ConLaw 2 Final

Question 1

Rights that have not been incorporated

Answer 1

3rd Amendment right not to have soldiers quartered in the home

5th Amendment right to grand jury indictment in criminal cases (Hurtado)

7th Amendment right to jury trial in civil cases

Question 2

How does the Equal Protection Clause Apply to Feds and State

Answer 2

The 14th Amendment Equal Protection Clause applies:

• directly to the States
• indirectly to the Feds through the 5th Amendment Due Process Clause

Question 3

State Action Doctrine

Answer 3

The Constitution applies to all levels of government and to the actions of government officers at all levels.

The Constitution, however, generally does not apply to private entities or actors. It only does so under two exceptions: Public Function, and entanglement.

Question 4

Public Function

Answer 4

A private entity performances a task traditionally performed by the government. This is a narrow exception.

Examples:

1. Private entity operating public cable channels is not a public function (Halleck)
2. Operating a privately-owned public park is state action (Evans)
3. Privately ran elections by political parties is state action (Terry v. Adams)

Question 5

Entanglement and State Action

Answer 5

Under the entanglement exception, conduct must comply with the constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct. This determination is made by the Lugar test.

Two Part Test:

1. The deprivation must be caused by the exercise of some right or privilege created by the State, or by a rule of conduct imposed by the State, or by a person for whom the State is responsible
2. The party charged with the deprivation must be a person who may fairly be said to be a state actor

Examples:

1. Enforcing racially restrictive covenant (Shelly)
2. Using the Sheriff to seize property to enforce debts (Lugar)
3. Using preemptory challenge to exclude juror on the account of race (Edmonson)
4. BUT NOT granting liquor license to racially discriminatory private club (Moose Lodge)

Question 6

Steps of an Equal Protection Analysis

Answer 6

1. Is there State Action?
2. Is there discrimination/classification?
3. Establish Standard of Review for Classification
4. Does the law meet the standard of review?

Question 7

When does the EPC come into play?

Answer 7

EPC comes into play when the government/law intentionally treats a person or class of people differently than similar situated people without sufficient justification.

Question 8

How do you show an EPC classification?

Answer 8

1. Facial Discrimination - the law discriminates on its face
2. Facially neutral BUT discriminatory purpose AND discriminatory effect (e.g., McClesky death penalty effecting African Americans more than white)
   
   1. Purpose and effect can be inferred from pattern, history, statistics, and other evidence, but statistics alone are never sufficient. (See Yick Wo)
      
      1. Discriminatory purpose implies more than just awareness of consequences.
3. If the law does not have a discriminatory purpose AND effect, it is subject to rational basis review.

Question 9

Determining a Suspect Class (if not studied)

Answer 9

Courts will apply strict scrutiny to suspect classes. A suspect class is a discrete and insular minority. When evaluating whether a classification is against a suspect class, Courts will look towards whether the classification is:

1. based on an Immutable Trait;
2. that is highly visible;
3. the group is historically discriminated against;
4. and lacks political power.

Question 10

Steps to a Free Expression Claim

Answer 10

1. Who is speaking? (Gov speech?)
2. Is Expression targeted?
3. Content-based or Content-Neutral?
4. Speech Unprotected?
5. Vague or Overbroad?
6. Gov. Property?

Question 11

Government Speech

Answer 11

When the government is speaking for legitimate purposes, 1st Amendment scrutiny does not apply.

Note: This includes public forum.

• Summun: Decisions on which privately funded monuments to display
• Walker: Confederate flag on license plate
• Nat. Endowment: Gov. selecting funding for projects showing “aristic merit and excellence”

Question 12

Content-based Speech

Answer 12

Content based restrictions on speech are presumptively invalid and will only be upheld if:

1. Underlying speech itself is unprotected; OR
2. the restrictions survive strict scrutiny
   
   1. Necessary to serve a compelling government interest; and
   2. Narrowly tailored to serve that interest

Content-based restrictions are any law that treats speech differently based on the ideas, subject, or type of message expressed.

