded individualized review, and the extra 20 points automatically awarded because of race virtually guarantee admission to any minimally qualified minority applicants.
* Even if enhancing the diversity of the student body is a compelling government interest, the university’s admissions policy is not sufficiently narrowly tailored to satisfy strict scrutiny.
* The difference between Grutter v. Bollinger and this case is that here, the undergraduate program does not provide individualized consideration– the race factor is virtually decisive.
* It therefore violates the Equal Protection Clause, as well as Title VI of the Civil Rights Act and 42 U.S.C. § 1981.
o Conclusion
* The district court’s grant of summary judgment in the university’s favor for the post-1998 policy is reversed.
o O’Connor concurrence
* This case differs significantly from Grutter v. Bollinger, 539 U.S. 306 (2003), in which the Court upheld the use of race as a factor in the University of Michigan Law School’s admissions policy.
The law school’s policy requires an individual evaluation of each applicant and permits the consideration of race as merely one factor among many.
In contrast, the undergraduate-admissions policy in consideration here has the effect of making the admission of minority students almost automatic due to its assignment of 20 points to such students regardless of individual experience, background, or characteristics.
o Concurrence – Thomas
* A state’s use of racial discrimination in higher education should be considered to categorically violate the Equal Protection Clause.
o Dissent – Stevens with Souter
* unlike the plaintiff in Grutter v. Bollinger, the petitioners in this case had already enrolled at other schools before they filed their class-action complaint in this case
* While some unidentified members of the class may very well have standing to seek prospective relief, it is clear that neither petitioner does.
o Dissent – Souter with Ginsburg
* I agree with Justice STEVENS that Patrick Hamacher has no standing to seek declaratory or injunctive relief against a freshman admissions policy that will never cause him any harm
* Diversity and education is compelling, and narrowly tailored affirmative action policies are constitutional
* I think it is closer to what Grutter approves than to what Bakke condemns,
* the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan
The percentage plans are just as race conscious as the point scheme
In contrast, Michigan states its purpose directly and, if this were a doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frankness
o Dissent – Ginsburg with Souter
* Every applicant admitted under the current plan, petitioners do not here dispute, is qualified to attend the College
* There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race
* If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises
o Oral argument
* Ginsburg: This is positive discrimination. There is a difference between discrimination towards inclusion vs. exclusion.
* Breyer: Concerned about individual review and the point system
Fisher v. University of Texas, 570 U.S. 297 (2013),
- In Fisher v. University of Texas, 570 U.S. 297 (2013), the university continued the top-ten admissions plan. For the remainder of admitted students, the school considered race as a factor.
The Court ruled 7–1 that the lower courts had not applied the appropriate strictest level of scrutiny, namely whether the programs were “precisely tailored to serve a compelling governmental interest.” - The sole dissenter, Justice Ginsburg, would have upheld the program.
On remand, the Fifth Circuit ruled that the university’s use of race was justified by strict scrutiny.
The case was reviewed again in the Supreme Court. - In a 4–3 opinion, Justice Kennedy upheld the university’s use of race in college admissions, concluding their programs met the compelling interest of diversity and were narrowly tailored to that interest. Fisher v. University of Texas, 579 U.S. 365 (2016)
- Kennedy with Sotomayor, Ginsburg, Breyer. Minus Roberts, Alito, Thomas
Students for Fair Admissions v. UNC and Harvard
- UNC: Roberts with Thomas, Alito, Gorsuch, Kavanaugh, Barrett; minus Sotomayor, Kagan, Jackson
- Harvard: Roberts with Thomas, Alito, Gorsuch, Kavanaugh, Barrett; minus Sotomayor and Kagan (Jackson didn’t participate)
- Facts
o Harvard College and the University of North Carolina (together, the universities) (defendants) were old, prestigious colleges that were highly selective in their admissions processes.
o The universities considered race as one factor among a list of factors, including academic performance, extracurricular activities, and quality of personal essays.
o Belonging to certain minority races represented a “plus” to the universities, which sought to achieve a diverse student body and related educational benefits.
o The universities tracked their student bodies by racial categories, such as Asians, Hispanics, and African Americans, and attempted to prevent reductions in certain racial categories from year to year.
o There was evidence that consideration of race had resulted in some reductions in Asian students or rejection of Asian applicants who would have been accepted if race had not been considered.
o Students for Fair Admissions (plaintiff) sued each university separately, arguing that the universities’ admissions programs violated the Equal Protection Clause and Title VI of the Civil Rights Act. - Rule – Roberts
Consideration of race in the college-admissions process typically violates the Equal Protection Clause. - Application
o Second, while the original purpose of the Fourteenth Amendment’s Equal Protection Clause was to ensure that laws apply equally to everyone, regardless of race, both the Supreme Court and the nation failed to uphold this principle, most notably in Plessy v. Ferguson, which sanctioned “separate but equal” facilities. - However, the landmark case Brown v. Board of Education overturned this, and the equal protection principle has since expanded to various areas of life.
- Any exceptions to equal protection must satisfy “strict scrutiny”; that is, the government must show that the racial classification serves a compelling interest and is narrowly tailored to achieve that interest.
o In Bakke, Justice Lewis Powell’s opinion became the touchstone for evaluating the constitutionality of race-based admissions, reasoning that diversity in the student body could be a “compelling state interest,” but that race could only be used as a “plus” in admissions and not as a quota. - In Grutter v. Bollinger, the Court adopted Powell’s viewpoint, while also setting limits to ensure race-based admissions did not result in stereotyping or harm to non-minority applicants, and stating that such race-based programs should eventually come to an end.
o Harvard’s (and UNC’s, in the consolidated case) race-based admissions systems fail to meet the strict scrutiny, non-stereotyping, and termination criteria established by Grutter and Bakke. - Specifically, the universities could not demonstrate their compelling interests in a measurable way, failed to avoid racial stereotypes, and did not offer a logical endpoint for when race-based admissions would cease.
- As a result, the programs violate the Equal Protection Clause of the Fourteenth Amendment.
o However, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.
o Moreover, it is unclear how the means used—measuring groups by broad racial categories—is connected to the goal.
o Consideration of race as a bonus factor relies on a stereotype that people of the same race have something unique or different to offer based on that attribute alone.
o Harvard argues that the compelling interest includes: - Training future leaders
- Better educating students
- Court says these are not sufficiently coherent goals for strict scrutiny. They are unmeasurable.
o We don’t prohibit universities from considering an applicant’s discussion of how race affected their life. - Can’t use this indirectly to discriminate
- Conclusion
o The University of North Carolina admissions program violates the Equal Protection Clause of the Fourteenth Amendment. Chief Justice John Roberts authored the 6-3 majority opinion. - Concurrence – Thomas
Originalist defense of the colorblind constitution
The Constitution demands colorblind laws or, if not, strict scrutiny.
It is unclear how racial diversity advances Harvard’s goal.
Courts cannot defer to a university’s assertion that diversity is a governmental interest that justifies race discrimination. - Any classification based solely on race is problematic, even if touted as “helpful.”
Affirmative action may stigmatize Black people, may not help underprivileged Blacks who are actually deserving of help, and may harm students of another minority race, like Asians.
Grutter is effectively overruled. - Concurrence – Gorsuch with Thomas
The universities’ race-based admissions programs not only violate the Equal Protection Clause, but also violate Title VI of the Civil Rights Act, which prohibits the universities from discriminating on the basis of race or color. - Concurrence – Kavanaugh
Bakke and Grutter have allowed narrowly tailored race-based affirmative action in higher education
Does not want race-based affirmative action to extend indefinitely into the future. Court’s precedents make it clear that it shouldn’t, like in the Grutter decision the 25-year limit. - Dissent – Sotomayor with Kagan and Jackson
The Court’s precedents have consistently allowed the limited consideration of race in college admissions because society is not, and never has been, colorblind.
In brown, this court recognizes the need for racially integrated schools
Harvard’s program is narrowly tailored - The program does not make race decisive
The limited use of race is permissible to remedy the harm inflicted by segregation, and equalizing educational opportunities for all students is an important step toward achieving racial equality. - Dissent – Jackson with Sotomayor and Kagan
There was jim crow. Black people persisted but were disadvantaged economically.
Race matters in society, and society is unequal.
The majority’s approach—to prevent consideration of race—will not end racism and will prolong the effects of it. - Oral argument
We learned from the military that you need a racially diverse school. BTW, the courts’ rulings do not apply to military schools.
- Parents Involved in Community Schools v. Seattle School District No. 1 (2007)
o Facts
* Seattle School District No. 1 and Jefferson County School District (defendants) voluntarily adopted student assignment plans that relied on race to determine which public schools certain children could attend.
* In each case, the schools used this system to ensure that the racial balance in any given public school fell within a predetermined range based on the racial composition of the school district as a whole.
o Rule – Roberts
* Public schools may not assign students to schools solely on the basis of race for the purpose of achieving racial integration, although the use of narrowly-tailored, race-conscious objectives to achieve general diversity in schools is permissible.
o Application – Roberts
* School assignments relying on racial classifications are subject to strict scrutiny.
* The school districts’ use of racial classifications must be narrowly tailored to achieve a compelling government interest.
There are two government interests that qualify as compelling:
1. the interest of remedying the effects of past discrimination; and
2. the interest of promoting student body diversity in the context of higher education upheld in Grutter v. Bollinger, 539 U.S. 306 (2003).
The racial assignment programs at issue are not related to either of these previously recognized interests.
* Firstly, the programs are not used to remedy the effects of past racial discrimination because such discrimination has never before occurred in PICS districts.
* Additionally in Grutter, the diversity interest was not focused on promoting racial diversity alone, but rather encompassed all factors contributing to the diversity of the student body.
* The main factor that distinguishes Grutter from the present case is that the admissions staff in Grutter analyzed each applicant as an individual, not simply as a member of a racial group.
Here, race is upheld as the sole factor in making admissions decision.
* In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and view-points,”; race, for some students, is determinative standing alone
The school districts cite studies showing that students tend to gain intangible benefits from being educated in a racially diverse environment. This argument is rejected.
* Without clear evidence that the school districts implemented their policies for the purpose of working toward a specific diversity goal that would benefit their students, the race-based policies are unconstitutional.
