CONSTITUTIONAL LAW II – SPRING 2019 – PROFESSOR BENSON
Individual Rights
 The Bill of Rights
o Added as amendments to the constitution and not included in the originally ratified text; Amendments 110 of the constitution
o 5th Amendment
 Takings Clause  private property shall not be taken for public use without just compensation
 Dred Scott v. Sandford
o Facts – Dred Scott was freed from his slave status after he traveled to a free state
(Illinois) with his master; his master died leaving his estate to John (NY
resident); Dred sued in federal court basing jurisdiction on diversity of
citizenship
o Holding – Dred is not a citizen of the US & therefore is not entitled to sue in the
US
o Reasoning – congress cannot grant citizenship to slaves or their descendants b/c
this would be a violation of the takings clause of the 5th amendment (it would be
taking property from slave owners w/o due process or just compensation); slaves
were property and under the 5th amendment taking property w/o just
compensation is unconstitutional
 Due Process Clause  no one shall be deprived of life, liberty, or property w/o due process of
law; 5th amendment DPC only applies to the federal government; “persons” includes citizens &
non-citizens
o Incorporation
 The Bill of Rights is not applicable to the states – although most of its safeguards have been held
to be applicable to the states through the 14th amendment due process clause  the incorporation
doctrine is a constitutional doctrine through which the first 10 amendments of the US constitution
(the Bill of Rights) are made applicable to the states through the due process clause of the 14th
amendment
 Right is not incorporated against the state
 Barron v. Baltimore
o Facts – wharf owner sued city for taking his property w/o just compensation;
claims the city violated his 5th amendment takings clause
o Holding – Bill of Rights only applies to the federal government and not
applicable to the legislation of the states; the Bill of Rights is a restriction of
federal actions (not state/local conduct)
o Reasoning – federalism  states have their own constitutions & the power to
govern their own people – the federal government should not intrude on that
power
 Right is incorporated against the state
 McDonald v. City of Chicago
o Facts – City of Chicago had law that possession of handguns in home was illegal;
plaintiff challenged this gun ban law b/c the 2nd amendment protects the right to
keep/bear arms for purpose of self-defense & claims that the law violates this
amendment
o Issue – does the 2nd amendment apply to the states?
o Holding – the gun ban law is a violation of the 2nd amendment; the 2nd
amendment applies to the states
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Reasoning – incorporation  the 2nd amendment right is incorporated through
the due process clause of the 14th amendment and therefore the 2nd amendment
applies to the states
o Test whether constitution amendment should be incorporated:
 (1) Is the right protected under the amendment fundamental to the
nation’s scheme of liberty?  the right to self-defense is
 (2) Is the right protected under the amendment deeply rooted in this
nation’s history and tradition?  the right to self-defense is
 Selective Incorporation  all the Bill of Rights have been incorporated to apply to states except:
o 3rd Amendment – quartering soldiers (no incorporation)
o 5th Amendment – clause on right to criminal grand jury (partial incorporation)
o 7th Amendment – right to civil grand jury (no incorporation)
o 8th Amendment – clause on excessive fines (partial incorporation)
Reconstruction Amendments
o During the Reconstruction era 3 amendments to the constitution were made in an effort to establish
equality for black Americans
 13th Amendment
 Abolishes slavery or involuntary servitude except in punishment for a crime
 14th Amendment
 Citizenship  defines all people born in the US as citizens
 Privileges & Immunities Clause  no state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the US
o Saenz v. Roe
 Facts – California enacted law limiting welfare benefits for citizens for
newly arrived residents (living in California for less than 12 months);
plaintiff recently moved to California and challenged the law
 Holding – the California law violates the privileges & immunities clause
b/c it discriminates against citizens new to the state  it denies newly
arrived citizens from the same privileges & immunities as other citizens
who are residents in the same state
 Due Process Clause  due process of law to all persons is a legal obligation of all
states; 14th amendment’s DPC explicitly applies to the states; “persons” includes noncitizens & citizens
 Equal Protection Clause  14th Amendment’s Equal Protection Clause requires states
to practice equal protection to all persons; “persons” includes citizens & non-citizens; the
14th Amendment itself applies directly only to state governments; the state must treat an
individual in the same manner as others in similar conditions & circumstances
 State Action Requirement  this amendment prohibits discriminate by states NOT by
individuals
 15th Amendment
 Prevents the denial of a citizen’s vote based on race, color, or previous condition of
servitude
o The Slaughterhouse Cases
 Facts – Louisiana statute gave a slaughterhouse company the exclusive right to engage in the
slaughterhouse business (monopoly granted); group of butchers argued that they would lose their
right to practice their trade and would have to work under the slaughterhouse company with the
exclusive right
 Plaintiff claims the monopoly violated:
 13th Amendment  it creates an involuntary servitude
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14th Amendment Privileges & Immunities Clause  it abridges the plaintiff’s right to
participate in his trade/occupation
 14th Amendment Due Process Clause  it deprives plaintiff of his property w/o due
process of law
 14th Amendment Equal Protection Clause  it denies plaintiff equal protection of the
laws
Holding – the Louisiana law is constitutional
 13th Amendment  argument denied b/c the butchers are not slaves and the 13th
Amendment was passed w/ the narrow intent to grant full equality to former slaves
 14th Amendment P&I Clause  argument denied b/c the clause only protects US
citizens – not state citizens; the state has the exclusive right under its police power; the
federal P&I Clause merely requires states to apply its laws equally to non-state residents,
as well as state residents
 14th Amendment Due Process Clause  argument denied b/c the butchers bringing suit
were not deprived of their property w/o due process of law b/c they could still earn a
legal living in the area by slaughtering on the grounds of the company w/ the exclusive
right; it does not deprive butchers of their right to work; one’s occupation is not a
fundamental right
 14th Amendment Equal Protection Clause  argument denied b/c it only bans the
states from depriving blacks of equal rights; it does not guarantee that all citizens,
regardless of race, should receive equal economic privileges by the state; equal protection
clause is about race NOT butchers
The Equal Protection Clause of the 14th Amendment
 Background
o “Persons” includes citizens & non-citizens
o State action & equal protection
 The 14th Amendment’s Equal Protection Clause requires states to practice equal protection to all
persons  the 14th Amendment itself applies directly only to state governments
 The state must treat an individual in the same manner as others in similar conditions &
circumstances
o Federal action & equal protection
 The 5th Amendment’s Due Process Clause requires US government to practice equal protection
o Equal protection violation is a law that classifies among people
 Equal Protection Analysis
o (1) Classification  what is the classification?
o (2) Trigger  what is the level of scrutiny?
o (3) Purpose/Ends  what is the state’s interest?
o (4) Fit/Means  how does the classification advance the state interest?
o (5) Application  does the state interest fit/satisfy the level of scrutiny?
 Suspect Classification
o Generally race, religion, national origin, and alienage
o When a statute discriminates against an individual based on a suspect classification – that statute will be
subject strict scrutiny
o Determining a suspect classification  court will look at whether the person is a discrete & insular
minority
o 5-Factor Test:
 (1) Has the group singled out suffered from a history of discrimination;
 (2) Does the trait generally bear no relationship to a person's ability to contribute to society;
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(3) Is the trait often singled out to reinforce prejudice against the group or label the group as
inferior;
 (4) Is the group politically powerless by its numbers in the population, by under-representation in
government, or by its inability to influence the legislative agenda; and
 (5) Is the trait shared by the group a distinct trait and one over which its members have no
control, an immutable or unalterable characteristic, or a trait that is central to personal identity
Under-Inclusion & Over-Inclusion
o Under and over-inclusive asks how harmful the law is
o Terms used when subjecting the law to constitutional scrutiny (when examining how the law affects equal
protection guarantees)
o Under-inclusion  a law is under-inclusive if it does not apply to people who are similar to those the law
does apply; the classification captures some, but not all, of the persons who cause the harm
o Over-inclusion  a law is over-inclusive if it applies to those who need not be included in order for the
government to achieve its purpose (if it covers more people than it needs to in order to accomplish its
purpose); the classification captures all of the persons who cause the harm, plus some that don’t
Rational Basis Scrutiny
o The minimal level of scrutiny that all government actions challenged under equal protection must meet
o To pass the rational basis scrutiny test:
 (1) The law or policy must serve a legitimate government interest/purpose
 (2) The law or policy must be rationally related to that legitimate government interest/purpose
 Means has to be reasonable
o Trigger  all other classifications that are not classified as a trigger for strict or intermediate levels;
unless the government action is a type of discrimination that warrants the application of intermediate or
strict scrutiny – rational basis review is used
o Burden of proof  party challenging the law has to prove that the government’s classification is not
rationally related to a legitimate government interest
o The law passed the rational basis test
 US v. Carolene Products
 Facts – congress enacted Filled Milk Act which prohibits the shipment in interstate
commerce of skimmed milk compounded with any fat/oil other than milk fat so as to
resemble milk or cream; Carolene Products was indicted for shipping in interstate
commerce packages of milnut (a compound of condensed skimmed milk & coconut oil)
 Holding – court upheld the Filled Milk Act b/c passed rational basis
 Reasoning – Carolene Products failed to meet its burden of proving that no rational basis
for the law existed; congress may restrict shipments of certain milk substitutes w/o also
restricting butter; congress believed it was necessary for public welfare (public interest
for the legislation – legislation is essential to maintain public health & protect consumers)
 Standard – rational basis review  rational basis is the appropriate standard of review for
laws affecting commercial matters
 Railway Express v. NY
 Facts – NY law is that advertising vehicles are prohibited unless the ad is connected to
the business of the vehicle; Railway Express was a company that operated trucks and sold
the space on the sides of the trucks for ads (the ads were unrelated to the business of the
trucks)
 Issue – by classifying the types of ads allowed on vehicles, is the law in violation of the
equal protection clause?
 Holding – NY law upheld
 Reasoning – the court applied rational basis review and held that the classification has a
rational relation to the purpose for which it was made (the ordinance functioned to limit
distractions to drivers); the law does not contain the type of discrimination that the equal
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protection clause protects – the city can ban some ads that distract pedestrians w/o having
to eliminate every distraction
 NY law is constitutional but can argue it’s both an under-inclusive & over-inclusive law
o Under-inclusive law  under-inclusive b/c not all ads were targeted by the law;
self-ads still allowed
o Over-inclusive law  over-inclusive b/c some ads not causing visual
distractions were prohibited by the law; SC held that even significant overinclusiveness is allowed under rational basis review
 NYC Transit Authority v. Beazer
 Facts – methadone is an effective cure for heroin addiction & many people participate in
methadone maintenance program; NYTA refused to employ people using methadone;
purpose of the policy is so that job applicants are people who would be safe/effective
employees; plaintiffs brought suit as class action on behalf of all people who have
been/would be in the future subject to discharge/rejection as employees of the NYTA b/c
of their participation in a methadone maintenance program; plaintiffs claim the policy
violates equal protection clause of 14th amendment
 Holding – NYTA’s policy is constitutional
 Over-inclusive law
o The law was substantially over-inclusive but substantial over-inclusiveness is
constitutional  policy was justified b/c of a public safety interest in keeping
narcotic users from working for NYTA – general objectives of safety/efficiency
 Just b/c the purpose was not as applicable for a part of the class does not
invalidate the classification or the rational purpose overall
o Why over-inclusive? b/c the policy screens out methadone users from NYTA
jobs who were likely to be employable
The law did not pass the rational basis test
 US Dept. of Agriculture v. Moreno
 Facts – Food Stamp Act excludes from participation in the food stamp program any
household containing an individual who is unrelated to any other member of the
household (the members who live in a house where no one is related to one another are
denied federal food assistance); congress defined the term “household” to include only
groups of related individuals; groups of individuals brought suit b/c they’ve been
excluded from the program b/c they live with non-relatives (and not b/c they don’t satisfy
income eligibility requirements for federal food assistance)
 Issue – does the Food Stamp Act violate the equal protection clause?