Ex: Reed v. Town of Gilbert: Striking down under SS a code regulating when and how outdoor sings could be displayed because its separation into categories of signs was content-based on its face

Question 13

Viewpoint Discrimination

Answer 13

Never upheld

• Matal: TM restriction on offensive language
• Alvarez: Stolen Valor Act
• Ban on picketing except labor (Carey)
• Criminals cannot profit from publishing about their crime (Simon & Schuster)
• But see upheld ban on in-person solicitation of donations by judges (Willliams - Yulee)

Question 14

Exception to Content-Based Restrictions

Answer 14

Content-based zoning restrictions targeting “bad” secondary effects of speech are evaluated as content-neutral under intermediate scrutiny.

Content-neutral” time, place, and manner regulations are acceptable under the First Amendment so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication

1. Substantially related to an important government interest
2. Does not unreasonably limit alternative avenues of communication

Question 15

Content-Neutral Speech

Answer 15

A government regulation that restricts speech irrespective of its content receives intermediate scrutiny.

The must be:

1. Substantially related to an important government interest
2. Does not unreasonably limit alternative avenues of communication

Usually arises in the context of time, place, manner restrictions

Note: If content-neutral restriction applies to speech on government property, analyze under the public forum doctrine

Ex: Nat’l Treasury Union: Struck down restriction on paid speech by gov. employees as irrationally over broad

Question 16

Unprotected or Less Protected Types of Speech

Answer 16

1. Fighting Words
2. Incitement to Illegal Conduct
3. Obscenity
4. Commercial Speech
5. Defamation

Question 17

Incitement of Illegality

Answer 17

Brandenberg: Government may prohibit speech that incites unlawful activity if:

1. the speech is aimed at causing imminent harm;
2. is likely to cause illegality;
3. and spoken or written with intent to cause such.
4. Note: This test is very difficult to satisfy

“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed [intended] to inciting or producing imminent lawless action and is likely to incite or produce such action.” – Holder v. Humanitarian Law Project

Question 18

Fighting Words

Answer 18

Chaplinsky: Words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace”

Words that make a “reasonable onlooker” violently angry at the speaker

Test:

1. Must be directed at a specific person
2. Must be precise, not unconstitutionally vague/overbroad;
3. State must protect speaker

Almost any statute punishing fighting words will be overbroad.

Ex: R.A.V.: Fightings words law will be upheld if it does not draw content based restrictions. There, the law outlawed fighting words “on the basis of race color, creed, religion, or gender” but gays and fighting words against other groups were allowed.

Question 19

Difference between Incitement and Fighting Words

Answer 19

1. Incitement is words likely to cause others to break the law
2. Fighting words are likely to cause others to attack the speaker

Question 20

Obscenity

Answer 20

Obscene material is unprotected by the Frist Amendment. Roth. Obscene material is:

1. a work which depict sexual conduct
2. Specifically defined by state law
3. Taken as a whole, appeals to prurient interest in sex (applying local standards)
4. Taken as a whole, does not have serious literary, artistic, political or scientific value (judges on a national standard)

Miller v. California

Note: Child pornography is NEVER protected.

• Mere possession of obscenity in the home cannot be punished. Stanley
  
  • Can punish receipt of obscenity (Reider)
  • Can punish possession of child porn (Osborne)

Question 21

Commercial Speech

Answer 21

1. Commercial speech is protected to some extent, but commercial speech that is false, misleading deceptive or concerns illegality is not protected and may be restricted
2. Central Hudson & Gas v. New York (1980): Four-Part Test
   
   1. (1) Is it valid commercial speech?
   2. (2) Is the government interest in regulating “substantial”?
   3. (3) Does the regulation “directly advance” that interest?
   4. (4) Is it “not more extensive than necessary”?

Becerra: However, government can regulate:

1. Disclosure of factual, noncontroversial information in their “commercial speech”
2. Professional conduct even though that conduct incidentally involves speech

• Advertising of illegal activities: unprotected
• False and deceptive advertising: unprotected
• Advertising that inherently risks because false or deceptive may be prohibited
• Laws that, to achieve other goals, limit commercial advertising are allowable (e.g. gambling, smoking)

Question 22

Defamation

Answer 22

1. Public officials (and private “public figures”) cannot recover unless they prove:
   
   1. (1) by “clear and convincing evidence,”
   2. (2) falsity and
   3. (3) “actual malice,” defined as
      
      1. (a) knowledge of falsity or
      2. (b) reckless disregard for the truth

Private figures have the normal negligence standard

Question 23

Vagueness and Overbreadth, generally

Answer 23

A regulation concerning speech will be invalid if it is unduly vague or overly broad

Question 24

Vagueness

Answer 24

1. A law is vague if a reasonable person cannot tell whether speech is permitted or prohibited
   
   1. E.g., law prohibiting people from assembling and conducting themselves in a “manner annoying to persons passing-by” (Coates)
      
      1. Unconstitutionally vague because reasonable people must guess as to what behavior is punishable

Question 25

Overbreadth

Answer 25

A law is overbroad if it regulates substantially more speech than can be constitutionally regulated. If a “substantial” amount of protect expression would be “swept in” to the restriction.