* The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals
* Limiting where students may or may not attend school based on race alone makes the school districts’ actions no different than those prohibited by the Court in Brown v. Board of Education, 347 U.S. 483 (1954).
* The way to stop discrimination on the basis of race is to stop discriminating on the basis of race
o Conclusion
* The judgment of the lower courts is reversed.
o Concurrence – Thomas
* These pro-racial-discrimination arguments are the same as those of the segregationists in Brown.
* The constitution is colorblind (Plessy dissent)
* Dred Scott taught us to beware of elites bearing racial theories
o Concurrence – Kennedy
* States have a compelling interest in avoiding racial isolation that justifies enacting policies such as those used by the school districts to achieve this goal.
Race can be taken into consideration
The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race
* However, the school districts’ did not meet their burden required under strict scrutiny of showing that their racial assignment policies are narrowly tailored to meet the compelling state purpose of diversity in higher education.
* Race can be taken into account
* Alternatives: (this was tested on a prior exam)
School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including:
* strategic site selection of new schools;
* drawing attendance zones with general recognition of the demographics of neighborhoods;
* allocating resources for special programs;
* recruiting students and faculty in a targeted fashion; and
* tracking enrollments, performance, and other statistics by race.
These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.
o Dissent – Stevens
* The plurality misused and misapplied the precedent decisions on the issue, including its decision in Brown.
The plurality decision constitutes a stark departure from the previous interpretation of that case.
o Dissent – Breyer with Stevens, Souter, Ginsburg
* We have approved of “narrowly tailored” plans that are no less race conscious than the plans before us.
* The goal of creating “unitary” schools is a compelling state interest. The school districts’ policies are narrowly-tailored means for achieving that interest.
* Ultimately, this decision will have significant consequences for racial equality in the future and greatly restrict the force of Brown as applied to public school districts.
* Four basic considerations have led me to this view.
First, the histories of Louisville and Seattle reveal complex circumstances and a long tradition of conscientious efforts by local school boards to resist racial segregation in public schools. …
Second, since this Court’s decision in Brown, the law has consistently and unequivocally approved of both voluntary and compulsory race-conscious measures to combat segregated schools.
Third, the plans before us, subjected to rigorous judicial review, are supported by compelling state interests and are narrowly tailored to accomplish those goals.
Fourth, the plurality’s approach risks serious harm to the law and for the Nation
* the compelling interest here is stronger than in Grutter. The plans here are more narrowly tailored than the law school admissions program there at issue
- 19th amendment
right to vote won’t be denied on account of sex. Congress can enforce.
- Frontiero v. Richardson (1973)
o Plurality (non-binding) by Brennan with Douglas, White, Marshall
o Facts
* Congress passed a law granting members of the armed services with dependents an increased housing allowance, as well as medical and dental benefits for their dependents.
* Under the law, a serviceman was permitted to claim his wife as a dependent, regardless of whether the wife was actually dependent.
In contrast, a servicewoman was only permitted to claim her husband as a dependent upon a showing that her husband was actually dependent on the servicewoman for more than half of his support.
* Frontiero alleged that the law violated the procedural and substantive requirements of the Due Process Clause of the Fifth Amendment by imposing additional procedural burdens on female service members and extending dependency benefits to non-dependent spouses of male service members.
o Plurality – Brennan
* Under the Due Process Clause, governmental classifications based on sex are inherently suspect and must be subjected to strict judicial scrutiny.
o Application – Brennan
* Women, like racial minorities, have faced a long history of discrimination.
* Sex is “an immutable characteristic determined solely by the accident of birth,” and discrimination on this basis has no relationship to an individual’s capabilities.
Indeed, Congress has begun to ban sex-based discrimination in various legislation.
* Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
Idaho law said when two people are otherwise equally entitled to appointment as administrator of an estate, the man should be preferred to the woman
Court struck this law down because it provides for different treatment based on sex. Violates equal protection clause.
* Accordingly, governmental classifications based on sex are inherently suspect and warrant strict judicial scrutiny, just like classifications based on race, alienage, and national origin.
* In this case, the government’s asserted legitimate purpose for the statutory scheme is administrative convenience, i.e., that it saves time and money to presume that servicemen’s wives are dependent while requiring servicewomen to prove their husbands’ dependence.
However, the government fails to offer any concrete evidence that the law actually saves money.
Moreover, there are more important values than administrative efficiency.
* Frontiero was denied her constitutional rights under the Due Process Clause of the Fifth Amendment.
o Conclusion
* The decision of the district court is reversed.
o STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution
o Rehnquist dissents, preferring to rely on district court’s decision
o Concurrence – Powell with Rehnquist and Blackmun
* The plurality is correct that the challenged statutory scheme unconstitutionally discriminates against servicewomen in violation of the Due Process Clause of the Fifth Amendment.
* However, the plurality incorrectly adopts the general rule that all governmental classifications based on sex must be subject to strict scrutiny.
* The plurality did not need to conclude that sex is a suspect classification.
* The governmental policy in this case can be overruled on the basis of Reed v. Reed, 404 U.S. 71 (1971), which did not go so far as to label sex an inherently suspect classification.
* Moreover, the Equal Rights Amendment, which has been approved by Congress, will directly address this issue if it is ratified by the states and adopted.
The Court should leave the matter to the democratic process.
Race was mentioned in the constitution, which is why it gets strict scrutiny, but sex was not in the constitution, which is why the ERA, if passed, would also entitle sex to strict scrutiny
o Oral argument
* Ginsburg: Compared sex discrimination to racial discrimination
- Bradwell v. The State, 83 U.S. 130 (1873).
o The Court quoted from the case of Myra Bradwell, an Illinois woman who applied for a license to practice law, but was denied.
* She invoked the Fourteenth Amendment but lost.
o The Court ruled that practicing law was not a privilege or immunity under the Fourteenth Amendment.
o The Court stated that man and woman were in different spheres, and that women are wives and mothers according to the “law of the Creator.”
o In Frontiero, Brennan points out that we aren’t still following Bradwell
- Craig v. Boren (1976)
o Facts
* An Oklahoma statute prohibited the sale of “non-intoxicating” 3.2 percent alcoholic beer to males under the age of 21 but permitted the sale of such beer to females over the age of 18.
* Craig (plaintiff), a liquor vendor in Oklahoma, brought suit against Boren (defendant), an Oklahoma state official, in federal district court on the grounds that the law violated the Equal Protection Clause of the Fourteenth Amendment.
o Rule – Brennan
* A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important government purpose.
o Application – Brennan
* The appropriate standard of review for governmental gender-based classifications is intermediate scrutiny.
The classification must be substantially related to the achievement of an important government purpose.
* There is strict scrutiny for gender classifications even when a law discriminates against men
* Applying this standard, Boren offers statistical evidence to show that the state regulations were related to traffic safety.
While the difference is statistically significant, it is not enough to justify a broad categorical rule prohibiting the sale of alcohol to males, and not females, in this age group.
* No justification exists for enacting a gender-based law governing the sale of this particular beer and not alcohol in general to males and females between ages 18 and 20.
* The gender-based discrimination contained in Oklahoma’s law constitutes a denial of equal protection of the laws to males between 18 and 20.
o Conclusion
* The judgment of the district court is reversed.
o Concurrence – Stevens
* There is one equal protection clause and we should have one standard of review– rational basis
o Concurrence – Stewart
* disparity created by these Oklahoma statutes amounts to total irrationality.
* Statistics fail to prove or even suggest that 3.2% beer is somehow more deleterious when it comes into the hands of a male aged 18–20 than of a female of like age.
* disparate statutory treatment of the sexes here, without even a colorably valid justification or explanation, thus amounts to invidious discrimination. See Reed v. Reed
o Dissent – Burger
* Gender classifications should be analyzed under rational-basis review.
o Dissent – Rehnquist
* The majority is wrong to apply any more stringent scrutiny than rational basis for gender classifications.
* The language of requiring sex-discriminating regulations to be “substantially related to an important government purpose” is not supported by the Equal Protection Clause, case precedent, or any other constitutional provision.
* Any form of strict scrutiny itself is not appropriate as state legislatures are entitled to great deference in their judgments.
* The only redeeming feature of the Court’s opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality opinion in Frontiero v. Richardson,
Oklahoma statute challenged here need pass only the “rational basis” equal protection analysis
- U.S. v. Virginia (1996)
o Ginsburg and Breyer were in majority, Scalia was in minority, Thomas didn’t participate
o O’Connor joined majority
o Facts
* The Virginia Military Institute (VMI) was the only single-sex public higher education institution in the State of Virginia.
VMI functioned to train men for leadership in civilian life and military service using an “adversative” method.
VMI refused to admit women.
* After an adverse court ruling that this policy of excluding women violated the Equal Protection Clause, VMI created an alternative program for women known as the Virginia Women’s Institute for Leadership (VWIL).
* VWIL differed from VMI in its academic offerings, methods of education, and financial resources.
o Rule – Ginsburg
* All government gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classification.
o Application – Ginsburg
* The standard of review for any government gender classification is intermediate scrutiny.
This standard requires the government to provide an exceedingly persuasive justification for policies that discriminate against women.
* Here, Virginia has not shown an exceedingly persuasive justification for excluding all women from VMI’s leadership training.
Virginia argues that the existence of a single-sex school furthers the important state purpose of maintaining a diversity of public education institutions.
* This argument is rejected.
* VMI has never existed for the purpose of promoting diversity, evidenced by its policy of excluding women.
* Virginia also argues that its adversative method of training students provides educational benefits that cannot be made available, unmodified, to women.
There is no reason that Virginia’s stated goal of training competent future leaders cannot be extended to include women.
* Without further proof, Virginia falls short of establishing the exceedingly persuasive justification required for a sustainable gender-based classification.
* In addition, the VWIL is different and substandard when compared with VMI on many levels.
The creation of this school does not provide a meaningful educational alternative for women seeking to attend VMI.
o Conclusion
* Thus, Virginia’s policy of excluding women from VMI is unconstitutional.
o Concurrence – Rehnquist
* Two decades ago in Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456–457, 50 L.Ed.2d 397 (1976), we announced that “[t]o withstand constitutional challenge, … classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”
* The majority’s addition of the requirement that the government offer an “exceedingly persuasive justification” for gender-based classifications injects an element of uncertainty into the Court’s long-standing intermediate scrutiny test requiring governmental gender classifications to be substantially related to an important government purpose.