 Holding – the Act violates the equal protection clause
 Reasoning – the Act did not fulfill congress’s stated purpose  to prevent fraud/abuse of
the program (the Act did not operate rationally to further the prevention of fraud)
o There were other measures in the Act specifically aimed at preventing abuse of
the program
o The distinction between households w/ related members & households w/
unrelated members did not further the state interest and therefore violated the
equal protection
 Over-inclusive law
 City of Cleberne v. Cleberne Living Center
 Facts – Cleberne Living Center bought property w/ intention of starting group home for
mentally-retarded; City required Living Center to apply for special-use permit (it was
City’s zoning ordinance to require special-use permits for such homes); City denied
special-use permit to them
 Holding – the ordinance is unconstitutional b/c it violates the equal protection clause
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Reasoning – there is no rational basis for requiring this particular group home (mentally
retarded people) to have a special-use permit when other similar homes are not required
to have a special-use permit; the ordinance was premised on an irrational prejudice
against the mentally-retarded
 Standard – rational basis review
o Mental retardation ≠ strict scrutiny  b/c the mentally-ill do not qualify as a
suspect or quasi-suspect class b/c of the lack of history of discrimination
o Did not pass the rational basis test  b/c no rational relation between permit &
home – no legitimate government interest (health & safety of residents and
neighbors is insufficient)
 Romer v. Evans
 Facts – Colorado law precludes any judicial/legislative/execution action designed to
protect persons from discrimination based on their homosexual orientation/conduct;
challenger argues the Colorado law is a violation of equal protection clause b/c it forbids
the extension of protections to those who suffer discrimination due to their sexual
orientation
 Holding – the amendment violated the equal protection clause
 Reasoning – fails rational basis b/c it imposes special disability (it singles out
homosexual persons & imposes on them a broad disability by denying them the right to
seek and receive specific legal protection from discrimination); state also does not have
legitimate purpose for the law – a bare desire to harm a politically unpopular group
cannot constitute a legit government interest (court notes that sometimes a law will be
sustained under the equal protection clause even if it disadvantages a specific group as
long as it can be shown to advance a legitimate government interest)
 Takeaway  this law is struck down b/c it imposes a special disability – not b/c it blocks
a special right/deprives them of a special right
Intermediate Scrutiny
o Intermediate scrutiny is applied to groups that full under quasi-suspect classification  gender and
legitimacy of birth (illegitimacy)
o To pass the intermediate scrutiny test:
 (1) The law or policy being challenged must further an important government interest
 (2) By means that are substantially related to that interest
o Under intermediate scrutiny – the classification cannot be substantially over-inclusive or substantially
under-inclusive, but has to be drawn more exactly in relation to the governmental purpose
o Burden of proof  government has the burden of showing its classification meets the given interest
Strict Scrutiny
o To pass the strict scrutiny test:
 (1) The law or policy must be justified by a compelling government interest;
 (2) The law or policy must be narrowly tailored to achieve that goal or interest; and
 (3) The law or policy must be the least restrictive means for achieving that interest – there must
not be a less discriminatory way to effectively achieve the compelling government interest
o Courts will apply strict scrutiny to certain laws:
 Laws that on its face violate the constitution explicitly/rights in the constitution that are explicit
 Laws that restrict the ability of the political process to repeal undesirable legislation (ex: laws that
limit right to vote)
 Laws that incriminate a minority (ex: laws directed to a particular religious group/racial minority)
o Trigger  race; national origin; religion; alienage (with exceptions); fundamental right involved
o Burden of proof  government has the burden of showing its classification meets the given interest
Classifications Based on Race and National Origin
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Facially racially discriminatory  facial race and national origin classifications exist when a law, in its
very terms, draws a distinction among people based on those characteristics
The law was deemed facially racially discriminatory
 Loving v. Virginia
 Facts – 2 residents of Virginia (black woman & white man) were married in District of
Columbia; they returned to Virginia after; the couple was charged w/ violating Virginia’s
antimiscegenation statute (which banned inter-racial marriages)
 Issue – did Virginia’s law violate the equal protection clause?
 Holding – Virginia statute violated equal protection clause b/c it had no legitimate
purpose independent of racial discrimination; the court rejected Virginia’s argument that
the statute was legitimate b/c it applied equally to both blacks and whites; 14th
Amendment’s equal protection clause requires states to practice equal protection to all
persons & not all persons were targeted by Virginia’ statute  it applied to only whites
& blacks but not all interracial couples (under-inclusive)
 Standard – strict scrutiny  all racial classifications subject to strict scrutiny –
distinctions drawn according to race are subject to the most rigid scrutiny
 Palmore v. Sidoti
 Facts – a white couple divorced and custody of the couple's child was awarded to the
mother; the father then sought to modify the custody order b/c the mother was cohabiting
with, and subsequently married, a man of a different race; the trial court awarded custody
to the father, holding that the best interests of the child would be served thereby and that
there would be a damaging impact on the child if she remained in a racially mixed
household; mother brought suit
 Issue – did the state’s governmental interests in protecting children support the toleration
of prejudices based on race?
 Holding – the court held that remarriage to a person of a different race was not sufficient
to justify divesting the mother of child custody
 Reasoning – the effects of racial prejudice (the state’s governmental interest to protect
children) cannot justify a racial classification removing a child from the custody of its
natural mother who was found to be an appropriate person to have such custody
The law was not deemed facially racially discriminatory
 Korematsu v. United States
 Facts – after Pearl Harbor, US government required Japanese-Americans to move into
relocation camps as a matter of national security (an evacuation order); a JapaneseAmerican man (Korematsu) chose to stay at his resident rather than obey the order to
relocate; Korematsu was arrested and convicted of violating the order
 Issue – did the president and congress go beyond their war powers by implementing this
order and restricting the rights of Americans of Japanese descent?
 Holding – the evacuation order was valid
 Reasoning – the order did not show racial prejudice but rather it responded to an
important interest to secure the US from invasion; pressing public necessity may
sometimes justify the existence of such restrictions
 Standard – strict scrutiny  government had compelling interest (prevent espionage &
sabotage)
o Constitutional even though the law was over-inclusive (all Japanese-Americans
were ordered to relocate – even though only a few were disloyal)
 Plessy v. Ferguson
 Facts – Louisiana enacted Separate Car Act (required separate railway cars for blacks and
whites); Plessy (7/8 Caucasian) agreed to participate in a test to challenge the Act and sat
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in a whites-only car of the train (he was technically black under Louisiana law); Plessy
refused to vacate the whites-only car and was arrested
Issue – does the Separate Car Act violate the 14th amendment?
Holding – the Separate Car Act was constitutional
Reasoning – segregation did not in itself constitute unlawful discrimination; both blacks
and whites had to follow the law; there was no meaningful difference in quality between
the white and black railway cars (separate but equal)
Neutral Classifications
o Facially neutral law with a discriminatory impact  when the law is neutral on its face, but is
discriminatory impactful
o Neutral classifications/laws with discriminatory impacts are constitutional violations
 Brown v. Board of Education
 Facts – African American students had been denied admittance to certain public schools
based on laws allowing public education to be segregated by race; they brought suit
arguing that such segregation violated equal protection clause of 14th amendment
 Issue – does the segregation of public education based solely on race violate equal
protection?
 Holding – the law violates the equal protection clause
 Reasoning – separate but equal educational facilities for racial minorities is inherently
unequal b/c it instilled a sense of inferiority that had a hugely detrimental effect on the
education/personal growth of African American children (effect of segregation)
o Neutral classifications/laws with discriminatory impacts are not constitutional violations
 Washington v. Davis
 Facts – police department’s recruiting procedure included a written personnel test; 2
black men applied to police department and their applications were rejected; the black
men filed suit claiming the recruiting procedures discriminated against racial minorities
and claimed the test was unrelated to job performance and excluded a disproportionate
number of black applicants
 Issue – did the recruiting procedures violate the equal protection clause?
 Holding – the procedures did not constitute racial discrimination under the equal
protection clause; the procedures are constitutional
 Reasoning – the procedures did not have a discriminatory intent and were racially neutral
measures of employment qualification
 Rule – laws that have racially disproportionate impacts do not automatically become
constitutional violations even if severe; proof of discriminatory impact is insufficient by
itself to show racial classification  need discriminatory impact + discriminatory intent
 Personnel Administrator of Massachusetts v. Feeney
 Facts – Massachusetts law gave hiring preference to honorably discharged veterans
applying for state civil service positions; Feeney was a woman who scored higher on the
exam but was ranked below male veterans who had lower scores
 Holding – the law did not violate the equal protection clause b/c government’s interest of
helping veterans & encouraging enlistment is sufficient
 Reasoning – the law was enacted to serve a legitimate and worthy purpose and not to
discriminate on the basis of sex; even though few women benefitted from the scheme the
“veteran status” is not uniquely male; the law placed many men who were not veterans at
a disadvantage as well; the distinction in the law was clearly between veterans and nonveterans, not between men and women
 Takeaway – intent vs. impact  here impact was insufficient – challenger must prove
discriminatory intent
 Village of Arlington Heights v. Metropolitan Housing Development Corp.
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Facts – the Metropolitan Housing Development Corp. applied to the Village of Arlington
Heights for rezoning of a parcel from single-family residential to multi-family residential,
intending to build federally subsidized low to moderate income housing; the request was
denied and the Corp. sued the City claiming that the effect of the denial of rezoning was
discriminatory in nature
 Holding – not a violation of equal protection clause b/c Corp. failed to establish the
City’s racially discriminatory intent
 Reasoning – even though it was proved that the zoning denial may result in a racially
disproportionate impact, the evidence did not show that this was the City’s deliberate
intention; the court found that the decision to deny rezoning was based on a desire by the
City to maintain the area as single-family residential housing, and not for discriminatory
motive; the burden of proof is on the plaintiff in these cases to prove that discriminatory
purpose was a motivating factor in the decision (burden of proof on the challenger)
 Rule – official action will not be held unconstitutional solely because it results in a
racially disproportionate impact  proof of discriminatory intent is required to show a
violation of the equal protection clause
 Arlington 6-Factor Test – the factors that should be balanced by the court to determine
whether or not there is discriminatory intent
o (1) Impact of the challenged decision – whether it disproportionately impacted 1
race?
o (2) Historical background – is there series of official actions w/ discriminating
purposes?
o (3) Specific sequence of events leading up to decision being challenged
o (4) Were normal procedures followed?
o (5) Were factors usually considered ignored in this instance? – departures from
normal procedures in making decisions & substantial departures (ex: if the
decisionmaker would have made a different choice had the applicant been white)
o (6) Legislative history – statements by governmental body who created the
official action
Race-Based Classifications That Benefit Racial Minorities
o The race-based classification that benefits racial minorities was not constitutional
 Richmond v. J.A. Croson
 Facts – Richmond City Council enacted minority Business Utilization Plan which
required government-supported construction contractors to set aside 30% of their
subcontracts to one or more minority business enterprises; a minority business enterprises
is a business at least 51% of which is owned and control by minority group members;
purpose of plan was to promote wider participation by minority business enterprises in
construction of public projects; Croson company brought action against Richmond
challenging this plan claiming the plan violates the US Constitution b/c there was no
finding there was no evidence to support the plan’s purpose (no evidence that there was
past discriminatory practices in construction)
 Holding – the plan is not constitutional
 Reasoning – all classifications based on race must be supporting by a compelling
governmental interest  there is no compelling governmental interest here b/c there is no
past racial discrimination in construction; it’s impossible to assess whether the plan is
narrowly tailored to remedy prior discrimination b/c it is not linked to identified
discrimination in the past
 Gratz v. Bollinger
 Facts – University of Michigan office of undergraduate admissions considers race as a
factor in its evaluative process; they admit virtually every qualified applicant from certain
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groups determined to be “underrepresented minorities;” they used a point system in
which students were awarded an additional 20 points for being a member of an
underrepresented minority; Gratz applied for admission (Caucasian) and was denied
admission; she brought suit claiming the admission procedure discriminated against
certain racial/ethnic groups in violation of the equal protection clause
 Issue – did the University’s use of racial preferences in undergraduate admission violate
the equal protection clause?