1. i.e., an overbroad law restricted unprotected speech but in doing so also restricts protected speed.
2. e.g., LA Airport v. Jews for Jesus: Struck down policy for “no first amendment activities allowed in Terminal”

Question 26

Challenging on Vagueness and Overbread Concerns

Answer 26

A challenger to a plausibly vague or overbroad speech restriction may:

1. Raise speech claims of other persons, even though the challenger’s speech could clearly be prohibited; and
2. Raise a “facial” attack, without waiting for the restriction to be applied.
   
   1. For facial challenges: Plaintiff must meet a heavy burden and prove a substantial risk that speech will be suppressed.
   2. Court will (usually) give the law a fair interpretation, defer to authoritative interpretations by the regulator (Chevron), and not strike down unless unconstitutionality is clear.

Question 27

Prior Restraints

Answer 27

A prior restraint is a restriction or prohibition on speech or publication (press) before it occurs: strict scrutiny applies. There are two exceptions:

1. Gag orders
2. Licensing Systems

Question 28

Licensing Systems

Answer 28

Licensing or permitting laws are allowed only if:

1. The government has an important reason for licensing
2. There are clear criteria leaving almost no discretion to the licensing authority, to avoid content-based censorship; and
3. There are procedural safeguards
   
   1. Procedural safeguards require: for any prior restraints,
      
      1. A prompt decision by the government as to whether the speech will be allowed;
      2. A full and fair hearing before speech is prevented;
      3. A prompt and final judicial determination of the validity of any preclusion of speech

Example: Watchtower Bible v. Village of Stratton: Invalidated a permit scheme for door-to-door pamphlet distribution. A licensing system, requiring advance application and approval, is viewed (here) as an unconstitutional “prior restraint.”

Question 29

Expressive Conduct

Answer 29

O’Brien: When speech and non speech elements are mixed together, intermediate scrutiny applies:

1. There must be a substantial government interest in regulating the nonspeech element, “unrelated” to the suppression of speech;
2. Rule must “further” the nonspeech governmental interest;
3. Rule must be narrowly drawn, so that “incidental restriction” of speech is “no greater than essential” to further the nonspeech elements
4. The Rule “must leave open ample alternative methods of communication”

Examples:

1. Texas v. Johnson (1989): Flag-burning is protected by First Amendment because it was expressive

Question 30

Compelled Speech

Answer 30

There is a right to be silent and refrain from speaking.

The government cannot compel identification of anonymous authors (McIntyre)

The government cannot compel to pay union dues.

Question 31

Public Forum Doctrine

Answer 31

1. Speech restrictions concerning government property are analyzed under the public forum doctrine
2. The validity of a restriction depends on whether the speech occurs in a public forum, designated public forum, or non-public forum

Question 32

Rules for Public Forum

Answer 32

Public property that has traditionally been open to speech-related activities (e.g., sidewalk and parks).

Government speech restrictions on public forums must be:

1. Content-neutral
2. Serves an important governmental interest
   
   1. Reduction of littering is insufficient. Schneider
3. Leaves open “adequate alternatives” for speech
4. Narrowly drawn but need not be the least restrictive

Government can impose reasonable, narrowly drawn limits and restrictions (“TMP” Rules)

Ex: Boos v. Barry: restricting signs near embassies criticizing the governments is unconstitutional

Question 33

Designated Public Forum Rules

Answer 33

A designated public forum is government property that the government opens for speech but can close at any time. (e.g., public school facilities used for girl scout meetings)

1. Test: same rules apply for public forum but they only apply when the government property is open for speech

Government speech restrictions on designated public forums must be:

1. Content-neutral
2. Serves an important governmental interest
3. Leave open “adequate alternatives” for speech
4. Narrowly drawn but need not be the least restrictive

Question 34

Limited Public Forum Rules

Answer 34

A limited public forum is a government-controlled place that is open to the public not by tradition but by some modern purpose or reason. Here the government limits what may be said, or expressed, there.