* However, VWIL is not an appropriate remedy because of its lack of equal opportunities for women. VWIL is inferior to the men’s institution.
o Dissent – Scalia
* The test here is whether excluding women from VMI is subject to intermediate scrutiny
* Virginia has an important state interest in providing effective college education for its citizens
* The majority completely ignores evidentiary findings that inherent physical differences exist in men and women that justify requiring them to attend separate schools.
* single-sex education and a distinctive educational method “represent legitimate contributions to diversity in the Virginia higher education system.”
* Virginia’s election to fund one public all-male institution and one on the adversative model—and to concentrate its resources in a single entity that serves both these interests in diversity—is substantially related to the Commonwealth’s important educational interests.
Bowers v. Hardwick
- In 1986, in Bowers v. Hardwick, 478 U.S. 186 (1986), the Court ruled in a decision invoking tradition and the Bible that there was no constitutional protection for acts of homosexual sodomy, and, therefore, the states could outlaw such practices.
o Majority by White, with O’Connor, Rehnquist, Burger, Powell - Justice Anthony Kennedy wrote all of the Court’s gay rights decisions until he retired.
- Romer v. Evans (1996)
o Ginsburg and Breyer joined majority, and Thomas and Scalia were in minority
o Facts
* Several Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities.
* In response to these ordinances, Colorado voters passed Amendment 2, which prohibited all governmental intervention designed to protect the status of persons based on their sexual orientation, conduct, practices, or relationships.
Supporters of amendment said it treats everybody equally so it follows equal protection. Without the amendment, LGBT were getting special treatment.
Opponents of amendment were saying that any other group can get anti-discrimination legislation, but LGBT cannot
o Rule – Kennedy
* A law prohibiting antidiscrimination protections for the gay, lesbian, and bisexual community violates the Equal Protection Clause of the Fourteenth Amendment.
o Application – Kennedy
* The Equal Protection Clause provides that no person may be denied the equal protection of the laws.
If a law neither burdens a fundamental right nor targets a suspect class, the law will pass constitutional muster under the Fourteenth Amendment so long as it is rationally related to a legitimate state purpose.
* In this case, the State of Colorado argues that Amendment 2 is not unconstitutional because it put gays, lesbians, and bisexuals in the same position as all other persons.
However, the Colorado Supreme Court found that the effect of Amendment 2 repeals existing statutes, regulations, and policies that bar discrimination based on sexual orientation.
* Additionally, Amendment 2 functions to ensure that no similar laws protecting gay, lesbian, and bisexual people are ever enacted.
Thus, Amendment 2 does treat homosexual persons differently from the population as a whole because it withdraws from them, but no other persons, specific legal protection from discrimination, and it forbids the reinstatement of laws and policies that would protect their interests.
* The amendment’s sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.
Animus is always an equal protection violation
* Amendment 2 selects an entire group of people based on a single trait (i.e., sexual orientation) and discriminates against them across the board.
As a result, a whole class of people is unable to seek the protection of the laws.
o Conclusion
* Accordingly, the Colorado Supreme Court’s decision is affirmed.
o Dissent – Scalia with Thomas and Rehnquist
* The majority mischaracterizes Amendment 2 as showing much more animosity toward gays and lesbians than it actually does.
* Amendment 2 is not a targeted attack on the rights of homosexuals, but rather an attempt by voters to preserve traditional and long-held sexual mores.
* The majority attempts to overturn its prior decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and puts the Court’s weight behind the idea that opposing homosexuality is as offensive as exhibiting racial or religious bias.
* This holding is unsupported by precedent and misguided in its conclusions.
- Lawrence v. Texas (2003)
o Kennedy with Ginsburg, Breyer, Souter, O’Connor, Stevens; minus Thomas, Scalia, Rehnquist
o Facts
* Police officers were dispatched to the home of John Lawrence (defendant) in response to a report of a weapons disturbance.
* When the police went into the home, the police observed Lawrence and Tyron Garner (defendant) engaged in a sexual act.
The State of Texas (plaintiff) charged Lawrence and Garner with engaging in deviate sexual intercourse with a person of the same sex.
o Rule – Kennedy
* The Due Process Clause of the Fourteenth Amendment includes a right to liberty in individuals’ decisions concerning the intimacies of their physical relationships.
o Application – Kennedy
* Court overrules Bowers
* The right to liberty under the Due Process Clause has been held to protect the rights of married couples to make decisions regarding procreation by invalidating a law prohibiting the use of contraception.
This same right has been extended to unmarried couples and individuals under 16 years old.
This right was the basis of the decision in Roe v. Wade, 410 U.S. 113 (1973), which held that a woman has the right to elect an abortion under some circumstances as a fundamental decision affecting her destiny.
* In Bowers v. Hardwick, 478 U.S. 186 (1986), however, the court upheld a Georgia statute that criminalized sodomy, regardless of the gender of the participants.
In that case, the court framed the issue as whether individuals have a fundamental right to engage in a certain sexual act.
This framing failed to appreciate the liberty interest involved.
The decision’s reliance on historical data and practices was also misplaced.
* The fact that the governing majority in a state has traditionally viewed a particular practice is immoral is not a sufficient reason for upholding a law prohibiting the practice.
* Bowers is overruled, and the statute in this case furthers no legitimate state interest that can justify its intrusion into the personal and private life of the individual.
o Conclusion
* Accordingly, the court of appeals’ judgment is reversed.
o Concurrence – O’Connor
* Bowers should not be overruled.
* However, the statute in this case is unconstitutional under the Equal Protection Clause, not under the due process clause like the majority says
The statute applies only to sexual conduct between members of the same sex.
The same conduct is treated differently under the law based solely on the participants.
Moral disapproval of homosexuals is not sufficient to satisfy rational-basis review under the Equal Protection Clause.
* This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not.
* Here, this is wrong to ban same-sex sodomy, but that doesn’t mean its wrong to ban same-sex marriage. This case is not about marriage. Banning same-sex marriage could be a legitimate state interest that passes the rational basis test. But here, moral disapproval alone isn’t enough.
o Dissent – Scalia with Thomas
* The Bowers decision held that the right to engage in same-sex sodomy was not a fundamental right.
The majority does not hold otherwise in this opinion.
Instead, the majority applies a form of rational-basis review to invalidate the Texas statute at issue here.
* The majority essentially holds that all legislation based on morals is invalid.
* On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex.
* This calls into question criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.
* Even if social perceptions of sexual and other morality are changing, the appropriate method of changing the laws to reflect this would be in the legislature, not the creation of a new constitutional right by this Court.
* The matters appropriate for this Court’s resolution are only three:
Texas’s prohibition of sodomy neither infringes a “fundamental right” (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws.
o Dissent – Thomas
* Justice Thomas references Justice Stewart’s dissent in Griswold and talks about the law challenged in Lawrence being “uncommonly silly.”
* The Texas statute is uncommonly silly and should be repealed.
* Nevertheless, nothing in the Constitution or Bill of Rights prohibits the Texas legislature from enacting the law at issue.
* Substantive due process is all a legal fiction
United States v. Windsor
the Court ruled that the federal Defense of Marriage Act was unconstitutional under the Fifth Amendment.
o Edith Windsor was unable to collect federal tax benefits when her spouse Thea Clara Spyer died.
- Obergefell v. Hodges (2015)
o Kennedy with Ginsburg, Breyer, Sotomayor, Kagan.
* Minus Roberts, Scalia, Thomas, Alito
o Facts
* In response to some states’ legalization of same-sex marriage, various states enacted laws and constitutional amendments defining marriage as between one man and one woman.
o Rule – Kennedy
* Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.
o Application – Kennedy
* This Court first gave detailed consideration to the legal status of homosexuals in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986).
There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts
* Romer v. Evans
Court invalidated an amendment to Colorado’s constitution that sought to foreclose any branch of the state from protecting people against discrimination based on sexual orientationo
* Lawrence v. Texas, 2003: Court overruled Bowers, holding that laws making same-sex intimacy a crime “demean the lives of homosexual people”
* Same-sex couples have a constitutional right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
History and tradition guide and discipline this inquiry but do not set its outer boundaries.
* The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions
* Marriage is a fundamental right protected by the Due Process Clause.
For example, in Loving v. Virginia, 388 U.S. 1 (1967), the Court struck down antidiscrimination laws that interfered with the right to marry.
* Ultimately, the four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples:
(1) the right to choose whether and whom to marry is “inherent in the concept of individual autonomy”;
(2) the right is fundamental because it serves relationships that are equal in importance to all who enter them;
(3) assuring the right to marry protects children and families, which implicates myriad rights related to procreation and child-rearing; and
(4) lastly, marriage is the very “keystone of our social order” and foundation of the family unit.
* Similarly, although same-sex relationships were once forbidden, in Lawrence v. Texas, 539 U.S. 558 (2003), the Court held that same-sex couples had an equal right to intimate associations.
This is about liberty and equality
* Refusing to allow same-sex couples to marry denies them a myriad legal rights, including those related to taxation, insurance benefits, intestate succession, spousal evidentiary privileges, and child custody and support.
* In this instance, the liberty interest protected by due process intersects with the right to equal protection, and same-sex marriage bans violate both.
Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.
* Therefore, states must issue marriage licenses to same-sex couples.
* Further, states must recognize lawful out-of-state marriages between same-sex couples.
Being married in one State but having that valid marriage denied in another is one of “the most perplexing and distressing complication[s]” in the law of domestic relations.
o Conclusion
* All contrary laws are struck down. The court of appeals is reversed.
o Dissent – Roberts with Scalia and Thomas
* Although there are strong arguments for the inherent fairness in recognizing same-sex marriages, this should be left to individual states to decide.
* The Court has usurped the right of the people to make such a decision through the democratic process and denied same-sex marriage the legitimacy that comes with that.
* The Court has warned of the dangers of finding new, implied fundamental rights as a matter of substantive due process, as the Court fatefully did in Dred Scott v. Sandford, 19 How. 393 (1857), and Lochner v. New York, 198 U.S. 45 (1905).