 Holding – the University’s admissions process was a violation of equal protection
 Standard – strict scrutiny  the admissions policy was not sufficiently narrowly tailored
b/c the policy did not provide individual consideration, but rather resulted in the
admission of nearly every applicant of underrepresented minority status
The race-based classification that benefits racial minorities was constitutional
 Grutter v. Bollinger
 Facts – Michigan Law School (defendant) committee tried to achieve diversity in the
student body by requiring admissions officials to evaluate each applicant based on all the
info in the file; the purpose was that the school wanted to ensure that minorities would
make unique contributions to the character of the law school; plaintiff (Grutter) was a
white Michigan resident with a 3.8 GPA and a 161 LSAT score and was rejected; Grutter
brought action against the school claiming racial discrimination against her
 Issue – is diversity a compelling interest that can justify the narrowly tailored use of race
when public universities select students to be admitted?
 Holding – the school’s race-conscious admissions program is not a violation of the
constitution
 Reasoning – the equal protection clause does not prohibit the law school’s narrowly
tailored use of race in admissions decisions to further a compelling interest in obtaining
the educational benefits that flow from a diverse student body (diversity is a compelling
interest that can justify the narrowly tailored use of race when universities select students
to be admitted); the law school’s goal of attaining a critical mass of minority students
does not transform its program/plan into a “quota” – the law school’s current admissions
program considers race as one factor among many to assemble a student body that is
diverse in ways broader than just race (no acceptance or rejection is based automatically
on a variable such as race itself); the school’s race-conscious admissions program does
not unduly harm non-minority applicants
 Standard – strict scrutiny  diversity is a compelling interest (critical to dismiss
stereotypes; diverse society; multiracial gov. looks like a legit gov.) AND program is
narrowly tailored (individual review of apps; no quotas; diversity broadly defined)
 Fisher v. University of Texas at Austin
 Facts – University admissions policy was to admit all in-state students who graduated in
the top 10% of their high school classes and for the remainder of the in-state freshmen
class, the University would consider race as a factor in admission; Fisher (Caucasian)
applied and was denied admission; Fisher filed suit claiming the University’s use of race
as a consideration in admissions decisions was in violation of the equal protection clause
 Issue – does the equal protection clause permit the consideration of race in undergraduate
admissions decisions?
 Holding – court voided the lower court’s ruling in favor of the University and remanded
the case
 Reasoning – policy is constitutional IF it passes strict scrutiny test  which it did not yet
b/c the lower court did not conduct a sufficient strict scrutiny examination in this case
 Rule – such cases must be reviewed under a standard of strict scrutiny to determine
whether the polices are narrowly tailored to serve a compelling governmental interest &
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if the policy does not meet this standard – then race may not be considered in the
admission process; it’s the duty of the reviewing court to verify that the University police
in question was necessary to achieve the benefits of diversity and that no race-neutral
alternative would provide the same benefits

Gender Classifications
o Standard  Intermediate Scrutiny
 (1) The law or policy being challenged must further an important government interest
 (2) By means that are substantially related to that interest
o The gender classification was not constitutional
 Craig v. Boren
 Facts – Oklahoma law prohibited the sale of 3.2% beer to males under 21 and to females
under 18; Craig (male between ages of 18 and 21) challenged the law as discriminatory
 Issue – did the Oklahoma law violate the equal protection clause by establishing different
drinking ages for males and females?
 Holding – the Oklahoma law violates the equal protection clause b/c it made gender
classifications
 Reasoning – the statistics relied on by Oklahoma were insufficient to show a substantial
relationship between the law and the maintenance of traffic safety; generalities about the
drinking habits of groups did not suffice
 Takeaway – court established a new standard for review in gender discrimination cases
o More demanding than the lowest standard (rational basis scrutiny) but less
demanding than the highest standard (strict scrutiny)
o New in-between standard  intermediate scrutiny
 US v. Virginia
 Facts – Virginia Military Institute (VMI) was the only single sex school among
Virginia’s 15 public institutions; it was only males; its purpose was to produce citizen
soldiers (male leaders for the future); VMI uses adversative method to train male leaders
(but not women) such as physical rigor, mental stress, no privacy, etc; Court of Appeals
required the state of Virginia to establish a Virginia Women’s Institute Leadership for
women (this women’s school offered fewer courses than the men’s school & was run w/o
the adversative method)
 Issues – (1) Did the men’s school violate the equal protection clause? (2) Was the parallel
program for women a remedy – a separate but equal cure?
 Holding – unequal educational opportunity violates equal protection clause
o (1) The men’s school did violate the equal protection clause of the 14th
amendment
o Equal protection clause is violated b/c women are excluded
o Doesn’t matter that the lower court though that most women would not want to
go to this men’s school b/c of the methods they used  the court says that all that
matters is that there are some women who may want to go there & that individual
members of both genders should have this option available to them
o (2) The women’s program was not parallel  it was not in fact equal
 The equal protection violation was not actually cured by this women’s
program b/c it was not an “equal” remedy
 Analogous to separate but equal approach to racial segregation
 Standard – court formulated intermediate scrutiny in a very different way  exceedingly
persuasive standard
o Because VMI failed to show “exceedingly persuasive justification” for its sexbased admissions policy – it violates the equal protection clause
11
o
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Parties who seek to defend gender-based government action must demonstrate an
“exceedingly persuasive justification” for that action
o “Exceedingly persuasive justification”  that Virginia must show for the
exclusion of women to be allowed (Virginia did not meet this standard)
o This approach is narrowly designed toward goal
o So now intermediate scrutiny is:
 (1) Important government interest/purpose
 (2) By means that are substantially related to that interest
 (3) Need exceedingly persuasive justification
o The gender classification was constitutional
 Rostker v. Goldberg
 Facts – the Military Selective Service Act (MSSA) requires all males between 18-26 to
register; purpose is to be able to select men in case a need for a military draft is
necessary; women are not required to register
 Issue – can the federal government require only males (not females) to register w/ the
MSSA?
 Holding – policy is constitutional
 Reasoning – the purpose of the MSSA is to provide a supply of combat troops in times
when military draft is necessary = an important government interest; only men are
eligible for combat duty – therefore, registering women is an administrative
inconvenience for a small degree of payoff; men and women are situated differently for
purposes of a draft
 The standard of review – “important governmental interest”
o The government’s interest in raising and supporting armies is an “important
governmental interest”
o Important state interest  and the standard is “closely related”
Alienage Classifications
o Alien = non-citizen of the US
o The issue is when such discrimination is a denial of equal protection of the laws
o State and local laws that discriminate against aliens can be challenged on preemptions grounds AND for
violating the equal protection clause
 Preemption
 The SC has held that federal immigration laws wholly occupy the field and preempt state
efforts to regulate immigration
 Under the doctrine of preemption, which is based on the Supremacy Clause,
federal law preempts state law, even when the laws conflict – thus, a federal court may
require a state to stop certain behavior it believes interferes with, or is in conflict with,
federal law
 Equal protection clause
 Protects aliens from discrimination (b/c the clause does not use the word “citizen”)
 State/local laws are sometimes challenged on BOTH preemption & equal protection
o Standard of review
 Strict scrutiny is used to evaluate discrimination against legal aliens  this is b/c legal aliens are
a suspect class
 Exceptions where less than strict scrutiny is used:
 Federal laws that discriminate against aliens  rational basis review
o This is b/c congress has plenary power to regulate immigration (plenary power =
a power that has been granted to a body or a person in absolute terms, with no
review of or limitations upon the exercise of that power)
 State acts that affect unlawful/illegal immigrants  rational basis review
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o
UNLESS the topic is education of children  intermediate scrutiny
 Plyler v. Doe
 Facts – Texas legislature revised its education laws; the new law
withheld state funds for the education of children illegally in the
country – so even if you wanted your illegal child to go to a local
school you had to pay a fee (or some schools just didn’t allow it)
& denied enrollment for illegal children in the country; Texas
claimed that the provisions were necessary to preserve limited
resources for those children who are legally in the state and
claimed it would help stop illegal immigrants from coming into
the state; class action lawsuit was filed (representing children of
Mexican origin who live in Texas) to seek a permanent
injunction against enforcement of this Texas statute
 Holding – Texas statute denying free public education to
undocumented school-age children violates the equal protection
clause b/c a state cannot put illegal children at an educational
disadvantage – equal protection clause protects aliens from
discrimination (the clause does not use the word “citizen”)
 Standard – intermediate scrutiny
o No evidence indicates that excluding undocumented
children from school would save the state of Texas any
educational resources or have any impact on illegal
immigration at the border
 Takeaway – this is the first time we’re seeing neither a
fundamental right (education is not a fundamental right)
involved nor a suspect class (illegal aliens are not a suspect
class) & still intermediate scrutiny is being used and the statute
is struck down
The Due Process Clause
 Background
o “Persons” includes citizens & non-citizens
o 5th Amendment
 No one shall be deprived of life, liberty, or property w/o due process of law
 The 5th Amendment only applies to the federal government
th
o 14 Amendment
 Due process of law to all persons is a legal obligation of all states – explicitly applies to the states
 Due Process Clause has been interpreted by the SC to provide 2 different types of protection:
o Procedural Due Process
 Procedural due process refers to the actual process of legal proceedings – this means that parts of
the process of enforcing the law (such as arrests, jury selection, etc.) all must be done according
to certain written laws that are fair & clear
 A guarantee of fair procedure
 Government may not act in an arbitrary or unreasonable manner when subjecting an individual to
the laws of the state
 Procedural due process addresses specific procedural requirements necessary to protect
fundamental rights – the procedures that government must follow when it takes away a person’s
life, liberty, or property
 Goldberg v. Kelly
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
Facts – residents of NYC received financial aid under federally assisted program; these
residents brought suit b/c city terminated their aid w/o prior notice and hearing, denying
them due process of law
 Issue – does a state that terminates public assistance benefits to a recipient w/o affording
him an opportunity for an evidentiary hearing prior to termination deny the recipient due
process of law?