Restrictions must:

1. Be content neutral
2. Be viewpoint-neutral and reasonable in light of the context or purpose of the place

Ex: Christian Legal Society of UC Hastings v. Martinez (upholding Hastings all-comers policy)

Question 35

Rules for Non-Public Forums

Answer 35

Non-public forums are gov. property that can be closed to speech (E.g., military bases, airports)

Gov. can regulate or restrict speech if the regulation is:

1. Reasonable related to some legitimate purpose; and
2. Viewpoint neutral

Question 36

Freedom of the Press

Answer 36

1. The press is not exempt from generally applicable laws (Cohen) but may not be singled out by laws targeting the press (Minneapolis Star (taxes))
2. A public official or plaintiff running for public office may recover for defamation by proving with clear and convincing evidence the statement’s falsity and speaker’s actual malice. N.Y. Times v. Sullivan (1964)
3. Cincinnati v. Discovery Network (1993) held unconstitutional the distinction between “commercial” and other newspapers.
4. Nebraska Press held the press cannot be banned from covering trials.

Question 37

Freedom of Association

Answer 37

The freedom of “association” is related to “assembled” but also speech and privacy. Four Concepts:

1. Government cannot punish membership in a group, unless the group “advocates the overthrow of the government by force or violence” (Scales).
2. The First Amendment protects the privacy and anonymity of organizational donors and membership lists.
   
   1. Membership inquiries and disclosures must withstand strict scrutiny
      
      1. Ex: NAACP v. Patterson (denying because request “chills” 1A rights). Americans for Prosperity (invalidating donor disclosure laws)
   2. Government cannot compel union membership. See Janus
   3. Private organizations have a limited right to discriminate:
      
      1. Based on intimate association, or
      2. When the discrimination is necessary to protect the groups expressive message (Boy Scouts v. Dale).
         
         1. Test: In Dale, the Court held that private groups may determine their own expressive message; and The First Amendment protects discrimination that furthers that message. IF
         2. Barring discrimination would undermine the groups message
         3. Compare Jaycees (holding Jaycees must admit women because their organizations beliefs weren’t opposed to women) with Dale (upholding denial of homosexuals because homosexual conduct does not comport with Scouts beliefs) (see, e.g., KKK not required to accept non-white members because this exclusive is integral to its organizational message)

Right to Expressive Association can be overridden by:

1. Regulations adopted to serve compelling state interests
2. Unrelated to suppression of ideas that cannot be achieved through means significant less restrictive of associational freedoms

Question 38

Establishment Clause and Test

Answer 38

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

Lemon Test

1. The law must have a secular legislative purpose
   
   1. Ex: Unconstitutional law that all public building must display the Ten Commandments because of religious purpose (McCreary County); Cf: Law requiring businesses to close on Sunday is constitutional (McGowan)
2. The law’s primary effect must neither advance nor inhibit religion
   
   1. Preventing employers from requiring their employees to work on the Sabbath is unconstitutional(Estate of Thornton v. Caldor)
3. The law must not foster excessive government entanglement with religion
   
   1. This prong was deemphasized in Mitchell. There, the rule providing direct aid to religious schools had “significant” safeguards to the aid is only used for a secular purpose.

Ex: Directing federal funds to state programs that require public employees to deliver remedial services in religious schools doesn’t violate the Establishment Clause (Agostini)

Question 39

Prayer at Government and Religious Displays

Answer 39

The Lemon test is not used for government uses of “words or symbols with religious associations.” American Humanist Society.

When considered in context, a state action with religious undertones is permissible if the action conveys a historic and social meaning rather than an intrusive religious endorsement.

Van Order v. Perry. Instead, there should be a presumption of constitutionality based on the passage of time.

Note: Prayer at government gatherings is allowable if it comports with historical practice and understanding. (Galloway)

Question 40

Procedural Due Process

Answer 40

Procedural DP involves the process required by the government when it deprives a person of life liberty, or property.