* Further, if same-sex marriage is valid, there is no good argument why plural marriage (polygamy) should not be.
* Finally, the Court fails to conduct the traditional Equal Protection Clause analysis before declaring the clause to be violated.
o Dissent – Scalia with Thomas
* Scalia agrees with Roberts’ dissent
Scalia never went as far as Thomas did in questioning due process
* An unelected committee of five lawyers (majority) has stopped the debate and the democratic process on this issue.
o Dissent – Thomas with Scalia
* The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built.
before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.
* I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago
It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property
o Dissent – Alito with Scalia and Thomas
* The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not.
* Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy
- Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020)
o the Court was asked to interpret whether Title VII, the Civil Rights Act of 1964—which bans discrimination on the basis of race, color, religion, sex, or national origin—protects LGBTQ from discrimination.
o Justice Gorsuch’s opinion, joined by Roberts, Ginsburg, Breyer, Sotomayor, and Kagan, ruled that the term “sex” in Title VII includes homosexual and transgender discrimination.
* In Gorsuch’s words, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
* There could be circumstances when Bostock doesn’t apply.
Title VII exempts religious organizations and says they can discriminate on the basis of religion. We allow religions to discriminate on the basis of religion.
Gorsuch also mentions the ministerial exception, which says that because of the 1st amendment, ministers may not sue their employers. Any discrimination statute doesn’t apply to ministers. If the plaintiff is a minister, the lawsuit ends.
* Bostock wouldn’t apply to ministerial exception cases
If RFRA is involved, it might supersede Title VII’s commands. Federal RFRA says government can’t substantially burden exercise of religion unless it has a compelling governmental interest and uses the least restrictive means.
o The dissenters, Alito, Thomas, and Kavanaugh, thought the majority had misread the statute, which banned sex discrimination, not sexual orientation discrimination.
- Pavan v. Smith
o State law doesn’t let same sex couples have both names on birth certificate.
o Court said this violates due process and equal protection under Obergefell
o Per curiam opinion
o Dissents from Thomas, Alito, Gorsuch
- Department of State v. Munoz
o U.S. citizen wife, Sandra Munoz, asked US Dept of State to review its finding that her Salvadoran, noncitizen husband, Luis Asencio-Cordero, was inadmissible and couldn’t have an immigrant visa
o Husband did not have a constitutional right to enter the U.S.
o Munoz argued her light to live with her husband was a liberty protected by the fifth amendment, giving her a due process right to find out the details of her husband’s inadmissibility
o Justice Barrett majority, with Roberts, Thomas, Alito, kavanaugh, Gorsuch
* She did not have a right rooted in the nation’s history and tradition
* History of congressional regulation of spousal immigration showed that she did not have such a right
* A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country
o Sotomayor dissent with Kagan + Jackson
* Quoted Obergefell: Right to marry is fundamental as a matter of history and tradition
* Government’s action and majority’s decision burdened the right to marry
- Poe v. Ullman
No standing because it only involved a threatened application of the Connecticut law banning contraceptives.
- Griswold v. Connecticut (1965)
o Facts
* Griswold (defendant) was executive director of the Planned Parenthood League of Connecticut (the league).
* Buxton was a licensed physician and professor at Yale Medical School who served as director for the league at its center in New Haven.
* Buxton and Griswold were arrested and convicted as accessories pursuant to Connecticut statutes that prevented using contraception or assisting someone else in using contraception.
o Rule – Douglas
* An implied right of privacy exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception.
o Application – Douglas
* A right of privacy protecting the intimate relations of married couples is implied in the Bill of Rights.
For example, the First Amendment protects the right to association.
The Third Amendment prohibits the quartering of soldiers in a person’s house without their consent.
The Fourth Amendment protects against unreasonable searches and seizures.
The Fifth Amendment protects against self-incrimination.
The Ninth Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
* The protected activities in each of these Amendments are penumbras that are not specifically enumerated in the Constitution, but instead represent various zones of privacy into which the government cannot intrude.
* The marital relationship is located within a zone of privacy impliedly created by these various fundamental constitutional guarantees in the Bill of Rights.
* The Connecticut law seeks to prohibit the use of contraceptives in the marital relationship and in doing so violates this area of protected freedoms.
* The right of privacy in marriage is a concept older than the Bill of Rights that should necessarily be kept sacred and free from intrusion by the state.
o Conclusion
* The Connecticut law is unconstitutional, and Griswold’s conviction is reversed.
o Concurrence – Goldberg
* Connecticut’s birth-control law unconstitutionally intrudes on the right to marital privacy.
* Even though the right of marital privacy is not specifically mentioned in the Constitution, it is supported by numerous decisions of the Court, as well as specifically by the language and history of the Ninth Amendment.
The Ninth Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
* Relying on Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803), every clause in the Constitution is meant to be given effect.
If the Court denies the existence of a marital right of privacy simply because it is not enumerated in the first eight amendments in the Bill of Rights, it is essentially denying all meaning in the Ninth Amendment.
* Additionally, the right of privacy in marriage is rooted in the “traditions and collective conscience” of people and is therefore a fundamental right.
* Connecticut offers a legitimate purpose as justification for its statute (i.e., preventing adulterous relationships), but fails to consider less intrusive means for accomplishing this purpose.
o Concurrence – Harlan
* Rather than relying on an implied right of privacy in the Bill of Rights, the right to use contraception in marriage is supported by the Due Process Clause of the Fourteenth Amendment.
* the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.
proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values ‘implicit in the concept of ordered liberty,’
* It does infringe on due process
* This is the test for due process violations: when a law violates basic values implicit in the concept of ordered liberty
The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom
* It is sufficient on its own
o Concurrence – White
* The Connecticut law as applied to married couples deprives them of liberty without due process of law, as used in the Fourteenth Amendment.
* Additionally, the ban on the use of contraceptives by married couples does not in any way reinforce the state’s ban on illicit sexual relationships.
one is rather hard pressed to explain how the ban on use by married persons in any way prevents use of such devices by persons engaging in illicit sexual relations and thereby contributes to the State’s policy against such relationships.
* Connecticut does not disagree with the use of contraceptives as a whole, but rather with their use in adultery and fornication.
However, the prevention of these relationships is the stated purpose of the Connecticut statute, making the statute sweepingly broad and overinclusive as to be rendered unconstitutional.
o Dissent – Black
* The Connecticut law is unwise and based on unsound policy.
* There is no basis in the Constitution for the right of privacy concept as defined by the majority.
* The closest provision to a right of privacy is the protection against unreasonable searches and seizure in the Fourth Amendment.
However, the Fourth Amendment does not establish a general right of privacy.
* Majority takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom
Majority violates separation of powers
o Dissent – Stewart
* The Connecticut law is silly, unenforceable, and unwise.
However, it is not unconstitutional.
* It is not the duty of the Court to strike down legislation with which it simply disagrees.
* If the people of Connecticut disagree with a state law, their best recourse is to use their actual Ninth and Tenth Amendment rights and convince their elected officials to change the law.
* I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.
o Oral argument
* Justice William J. Brennan Jr.:
“Well, wouldn’t you have had a rather compelling equal protection argument, if the Connecticut courts went that far?”
* Contraceptives only affect women– that’s why there’s an equal protection argument.
- Eisenstadt v. Baird,
expanded the right that Griswold found for married couples to individuals
- Roe v. Wade
o Facts: TX law banned abortions except to save mother’s life. Roe challenged. Had baby before case, but oral argument said it’s not moot because abortion is “capable of repetition, yet evading review”
o Blackmun majority: Constitution has a right to privacy that protects right to have an abortion. States cannot restrict abortion in first trimester. Can regulate, but not ban in second trimester. Can ban in third trimester.
14th amendment’s due process clause includes a right to privacy. Bill of rights and ninth amendment also indicate privacy.
Women historically had greater rights to abortion than now.
“Person” in 14th amendment doesn’t include the unborn
Zone of privacy includes abortion
* But, the right is not unlimited. Must be considered against important state interests in regulation.
o Regulation limiting fundamental right of privacy must be justified by compelling state interest and law must be narrowly tailored to further that interest (strict scrutiny).
* State’s interest becomes compelling to regulate but not ban abortion at end of first trimester.
* State’s interest becomes compelling to ban abortion at viability—end of second trimester.
o Stewart concurrence: Right to privacy is in the personal liberty guaranteed by 14A’s due process clause. Includes abortion.
o Rehnquist dissent: 14A DP encompasses more than the right in the BOR, but that liberty is not guaranteed absolutely against deprivation—only deprivation without due process of law.
Framers never intended a right to privacy
TX should be treated like other laws—only the rational basis test.
* A law that bans all abortions, even when to save mother’s life, would fail rational basis test.
* However, majority’s ban on all laws banning abortion also fails rational basis test.
* Trimester system is legislative rather than judicial judgment.
- Planned Parenthood v. Casey
o O’Connor majority, Thomas and Scalia minority
o Facts: PA law had five restrictions:
Required informed consent
24-hour waiting period for abortions
Minors had to get informed consent of one parent, but had judicial bypass feature if minor can’t get consent
Married woman must notify husband
Reporting requirements for facilities that provide abortion services
o O’Connor majority: State abortion law places undue burden on woman’s right to abortion and is invalid if it’s purpose or effect is to place a substantial obstacle in the path of the woman seeking an abortion before viability.
Roe is not unworkable and is not overruled.
Trimester framework in Roe is overruled.
New undue burden test.
Akron and Thornburg are overruled if they hold that giving honest information about abortion procedure is unconstitutional.
PA law:
* Spousal notification requirement is an undue burden and invalid.
* Other laws are not an undue burden, and are valid.
o Minor notification law is OK because it has a judicial bypass feature.
o Stevens concurrence/dissent: Informed consent is invalid because it encourages woman not to get abortion. 24-hour waiting period is unconstitutional because women that carry baby to term don’t have to wait 24 hours to decide.
o Blackmun concurrence/dissent: Roe’s trimester framework is good. We should apply strict scrutiny to abortion restrictions. All of PA law fails.
o Rehnquist concurrence/dissent, with Thomas and Scalia
Roe was wrong. PA law is all OK.