 Holding – state violated due process clause
 Reasoning – procedural due process requires a pre-termination hearing prior to
termination of welfare benefits
 Takeaway – Type of Deprivation that Triggers Procedural Due Process Claims
o When the termination of aid pending resolution of a controversy might deprive
the eligible recipient of the very means by which to live while he waits  that is
the type of deprivation that triggers a procedural due process claim
o Here, the qualified recipient’s financial aid provides him the only means to
obtain essential food, clothing, housing and medical care
o The extent to which procedural due process must be afforded is influenced by the
extent to which he may be condemned to suffer grievous loss
 Takeaway  rules governing determinations about the process that is “due” in
procedural due process claims
o Pre-termination hearing does not have to take the form of a judicial trial
o BUT the SC determined that the standard is:
 (1) Recipient needs to be provided w/ the reasons for termination
 (2) Recipient needs option to be heard (hearing) – an effective
opportunity to defend by confronting adverse witnesses & by presenting
his own arguments and evidence orally before the decisionmaker
 (3) Decisionmaker must be neutral/impartial
 (4) Has to be on the record
 (5) Decisionmaker needs to provide the reason for his determination –
does not have to be a full opinion
Board of Regents v. Roth
 Facts – Roth was hired for 1 year and had no tenure rights to continue employment;
Wisconsin statute said a state university professor could acquire tenure as a permanent
employee after 4 continuous years of employment; Roth was notified he was not rehired
for another year but no reason was given; Roth brought action claiming he had a
constitutional right to a statement of reasons and a hearing on the University’s decision
not to rehire him for another year
 Holding – University not required to provide Roth w/ reasons & a hearing under the due
process clause  no property interest for Roth
 Reasoning – Roth was not deprived of liberty or property – the requirements of
procedural due process apply only to the deprivation of liberty and property; he is not
deprived of liberty just b/c he is not rehired for another year (school did not ruin his
reputation nor preclude him from obtaining another job)
 Rule – procedural due process is a safeguard of specific benefits that a person has already
acquired  it does not extend to future benefits they hoped to get but didn’t
Mathews v. Eldridge
 Facts – Eldridge received social security disability (SSD) benefits for 4 years; he received
questionnaire from the state agency who monitors his medical condition; he filled it out
indicating his condition had no improved; the agency obtained reports from his doctors
and made determination that his disability had ceased; he was notified of his termination
of benefits; he claims it’s unconstitutional to terminate w/o pre-termination hearing
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
o
Holding – due process does not require a hearing prior to termination of SSD benefits
Takeaway – the factors giving rise to due process are:
o (1) The private/individual interest that will be affected by the official action
 In Goldberg v. Kelly the crucial factor in Goldberg was that welfare
recipients are in dire need, and assistance is only given to persons on the
very margin of subsistence – whereas eligibility for SSD is not based on
financial need
o (2) The risk of an erroneous deprivation of such benefit through the existing pretermination procedures used & the probable value, if any, of additional or
substitute procedural safeguards
 Routine & unbiased medical reports are fair and reliable and that’s why
the decision to discontinue SSD benefits can be based on them
 The detailed SSD questionnaires were sufficient
o (3) The government’s interest, including the burdens the additional or substitute
procedural requirement would entail
 The public interest in limiting procedures available was significant, given
the cost of additional procedures
Substantive Due Process
 Substantive due process refers to the content of the laws themselves – the substance of the law
 Substantive due process relates to the protection of individuals from the violation of their
fundamental rights – it introduces a standard that laws that touch upon the fundamental rights of
individuals may be outside of the authority of the government to regulate
 Unlike the equal protection analysis – the law does not classify among people (the law affects all
people rather than a specific classification of people)
 Rights & liberties may be expanded but not reduced by the states
 3 categories of rights under substantive due process  US v. Carolene Products (footnote 4)
 (1) Rights of the accused – 8th amendment rights
 (2) Restrictions on the political process – rights of voting; association; free speech; etc.
 (3) Rights of discrete & insular minorities
 Exception to the Presumption of Constitutionality
o Courts will not presume the law constitutional (presumption of constitutionality)
when legislation appears on its face to be within a specific prohibition of the
constitution
o Courts will apply a heightened standard of judicial review when these rights are
involved  strict scrutiny
 Economic Rights (Economic Substantive Due Process)
 Constitutional rights concerning the ability to enter into and enforce contracts; to pursue a
trade or profession; and to acquire, possess, and convey property
 Law violates the due process clause
o Lochner v. NY
 Facts – NY law set the maximum amount of hours that bakers could
work (no more than 60 hours in a week or more than 10 hours in 1 day
unless to make work on the last day of the week shorter) & the number
of hours worked in 1 week could not average out to be more than 10
hours per day
 Issue – does the due process clause protect liberty of contract and private
property against unwarranted government interference?
 Holding – due process is violated; SC declared the law unconstitutional
 (1) The law interferes w/ right to contract  this NY law
violates bakers’ rights to contract
15
o

Freedom of contract = basic right protected by the due
process clause  right to enter into contracts which may
be proper, necessary and essential to carry out trade and
profession (it is an implied fundamental right)
 (2) The law did not serve a valid public purpose
o Individual has right to make a contract in relation to his
business  only way state may interfere w/ this right is
to show they are exercising a valid public purpose of
protecting health, safety, or general welfare of the public
o This NY law isn’t a public health law – it’s a labor law
(long working hours do not dramatically undermine the
health of employees & baking is not particularly
dangerous)
 The standard of review – deferential review
 Due process clause requires protection for individual liberties
from state action  in Lochner – the liberty to purchase and sell
labor
 These liberties are not absolute & can be regulated for a limited
set of purposes – for safety, health, & general welfare of the
public
o BMW of North America v. Gore
 Facts – Gore purchased new vehicle from BMW; Gore discovered that
the new vehicle had been repainted; Gore sued BMW for fraud by failing
to inform him that his car had been repainted; Alabama court awarded
Gore $4,000 in compensatory damages and $2 million in punitive
damages
 Issue – does an award of $2 million in punitive damages exceed the
constitutional limit (is it grossly excessive) under the due process clause?
 Holding – the due process clause protects BMW from paying the award
if the award is found to be grossly excessive
 Reasoning – the award is grossly excessive as measured by:
 (1) The degree of damage done by the non-disclosure
o The non-disclosure caused only minor economic harm to
Gore and provided no harm to the health/safety of others
 (2) The disparity between the harm or potential harm and the
punitive damage award
o The amount of punitive damages is 500 times the
amount of actual damages
 (3) The difference between the remedy and the civil penalties
authorized or imposed in similar cases
o The award is substantially greater than statutory fines
available in Alabama for a similar action
 Rule – while a state may impose punitive damages to further its interest
in deterring unlawful conduct, the due process clause prohibits states
from imposing grossly excessive punishments on tort-feasors
Law is upheld as constitutional
o West Coast Hotel v. Parrish
 Facts – state law required a minimum wage for women employees; maid
worked for less than the state minimum; maid brought suit to recover the
difference in pay
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
Issue – is the fixing of minimum wages for women and minors
constitutional? (is the state law constitutional)?
 Holding – state law requiring minimum wage for women employees is
upheld
 Reasoning – court no longer protecting freedom of contract as a
fundamental right
 “Freedom of contract” is an implied right created by the Lochner
court  the constitution does not speak of the “freedom of
contract”  the constitution speaks of liberty and prohibits the
deprivation of liberty w/o due process of law
 Regulation that is reasonable in relation to the subject and
adopted in the interests of the community satisfies due process
 so if the legislature’s judgement is debatable/plausible – the
court will comply to the legislator’s judgement
 Takeaway – case overturns Lochner v. NY  no right to contract
o Williamson v. Lee Optical
 Facts – Oklahoma law prohibited persons who were not licensed
optometrists to fit lenses for eyeglasses; non-licensed individuals were
also prohibited from duplicating optical instruments w/o written
prescriptions from licensed optometrists; Lee company challenged law
 Holding – Oklahoma does not violate due process clause
 Reasoning – Oklahoma law is valid b/c company could not prove that the
law had no rational relationship to legitimate state objectives; it is the
duty of the legislature (not the courts) to balance the advantages &
disadvantages of the requirement; courts should not be able to invalidate
state economic regulations on the grounds that they disagree w/ the
theories supporting them; even if the state law imposes burdens/waste,
the legislature has the sole authority over weighing its benefits against its
costs
The Application of Substantive Due Process to Restrictions on Marriage (Right to Marry)
 Loving v. Virginia (cont.)
o Facts – 2 residents of Virginia (black woman & white man) were married in
District of Columbia; they returned to Virginia after; the couple was charged w/
violating Virginia’s antimiscegenation statute (which banned inter-racial
marriages)
o Issue – did Virginia’s law violate the due process clause?
o Holding – due process violated b/c under the constitution people have the
freedom to marry or not marry, a person of another race & it cannot be infringed
by the state (it’s a fundamental constitutional right)
o Standard – strict scrutiny  all racial classifications subject to strict scrutiny
(distinctions drawn according to race are subject to the most rigid scrutiny)
 Zablocki v. Redhail
o Facts – Redhail (a Wisconsin minor) fathered a child; a court ordered him to pay
child support; 2 years later he applied for a marriage license; Wisconsin statute
required you to obtain a court order to get permission to marry; his application
was denied b/c he was unable to obtain the required court order b/c he owed
more than $3,700 in child support; Redhail brought suit; Wisconsin claims the
statute supports the state’s interest to protect the welfare of out-of-custody
children
17
Issue – does the Wisconsin statute, that provides that members of a certain class
of residents cannot marry, without first obtaining a court order granting
permission to marry constitutional?
o Holding – the Wisconsin statute was unconstitutional b/c it significantly
interferes w/ the exercise of an implied fundamental right (right to marry) and
does not pass the strict scrutiny test
o Takeaway – right to marriage is a fundamental right under the due process clause
o Standard – strict scrutiny  standard of review that applies to fundamental right
 (1) The law or policy must be justified by a compelling governmental
interest
 (2) The law or policy must be narrowly tailored to achieve that goal or
interest
 The statute simply prevents marriage w/o providing any money
to the child
 The statute only regulates those who wish to be married – so it
does not do anything to ensure that child support obligations are
fulfilled (which is the state’s purpose/interest for the statute)
 (3) The law or policy must be the least restrictive means for achieving
that interest
 The state has numerous other means for extracting child support
payments (rather than not allowing someone to marry)
US v. Windsor
o Facts – Windsor was married to someone of the same-sex; her partner died; she
tried to get an estate tax exemption for surviving spouses which federal law
provides; she was unable to get the exemption b/c of the DOMA (Defense of
Marriage Act –the terms “marriage” and “spouse” did not apply to same-sex
couples)
o Issue – does the definitions of “marriage” and spouse” in the DOMA, to exclude
same-sex couples, a violation of the constitution?
o Holding – DOMA’s provision defining marriage, which excludes same-sex
couples, is a deprivation of liberty guaranteed by the due process clause
o Reasoning – under the due process clause each individual has a right to equal
protection. DOMA governs the definition of marriage in over a thousand federal
statutes and was created by Congress in 1996 in response to efforts to legalize
same-sex marriage; DOMA treats same-sex couples as “second-class” absent
legitimate interests justifying discrimination; Congress may enact laws that
impact marriage, however, regulation of marriage is within the states’ exclusive
power over domestic relations; essentially the federal government is denying
equal treatment to a group New York deems equal in status to opposite-sex
married couples which violates due process (DOMA violates due process when it
seeks to injure a class New York seeks to protect)
Obergefell v. Hodges
o Facts – Michigan, Kentucky, Ohio, and Tennessee define marriage as a union
between one man and one woman; 14 same-sex couples filed suit in federal court
claiming that the states violated the 14th amendment by denying them the right to
have a lawful marriage
o Issue – did the state officials violate the 14th amendment by denying same-sex
couples the right to marry?
o Holding – laws are unconstitutional; right to marry is implied fundamental
right
o


18
Reasoning – under the due process clause, court established that same-sex
couples have a fundamental right to marry; the laws of Michigan, Kentucky,
Ohio, and Tennessee were held invalid to the extent they excluded same-sex
couples from civil marriage on the same terms and conditions as opposite-sex
couples; because same-sex couples can exercise the fundamental right to marry
in all states, it follows that there is no lawful basis for a state to refuse to
recognize a lawful same-sex marriage performed in another state on the ground
of its same-sex character
The Application of Substantive Due Process to Restrictions on Parental Rights (Right of
Custody to One’s Children)
 Stanley v. Illinois
o Facts – Stanley (father) had 3 children but was never married; when mother died
the state of Illinois took the children; under Illinois law unwed fathers were
presumed unfit parents regardless of their actual fitness and their children
became wards of the state
o Issue – does the Illinois law violate the due process clause?