Analysis

1. Has the individual’s life, liberty, or property been “taken”?
   
   1. There must be some taking to implicate procedural due process.
   2. Liberty deprivation: loss of significant free of action or freedom provided by the Constitution or statute (e.g., incarceration, restriction of a fundamental right)
   3. Property deprivation: a legitimate claim or entitlement to a benefit provided by law, which has been deprived (e.g., access to public school, welfare benefits)
2. What process was required and was it satisfied? – Court’s balance three factors
   
   1. Importance of the individual interest involved;
   2. the risk of an erroneous deprivation of this interest through the procedures used, and
   3. the probable value, if any, of additional or substitute procedural safeguards;
   4. Government’s interest in fiscal and/or administrative efficiency (e.g., burdens in additional or substitute procedural requirements)
3. At minimum, requires
   
   1. Notice, hearing, and neutral arbiter
4. PDP issues arise in:
   
   1. Terminating gov’t benefits (e.g., social security and welfare)
   2. Separating children from parents
   3. Enemy combatant status for citizens obtained abroad

Question 41

Steps in a Free Exercise Claim

Answer 41

1. Is there a religious belief impact by the State?
2. Is the law neutral and generally applicable?
   
   1. Look for exceptions applied to some but not others
3. Does the law meet the requisite scrutiny?

Question 42

Constitutional Religious Clause

Answer 42

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof

Question 43

Is there a religious belief?

Answer 43

1. Truth or falsity of someone’s religion cannot be questioned but its sincerity can be examined (Ballard)
2. A sincere religious belief need not be in line with the dominant view of a particular religion (Thomas).
3. But “only beliefs rooted in religion are protected” by the Free Exercise Clause (Frazee) If a purely ethical creed occupies a place parallel to an orthodox belief in religion, it is protected. (Seeger)

Question 44

Is the law neutral and generally applicable?

Answer 44

A law incidentally impacting religious practice is reviewed under rational basis review if it is neutral and generally applicable. Smith. However, there is a ministerial exception wherein the government cannot interfere in the choosing of church employees serving an important religious function (e.g., teachers) (Hosana-Tabor; Our Lady of Guadalupe)

If a law is not neutral and generally applicable, it must survive strict scrutiny.

Question 45

EPC: Classifications for Strict Scrutiny

Answer 45

Suspect Classes (Race, National Origin Religion, Alienage*)

*unless self-government, the democratic process or government functions (including Congressional and Presidential action)

Question 46

EPC Classifications that receive intermediate scrutiny

Answer 46

Gender, non-martial children, alienage*

*when self-government, democratic process, or Congressional or Presidential action

Question 47

EPC and Race

Answer 47

1. Classifications based on race are always suspect and will be subject to strict scrutiny, even when the discrimination burdens people of all races and even if it is intended to benefit.
2. Separate but equal is unconstitutional (Brown v. Board)

Examples:

1. Facially Discriminatory Laws
   
   1. Loving (1967): Statute banning interracial marriage is unconstitutional
   2. Palmore (1984): Denial of child support because of interracial marriage is unconstitutional
2. Facially Neutral Laws with a Discriminatory Purpose and Effect
   
   1. Hunter (1985): Prohibiting on voting for persons convicted of misdemeanors was racially motivated and thus unconstitutional
3. Facially Neutral Laws without Purpose and Effect (e.g., rational basis)
   
   1. Washington (1976): Qualifying test administered to applicants for positions as police officer, because no purpose. It is rational basis review.
   2. McClesky (1987): Racially disproportionate impact of capital punishment but no purpose
   3. Palmer (1971): Closing of swimming pools is not EPC violation because discriminatory purpose could not be proven

Note: If race is a motivating factor in government decisions, then burden shifts and heightened scrutiny applies.

Question 48

Remedying Discrimination

Answer 48

Courts have broad, flexible, equitable powers to remedy proven racial discrimination:

1. But rigid racial quotas are not allowed; and
2. “Diversity” itself cannot support a race-conscious remedy, absent proof of (1) past constitutional violations or (2) specific compelling benefits.

Government has a compelling interest and may employ a race-conscious remedy tailored to end discrimination and eliminate its effects.

Question 49

Business and Economic Remedies under EPC

Answer 49

Remedying past discrimination is always a compelling government interest with detailed findings of intentional discrimination in the targeted institution. (J.A. Croson).

