Con Law Outline Fall 2005
Jocelyn Doane
I. INTRODUCTION TO CONSTITUTIONAL ANALYSIS
A. The Constitution does three things:
(1) Delegates power of the people to the three national branches
(2) Puts restraints and limits those powers
(3) Reserves remaining power to the States or people
B. The dynamics of the Const.: There is an unfulfilled radicalism worked into the document. The S. Ct. is
akin to an on-going Constitutional Convention. Two competing tensions underlie the Const.:
(1) Popular sovereignty—sovereignty resides in the people, power flows up from the people (see
Preamble—"We the People")
(2) Fundamental law
C. Analysis of Constitutional Problems
(1) Social problem . . . becomes a
(a) Constitutional problem . . . which leads to a
(i) Constitutional violation . . . for which there is a
1. Remedy . . . which has an
a. Effect . . . and a
i.
Political Response.
D. The Road to Brown—An Introduction to the Development of Constitutional Law; Using this case to
explore these questions: What is the source of the Supreme Court’s power to declare laws
unconstitutional? How should that power be exercised? What are its limits?
(1) Slavery as an introduction to constitutional analysis
(a) Social problem: slavery
(b) Constitutional problem: Is slavery constitutional?
(c) Constitutional violation: Did legislatures violate the Const. by treating slaves as property?
(d) Remedy: Court strikes down legislative acts.
(e) Effect: War, Reconstruction
(f) Political Response: Abolishment of slavery
(2) Dred Scott (1856) *C.J. Taney
(a) Background: Dred Scott was a slave taken from Missouri (slave state), to Illinois (abolitionist
state), then to the NWt Territory where slavery was forbidden by the 1820 Missouri Compromise
statute. Upon returning to Missouri, Scott claimed since he was not a “slave” in NW he was no
longer a slave when he returned to Missouri and sued for his freedom in federal court. Scott
invoked diversity jurisdiction.
(b) Held:
(i) Federal courts had no jurisdiction because Scott was not a “citizen” of Missouri. According to
Cx he was not a citizen (slaves could not be citizens).
(ii) 1820 Missouri Comp statute unconstitutional per the Takings Clause of the Fifth Amend.
(c) Significance: Dred Scott attempted to remove blacks from the polity. Blacks are not “citizens.
(3) The Reconstruction Amendments
(a) 13th Amend (1865): Abolished slavery and involuntary servitude in public and private spheres.
Reversed Dred Scott.
(b) 14th Amend (1868): Not race-based. Reverses Dred Scott and Barron v. Baltimore.
(c) 15th Amend (1870): Gave blacks voting rights.
(4) 1866 Civil Rights Act [61]
(a) citizens of every race and color shall have the same right..as is enjoyed by white citizens to make
and enforce Ks, to pursue lawsuits, and to hold and alienate or receive property, and to be
protected in their personal and material security.
(5) Division of rights
(a) Civil Rights – rights btwn individuals and the govt. rights govt protects. E.g. right to be witness,
bring lawsuit, own property
(b) Political Rights – right to vote
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(c) Social Rights – Plessy, Brown
(6) Pre-Brown Cases
(a) Strauder v. West (1879) [63]: Crt found state statute that prohibited everyone except “white male
persons” from serving on juries to be unconstitutional b/c it brands upon black an assertion of
inferiority… and the 14th Amend. ordains that laws in states shall be ths same for balcks and
whites and no discrimination shall be made against colored people by law.
(b) Plessy v. Ferguson (1896) [63]: *Separate but equal doctrine.
(i)
Background: railroad statute which required separate but equal accommodations for
white and colored races and made it a crime for passengers to violate the required segregation.
The state law was held constitutional by Sup. Ct. (there was no 14th Am. violation) b/c the
statute was rational (Rx). J. Brown cites existing segregation in school system as justification
that segregated transportation is also apparently Cx.
(ii) Separate but equal treatment does not violate EP.
1. The statute relates only to “social equality/rights” not to political or civil equality/rights,
which is not a goal of the EPC.
2. No badge in inferiority created by the act.
3. 13th Amendment was not violated b/c “a statute which implies merely a legal distinction
btwn the white and colored races – has not tendency to destroy the legal equity of the two
races, or reestablish a state of involuntary servitude.”
4. Reasonable Standard emerges
(iii) Harlan dissented – EP violated.
1. Although facially neutral, it is very clear that the statute was enacted to perpetuate an
inferior concept. Goal of the Reconstruction Amendments – to integrate African
Americans into the country as equal citizens.
2. Harlan argues that the “rxable” standard used to decide the case is not appropriate, and
perhaps a higher standard should be used.
3. Harlan finds damage results from segregation – imposes badge of inferiority, a stigma,
they are viewed as lower creatures, outcasts, unwelcome
(iv) Class Notes - Segregation perpetuates whites superiority belief
(c) McCabe v. Atchinson [70] – only white people can use a dining car.