o Holding – the Illinois law violates the due process clause
o Reasoning – an unwed father was stripped of his parental rights w/o a hearing; all
parents are constitutionally entitled to a hearing on their fitness before their
children are removed from their custody, and therefore, Stanley was also entitled
to a hearing
o Takeaway – parents of children born out of wedlock have a fundamental right to
their children
 Michael H. v. Gerald D.
o Facts – Gerald was the presumptive father of Victoria since she was born to his
wife Carole; Carole had an adulterous partner (Michael) who obtained blood tests
indicating that he was likely the biological father; Michael obtained visitation
rights in California state court; Gerald argued that Michael had no ground under
California law to challenge Gerald’s paternity since more than 2 years had passed
since Victoria’s birth; California code states that a child is presumed to be a child
of the marriage and another man can only challenge this presumption w/in 2
years of birth of the child
o Issue – does the California code violate the due process clause by denying a
possible biological father the chance to establish his paternity of a child after 2
years have passed since the child’s birth?
o Holding – California code is constitutional b/c a possible biological father does
not have a fundamental right to obtain parental rights after the presumptive father
has exercised significant responsibility over the child
o Takeaway – court establishes how to properly examine the scope of the asserted
right
 Michael had to prove that our society has traditionally afforded natural
fathers parental rights or at least not traditionally denied them when the
child is born into an established family
 Court based its decision on the determination that historically state has
defined parental rights by habitation NOT biology
 It is important that the scope of the right be properly constrained  b/c
any right can be fundamental at a general level
 The scope of the right examined should be the most specific
level at which a relevant tradition protecting, or denying
protection to, the asserted right can be identified
o
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19
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
If, for example, there were no societal tradition, either way,
regarding the rights of the natural father of a child adulterously
conceived we would have to consult and reason from the
traditions regarding natural fathers in general – BUT there is the
existence of such a specific tradition & it denies protection to
such a parent
The Application of Substantive Due Process to Restrictions on Cohabitation Among Family
(Right to Live Together)
 Moore v. City of East Cleveland
o Facts – Cleveland statute made it a crime for a dwelling to contain members of
more than 1 family; Moore was convicted under the statute when her son,
grandson and a grandson from another child all lived with her
o Issue – does the Cleveland statute violate the due process clause?
o Holding – the Cleveland statute violated Moore’s due process rights
o Reasoning – the statute declares that certain categories of relatives may live
together while others may not  this constitutes an intrusive regulation of the
family w/o advancing a legitimate state interest; no legitimate state interest being
advanced b/c the city’s purpose (the statute is a means of preventing
overcrowding & minimizing traffic and parking congestion) is not being served
by the statute b/c large groups of people can still live together so long as they
meet the statutory definition of a single family
o Rule – the right to live as a family unit is protected under the due process clause
 Belle Terre v. Boraas
o Facts – zoning ordinance limited the number of unrelated people who could live
together in one household; a group of college students who wanted to share a
house brought a constitutional challenge to the ordinance
o Holding – the zoning ordinance was constitutional
o Takeaway – how this differs from the ordinance in Moore
 The ordinance in this case had involved only “unrelated individuals” and
the zoning ordinance here had an exception for “all who were related by
blood, adoption, or marriage”
The Application of Substantive Due Process to Restrictions on Parental Choices about How
to Raise their Children (Upbringing)
 Meyer v. Nebraska
o Facts – Nebraska passed a law prohibiting teaching grade school children any
language other than English; Meyer, who taught German, was convicted under
this law
o Issue – does the Nebraska law violate the due process clause?
o Holding – Nebraska law violates the due process clause
o Reasoning – “liberty” in the clause means more than freedom from bodily
restraint  it also includes the right of teachers to teacher German to students
and the right of parents to control the upbringing of their child as they see fit;
while the state has a legitimate interest in encouraging the growth of a population
that can engage in discussions in English – the means it chose to pursue this
objective was excessive
o Takeaway – the right of teacher and parents with respect to their children is an
implied fundamental right
 Troxel v. Granville
o Facts – Granville and Troxel had 2 daughters; Troxel committed suicide;
Troxel’s parents (paternal grandparents) had regularly seen their granddaughters
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on weekends; after Troxel’s suicide, Granville informed them that he wished to
reduce their visitation time to 1 short visit per month; Troxel grandparents filed
suit for the right to visit their grandchildren under Washington Statute which
permits any person to petition for visitation rights at any time and authorizes state
courts to grant such rights whenever visitation serves a child’s best interest
o Issue – does the Washington statute violate the due process clause b/c it
interferes w/ the fundamental right of parents to choose how to upbring their
children?
o Holding – the Washington statute is unconstitutional
o Reasoning – the interest of parents in the care, custody, and control of their
children is perhaps the oldest of the fundamental liberty interests recognized by
this court; the Washington statute places the best-interest determination solely in
the hands of the judge and gives no respect to the parent’s decision about whether
visitation would not be in the child’s best interest
The Application of Substantive Due Process to Restrictions on Individual Decisions Related
to Reproduction (Reproductive Autonomy)
 Buck v. Bell
o Facts – Buck was committed to state mental institution; Virginia law allowed for
sexual sterilization of inmates of institutions to promote the health of the patient
and the welfare of society
o Issue – is the right to reproduce considered a fundamental right and therefore the
law denies Buck the right to due process of the law? Equal protection?
o Holding – Virginia law did not deny her due process nor equal protection
o Reasoning – involuntary sterilization is not a violation of substantive due process
rights; b/c the sterilization process cannot occur until after a hearing process the
state could properly sterilize those determined to be mentally-ill; the purpose (to
prevent the birth of mentally-ill children) is enough to permit involuntary
sterilization; the fact that the law only applies to inmates in state facilities and not
to the general public does not deprive the inmates of equal protection
 Skinner v. Oklahoma
o Facts – Oklahoma law sentences those who have been convicted 2+ times for
crimes to sexual sterility (the crime of embezzlement is excluded); defendant was
convicted several times for larceny; defendant claimed the law violated his due
process rights and equal protection rights
o Holding – the law violates due process and equal protection
o Reasoning – the right to have offspring is an implied fundamental right which
requires a compelling state interest to interfere with it (strict scrutiny is required
b/c it’s a fundamental right involved)  the state did not demonstrate a
compelling interest b/c sterilization of criminals in no way guarantees that new
criminals will not be born & there is no guarantee that criminals would spawn
criminals themselves. The state also violates equal protection by this law b/c it
makes an unequal classification (those who have committed the same quality of
offense – larceny and embezzlement – but when it comes to sterilization the
penalties are different)  the state cannot justify the distinction between larceny
and embezzlement in the eyes of the statute and therefore didn’t pass strict
scrutiny
 Griswold v. Connecticut
o Facts – Connecticut law made it a crime for any person to use contraception;
Griswold was convicted for giving married persons info/advice on how to
prevent conception; Griswold claims the Connecticut law violates due process
o Holding – the Connecticut law violates due process
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Reasoning – court held that the right to privacy is an implied fundamental right
protected by the constitution; the right to privacy is implicit in the 9th
Amendment’s right to retain rights not enumerated in the constitution – the right
of privacy to use birth control measures was held by the court to be a right
protected by the constitution; the state’s effort to control marital activities by this
law is unnecessarily broad & therefore impinges on the protected constitutional
right to privacy
 9th Amendment = there are other rights that may exist aside from the
ones explicitly mentioned and even though they are not listed it does not
mean they can be violated
 Eisenstadt v. Baird
o Facts – Massachusetts law bans the distribution of contraceptives; Baird gave
away vaginal foam to an unmarried woman
o Holding – the law violated the equal protection clause b/c there was no rational
reason for the different treatment of married & unmarried people; it is the right of
the individual (married or single) to be free from unwarranted governmental
intrusion; privacy is an implied fundamental right
o Standard – rational basis  the state’s law did not pass the test b/c the law
withheld the right set out in Griswold v. Connecticut to single persons w/o a
rational basis – the law is not rationally related to the government’s interest (the
distinction between married & unmarried does not further deterrence of
premarital sex)
The Application of Substantive Due Process to Restrictions on Access to Abortions (Right to
Abortion)
 Roe v. Wade
o Facts – Roe, Texas resident, wanted an abortion; Texas law prohibited abortions
except to save the pregnant woman’s life; Roe claimed the law violates due
process
o Holding – the Texas law violated due process b/c a woman’s right to terminate
her pregnancy by abortion is embraced by the constitution – a woman’s right to
an abortion fell within the right to privacy (right to privacy is an implied
fundamental right recognized in Griswold v. Connecticut)
o Reasoning – an abortion statute that forbids all abortions except in the case of a
life-saving procedure for the mother, without regard to pregnancy stage is
unconstitutional based upon the right to privacy
 How could Texas have made this law constitutional?  the court says a law regulating
abortion may be allowed when the statute is narrowly tailored to uphold a compelling
state interest, such as the health of the mother or the viable fetus (ex: for the stage
subsequent to viability, the state in promoting its interest in the potentiality of human life
could prohibit abortion except where necessary, such as for the preservation of the
life/health of the mother)
 Planned Parenthood v. Casey
o Facts – Pennsylvania law required married women seeking an abortion to
indicate that she notified her husband of her intent to abort the fetus (spousal
notification requirement) & required a minor seeking an abortion to get consent
of 1 parent (parental notification requirement)
o Holding – requiring spousal notification is unconstitutional b/c it’s unduly
burdensome BUT requiring parental notification for minors is constitutional as
long as there is a medical emergency exception and a judicial bypass procedure
o
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Reasoning – spousal notification would result in either spousal abuse or the
decision to not receive an abortion solely to avoid spousal abuse; it would also
essentially enable many husbands to exercise a veto over his wife’s decision
o Standard – heightened rational basis test  court establishes undue-burden
test for fundamental right rather than strict scrutiny
 The new standard asks whether a state abortion regulation has the
purpose or effect of imposing an undue burden, which is defined as a
substantial obstacle in the path of a woman seeking an abortion
before fetal viability
 Replaced strict scrutiny w/ a standard that was designed to give states
more latitude to regulate abortion
 A woman does have this right but a state does have rights to
impose conditions & terms on how the abortion is being
performed
 The husband notification provision failed the undue-burden test
Whole Women’s Health v. Hellerstedt
o Facts – Texas law required any physician performing an abortion to have
admitting privileges at a hospital w/in 30 miles of where the abortion was
performed & all abortion clinics must comply w/ standards for ambulatory
surgical centers; petitioner brought sit claiming it resulted in a significant drop in
facilities providing abortion
o Issue – should a court’s undue-burden test take into account the extent to which
laws that restrict access to abortion services actually serve the government’s
stated interest in promoting health?
o Holding – law is unconstitutional
o Reasoning – court applies the undue-burden test
 The law does not confer medical benefits that are sufficient to justify the
burdens they impose on women seeking to exercise their constitutional
right to an abortion & therefore the law unconstitutionally imposes an
undue burden
 The regulation did not advance the state’s interest in protecting women’s
health (the regulation does not lower the risk of abortions compared to
those performed in non-surgical centers) but it did place an undue burden
in the path of a woman seeking an abortion by forcing about ½ of the
state’s abortion clinics to close
o Rule – a law or provision of a law is constitutionally invalid if the purpose or
effect of the provision is to place a substantial obstacle in the path of a woman
seeking an abortion
Gonzales v. Carhart
o Facts – congress passed Partial-Birth Abortion Ban Act; physicians argue that the
way the Act defines “partial-birth abortion” could make the Act apply to the
D&E procedure and with this application, the Act would ban most late-term
abortions and thus be an unconstitutional burden on the right to an abortion
o Holding – the Act does not violate constitution b/c it does not impose an undue
burden on the right to an abortion
o Reasoning – the Act applies only to the partial-birth abortion (intact D&E) and
not to D&E – the Act clearly prohibits performing only the intact D&E procedure
 b/c the Act applies only to a specific method of abortion, the ban did not
impose an undue burden on the decision to obtain an abortion
o
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Rule – where a state has a rational basis to act, and it does not impose an undue
burden, the state may use its regulatory power to bar certain procedures &
substitute others, all in furtherance of its legitimate interests
The Application of Substantive Due Process to Restrictions on Medical Decision-Making
(Constitutional Protection for Medical Care Decisions)
 Cruzan v. Missouri Dept. of Health
o Facts – Cruzan was in car accident and left in vegetative state; Cruzan’s parents
attempted to terminate her life-support system but hospital refused w/o court
approval; Missouri SC refused to order termination of life-support b/c clear &
convincing evidence was not produced to show Cruzan herself would have
chosen to refuse treatment
o Issue – does the due process clause permit Cruzan’s parents to refuse lifesustaining treatment on their daughter’s behalf?