Question 50

School Desegregation and EPC

Answer 50

1. School boards have an affirmative duty to take whatever steps might be necessary to desegregate schools and eliminate discrimination root and branch. Green.
2. But those schools must have a history of discrimination. Parents Involved.
3. Narrow tailoring for race conscious remedies requires “serious, good faith consideration of workable race-neutral alternatives”
4. Not a compelling interest:
   
   1. Racial balancing is not a compelling interest (Parents Involved)
   2. Diversity is not, by itself, always a legitimate compelling interest.

Question 51

SS Test under EPC and SDP

Answer 51

Law must achieve a compelling government interest through the least restrictive means

Question 52

Intermediate Scrutiny for Gender

Answer 52

Gender-based classifications are subject to intermediate scrutiny wherein the law must be substantially related to an important governmental purpose, which requires an exceedingly persuasive justification.

Question 53

Public School Integration

Answer 53

School board may not assign students based on race to achieve integration; racial balancing is not a compelling interest. (Parents Involved)

Question 54

College Admissions

Answer 54

Student body diversity is a compelling interest that can justify the use of race in university admission.

1. Under Grutter and Fisher, achieving diversity in a student body can be a compelling interest but there needs to be a record showing why the school thinks diversity benefits their education and whether they have considered race-neutral alternatives.
   
   1. Note, Courts defer somewhat to the schools interest after justification of it. Fisher I.
      
      1. Alternative, affirmative action can be taken to remedy a specific record of past discrimination. J.A. Crossan.

Note: Diversity in primary and secondary education is not a compelling interest. (Parents Involved)

Narrow Tailoring requires:

1. Each candidate receive individual consideration. (See Gratz holding a blanket policy (+20 points for every URM) fails narrow tailoring; See also Grutter holding quota systems fail narrow tailoring);
2. Government must consider “race-neutral alternatives;” and
3. The Program is temporary and regularly reviewed for necessity

Question 55

National Origin Standard of Review

Answer 55

Strict Scrutiny

Question 56

Alienage

Answer 56

Lawfully admitted non-citizens are a discrete and insular minority and laws discriminating against them are subject to strict scrutiny

Exceptions to SS (Rational Basis):

1. If the discrimination relates to self-government, the democratic process, or government functions, the rational basis review applies. See Foley (Police Officers); Ambach (Primary and Secondary Teachers); c.f. Bernal (not Notary Publics).
   
   1. If the discrimination is related to self-government and the democratic process (i.e.,laws that discriminate against non-citizen participation in an important government function), rational basis review applies.
      
      1. Often arises where job applicants denied employment based on citizenship status
      2. Rational basis review also applies for federal rules (e.g., those made by Congress or the President (Matthews)) but not if made by an administrative agency (Hampton))

Question 57

Undocumented Alien

Answer 57

Discrimination for undocumented non-citizens must withstand heightened scrutiny wherein the discrimination must be justified by a showing that furthers some substantial state interest. (Plyler)

Question 58

Approach to Gender and EPC

Answer 58

When proving gender classification, actual purpose must be shown, not just a conceivable purpose. (VMI)

Gender-based classifications are subject to intermediate scrutiny wherein the law must be substantially related to an important governmental purpose, which requires an exceedingly persuasive justification.

1. The exceedingly persuasive justification may not rely on overbroad generalizations about gender and must be free of fixed notions (Hogan) but may be based on biological differences (Nguyen).
2. If the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the object itself is illegitimate

Question 59

Examples of Gender and Equal Protection

Answer 59

Statutory rape law that applied only to men was upheld because of its dual deterrence (Michael M)

1. Legitimate and Important Governmental Objective:
   
   1. Prevent illegitimate teenage pregnancies
      
      1. Substantially Related:
         
         1. Risk of pregnancy deters young females
         2. Criminal sanction imposed sole on males “equalizes” deterrent on female

Differing rules for establishing derivative citizenship depending on gender of citizen-parent for an illegitimate child born abroad (Ngyuen)

Failed on Substantial Relation

1. State’s compensatory and ameliorative purposes could be served by a gender-neutral classification. Orr v. Orr (mandatory alimony).

Rational Basis Cases:

Military Selective Service Act, denying women the draft, is allowable through Congresses important interest in combat troops and the draft and the substantial relation that women are not similarly situated as men for combat (Rostker)

Question 60

Gender Classifications Benefit Women

Answer 60

Gender classifications benefiting women can be upheld when they are designed to remedy past discrimination or differences in opportunity. Califano v. Webster

But they may not be used, as they once were, to create or perpetuate, the legal, social, and economic inferiority of women.