Undue burden standard came out of nowhere.
Abortion is not rooted in history/tradition.
People should decide abortion.
o Scalia concurrence/dissent, with Thomas
All of PA law passes rational basis
Citizens and states should decide abortion
- Griswold v. Connecticut
DOUGLAS: Constitutional right to privacy for married couple to get contraception from doctor.
- Maher v. Roe
POWELL – Restricting Medicaid benefits for abortion is OK because discouraging abortions is not equal to interference with constitutional right.
- Harris v. McRae
STEWART – No substantive due process right to funding of an abortion. Constitutionally protected activity
- Akron
POWELL – Same provisions as PA law in Casey are invalid. Casey OVERRULED THIS.
- Thornburg v. American College
BLACKMUN – Same provisions as PA law in Casey are invalid. Casey OVERRULED THIS.
- Webster v. Reproductive Health Services
REHNQUIST – DP doesn’t require government aid in getting an abortion. Upholding viability tests based on state’s interest in protecting viable life.
- Hodgson v. MN
STEVENS – Provision requiring minor parental notification for abortion fails rational basis. But, with judicial bypass, it’s okay.
- Rust v. Sullivan
REHNQUIST – Restrictions on using federal funding for abortion is consistent with 1st and 5th amendment rights of healthcare providers and patients.
- Stenberg v. Carhart
BREYER with dissent from Thomas – Partial birth abortions place an undue burden on patient’s right to an abortion and to make decisions concerning healthcare.
- Gonzales v. Carhart
KENNEDY with Roberts, Thomas, Alito – Law banning partial birth abortions doesn’t place undue burden on right to abortion.
- Whole Woman’s Health v. Hellerstedt
BREYER with Sotomayor and Kagan, and dissents from Thomas, Alito, Roberts – Abortion regulations that do not sufficiently serve their stated government interest impose an undue burden. Invalid.
- June Medical Services v. Russo
BREYER plurality – Reaffirming Hellerstadt and striking down similar law. Court should weigh benefits of abortion statute against burdens in deciding whether there was an obstacle.
o Roberts concurred – emphasizes stare decisis. Challenged Breyer’s balancing test, saying it wasn’t part of Casey.
o Thomas, Alito, Gorsuch, Kavanaugh dissents: Rejected balancing test.
- Dobbs v. Jackson Women’s Health Organization
o Alito with Thomas, Gorsuch, Kavanaugh, Barrett
o Facts: MI prohibited abortion after 15 weeks.
o Alito: No right to abortion and Roe is overruled.
Right to abortion is not deeply rooted in history. So, because it’s not in the Constitution, states and people must determine it.
Going forward, abortion regulations will be evaluated under rational basis review. Regulations will get a strong presumption of validity if they pass rational basis.
MI law has legitimate interest in protecting life. Banning abortion with exceptions for emergencies is rationally related.
Facotrs in deciding whether to overrule something:
(1) the nature of the error in the prior decision,
* Roe was wrong on day it was decided and Casey made it worse.
(2) the quality of the decision’s reasoning,
* Weak and improper analysis. It was legislation. Didn’t justify distinction between pre- and post-viability abortions.
(3) the workability of the rule announced by the decision,
* Casey’s undue burden test was unworkable.
(4) the disruptive effect of the decision on other areas of law, and
* Roe and Casey had negative impacts on other laws.
(5) the absence of concrete reliance on the decision.
* No reliance interests.
Precedents not involving abortion remain valid.
o Thomas concurrence: Substantive due process is not real. We should reconsider Griswold, Lawrence, and Obergefell. DP only guarantees procedure.
o Kavanaugh concurrence: This is not about morality—this is about constitution. Constitution protects enumerated rights and some unenumerated rights. Those unenumerated rights must be deeply rooted in history and tradition. Abortion is not. Other precedents are still valid. People can travel to another state to get abortion. Decision goes to states.
o Roberts concurrence: If it is not necessary to decide more, it is necessary not to decide more. Court should’ve just gotten rid of viability rule from Roe and Casey. Didn’t need to eliminate abortion right entirely.
o Breyer dissent with Kagan and Sotomayor: Viability is still a good line to draw. Roe and Casey had balance. Regulations hurt poor woman that can’t travel. Other cases are at risk. Living constitution.
- Note: Some argue that there is an equal protection argument for abortion
Some argue that there is an equal protection argument here—that women are being denied equality if they are prevented from getting an abortion and forced to carry kids.
o Due process identifies and protects a right, while equal protection says it has to be applied equally.
Intermediate scrutiny applies for gender.
- FDA v. Alliance for Hippocratic Medicine
o Kavanaugh with unanimous current court
o Facts: Abortion medication was restricted by some states after Dobbs. Orgs challenged. Doctors argued that selling abortion medication violated their rights.
o Kavanaugh:
Three elements of standing: Injury, caused by defendant, and redressable by judicial relief.
Conscience is not standing because Ps won’t be forced to participate in abortion. Federal conscience law protects doctors from being forced to do so.
Ps argue they will suffer monetary injuries for treating people suffering from drug complications. But, lack of causation here.
Organizational standing argument – Ps say they will incur costs to oppose FSA. But, you can’t buy/spend your way into standing.
Ps say if they don’t have standing, no one does. Doesn’t matter.
Ps can use democratic process to voice concerns.
o Thomas concurrence: Agrees that no standing here. Third party/associational standing should not be a thing. Doesn’t work with article 3. Ps can’t establish injury by asserting another person’s rights.
- Moyle v. U.S.
o Per curiam joined by Roberts, Sotomayor, Kagan, Kavanaugh, Barret, Jackson; minority is Thomas, Alito, Gorsuch
o Facts: State law banning abortion except for to save mother’s life is preempted by EMTALA (federal law), which requires hospitals to provide abortions in certain health emergencies.
o Per curiam: Writs of certiorari are dismissed as improvidently granted. Stays are vacated.
o Kagan concurrence with Sotomayor and Jackson: Agrees with vacating stay and dismissing writ. Lower courts can proceed with litigation regularly. DC’s preliminary injunction will take effect again so Idaho can’t enforce abortion law when woman’s life is in danger. EMTALA protects pregnant woman’s health.
o Barrett concurrence with Roberts and Kavanaugh: We should let lower court proceedings run their course. Idaho can still enforce law even with PI in place. Petitioners want SCOTUS to decide on the spending clause issue because they argue that spending clause can obligate recipients of federal funds to violate state criminal law. Barrett says that because the lower courts didn’t hear that argument, it won’t be decided.
o Jackson concurrence: Agrees to vacate stay and lift injunction, thus allowing emergency abortions. EMTALA preempts Idaho’s law. Dissented from court’s decision to dismiss case as improvidently granted. We shouldn’t delay a decision.
o Alito dissent with Thomas + Gorsuch: EMTALA supports the unborn child, actually. EMTALA doesn’t mention abortion. Court should’ve decided the case now.
o Cruzan v. Director
Facts: Cruzan injured in car accident, left in permanent vegetative state. Parents wanted to let her die. Missouri had clear and convincing evidence standard for proving that incompetent patients would refuse treatment.
Rehnquist majority:
* Constitution protects competent person’s right to refuse medical treatment under Due Process’s liberty interest. But, Missouri could place a clear and convincing evidence standard on proving incompetent person would refuse treatment.
O’Connor concurrence: People appoint power of attorneys to decide these for them.
Scalia concurrence: Constitution doesn’t talk about suicide rights. Court can’t decide this.
Brennan dissent: Cruzan had right to die with dignity. State must focus on Cruzan’s best interests.
o Vacco v. Quill
Unanimous (old court) with Thomas: Allowing competent adults to withdraw their own treatment, but denying that same right to incompetent patients, does not violate equal protection.
o In right to die cases, people argue that laws against assisted suicide violate Due Process and Equal Protection clauses
Due process: constitutional right to die
Equal protection: patients were allowed to refuse lifesaving treatment but could not get assisted suicide. That was a different, unequal treatment that the clause did not justify
* Treats patients who are allowed to die when they refuse medical treatment differently from people who want physician-assisted suicide. This is an equal protection violation.
Washington v. Glusckburg
Facts: Washington banned assisted suicide.
Rehquinst Majority (with Thomas): WA’s ban didn’t violate due process. History shows ban on assisted suicide. Dobbs cites this to show that we look at history/tradition when asking if there’s a fundamental right under due process.
O’Connor concurrence: Patients could have pain treated while dying. No right to suicide because doctors can take pain away.
Stevens concurrence: Dying patients have liberty interest in manner of death. They can take pain medications, but they can’t commit suicide.
Breyer concurrence: Would rather talk about right to die with dignity than right to physician-assisted suicide. Doctors can hep get rid of pain.
- Feiner v. NY
o Facts: Feiner spoke to crowd, talking bad about Truman and politicians. Told people too take up arms and fight. Police asked him to stop talking and he refused.
o Vinson majority: When a person speaks in a way that breaches the peace and tries to incite a crowd to riot, police don’t violate 1A by stopping that speech.
Police can’t restrict all speech. But, they are not powerless to prevent breach of peace.
Police here were OK.
o Frankfurter concurrence: Breach of peace statutes can be misused. But, this was OK.
o Black dissent: Strict view of 1A. “No law” means NO LAW. Can’t silence people.
o Douglas dissent: Fighting words are not protected by 1A (Chaplinsky case). But, that’s not what’s happening here
- Cantwell v. CT
o Facts: Cantwell was Jehovah’s witness. Would play a recording that attacked church. Pedestrians were offended.
o Owen Roberts majority: Speech is not protected under 1A if it presents clear and present danger to substantial state interest.
Speech that doesn’t present clear/present danger is protected even if it’s offensive.
Cantwell didn’t try to invoke violence. His speech is protected.
- Texas v. Johnson
o Facts: D burned American flag. This didn’t cause breach of peace. Was arrested.
o Brennan majority: State law criminalizing flag burning violates 1A.
Flag burning is expressive conduct, which counts as speech.
States may have an interest in regulating some expressive conduct for reasons unrelated to suppressing that conduct’s expression.
U.S. v. O’Brien test: You could be punished for burning your draft card. If you do something that affects both speech and non-speech elements of an action, sometimes the non-speech element can be enough to overcome a limitation on speech.