o Holding – the due process clause does not permit Cruzan’s parents to terminate
her life-support
o Reasoning – while individuals enjoy the right to refuse medical treatment under
the due process clause, incompetent persons are not able to exercise such rights;
the state of Missouri had a valid state interest (to preserve human life)
o Rule – a state may condition the exercise of a patient’s right to terminate lifesustaining treatment on a showing of clear & convincing evidence of the desire
of the patient to exercise such a right
 Washington v. Glucksberg
o Facts – Glucksberg brought this suit challenging the state of Washington’s ban
on physician-assisted suicide
o Holding – Washington’s law does not violate the due process clause
o Reasoning – the right to assisted suicide is not a fundamental right protected by
the due process clause b/c its practice has been/continues to be offensive to our
nation’s traditions & practices
o Standard – rational basis  Washington’s ban was rationally related to the
state’s legitimate interest in protecting medical ethics & to preserve human life
 Vacco v. Quill
o Facts – NY law permits patients to refuse lifesaving treatment on their own but
makes it a crime for physicians to help patients commit/attempt suicide even if
patient is terminally ill; Quill challenged NY’s ban on physician-assisted suicide
o Holding – NY law is not a violation of the equal protection clause
o Reasoning – refusing lifesaving treatment & assisted suicide are two different
acts and therefore the state can treat them differently (assisted suicide involves
the criminal elements of causation and intent – a doctor assisting a suicide must
intend the patient to be made dead)
o Standard – rational basis  NY’s ban was rationally related to the state’s
legitimate interest in protecting medical ethics & to preserve human life
The Application of Substantive Due Process to Restrictions on Consensual Sexual Activity
Between Adults (Sexual Activity)
 Lawrence v. Texas
o Facts – responding to reported weapons disturbance in private residence police
entered Lawrence’s apartment and saw him engaging in consensual sexual act w/
another man; Lawrence and other man arrested and convicted of deviate sexual
intercourse in violation of Texas statute forbidding 2 persons of same sex to
engage in certain intimate sexual conduct
o Holding – the Texas statute violates due process clause
o
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Reasoning – Lawrence’s right to liberty under the due process clause gives him
the right to engage in conduct w/o intervention from the government; the statute
furthers no legit state interest which can justify its intrusion into personal/private
life of the individual
o Rational Basis Scrutiny w/ Bite  it’s clear that the court used Rational Basis
Scrutiny w/ Bite even though they didn’t say what standard they used
 Standard of review that seems to lie between rational basis and
intermediate scrutiny
 SC has not formally recognized this standard but the court’s analysis in
this case does not fall under the ordinary rational basis standard
 The standard:
 (1) Rational Basis w/ Bite does not allow over or underinclusiveness
 (2) The government has the burden of proof
 What factors require rational basis scrutiny w/ bite?
 A law that is discriminating on the basis of animus toward a
politically unpopular class
 Animus = hostility; animosity; prejudice; bias
 In Lawrence v. Texas  evidence of animus (hostility) toward
a particular social group (gay men) was the motivating force for
the Texas statute – it’s a law based on such clear impermissible
grounds
The Application of Substantive Due Process to Regulations that Affect Access to and the
Quality of Public Education (Right to Education)
 San Antonio v. Rodriguez
o Facts – Texas public schools were funded through local property taxes imposed
by local school districts; the program was designed to establish a minimum
educational threshold in every school by state-funding; Rodriguez challenged this
funding scheme arguing that it underprivileged some students – the system
caused disparities across districts b/c property values were higher in some
districts
o Holding – the system is constitutional b/c the tax system is rationally related to a
legitimate government interest
o Reasoning – the system promotes local control & decision-making in school
financing affairs  therefore the system is rationally related to the government’s
interest of providing a basic education for the children of the state
o Standard – rational basis test  b/c neither a suspect classification nor a
fundamental right is implicated by the Texas system
 Not a suspect class  this case does not involve the characteristic of
poor people not being able to afford/enjoy some governmental benefit
altogether – an interference w/ a fundamental right guaranteed by the
equal protection clause does not arise merely b/c some people obtain
relatively more of a desired benefit than others; the equal protection
clause does not require precisely equal advantages
 Not a fundamental right  SC limits the extent to which fundamental
rights can be found under the constitution – SC held that in order for a
fundamental right to be recognizable, it must be determined that such a
right is guaranteed by the constitution – the fact that a function
performed by the government is important does not establish such a
function as a fundamental right
o
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The Free Speech Clause of the 1st Amendment
 Content-Based Restrictions
o Police Dept. of the City of Chicago v. Mosley
 Facts – Chicago’s ordinance prohibits picketing next to a school unless it’s peaceful labor
picketing; Mosley (federal postal employee) peacefully picketed before this ordinance protesting
black discrimination & he was always peaceful/quiet; Mosley goes to court to get the ordinance
struck down claiming it violates freedom of speech of 1st Amendment
 Holding – ordinance is unconstitutional because it makes an impermissible distinction between
labor picketing and other peaceful picketing
 Reasoning – the exemption of labor picketing in the ordinance violated the equal protection
clause b/c it is a content regulation
 It’s a regulation that selectively excludes speakers from a public forum (ex: lunch
cafeteria ladies can do it if it’s a labor dispute but if it’s outsiders then it’s not okay)
 Government may not grant the use of a forum to people whose views it finds acceptable,
but deny use to those wishing to express less favored or more controversial views and it
may not select which issues are worth discussing or debating in public facilities; once a
forum is opened up to assembly or speaking by some groups, government may not
prohibit others from assembling or speaking on the basis of what they intend to say;
selective exclusions from a public forum may not be based on content alone and may not
be justified by reference to content alone
 Rule – court holds that content-based regulations must be narrowly tailored to a substantial
government interest
 Government did not satisfy this b/c the state’s interest was public safety & the picketing
of the type Mosley was doing was not more disruptive than the picketing allowed in the
ordinance
o Reed v. Town of Gilbert
 Facts – town passed sign ordinance regulating the posting of signs in the town (restricts the size,
number, duration and location of certain types of signs, including temporary directional signs);
purpose of ordinance was to not congest the streets with signs which will cause a lot of traffic,
backups at lights, & incorrect signage; Reed held church services at various buildings in the town
and posted signs w/ time and location of services around town; town cited Reed for violating
ordinance; Reed brought suit claiming ordinance violates his freedom of speech
 Holding – sign ordinance is a violation of freedom of speech b/c cannot regulate the ability to
have signs based on the content of the signs
 Standard – strict scrutiny
 Court held that the town could not satisfy the test b/c the town could not prove that
placing strict limits on some signs was necessary to beautify the town while at the same
time allowing unlimited numbers of other types of signs that created the same problem
 Town also had not shown that limiting temporary directional signs was necessary to
eliminate threats to traffic safety but that limiting other types of signs was not
 A sign ordinance narrowly tailored to the challenges of protecting the safety of
pedestrians/drivers/passengers (such as warning signs marking hazards on private
property) might survive strict scrutiny BUT the signs at issue in this case are far removed
from those purposes  the ordinance in this case is facially content-based and is neither
justified by traditional safety concerns nor narrowly tailored
 Takeaway – what is content-based?
 Government regulation of speech is content-based if a law applies to particular speech b/c
of the topic discussed or the idea/message expressed
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The test  whether a regulation of speech “on its face” draws distinctions based on the
message a speaker conveys
o National Endowment of the Arts v. Finley
 Facts – National Endowment of the Arts is a federal agency that provides funding for the arts;
congress adopted a law that made the petitioner consider the “general standards of decency and
respect for the diverse values of the American public” when deciding whether to grant or not to
grant the funding; Finley was denied a federal grant to fund her performance art b/c the agency
said that it might offend the general standards of decency
 Holding – the law enacted by congress is facially valid  it does not interfere with freedom of
speech rights
 Reasoning – the law merely required the agency to take decency & respect into consideration 
the law did not mandate that all explicit works be denied federal grants and therefore, it is not an
unconstitutional content-based regulation
 Rule – a law is facially valid as long as it does not suppress disfavored viewpoints (viewpoint
discrimination)
o Secondary Effects Doctrine (Content-Neutral Regulation)
 The Secondary Effects Doctrine allows government officials to treat clearly content-based laws as
content-neutral; the logic is that government officials are not suppressing speech b/c of its
content, but b/c of adverse side effects associated with the speech
 City of Renton v. Playtime Theaters
 Facts – city’s zoning code prohibited adult movie stores from locating themselves within
1,000 feet of any residential area/church/park/school but they weren’t completely banned
from the city
 Holding – the zoning ordinance is not a violation of freedom of speech b/c it was a
content-neutral regulation
 Reasoning – city articulated a strong purpose and solution to control the speech  the
city had a substantial interest in avoiding the secondary effects of the adult stores and
allowed these adult stores to be located in other areas of the town
Government Speech (Rules that Apply to Speech Made by the Government)
o Although the 1st Amendment’s free speech clause limits the government regulation of private speech – it
does not restrict the government when the government speaks for itself
o Pleasant Grove City v. Summum
 Facts – Summum, a religious organization, sent letter to mayor of Pleasant Grove asking to place
monument in one of the city’s parks; the mayor denied the monument b/c it didn’t relate to the
history of Pleasant Grove; the park already contained a monument from a different religious
group; Summum filed suit alleging violation of free speech rights
 Issue – does a city’s refusal to place a religious organization’s monument in a public park violate
the 1st Amendment free speech rights when the park already contains a monument from a
different religious group?