Question 61

Non-Marital Children and EPC

Answer 61

If governments grants benefits to marital children but denies benefits to martial children but denies benefits to non-martial children, it will be invalid unless it is substantially related to an important government objective.

1. Court will not uphold a discriminatory law intended to non-marital children (e.g., state statute that excludes non-marital children from inheriting form intestate father is invalid)

Classification may be upheld as substantially related to important government interest or objective (e.g., state can require that paternity of father be proved before father’s death because promoting efficient disposition of property at death is an important government interest)

• Intermediate scrutiny is justified because of the unfairness of penalizing children because their parents were not involved*
• The legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears no relation to the individual’s ability to participate in and contribute to society.

Question 62

Rational Basis Review and EPC

Answer 62

Law is rationally related to a legitimate government purpose; the law should be upheld if it is possible to conceive any legitimate purpose for the law, even if it wasn’t the government’s actual purpose.

1. Court will defer to government economic and social regulations unless they infringe on a fundamental right or discriminate against a group that warrants special judicial protection

Classifications:

1. Age (Murgia)
2. Disability (City of Cleburne v. Cleburne Living Center)
3. Wealth (Dandridge; Rodriguez)
4. Legitimate State Interest

The government has a legitimate purpose if it advances a traditional “police” purpose:

1. Protecting safety;
2. Public health; or
3. Public Morals

No legitimate purpose

1. Bare desire to harm a politically unpopular group (Romer)
2. Bare desire to harm a politically unpopular group (e.g., Food stamp recipients) (Moreno)

Question 63

Approaching a Due Process Problem (The Steps)

Answer 63

1. Is there a fundamental right? If yes, then strict scrutiny
2. If fundamental, has it been infringed?
   
   1. Consider “the directness and substantiality of the interference”
      
      1. Not everything; must be a “direct and substantial” interference
3. If infringed, does the government have a compelling interest?
4. If yes is the law “necessary” (least restrictive means)?

Question 64

Differences between Equal Protection and Substantive Due Process

Answer 64

If a law denies the right to everyone, then due process would be the best grounds for analysis; but if a law denies a right to some, while allowing it to others, the discrimination can be challenged as offending equal protection or the violation of the right can be objected to under due process

Question 65

Levels of Scrutiny for Substantive Due Process

Answer 65

Fundamental Rights: receive Strict Scrutiny

Except:

1. Abortion (Undue Burden)
2. Right to to Private, consensual, sexual conduct (Unknown)
3. Right to Same-Sex Marriage
4. Right to Refuse Medical Treatment

Non-Fundamental rights: receive Rational basis review

Question 66

Overview of Due Process

Answer 66

The 14^th Amendment of the Due Process Clause directly imposes on states the requirement that they don’t deprive anyone of “life, liberty, or property” without Due Process.

Question 67

Right to Abortion

Answer 67

Abortion has been recognized as a fundamental right included in the right to privacy. (Recognized in Roe, affirmed in Casey v. Planned Parenthood)

A state regulation that burdens a woman’s option to choose is not unconstitutional unless it’s an undue burden that places a substantial obstacle, in purpose or effect, in the path of a woman seeking abortion of an unviable fetus. (Casey) [argue]

1. Examples of Undue Burden:
   
   1. Spousal notification requirements
   2. Partial birth abortions without exception for health of moth (Stenberg)
   3. Examples of No Undue Burden
      
      1. Baird: Parental notice and/or consent for an unmarried minor is constitutional if there is judicial exception/alternative

Note: Federal government does not need to subsidize abortions. Rust v. Sullivan; Maher v Roe

State can deny funding to indigents for abortion (See Harris)

Question 68

Fundamental Right to Contraceptives

Answer 68

Right to purchase and choose contraceptives (Griswold)

Restriction on distributing contraceptives to married but not unmarried women unconstitutional (Eisenstadt)

Unconstitutional to criminalize distribution of contraceptives to anyone under the age of 16 (Carey)

Question 69

Right to Private, Consensual Sexual Conduct

Answer 69

Laws may not criminalize private homosexual conduct between consenting adults (Lawrence)

Question 70

Fundamental Right from Stanley

Answer 70

Right to read or observe what you please in the home, but does not extend to child pornography (Stanley)