(i) Holding: struck down statute requiring trains to maintain separate coach sections for blacks
and white but allowing them to having dining and sleeping cars for whites only.
(ii) OK to have separate dining cars, but cannot exclude blacks if there is only one.
(d) Cumming v. Richmond County Board of Education (1899): First public education case. Harlan,
the dissenter in Plessy, upholds a state-mandated segregated public education system.
(e) Missouri ex rel. Gaines (1938) [70]: A law segregating law schools under sep/eq doctrine is struck
down. Gaines denied entry to Missouri law school, although state offered provide financial aid for
him to attend school elsewhere. Crt found the privilege only offered to whites was a denial of the
equality of legal right to the enjoyment of a privilege the state has set up and provision for
financial aid does not remove the discrimination. Remedy – Missouri created law school for
blacks.
(i)
Sipuel v. Board of Regents (1948): Court struck down Oklahoma’s failure to provide legal
education for its black citizens. Roping off a section of the law school is not “equal” per
Plessy.
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(ii)
Sweatt v. Painter (1950): Court struck down segregated law school without overruling
Plessy. one person law school (Prairie View) was inherently unequal to the U of TX law
school. The Ct. recognized the intangible differences in the two schools (ie – the benefits of
mingling, networking, library, etc.). Emphasis on the spirit of being in the law school.
Example of the Ct. moving away from the physical to the intangible.
E. The End of Separate but Equal
F. Brown v. Board of Education (1954, C.J. Warren) NAACP’s direct attack of Plessy
(1) Crt rejected Separate But Equal doctrine in education.
(a) Segregation of children in public schools solely on the basis of race, even though physical
facilities and other tangible factors may be equal, deprive children of the minority group of equal
educational opportunities.
(b) Intangible factors necessarily prevented children who were restricted to all-black schools from
receiving equal educational opts. Segregation generates a feeling of inferiority as to their status
in the community that may affect their hearts and minds in a way unlikely ever to be undone
(Cited Clarks’ Doll Test as evidence, but critics say test is not rigorously scientific enough).
(c) Separate educational facilities are inherently unequal and deprives Πs of the equal protection of
laws guaranteed by the 14th Am.
(d) Crt focused on role of education in society in 1954 (not during 1868 – time Amend was adopted).
Education is essential, ppl have a right to education where the state has undertaken to provide it.
(2) Strict scrutiny is required when government uses racial classification.
(a) strict scrutiny test requires the govt to demonstrate a compelling interest and use of least drastic
alternative.
(3) Big Picture:
(a) Brown does not rest its holding on the language of the 14th Amend., but on sociological data. Why
should legislative enactments be subject to review for consistency with the Constitution?
(i) The Const. is the supreme law of the land.
(ii) When representatives of people get too powerful, they get corrupt, and there needs to be a
check placed on them.
(b) Why should the Court be the one to police constitutional questions? Why not the legislature?
(i) Federalist 10 argues that factions are comprised of passions that tend to corrupt. Thus, power
should be divided.
(ii) No man (i.e. the “people”) is allowed to be a judge of his own cause.
(iii) Courts are implicitly the guardians of the Const.
(iv) Courts are insulated from political influence.
(c) Why can’t state courts adequately guard the Const?
(i) Art. III states that the judicial power is vested in a single Court.
(d) What is the value of stare decisis if the Court can overrule its own precedents?
(i) Stare decisis is not an absolute rule, but a rule of policy. It is prudent for the Court not to
change its own rulings without a good reason.
G. Bolling v. Sharp (1954)
(1) Racial segregation in public schools in D.C. violated 5th Am. DPC
(2) Segregation in public education is not Rx related to any proper govt objective, and thus imposes on
Negro children of the DC a burden that constitutes an arbitrary deprivation of their liberty in violation
of the DPC.
(3) It would be unthinkable that the same Cx that prohibits states from maintaining racially segregated
public schools would impose a lesser duty on the Fed Gov.
(4) Racial classifications ce must be scrutinized w/ particular care, since they are contrary to our traditions
and hence Cx suspect
H. Korematsu v. U.S. (1944, J. Hugo Black)*Only case to survive strict scrutiny
(1) Background: Post-Pearl Harbor military ordered excluded all persons of Japanese ancestry from
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certain areas. Korematsu refused to report and was convicted of remaining in a “Military Area.”
(2) Holding: Crt upheld order, despite its suspectness, finding a compelling need to prevent espionage
and sabotage. Pressing public necessity may sometimes justify the existence of such restrictions.