* Government has a freer hand in restricting expressive conduct than it does with written/spoken words.
* But, if there is no real state interest, then O’Brien doesn’t apply.
o Here, TX didn’t have nay interest.
o Kennedy concurrence: Flag protects even those who disagree with it.
o Rehnquist dissent: Flag burning is form of fighting words. Public interest in maintaining peace/order outweighs it.
o Stevens dissent: Johnson wasn’t punished for his beliefs—he was punished for his methods. Burning is not OK.
- NRA v. Vullo
o Facts: Head of NY Department threatened banks doing business with NRA to restrict NRA’s speech.
o Sotomayor (unanimous): Government officials can’t coerce private parties to punish/suppress views they disfavor.
- Vidal v. Elster
o Facts: Marco Rubio said Trump had small hands. Steve Elster tried to TM that expression. PTO rejected TM because of Lanham Act, which bans TMs that use another person’s name without permission.
o Usually, TM law doesn’t violate first amendment.
o Federal circuit said this violated 1A because gov can’t restrict anti-gov speech.
ORAL ARGUMENT:
Roberts: Over-trademark-ing might restrict others’ speech.
Alito: Same as Matal v. Tam. Can’t ban TM.
Thomas: Can still use phrase without registration.
Gorsuch: There have always been content-based restrictions in TM law.
Kavanaugh: History supports restricting use of names like this.
Barrett: Despite that he can enforce without TM, there is a speaker-based discrimination.
Kagan: Suggested this is not viewpoint-based, so can ban this TM.
Sotomayor: Gov never told him he can’t use this phrase, so no restriction.
Jackson: TM is not about expression. It’s about source identification.
- Lindke v. Freed
o Facts: City official blocked resident that criticized him.
o Barrett (unanimous):
State-action doctrine requires plaintiff (Lindke) to show that the official (Freed):
* Had actual authority to speak on behalf of State on a particular matter
* Purported to exercise that authority in the relevant posts
* To the extent that this test differs from the one applied by the Sixth Circuit, we vacate and remand
- O’Connor-Ratcliff v. Garnier
UNANIMOUS CURRENT.
o Ninth Circuit: 1st amendment was violated when two members of school board blocked parents who posted criticisms of them on their campaign pages
o Court said that because the approach that the Ninth Circuit applied is different from the one in Lindke, we vacate and remand
- RAV v. City of St. Paul (1992)
o Facts: RAV burned wooden cross on black family’s home. Arrested for violating city’s anti-bias motivated crime law, which banned placing hateful symbols to arouse anger on basis of race, color, religion, gender.
o Scalia majority: Under the first amendment, states cannot regulate categories of unprotected speech, such as fighting words, on the basis of content or viewpoint.
Content-based discrimination laws must survive strict scrutiny
* If there is a content-neutral alternative, it fails.
Government can regulate speech with only “slight social value” if benefit is outweighed by social interests.
* But, content based regulations are wrong even in unprotected area of speech.
Government must ban all speech or no speech.
Chaplinsky: Fighting words provoke violence on basis of race, color, sex, etc.
This is not only content-based discrimination, but it is also viewpoint discrimination. Pro race fighting words are OK. Only anti-race are banned.
Doesn’t survive strict scrutiny. Only interest here is city’s hate to that language. A law not limited to these specific topics would have the same effect.
o White concurrence: Disagrees with majority because it requires government to criminalize ALL fighting words instead of some. Ordinance is unconstitutional because it is facially overbroad because it criminalizes protected speech as well as unprotected speech.
o Blackmun concurrence: Agrees with White that this ordinance goes beyond fighting words and prohibits protected speech. Cities should be able to ban race-based fighting words.
o Stevens concurrence: Activity creating unique harm can be punished specifically and more severely than in other contexts. Ordinance is overbroad. Not all content-based regulations are presumptively invalid. Not all fighting words are unprotected.
- Content vs. viewpoint discrimination vs. commercial speech
o Content: subject matter itself is allowed/banned. Some content-based regulations are facially neutral.
o Viewpoint: What perspective you have on that subject matter
EX: Pro-race is OK, but anti-race is not.
o Viewpoint and content-based discrimination are usually the worst types of regulations (subject to strict scrutiny).
Commercial speech is not as bad (subject to Central Hudson test – narrowly tailored to substantial interest– which is not strict scrutiny).
- Matal v. Tam (2017)
o Facts: Tam was a singer that wanted to TM the name “the Slants.” Band chose name to counteract stereotypes. USPTO refused due to disparagement clause, which bans disparaging marks.
o Alito majority with Roberts, Thomas, Sotomayor, Kagan, Ginsburg, Breyer, Kennedy: Speech cannot be banned because it expresses ideas that offend. Disparagement clause is unconstitutional.
Trademarks are private, not government speech.
Trademarks are not a form of government subsidy.
Disparagement clause is not a type of government program that allows some speech restrictions.
TMs are commercial speech subject to Central Hudson scrutiny: Must be narrowly drawn to serve a substantial interest. (THIS IS NOT STRICT SCRUTINY. MORE RELAXED)
Law fails Central Hudson test. Not narrowly drawn. Reaches too far—even dead people are covered.
o Kennedy concurrence with Sotomayor and Kagan: This is really viewpoint discrimination, which is more serious than commercial speech regulation. Viewpoint discrimination is subject to strict scrutiny.
o Thomas concurrence: Doesn’t really distinguish between commercial speech. Strict scrutiny applies to all speech—commercial or not—when gov restricts truthful speech to suppress the ideas it conveys.
- Reed v. Town of Gilbert (2015)
o Facts: Town passed law regulating sign postings. Different categories (ideological, political, temporary directional) had different requirements. Reed, pastor, sued.
o Thomas majority, with Roberts, Alito, Sotomayor, Kagan, Scalia, Ginsburg, Breyer, Kennedy: A facially content-based restriction on speech is subject to strict scrutiny regardless of government’s good motive.
Law has content-based regulations and fails strict scrutiny.
Content-based laws target speech based on its content. They are subject to strict scrutiny.
Facially content-neutral laws are also considered content-based if they can’t be justified without referencing the content, or if they were adopted due to disagreement with speech’s message. They also must survive strict scrutiny.
Town’s two interests are insufficient (aesthetic and traffic)
Even if interests are OK, not narrowly tailored. Not connected to interests.
o Alito concurrence with Sotomayor: Content-neutral sign restrictions applicable to all signs wouldn’t be subject to strict scrutiny. (EX: Lighting)
o Breyer concurrence: These signs are unconstitutional. We need judicial sensitivity (often does this, wants more complex test). Content discrimination shouldn’t always trigger strict scrutiny. Content discrimination should be used as a rule of thumb, but not a legal tool.
o Kagan concurrence: Sign was unconstitutional, but court should’ve used approach of Ladue case, where sign didn’t even pass the laugh test. No need to decide if strict scrutiny applies here.
- City of Austin v. Reagan (2022)
o Sotomayor majority with Roberts, Alito, Kagan, Kavanaugh, Breyer. Minority is Thomas, Gorsuch, Barrett
o Facts: Austin had laws for on/off-premises signs. Dependent on content of sign and location.
o Sotomayor majority: Regulation is not facially content-based merely because it requires a government official to evaluate speech to determine whether law applies. Content-neutral laws are subject to intermediate scrutiny and pass if they are “narrowly tailored to serve a significant governmental interest” (SPECIAL TEST)
This law is not facially content-based. It is about placement. It is content neutral. Remand to evaluate test.
A content-neutral law may become content-based if there is an impermissible justification behind it. But, that is not the case here.
o Breyer concurrence: Court was wrong in Reed. Too rigid. Content discrimination is a rule of thumb. City has legitimate interest here.
o Alito concurrence/dissent: Ordinance is content-based. Must read sign to determine if law is violated. Court went too far in saying that law doesn’t discriminate on content. Should’ve just said it wasn’t FACIALLY unconstitutional, then remand.
o Thomas dissent with Gorsuch and Barrett: Law is content based. Need to read sign to apply. Needs to satisfy strict scrutiny, but didn’t. New intermediate test is made up.
o Secondary effects doctrine: Sometimes, content-based discrimination is allowed if it targets the secondary effect of a place, not the speech itself. (EX: adult bookstores’ effect on property values)
- 303 Creative v. Elenis (2023)
o Gorsuch with Roberts, Thomas, Alito, Kavanaugh, Barrett. Minority is Sotomayor, Kagan, Jackson.
o Facts: Smith designed wedding websites. Didn’t believe in gay marriage. CO had law requiring businesses to serve all people. Sued.
o Gorsuch majority: A state cannot compel a website designer to create designs for messages that speaker disagrees with.
Government can’t force someone to speak government’s message.
1A governs over state law.
This case is about speech, not conduct.
o Sotomayor dissent with Kagan and Jackson: History supports that public businesses can’t discriminate. This ruling is brand new. This law doesn’t regulate speech—it regulates conduct. Public businesses need to be open to everybody without discrimination.
- Moody v. Netchoice (2024)
o FL and TX passed laws regulating how social media websites censor speech in a discriminatory way.
o Court vacated judgments and remanded for lower courts to do a proper analysis of facial 1A challenges.
- Brandenburg v. Ohio
o Facts: KKK leader was filmed giving speech. Convicted under OH law making it illegal to advocate/teach crime
o Per curiam: Test for incitement: A state can regulate speech that advocates violence only if it is intended and likely to incite imminent illegal activity.
Whitney: Upheld conviction for protesting & advocating violence. Said that state can punish people who utter words that tend to incite crime.
* Now overruled
(No more clear/present danger test)
Difference between mere advocacy and incitement to imminent lawless action
This law is invalid because it punishes mere advocacy
o Black concurrence: Dennis’s clear/present danger test shouldn’t be applied. We’re not approving it.
o Douglas concurrence: Schenck’s clear and present danger test was for wartime. No longer used.
public/public
NYT
1. Defamatory statement
2. Of and concerning plaintiff
3. Publication
4. Damages
5. Falsity
6. Fault – actual malice
public concern/private figure
Gertz
1. Defamatory statement
2. Of and concerning plaintiff
3. Publication
4. Damages (actual injury required; no presumed or punitive damages without NYT malice)
5. Falsity
6. Some level of fault – negligence?
private concern/public figure
Same as Dun & Bradsheet? Court never decided this before.