 Holding – freedom of speech is not violated  the city’s decision was not subject to the free
speech clause b/c the city’s decision to accept certain donated monuments while rejecting others
is a form of government speech
 Reasoning – the placement of a monument in a public park is a form of government speech b/c
the monuments represent an expression of the city’s viewpoints; governmental speech is
permissible  therefore, it’s not subject to scrutiny under the free speech clause
o Walker v. Texas Veterans
 Facts – Texas Veterans is a non-profit corporation that works to preserve memory/reputation of
soldiers who fought for the confederacy in the civil war; Texas Veterans applied to have new
specialty license plate with confederate flags on it; Texas DMV had policy that it could refuse a
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specialty license plate if the design might be offensive to the public; Texas Veterans application
was denied; Texas Veterans brought suit claiming freedom of speech violated
 Holding – the rejection for the specialty license did not violate Texas Veterans’ free speech
 Reasoning – specialty license plate is an example of government speech b/c Texas and other
states have long used license plates to convey messages; the public associates license plates w/
the state; Texas maintains direct authority over each specialty license plate; Texas took ownership
of each plate design & never intended for plates to serve as a public forum  the license plate is
not a public forum – it is one traditionally used for governmental speech
Vagueness and Overbreadth
o Both are mechanisms for bringing facial challenges to restrictions on speech
o Vagueness  a regulation of speech is unconstitutionally vague if a reasonable person cannot distinguish
between permissible & impermissible speech b/c of the difficulty encountered in assigning meaning to
language
o Overbreadth Doctrine  a regulation of speech is too broad (overbroad) when it not only covers speech
that ought to be prohibited but also penalizes speech that should be protected; a regulation of speech is
unconstitutionally overbroad if it regulates a substantial amount of constitutionally protected expression
along w/ conduct that the government may limit to further a compelling government interest
 Packingham v. North Carolina
 Facts – NC law made it a felony for registered sex offenders to gain access to social
media websites; NC’s purpose was to protect minors; Packingham was a registered sex
offender; police came across his FB page and prosecuted him
 Holding – NC law prohibiting registered sex offenders from accessing social media sites
where minors are known to be active, regardless of whether or not the sex offender
directly interacted w/ the minor, violates free speech right
 Reasoning – NC’s law was overly broad and was not narrowly tailored  contentneutral regulation of speech must be narrowly tailored to serve a significant government
interest – the law cannot burden substantially more speech than necessary to advance the
government’s legitimate interest – NC has a legitimate interest (protecting minors) but
the law too broadly restricts access to all sorts of sites
 How could the state have made the law constitutional?  could have enacted a more
narrowly written statute so that it’s directed at the type of conduct that the state is trying
to prevent – could have been better if the state said “offenders can use social media but
cannot use it for X, Y, Z” instead of them not being allowed to social media sites at all
 National Institute of Family & Life Advocates v. Becerra
 Facts – California law required clinics that were licensed to notify women that California
provided free or low-cost services including abortions & required unlicensed clinics to
notify women that they were unlicensed; NFLA claimed it violated freedom of speech
 Holding – the California law is a violation of free speech
 Requirement for licensed clinics
o Under-inclusive in relation to the stated goal of the Act (to provide low income
women w/ info about state-sponsored health services); the requirement does not
even survive intermediate scrutiny
o The state could use public advertising or even post public notices near the clinics
to achieve the same message w/o violating right to free speech  was not the
least restrictive means for the state to achieve its purpose
 Requirement for unlicensed clinics
o The state is required to show that such a disclosure is justified b/c it addresses a
real harm – the state was only able to show that the requirement addresses a
hypothetical harm  the only justification put forward by the state was to ensure
that pregnant women know when they are receiving medical care from licensed
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o
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professionals but the court denied this justification b/c women did not know what
kind of facility they were entering when they went to a crisis pregnancy center
The requirement for unlicensed clinics unduly burdens protected speech by
imposing a government-scripted disclosure requirement that was wholly
disconnected from the state’s informational interest
Prior Restraints
o Prior restraint is government action that prohibits speech or other expression before the speech happens
o NY Times v. US
 Facts – NY Times was prevented from publishing materials belonging to a classified Defense
Department study regarding the history of US activities in Vietnam; US argued that prior restraint
was necessary to protect national security; NY times went to publish something that was not
allowed under this law; US sought an injunction to stop the press from publishing it
 Holding – government’s efforts to prevent the publication of what it term “classified information”
violated free speech clause
 Reasoning – the government did not meet its burden of showing justification for its prior restraint
of expression  the guarding of military secrets was not justified; under the free speech clause
the press must be left free to publish news w/o censorship/injunctions/prior restraints
 Rule – the government bears the heavy burden of showing sufficient justification for the
imposition of a prior restraint on speech  any prior restraint on speech comes to the SC bearing
a heavy presumption of unconstitutionality
Compelled Speech by the Government
o The Compelled Speech Doctrine sets out the principle that the government cannot force an
individual/group to support certain expression
o West Virginia State Board of Education v. Barnette
 Facts – WV State Board of Education had law that forced all teachers & pupils to pledge
allegiance to the nation’s flag each day; Barnette (a Jehovah’s Witness) refused to pledge
allegiance while in public school; he asked for an exception to the law b/c the pledge goes against
his religious belief but was denied an exception; Barnette was expelled & charged w/ juvenile
delinquency
 Holding – compelling a salute to the flag is a violation of the 1st Amendment
 Reasoning – the law infringes upon an individual’s right to choose their own beliefs; individuals
have the right to choose beliefs and act accordingly  as long as the actions do not present a
clear and present danger of the kind the state is allowed to prevent then the constitution
encourages diversity of thought and belief
 Takeaway – the right to not speak is as equally protected as the right to free speech
Incitement
o Brandenburg v. Ohio
 Facts – Ohio law made it illegal to advocate crime or violence as a means of accomplishing
industrial or political reform; Brandenburg was leader in KKK; he made KKK speech promoting
the taking of revenge against the government if it did not stop suppressing the white race; he was
convicted under the law b/c his speech was a threat; Brandenburg claims he is free to join the
KKK & preach about what the KKK believes in
 Issue – did the Ohio law prohibiting public speech that advocated certain violent activities violate
Brandenburg’s right to free speech?
 Holding – Ohio’s law violates free speech
 Reasoning – the mere abstract teaching of the need to resort to violence (what Brandenburg did)
is not the same as preparing a group for violent action  b/c the law failed to provide for the 2nd
part of the test it was overly broad
 Takeaway – court establishes Brandenburg test  a government may prohibit speech advocating
the use of crime/violence if the speech satisfies both elements of the test:
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 (1) The speech is directed to inciting or producing imminent lawless action AND
 (2) The speech is likely to incite or produce such action
Fighting Words (Speech Designed to Provoke a Violent Reaction in the Listener)
o Chaplinsky v. New Hampshire
 Facts – NH statute prohibited any person from addressing any offensive word to any other person
who is in any public place or calling him by any offensive name; Chaplinsky called a city marshal
a “God damned racketeer” in a public place; Chaplinsky was arrested and convicted under the
statute
 Holding – NH statute is constitutional; the statute does not violate Chaplinsky’s free speech rights
 Reasoning – It’s a narrowly-defined statute  it’s narrowly drawn to define & punish specific
conduct lying w/in the domain of government power – NH defined the statute as applying only to
“fighting words” & therefore the statute does not unconstitutionally invade upon the right of free
speech; fighting words are of such little social value that any benefit they might produce is far
outweighed by their costs on social interests
o RAV v. City of St. Paul
 Facts – RAV made a cross and burned it inside the fenced yard of a black family; City of St. Paul
charged RAV under the city’s ordinance that prohibits the display of a symbol which one knows
or has reason to know arouses anger on the basis of race, color, creed, religion, or gender
 Holding – the city’s ordinance was unconstitutional b/c it was content-based
 Reasoning – the ordinance discriminated on the basis of content by targeting only those
individuals who provoke violence on the basis of race, color, creed, religion, or gender; the
ordinance does not cover those who wish to use fighting words in connection with other ideas and
therefore it’s a content-based discrimination – it was the city imposing special prohibitions on
those speakers who express views on disfavored subjects; it prohibits speech based on the subject
the speech addresses
Hate Speech & True Threats
o Virginia v. Black
 Facts – Virginia statute says that any cross-burning is treated as prima facie evidence of the
intention to create fear in another; KKK member burned a cross; he was prosecuted
 Holding – the statute is a violation of free speech
 Reasoning – the prima facie provision strips away the very reason why a state may ban crossburning with the intent to intimidate – it removes the reason for the state to ban cross-burning as a
sign of threat in the first place
 Rule – a provision in a cross-burning statute of any state which treats any such incident as being
on the face of it an intention to intimidate another is a violation of the constitution
 Takeaway – court holds that cross-burning does not fit w/in the meaning of “true threats”
 True threats  statements where the speaker means to communicate a serious expression
of an intent to commit an act of unlawful violence to a particular individual/group of
individuals – the speaker need not actually intend to carry out the threat
 As the history of cross burning indicates, a burning cross is not always intended to
intimidate – sometimes the cross burning is a statement of group unity (ex: a ritual used
at Klan gatherings & it is used to represent the Klan itself)
Obscenity (Obscene Speech)
o Miller v. California
 Facts – California criminal statute makes it illegal to knowingly distribute obscene matter; Miller
mailed brochures that contained pictures of sexually explicit activities to individuals who had not
requested the material & the individuals notified the police
 Holding – obscene materials do not enjoy freedom of speech protection
 Takeaway – standard to identify obscene material that a state may regulate w/o infringing on
freedom of speech:
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(1) Whether the average person, applying contemporary community standards (local
community standard – not all of US) would find that the work, taken as a whole, appeals
to the prurient interest
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value (the social value is to be determined by a national standard & not
community – the value of the work does not vary from community to community)
o
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US v. Stevens
 Facts – Congress enacted statute criminalizing the commercial creation/sale/possession of the
torture & killing of animals b/c it’s analogous to obscenity; Stevens indicted under this statute for
selling videos depicting dogfighting
 Holding – Congress’s law is violation of free speech b/c it’s overbroad
 Reasoning – the statute was overbroad b/c it was unconstitutional in a substantial number of its
applications (b/c its definition of “depiction of animal cruelty” did not explicitly require that
depicted acts of wounding/killing be cruel, the law extended to depictions of any illegal act of
wounding/killing even if it was the humane slaughter of a stolen cow); depictions of conduct
which is lawful in one state could constitute illegal depictions in another state
Indecent/Offensive Speech
o Cohen v. California
 Facts – defendant convicted under California law for wearing jacket with the words fuck the draft
on it outside the courthouse; defendant did not threaten/engage in any act of violence & was
convicted
 Holding – defendant has right to wear the sweatshirt b/c of his right to freedom of speech
 Reasoning – government cannot criminalize the display of profane words in public places; could
not be classified as obscenity b/c it was not erotic; could not be classified as fighting words b/c it
was not directed at a particular recipient; public is free to avert their eyes from the distasteful
message – it’s not enough to find speech unprotected just b/c it creates a public disturbance
 Emotive speech  this case categorizes new type of speech – speech seeking to get attention
 Distinct from Miller v. California  in Miller, cannot just turn your head to mail coming to
your mailbox the way you can turn your head to defendant’s jacket in Cohen
Commercial Speech
o Virginia State Board of Pharmacy v. Virginia Citizens Community Council
 Facts – Virginia statute declared it unprofessional conduct for licensed pharmacists to advertise
their prescription drug prices; the Virginia Citizens Consumer Council challenged the statute
 Holding – “commercial speech” is protected by the freedom of speech and therefore pharmacists
may advertise their prescription drug prices
 Reasoning – in cases of commercial speech, such as price advertising, freedom of speech
protections apply just as they would to non-commercial speech; even speech that is sold for profit
or involves financial solicitations is protected; even though Virginia has a legitimate interest in
preserving professionalism among its members – it may not do so at the expense of public
knowledge about lawful competitive pricing terms
o Central Hudson Gas v. Public Service Commission
 Facts – Public Service Commission of NY enacted law that prohibited electric utilities from
promoting electricity use; the Commission said the regulation was in the interest of conserving
energy; the regulation distinguished promotional advertising from informational advertising
(informational advertising was permitted); Central Hudson Gas challenged the regulation
 Holding – the advertising was commercial speech that is protected by freedom of speech
 Reasoning –
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

The court recognized NY’s interest in promoting energy conservation and accepted that
the regulation would directly further that interest, HOWEVER – since the regulation
restricted all promotional advertising regardless of its effect on electricity use it was overinclusive
 Standard – it’s similar but not identical to intermediate scrutiny
 Some forms of commercial speech may be regulated by the state as long as state proves
it’s for a better interest for controlled markets
 For commercial speech regulated by the state to be constitutional:
o (1) The speech must concern lawful activity & not be misleading
o (2) The government interest must be substantial
o (3) The regulation directly advances the significant governmental interest
o (4) The regulation is not more extensive than is necessary to serve that interest –
the regulation leaves open ample alternative channels for communication of the
information  NY law did not satisfy this part of the test b/c the court found that
the restriction was more extensive than necessary to serve the government’s
purpose for the advertising ban
Expressive Conduct
o Restrictions on Flag Burning
 US v. O’Brien
 Facts – O’Brien burned his draft card at a Boston courthouse; he said he was expressing
his opposition to war; he was convicted under federal law that made the destruction of
draft cards a crime
 Holding – federal law prohibiting destruction of draft cards is not a violation of freedom
of speech; O’Brien can be convicted for violating it
 Takeaway – when “speech” and “nonspeech” elements are combined in the same course
of conduct, the following test should be applied – if the test is satisfied then the
governmental regulation involving symbolic speech is justified:
o (1) A government regulation is sufficiently justified if it is w/in the constitutional
power of the government; is it within the government’s ability to regulate
 This is satisfied b/c the government regulation is w/in the power of the
government b/c the government has the ability to regulate the military
o (2) It furthers an important/substantial governmental interest
 Satisfied b/c there is a substantial government interest here  efficiency
of the draft system
o (3) Is the governmental interest unrelated to the suppression of free expression?