Question 71

Right to Marry Cases

Answer 71

• Loving*: Interracial couples
• Obergefell*: Same-Sex Marriage (but no standard of review)
• Windsor*: Fundamental right to have marriage in one state recognized in another

Question 72

Fundamental Right to Keep the Family Together

Answer 72

There is a right to live together as a family and that definition necessarily moves beyond the nuclear family (Moore v. City of Cleveland)

Question 73

Right to Custody of One’s Children

Answer 73

• Stanley:* Statute unconstitutional for denying certain rights to a child based on being illegitimate
  1. Unwed parent was presumed to be an unfit parent without hearing but wed parents were allowed to have a hearing
• But see Michael H v. Gerald D*: The right of a potential natural father to assert parental rights over a child born into a woman’s existing marriage with another man is not traditionally recognized in historical jurisprudence and is not a fundamental right protected by the Due Process Clause of the Fourteenth Amendment.

Question 74

Right of Parents to Control the Upbringing of their Children and Education

Answer 74

There is a right to private schooling and home-schooling; compulsory public school is unconstitutional (Pierce)

Fundamental right to make decision regarding the “care, custody and control” of their children (Troxol)

1. There, a state court may not grant visitation rights to a person, even when doing so would be in a child’s best interest, if those visitation rights are opposed by the child’s parent because doing so interferes with the parent’s fundamental liberty interest in rearing his or her child.

Meyer v. Nebraska: Prohibiting the teaching of German is unconstitutional because not a reasonable means with a reasonable relation to state interest

Question 75

Fundamental Right to Procreate

Answer 75

Skinner invalidating an act requiring sterilization when convicted 3x for crimes

Question 76

Fundamental Rights to Medical Care

Answer 76

Right to Refuse Treatment

1. Right to refuse treatment/medication under Due Process with clear and convincing proof of the person’s desire to do so (tl;dr get an advance directive)

NO Right to Physician-Assisted Death (Glucksberg)

Question 77

Fundamental Right to Vote

Answer 77

The right to vote is regarded as fundamental because it is essential in a democratic society; it is obviously through voting that the people choose their government and hold it accountable

Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government

Fundamental Right to Vote

1. Dilution of the Right to Vote
   
   1. Reynolds v. Sims: (One person one vote ) Equal protection requires seats in a state legislature be apportioned based on population that gives most equal weight to vote regardless of geographic location (ex: reapportioned every 10 years after census)
      
      1. Perfect equality not required; deviations of up to 10% are allowed absent a showing of “illegitimate” considerations. (Harris)
   2. Evenwel v. Abbot: not unconstitutional to base this on total population rather than eligible or registered voters

Question 78

Poll Taxes and the Right to Vote

Answer 78

Poll taxes in federal elections are unconstitutional because wealth has not related to a compelling government interest in voting intelligently (Harper v. Virginia State Board of Elections)

Question 79

Property Ownership Requirements for Voting

Answer 79

Kramer: Invalidated a property requirement to vote because wealth has no relation to voter qualifications

Question 80

Literacy Tests and Voting

Answer 80

• Lassiter*: Constitutional because the requirements have “some relation” to exercising the vote
  1. Outlawed by federal law

Question 81

Prisoners’ and Convicted Criminals’ Right to Vote

Answer 81

• Richardson* (1974): holds that pre-trial detainees can vote and the state must assist them, but a state may prohibit convicted felons from voting.
• But see Hunter* (1985) if purpose was racial discrimination, unconstitutional

Question 82

Voter ID Requirements and the Right to Vote

Answer 82

Crawford: Upheld a requirement for voter ID

1. Upheld because of the valid interest in protecting “the integrity and reliability of the electoral process”; the “inconvenience is not a substantial burden.”
2. No clear evidence that voter fraud occurred for in-person voting – but there was a valid neutral justification/state interest

Question 83

Dilution of the Right to Vote

Answer 83

• Reynolds v. Sims: (One person one vote ) Equal protection requires seats in a state legislature be apportioned based on population that gives most equal weight to vote regardless of geographic location (ex: reapportioned every 10 years after census)
  1. Perfect equality not required; deviations of up to 10% are allowed absent a showing of “illegitimate” considerations. (Harris*)
• Evenwel v. Abbot*: not unconstitutional to base this on total population rather than eligible or registered voters

Question 84

Is there a fundamental right to education?

Answer 84

No (Rodriguez)