Private concern/private figure
Dun & Bradsheet
1. Defamatory statement
2. Of and concerning plaintiff
3. Publication
4. Damages: Allowed $50k compensatory and $300k punitive without NYT malice
5. Falsity ????
6. Fault ????
- NYT v. Sullivan
o Facts: Sullivan was PD official. Sued NYT for saying he was bad to blacks.
o Brennan majority: A public official suing for defamation must prove falsity and speaker’s actual malice.
Actual malice = knowledge of falsity or reckless disregard
Criticism of government is important and protected, even if defamatory
No actual malice here—recklessness at most
o Black concurrence: 1st and 14th amendments give an absolute right to publish. No defamation. Malice is hard to prove/disprove
o Goldberg concurrence: Unconditional right to criticize official conduct
- McKee v. Cosby
o Lower courts said P became a public figure with rape accusation against Bill Cosby and had to prove NYT malice.
o Court denied cert.
o Thomas concurrence: No more NYT malice—not in constitution. Let her sue. Historically, no actual malice requirement
- Berisha v. Lawson
o Cert denial
o Gorsuch: Media today is different than back then. No more NYT malice.
- New York v. Ferber
o Facts: Adult bookstore sold child porn.
o White: Can ban child porn even if doesn’t exactly meet Miller’s obscenity test.
Miller v. California: Material is obscene and can be banned if it invokes a prurient interest in sex, it is patently offensive, and as a whole, it doesn’t have serious value.
* Amended so that you no longer need: prurient interest, patently offensive, and wholly without value
Five reasons why child porn can be banned:
* 1. State interest in protecting kids
* 2. Child porn hurts kids.
* 3. Child porn motivates hurting kids.
* 4. Child porn has little value.
* 5. Consistent with other (content-based) decisions.
o O’Connor concurrence: No child porn has value. Ban it all.
o Brennan: Some child porn has value.
o Stevens: Interests may change depending on specific case. Bigger interest in protecting our own citizens. Three paths: (1) consider only scene, (2) consider whole thing, and (3) intermediate.
- Virginia Pharmacy v. Virginia State
o Facts: Law banned pharmacists from saying prices.
o Blackmun: 1A protects commercial speech for advertisements.
Speech doesn’t lose protection because money is spent on it.
Free market – consumers have right to know
Exception for lying/deceiving
o Burger: Might be different for medical/legal ads. Don’t know.
o Stewart: Exception for lying/deceiving
o Rehnquist: Protect regular speech more than ads. Ads shouldn’t be given free speech protections.
- Reynolds v. U.S.
o Facts: Federal law said no polygamy. Reynolds charged with it. Said part of religion.
o Waite: Law criminalizing polygamy doesn’t violate 1A right to free exercise.
Laws cannot interfere with mere religious belief, but they can interfere with actions.
Polygamy has always been banned. Religious freedom doesn’t overcome ban of polygamy.
- Sherbert v. Verner
o Facts: Sherbert fired because she wouldn’t work on Saturday due to religion. Couldn’t’ find another job that didn’t work Saturdays. Filed for unemployment but denied because refused work.
o Brennan: State cannot deny unemployment benefits to a person who refuses work because condition of work violates religious beliefs.
Government cannot regulate beliefs, but it can regulate resulting actions if they pose a substantial threat to public safety, peace, or order.
* If person’s conduct doesn’t threaten public safety, peace, or order, then government can regulate only if it doesn’t infringe on the constitutional rights to free exercise, or if the impact on the right to free exercise is simply an incidental burden justified by a compelling state interest in regulating a matter within the state’s regulatory authority.
o This is strict scrutiny. Law that burdens free speech if it’s impact is an incidental burden justified by compelling state interest.
Sherbert’s refusal to work doesn’t pose any threat. Free exercise being burdened. No compelling interest that justifies this infringement.
o Harlan dissent: No reason to force state to treat Sherbert differently from others who refuse to work. State doesn’t need to carve out an exception to its general rule.
- Employment Div., Dept. of Human Resources of Oregon v. Smith
o Facts: Oregon state law banned drugs. Smith, Native American, used peyote for religion. Fired for this reason. Couldn’t get unemployment because fired for misconduct.
o Scalia: Right to free exercise doesn’t relieve someone from the obligation to comply with a valid and neutral law of general applicability just because the law forces/bans conduct that religion forces/bans. If the law isn’t neutral, then we evaluate it under strict scrutiny.
Free exercise protects beliefs absolutely, but doesn’t protect actions absolutely.
State would violate free exercise if it bans certain acts only when done for religious reasons, or because of their religious beliefs.
Beliefs don’t excuse anyone from a valid and neutral law prohibiting conduct that state can prohibit.
No 1A violation if the religious effect is an incidental effect of a generally applicable law.
HYBRID TEST: The only decision in which the 1A bars application of a neutral, generally applicable law to religiously motivated action is when it involves the Free Exercise Clause and another constitutional provision (EX: freedom of speech)
Sherbert v. Verner test has almost never been used outside of unemployment compensation and has never requires exemptions from neutral laws. Use the hybrid test instead.
o O’Connor concurrence: Laws that criminalize conduct essential to religion inhibit free exercise, even if they are generally applicable.
Sherbert’s strict scrutiny applies here, but State did display a compelling interest, which is why ultimate holding is correct.
Religious freedom should always be evaluated under strict scrutiny
o Blackmun dissent: Until now, all cases about free exercise were reviewed under strict scrutiny. We should continue. This law fails SS—no compelling purpose.
- RFRA
Government can burden a person’s exercise of religion only if that application of the burden (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that interest.
o This says that even neutral/generally applicable laws that burden religion must pass strict scrutiny
- City of Boerne v. Flores
(Thomas in majority): Congress didn’t have power to apply RFRA to all state governments because it was so far removed from Smith’s standard.
- Burwell v. Hobby Lobby
o Alito with Roberts, Thomas, minority is Sotomayor, Kagan
o Facts: Employers didn’t want to provide contraceptive insurance to employees because religious reasons.
o Alito majority: Congress intended for RFRA to apply to corporations. Religious orgs and non-profits have RFRA rights. Employers don’t need to provide insurance that violates beliefs.
AKA, the business lost under Smith’s free exercise clause but won under RFRA
o Ginsburg dissent: Under Smith, free exercise was not violated by contraceptive mandate. Exemption violates women’s rights.
- Fulton v. City of Philly
o Roberts unanimous – Alito, Thomas, Gorsuch, Kavanaugh, Barrett, Kagan, Sotomayor, Breyer
o Facts: Philly worked with CCS to certify foster families. Then, adopted policy saying it can’t reject a foster family based on sexual orientation unless given an exception. City told CCS can’t work together because it doesn’t certify same-sex couples. CCS said violated free exercise.
o Roberts majority: Government’s creation of a formal mechanism allowing it to grant exceptions to a policy based on discretion renders the policy unneutral.
Under Smith, neutral/generally applicable laws that incidentally burden religion aren’t subject to strict scrutiny. This case falls outside Smith because not neutral due to discretion/exception.
If a law is not neutral, then it must pass strict scrutiny.
This law fails. No compelling interest—limiting CCS ability to certify = fewer foster care parents.
o Gorsuch concurrence: Overrule Smith. Shouldn’t allow law to pass SS as long as its neutral.
o Alito concurrence: Smith was wrong. Replace it with the general SS for laws burdening religion. But, we don’t need to discuss that here.
Racial discrimination is different from LGBTQ discrimination.
o Barrett concurrence: Law burdening religion must satisfy SS if it is neutral, like here. So, no reason to overrule Smith right now. But, Smith is wrong.
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
o Kennedy with Roberts, Thomas, Alito, Gorsuch, Kagan. Minority Sotomayor
o Facts: Colorado ruled that owner of Cakeshop violated anti-discrimination laws by refusing to bake a cake for a same-sex couple.
o Kennedy: The Supreme Court ruled for the baker.
* The Court concluded the Colorado Civil Rights Commission had violated the Free Exercise Clause by saying very negative things about religion, instead of being neutral toward religion.
* The Commission was seen as hostile toward religion and thus not fair
- South Bay United Pentecostal Church v. Newsom
o Supreme Court upheld California’s COVID-19 law restricting religious rituals.
o State law limited attendance to 25% of building capacity or 100 attendees.
o Justices Ginsburg, Breyer, Kagan, and Sotomayor were joined by a concurrence from Chief Justice Roberts, who wrote that the law did not violate the First Amendment because similar or more severe restrictions apply to comparable secular gatherings,
* The key to the decision was that churches were being treated similarly to other similar gatherings.
- Calvary Chapel Dayton Valley v. Sisolak
o In another 5–4 vote, the Court summarily upheld Nevada’s COVID policy, which allowed only 50 people to attend religious services.
o The majority did not write an opinion.
o There are dissents by Alito, Gorsuch, and Kavanaugh.
- Roman Catholic Diocese of Brooklyn, New York v. Cuomo
o The new Court, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg, ruled in favor of the New York churches’ and synagogues’ challenges to Gov. Cuomo’s COVID restrictions.
o The religious organizations faced 10-and 25-person restrictions on their gatherings during the red zone period, the worst time for COVID
o Court ruled for the religions.
o The opinion granting injunctive relief (even though the facts on the ground had changed) was a per curiam decision. Justices Gorsuch and Kavanaugh wrote concurrences.
o Chief Justice Roberts dissented.
o Justice Breyer dissented with Sotomayor and Kagan.
o Justice Sotomayor dissented, joined by Justice Kagan
- Harvest Rock Church v. Newsom
o In a 6–3 decision in February 2021, the Court ruled that California must open the churches that had been closed for indoor worship due to COVID-19.
* Importantly, the Court did allow the state’s bans on singing and chanting to continue.
o The state can still hold the churches to 25% of capacity attendance. Justices Gorsuch and Thomas would have given the churches freedom in all these areas.