(3) Standard:
(a) All legal restrictions which curtail the civil rights of a single race group are immediately suspect
(b) Cts must subject all legal restrictions which curtail the civil rights of a single racial group to the
most rigid scrutiny. (genesis of strict scrutiny)
(4) Dissent:
(a) Majority relied upon assumption that all Japanese may have a dangerous tendency to commit
sabotage and espionage.
(b) Loyalty hearings could have been held, DP should have been given.
(c) Jackson concedes that sometimes the military has to do what they have to do, however “we don’t
want to uphold what the military has done, we don’t want to say what they did was constitutional.
We don’t want to dilute the constitution.”
(5) Class Notes
(a) Crt doesn’t really apply rigid scrutiny. Justice black sets bar high, but then defers to military
authorities – “we cannot reject as unfounded the judgment of the military authorities”
(b) What is the problem? Rigid scrutiny – demand/insist evidence.
(c) Current rigid scrutiny test: 1) Compelling governmental interest – preventing espionage is a
compelling govt interest, 2) has the govt chosen the least drastic alternative?
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II. JUDICIAL REVIEW AND THE NATURE OF JUDICIAL POWER
A. Bases for Judicial Review
B. Marbury v. Madison (1803)
(1) Background: Just before leaving office, Adams appointed new judges. Commissions had been signed,
but not yet delivered before Adams left office. Jefferson Admin refused to honor undelivered
appointments, which included Marbury. He sued James Madison, (Jefferson’s Sec of St) invoking the
original jdx of the Court per the Judiciary Act of 1789 to petition for a writ of mandamus.
(2) Marshall’s opinion. [NOTE: Marshall chose NOT to address the jurisdiction question up front; he
instead left that for last and as a result, ultimately gives an “advisory opinion” on the 1st 2 issues,
because the court had no jurisdiction to hear the case. Marshall uses the 1st to issues to “chastise” the
Jefferson administration for not following through on Marbury’s commission.]
(a) First, Marbury had a right to his commission: By signing the commission, Adams conferred on
Marbury a vested, irrevocable right to his judgeship.
(b) Second, Marbury was entitled to a remedy: A person who is injured is entitled to a remedy
provided by law. This is also the section where Marshall distinguishes cases which are today
called “political questions”, namely matters which have been reserved by the Constitution to the
discretion of the executive department of the President.
(c) Third, the Court did not have jurisdiction to issue a writ of mandamus. This is the section of the
opinion where Marshall establishes the doctrine of judicial review of statutes.
(i) The Const. determines the jurisdiction of the Court.
(ii) Constitutional principles are fundamental and permanent.
(iii) Supremacy of Cx – The Court is not bound to apply a legislative act that is unconstitutional.
1. Any law that is repugnant to the Const. may be struck down.
a. The Const. is the supreme law of the land.
2. S/C has the authority/power to strike down laws as uncx and refuse to enforce it. The
Cx makes it the province and duty of the judicial department to say what the law is.
(iv)
Therefore, the Judiciary Act of 1789 is unconstitutional because it gives the Court original
jurisdiction to issue writs of mandamus contrary to Art. III.
(3) Big Picture:
(a) Did Marbury have to be decided the way it was?
(i) Why is the jurisdictional question not answered first? If the Court lacks jurisdiction, it cannot
hear the case. And why did Marshall interpret the Judiciary Act as unconstitutional? A canon
of statutory construction is that a statute should be construed to have a constitutional meaning
if possible. Here, Marshall could have interpreted the Act as constitutional. Reading the Act, it
appears that the section referring to the Court’s ability to issue writs of mandamus is speaking
about the Court’s appellate jurisdiction. Marshall, instead of finding the Judiciary Act
unconstitutional could have dismissed Marbury’s lawsuit on the ground that the statute did not
provide for it to be brought in the SC. Marbury might be able to sue in a lower court, which
upon appeal to the SC, the SC could then issue a mandamus to Madison to deliver Marbury’s
commission.
(ii) Marshall wanted to expand the power of the court. He interpreted the Act expansively to allow
himself to establish the power of judicial review.
(b) Is the Court unchecked, then?
(i) No. A majoritarian reaction in Congress may influence the appointment of the next Justice.
(this is part of the political response step in constitutional analysis)
(ii) Congress can at any time withdraw jurisdiction from the Court. However, Congress must be
careful when tampering with the judicial branch because it is seen as a sacred institution.
C. The Ct’s Supremacy in Constitutional Interpretation
(1) Cooper v. Aaron (1958) [96] – There is a duty on state officials to obey Fed Ct orders resting on
this Crt’s considered interpretation of the Cx specifically requiring the governor and legislature or
Arkansas to be bound by Brown. The Supremacy Clause in Art. VI makes the Cx the supreme law of
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the land (Sup. Ct’s constructions of the Cx are binding on the other branches of the nation as well as
state governments, ie – states must defer to Fed law, and Fed Ct has power to interpret the Fed Cx).