 Satisfied b/c it’s not just about suppressing people from freedom of
speech – destroying your draft cards defeats its purpose and also the
government’s interest is limited to having the draft system work
o (4) Is the restriction on the right to freedom of speech no greater than is essential
to the furtherance of that interest?
 Distinct from RAV v. City of St. Paul where the city’s ordinance was unconstitutional
b/c it was content-based
 Could compare this to idea of burning passport  it’s property of the state similar to a
draft card; if you destroy passport you’re interfering w/ system (affects who is in system
as registered, will have re-administer passport, etc.); government has interest to keep
passport system in check
 Texas v. Johnson
 Facts – Johnson burned American flag in front of Dallas City Hall; he said it was a means
to protect against Reagan’s administration policies; Johnson was tried & convicted under
Texas law which prohibited flag desecration; he was sentenced
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
Holding – the desecration of American flag is a form of speech protected by 1st
Amendment
 Reasoning – Johnson’s actions of burning the flag was an act of expressive conduct and
political nature (it’s symbolic speech); just b/c an audience takes offense to certain
ideas/expression does not justify prohibiting speech; the state may not prohibit the
expression of an idea simply b/c society finds the idea offensive or disagreeable; the State
does not have the authority to designate symbols to be used to communicate only a
limited set of messages
 Case is an example of incorporation  the 14th amendment is being used to incorporate
the protections of the 1st amendment against the state (the statute banning desecration of
flag was state statute – not federal)
Time, Place, and Manner Restrictions on Speech on Public Property
o Ward v. Rock Against Racism
 Facts – NYC mandated the use of city-provided sound systems and technicians for concerts in
Central Park; members of rock group claimed that the inability to use their own sound equipment
and technicians in a concert in a public forum interfered with their 1st amendment rights
 Holding – the NYC ordinance is constitutional
 Reasoning – the guideline is content-neutral b/c it’s justified w/o reference to the content of the
regulated speech – the city's principal justification (the desire to control noise & to avoid
intrusion into residential areas) has nothing to do with content; court held that even though there
could have been a less restrictive alternative to furthering their interest does not mean that the
ordinance is unconstitutional b/c it was content-neutral & the government narrowly tailored the
ordinance to serve the city’s legit public interest
 Rule – a regulation of the time, place, or manner of protected speech must be narrowly tailored to
serve the government's legitimate, content-neutral interests BUT it need not be the least
restrictive or least intrusive means of doing so
o McCullen v. Coakley
 Facts – Mass state created a 35-foot buffer zone around the exits/driveways of abortion clinics;
plaintiffs routinely engaged in pro-life counseling outside of these state abortion clinics; these
individuals sued arguing that the state law violates freedom of speech
 Holding – Mass law violates free speech
 Standard – the law was not content nor viewpoint based (b/c a violation of the Mass law depends
not on the speech itself but on the location of the speech) & therefore does not need to be
analyzed under strict scrutiny BUT since the law restricted speech on public sidewalks, places
that are meant to receive strong 1st amendment protection, the law needed to have satisfied the
following test to be constitutional:
 (1) Be neutral w/ regard to the content of the speech or viewpoint of the speakers
 (2) Be narrowly tailored to a specific government interest
o Law burdens more speech than is necessary to advance the government’s interest
in ensuring safety
 The type of quiet counseling that McCullen wants to provide does


not threaten patient safety
Court said that the state could have made the law narrowly tailored
by having the law require crowds blocking a clinic entrance to
disperse when ordered by police & forbid them from reassembling
in a certain distance of the clinic for a certain period
 (3) Leave open alternative channels of communication
Incorporation b/c it’s a state statute  1st amendment being incorporated to the states through
14th amendment
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The Religion Clauses (Religious Freedom)
 The Free Exercise Clause
o The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage
in religious rituals
o Employment Division v. Smith
 Facts – 2 counselors for a private drug rehab organization ingested a hallucinogen as part of their
religious ceremonies as members of Native American Church; rehab fired the counselors for this
conduct; counselors filed a claim for unemployment compensation; the government denied them
compensation b/c the reason for their unemployment was work-related misconduct
 Holding – the state can deny unemployment benefits to workers fired for using illegal drugs for
religious purposes
 Reasoning – an individual’s religious beliefs do not excuse him from compliance w/ a valid law
prohibiting conduct that the government is free to regulate (the government is free to regulate
illegal substances); allowing exceptions to every state law/regulation affecting religion would
open the prospect of constitutionally-required exemptions from civic obligations of almost every
conceivable kind; the law is a narrow fit  state’s interest in controlling hallucinogens is very
high b/c they’re dangerous to the population & the law is not targeting one specific religion – it’s
targeting the entire population
 Takeaway – religion-neutral criminal laws that have the effect of burdening a particular religious
practice need not be justified by the government, under the free exercise of religion clause, by a
compelling governmental interest
o Lukumi Babalu Aye v. Hialeah
 Facts – Church of Lukumi practiced religion of Santeria; Santeria used animal sacrifice as a form
of worship; city enacted ordinance prohibiting possession of animals for religious sacrifice or
slaughter with specific exemptions for state-licensed activities
 Holding – the city’s ordinance prohibiting ritual animal sacrifices violates free exercise clause
 Standard – strict scrutiny  the ordinance failed to pass the strict scrutiny test
 The ordinance targeted religious behavior  it applied exclusively to the church, it
singled out the activities of the Santeria faith, and only conduct tied to religious belief
was burdened
 The ordinance suppressed more religious conduct than was necessary to achieve their
stated ends
o Masterpiece Cakeshop v. Colorado Civil Rights Commission
 Facts – 2 men went to cake shop requesting a cake for their wedding; cake shop owner declined
to do so on the grounds that he does not create wedding cakes for same-sex wedding b/c of his
religious beliefs; Colorado Civil Rights Commission’s law prohibited discrimination against gay
people in purchasing products/services
 Issue – does Colorado’s law forcing him to make the cake for the same-sex wedding violate the
cake shop owner’s free exercise clause?
 Holding – the cake shop owner’s free exercise clause was violated
 Reasoning – religious and philosophical objections to gay marriage are protected views and in
some instances protected forms of expression; the Colorado law prohibiting discrimination
against gays had to be applied in a neutral manner w/ regard to religion – however, the cake shop
owner did not receive this neutral treatment & members of Colorado Commission showed
impermissible hostility toward his religious beliefs  the Commission’s actions violated the
state’s duty to afford neutral treatment mandated by the free exercise clause
 The Establishment Clause
o Prohibits the establishment of religion by Congress
o Prohibits the government from making any law respecting an establishment of religion; this clause not
only forbids the government from establishing an official religion, but also prohibits government actions
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o
o
o
that unduly favor one religion over another; it also prohibits the government from unduly preferring
religion over non-religion, or non-religion over religion
County of Allegheny v. ACLU
 Facts – 2 public-sponsored holiday displays in Pennsylvania; 1st display involved a Christian
nativity scene inside a courthouse; 2nd display was a large menorah organized by the Chabad
outside city-county building; challengers claimed the displays constituted state endorsement of
religion in violation of the free establishment clause
 Holding – the Christian display violates the establishment clause BUT the menorah is
constitutional b/c of its particular physical setting
 Reasoning – the Christian display contains no other object/figures other than the creche to detract
from its religious message so it’s an improper state endorsement of the particular religion
represented by the creche; the menorah is a religious symbol but it is surrounded by a Christmas
tree & a sign saluting liberty – the combined effect downplays the menorah’s religious Judaism
message b/c it’s just a state-sponsored display depicting images of the winter holiday season
Lemon v. Kurtzman
 Facts – Pennsylvania statute reimburses religious schools for teacher salaries/books/other
instructional materials; challenger argues it’s unconstitutional for the state to provide financial
assistance to religious schools b/c it violates the establishment clause
 Holding – the statute violates the establishment clause
 Takeaway – court establishes 3-Part Lemon Test  a statute does not violate the establishment
clause if it passes this test:
 (1) Statute must have a secular (no religious basis) legislative purpose
o Court held the statute had secular legislative purpose b/c the statute reflected the
desire of the state to ensure minimum secular education requirements were being
met in the non-public schools
 (2) Statute must not advance or inhibit religion
o The statute’s principal or primary effect must be one that neither promotes nor
inhibits religion
o Court did not reach a holding regarding the 2nd prong of the test
 (3) Statute must not excessively entangle church & state – entanglement
o It must not foster excessive government entanglement w/ religion
o Excessive entanglement is determined by:
 (i) The character purpose of the institution benefited;
 (ii) The nature of the aid given; AND
 (iii) The resulting relationship between the government & church
o Court held that the statute resulted in excessive government entanglement with
religion b/c the statute provides state funding directly to a church-related
organization & government financial involvement in such institutions inevitably
leads to an intimate and continuing relationship between church and state
Student-Delivered Prayers
 Santa Fe Independent School District v. Doe
 Facts – public school has current school policy that allowed student-led student-initiated
prayers before the football games at schools over the schools loud-speaker; one student
delivered a prayer that was overly Christian; one Mormon & 1 Catholic family filed suit
challenging the school policy for violating the establishment clause
 Holding – the school’s policy permitting student-led student-initiated prayer at football
games violates the establishment clause
 Reasoning – not only is it public speech but it’s school-sponsored speech  these pregame prayers delivered on school property, at school-sponsored events, over the school's
public address system, by a speaker representing the student body, under the supervision
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o
of school faculty, and pursuant to a school policy that explicitly and implicitly
encourages public prayer are not private, but public speech
 Takeaway – court’s analysis
o Looks at where the speech is given, who it’s coordinated by, all the policies and
regulations where the speech is given, etc.
o Why is the “speech” at issue in this case not properly characterized as “private”
speech?  the school’s involvement was too great
 Under the supervision of school faculty; pursuant to school policy; took
place on school property at school’s address; there are people forced to
go to the games (such as the band players, etc); it’s coordinated by the
institution itself
The Use of Legislative Chaplains
 Town of Greece v. Galloway
 Facts – Town of Greece’s town meetings began with a prayer; the town did not adopt any
policy regarding who may lead the prayer or its content – but generally Christian clergy
members delivered the prayers; Galloway sued the town arguing that the town’s practices
violated the establishment clause by preferring Christianity over other faiths
 Holding – the invocation of prayers at town meetings does not violate the establishment
clause
 Reasoning – these prayers at the town meetings are legislative prayers and legislative
prayer is primarily for the members of the legislative body, and therefore, such prayers do
not coerce the public into religious observance; though Galloway says she is offended by
these prayers – the court holds that there is difference between “offense” versus
“coercion” & “offense” does not violate the establishment clause
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