* Alito joined those two but would have given the state 30 days before the injunction against it could take effect.
o In her first opinion for the Court, Justice Barrett, joined by Kavanaugh, argued that the churches had not yet shown that the singing and chanting bans were too strong but that they could litigate that in the future.
o Chief Justice Roberts deferred to the state’s wishes on singing and chanting and size of attendance but ruled that there should not be deference to the closing of the churches.
o Justice Kagan dissented, joined by Breyer and Sotomayor, concluding that science had been abandoned in favor of judicial edict
- Tandon v. Newsom
o In April 2021, the Court reversed a Ninth Circuit ruling and concluded in Tandon v. Newsom that California could not restrict at-home religious exercise due to COVID.
o The per curiam decision was for Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts would not have granted the injunction against the state’s practices. Justice Kagan dissented, joined by Breyer and Sotomayor.
o Justice Kagan dissents, “California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment
o Under Smith, this was not a violation because it was neutral/generally applicable
- Groff v. Dejoy
o Alito unanimous current court
o Facts: Groff worked for USPS. Didn’t work Sundays. USPS contracted with Amazon. Later required Sunday deliveries. Groff had to resign.
o Alito majority: Title VII of CRA requires employer to reasonably accommodate a religious practice UNLESS doing so would result in increase costs that are substantial in the overall context of the employer’s business.
* Hardison said it would be an undue hardship to make an employer incur more than a de minimis cost to accommodate religious practice. Hardison cannot be construed that way (not overruling it, just clarifying)
* Undue hardship means increased costs that are substantial in overall context of employer’s business.
o Sotomayor concurrence: Agrees with not overruling Hardison for stare decisis. We clarify Hardison instead. An accommodation is not an undue hardship just because it offends coworkers who hate religion.
- Lemon v. Kurtzman
o Facts: PA law gave money to private schools, including religious schools. RI law paid teachers in private schools, but only if they didn’t teach religion and taught subjects offered by public schools. Lemon sued under establishment clause.
o Burger majority: Direct state funding of religious schools’ teachers’ salaries and materials results in excessive governmental entanglement in religion and violates establishment clause.
* Establishment clause protects against 3 main evils: sponsorship, financial support, and state involvement in religion
* Three part test for constitutionality:
* 1. Gov action must have secular legislative purpose
* 2. Government action must not have primary effect of advancing/inhibiting religion
* 3. Government action must not result in excessive involvement in religion
* Excessive = examine character/purpose of institutions, nature of aid, and resulting relationship
* If any of these are violated, violates Establishment Clause
* Here, nothing shows that PA or RI intended to advance religion. They were promoting education. But, there was excessive entanglement because you need a lot of supervision to make sure everyone’s following the rules. So, unconstitutional.
- Town of Greece v. Galloway
o Kennedy with Roberts, Alito, Thomas
o Fats: Town opened monthly board meetings with prayer. Different leader each month. Anyone could give prayer. Most were Christian. People were offended and sued.
o Kennedy majority: Establishment Clause must be interpreted according to historical practices and understandings with respect to prayer at government gatherings.
* Prayer at government gatherings is historically accepted.
* In judicial review of prayer at government meeting, court should focus on general opportunity for prayer rather than content of a single prayer
o Alito concurrence with Scalia: All the Court does now is let a town follow a practice that we previously said was OK for Congress & state legislatures
o Thomas concurrence with Scalia: Even if Establishment Clause were incorporated against states, coercion to participate must be legal coercion—not just peer pressure—in order to violate 1A.
o Breyer dissent: Nearly all prayers were Christian. Violates.
o Kagan dissent with Sotomayor, Ginsburg, Breyer: Town meetings are different because the public often attends. Town didn’t make good faith effort to include all religions.
- Kennedy v. Bremerton
o Griffin: This case deleted the establishment clause from the constitution
o Gorsuch with Roberts, Alito, Thomas, Barrett, Kavanaugh; minority is Sotomayor, Breyer, Kagan
o Facts: Kennedy was football coach. Would pray on field before games. Some students began joining him. District told him not to, but would still do it.
o Gorsuch majority: Government policies that burden sincere religious practices and are not neutral/generally applicable must satisfy strict scrutiny.
* Both Free Exercise & Free Speech clauses protect religion.
* Free Exercise protects right to hold beliefs
* If law is not neutral/generally applicable must satisfy SS.
* Policy is not neutral if it targets a specific practice, and it is not generally applicable if it forbids religious conduct but allows secular conduct posing the same threat to gov interests
* Here: Policy was not neutral—targeted prayer. Not generally applicable—secular postgame activities allowed. So, must satisfy SS. No because not narrowly tailored. Prohibited individual prayer.
* Free Speech prevents restrictions on expression of religious beliefs
* Two steps to free speech claims by government employees:
* 1. Court determines whether employee is speaking in official capacity, meaning speech not protected, or in a private capacity on a matter of public concern, in which case the second step applies
* Here: Kennedy’s prayers did not relate to responsibilities. Private capacity.
* 2. Courts balance the employee’s free speech interest against the conflicting government interest.
* Here: Interest does not outweigh Kennedy’s free speech.
* Lemon is overruled. Instead, Court draws the line between permissible/impermissible conduct based on history and understanding of founding fathers.
* Government cannot make a religious practice compulsory or coerce people, but Kennedy is not doing that.
* No Establishment Clause conflict to justify infringing on Kennedy’s free-exercise and free-speech rights.
o Alito concurrence: Court rightly doesn’t decide standard because this law doesn’t pass any.
o Thomas concurrence: We aren’t deciding whether public employees’ rights under Free Exercise are different from those held by general public (which is true for free speech clause). We aren’t deciding standard for restricting gov employee’s speech. We only conclude that standardnot met.
o Sotomayor dissent with Breyer and Kagan: Kennedy disobeyed requests. It violates Establishment to let school officials lead prayer. History-and-tradition test is toothless version of coercive analysis. Free exercise is a promise from our government and establishment disables our gov from breaking it
- American Legion v. American Humanist
o Alito with Roberts, Thomas, Kagan, Gorsuch, Kavanaugh, Breyer. Minority is Ginsburg, Sotomayor
o Facts: Soldier memorial had crosses on graves. Humanist sued, saying it violates establishment clause.
o Alito majority: Presumption of constitutionality applies under Establishment Clause to longstanding memorials with historically secular purposes and traditions, even if they use a religious symbol.
* Lemon test doesn’t apply to religious symbols for ceremonial purposes.
* Passage of time creates a strong presumption that monument is constitutional.
* Applied test from Town of Greece
* This is historical and doesn’t violate.
o Breyer concurrence with Kagan: Must distinguish between real threat and shadow. Cross poses no real threat.
o Kavanaugh concurrence:
* Five relevant categories of establishment clause cases
* 1. Religious symbols on gov property & religious speech at gov event
* 2. Religious accommodations/exemptions from generally applicable laws
* 3. Gov benefits and tax exemptions for religious orgs
* 4. Religious expression in public schools
* 5. Regulation of private religious speech in public forums
* Lemon no longer applies. Instead, we use history/tradition.
* No Establishment violation if government practice is not coercive and is (1) rooted in history/tradition, (2) treats religious people equally to secular people, or (3) represents permissible exemption from generally applicable law
* Cross doesn’t violate
o Kagan concurrence: I look to history for guidance, but on a case by case basis. I don’t agree with any broader statements about history’s role in Establishment clause analysis.
o Thomas concurrence: Establishment clause shouldn’t be incorporated against states. Cross is constitutional. Overrule Lemon. We should clarify the right standard for establishment clause.
o Gorsuch concurrence with Thomas: AHA has no standing. Offense alone isn’t an injury. Overrule Lemon tho.
o Ginsburg dissent with Sotomayor: Cross is symbol of Christianity. Violates establishment.
- Trinity Lutheran Church of Colombia v. Comer
o Roberts with Alito, Thomas, Kagan, Gorsuch. Minority Sotomayor
o Facts: MO gave money to help nonprofits pay for school playgrounds, but not for religious-owned places.
o Roberts majority: To deny funding because an organization is religious violates free exercise. Disqualifying something from a public benefit because it is religious triggers SS, and this fails.
o Gorsuch and Thomas concurrence: No restrictions on government funding of religion when it was already funding secular uses.
o Sotomayor and Ginsburg dissents: Violates establishment clause.
- Espinoza v. Montana Department of Revenue (2020)
o Roberts with Thomas, Alito, Gorsuch, Kavanaugh; minority is Sotomayor, Kagan, Ginsburg, Breyer
o Facts: State gave tax refund for donating to student-scholarship organizations for private schools. Prohibited using these scholarships for religious schools.
o Roberts majority: Once a state decides to subsidize private education, it can’t disqualify schools just because they’re religious.
* Free Exercise clause applies to states under 14A. This law violates.
* This is just like discrimination in Trinity Lutheran. SS applies because it discriminates.
o Thomas concurrence with Gorsuch: Establishment clause doesn’t prohibit states from favoring religion.
o Alito concurrence: should support payments who pay taxes but disagree with public schools
o Gorsuch concurrence: This law violates free exercise either way, unless satisfies SS (but it doesn’t). The right to be religious without the right to do religious things would not be any right.
o Ginsburg dissent with Kagan: State can distinguish within a benefit program between secular and sectarian schools.
o Breyer dissent with Kagan: This destroys church/state separation. This is different from Trinity Lutheran because it’s not about status-based discrimination. Historically, we banned gov paying religious teachers’ salaries.
o Sotomayor dissent: State can choose not to fund religion. Court shouldn’t have decided whether provision is facially valid.
- Carson v. Makin (2022)
o Roberts with Thomas, Alito, Gorsuch, Kavanaugh, Barrett. Minority is Breyer, Kagan, Sotomayor
o Facts: State subsidized private schools’ tuition, but excluded religious teachings.
o Roberts majority: A state subsidizing private education cannot disqualify some schools because they’d use the funds for religious instruction.
* States can’t withhold benefits from people due to religious beliefs
* Cited Espinoza, which said discriminating based on religion triggers strict scrutiny
* Strict scrutiny applies here because this is religious discrimination.
* Fails strict scrutiny. Not justified.
o Breyer dissent with Kagan and Sotomayor: This is constitutional. State is not required to pay for religious education. Paying religious teacher is same as paying church’s priests.
o Sotomayor dissent: Trinity was wrong.