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EQUAL PROTECTION ANALYSIS
The EPC does not take away the power of legislatures to write laws that discriminate between people. The
theory of equal protection is that legislatures are prevented by the EPC from denying equal protection to
people who are similarly situated. Compare this to fundamental rights analysis, which is based on the notion
that laws cannot abrogate certain rights guaranteed and protected by the Constitution.
I.
RACIAL DISCRIMINATION; Racial Classifications
A. Heightened Scrutiny for Racial Classifications: See Korematsu (only case that survived strict scrutiny)
B. Facially discriminatory statutes:
(1) Loving v. Virginia (1967)
(a) Background: Two Virginian residents, a black woman and a white man, were married in D.C.
Upon returning to VA they were prosecuted and convicted for violating the state
antimiscegenation statutes. Ps requested vacation of the conviction on ground that the statute
violated the 14th Amend.
(b) The statute violated the 14th Amend. EPC.
(i) The Court, Warren, rejected the “equal application” theory of the 14th Amend.
1. Contrary to the state’s position, 14th Amend. is not satisfied merely because the statute
punishes equally white and black participants in an interracial marriage.
2. The miscegenation statute contains racial classifications. Therefore, equal application of
the statutes alone does not immunize the statute from strict scrutiny analysis.
3. The EPC requires consideration of whether the classifications drawn by any statute
constitute arbitrary and invidious discrimination.
(ii) The statute did not comport with the EPC.
1. Virginia’s miscegenation statutes rest solely on racial distinctions. The fact that Virginia
prohibits only interracial marriages involving white persons demonstrates that the racial
classifications must stand on their own justification, as measures designed to maintain
White Supremacy.
2. The EPC demands that racial classifications be subjected to strict scrutiny.
3. If the statute is to be upheld, it must be shown to be necessary to the accomplishment of
some permissible state objective independent of racial discrimination.
4. Here, there is no legitimate overriding purpose independent of racial discrimination.
[Didn’t even make it to the means because it failed at the ends test.]
(c) The statute violated the 14th Amend. DPC. Seems that Warren added this in to drive the point
home at a time when racial tension was high.
(i) The freedom to marry is a basic civil right.
(ii) To deny this fundamental freedom on the basis of racial classification deprives the State’s
citizens of liberty without due process of law.
(d) Big Picture
(i) The state tried to distinguish statutes that classify on the basis of race from statutes that
discriminate on the basis of race. But, even if the statute were equally applied to all races, it
would offend the “central meaning” of the EPC, which holds that race, an immutable
characteristic, should always be irrelevant in appropriate governmental decision making.
(2) The Strict Scrutiny standard
(a) End: state must have a “compelling” interest, not just a “permissible” or “important” interest.
(b) Means: means chosen must be “necessary” to effectuate the goal—a mere “rational relationship”
between ends and means will not do, nor even a “significant” relationship.
(c) Consistency – the govt must be consistent in its actions. E.g. Cannot put Japanese Ams and not
German Ams. E.g. cant prohibit race mixing only for whites and not for all others.
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C. Facially neutral classifications with discriminatory impact as applied.
(1) Discriminatory Effect
(a) Yick Wo v. Hopkins (1886) Discriminatory Intent
(i) Background: In 1880 about 240/320 laundries in S.F. were owned and run by Chinese. S.F.
Board of Supervisors passed ordinances prohibiting operation of a laundry in a building
constructed of other than brick or stone w/o its consent. P was imprisoned for operating a
laundry in a wood building w/o consent. Almost all 200 Chinese who had applied for permits
had been denied while all 80 or so applications of non-Chinese had been granted.
(ii) The Court vacated the imprisonment order.
1. Under the circumstances of the case, the ordinances give the Board purely arbitrary
discretion to give or withhold consent.
2. The 14th Amend. applies universally to all persons without regard to race, color, or
nationality.
3. Although the statute is neutral on its face, the statute in its administration denies the
petitioners equal protection of the laws.
a. When administrators to whom discretion is entrusted have applied to law in a way
that is disadvantageous to the suspect class no addtl showing of leg or admin motive
is necessary. The court opinion hinged on the arbitrary and discriminatory manner in
which the statute was being applied.
b. Petitioners have complied with all the requirements of the law, which were deemed to
be necessary for the protection against injury to public health. There is no reason why
petitioners should not be allowed to carry on their operations.
c. There is no reason for discrimination in granting permits to Chinese people.
Therefore, the discrimination violates the 14th Amend. EPC.
(iii) Holding: A law that is facially neutral violates the EPC if it is applied and administered by
the state with overwhelming discriminatory effect.
(iv) Notes:
1. Are the ordinances void on their face?
No.
2. Are they unconstitutional as applied?
Yes.
3. What if all the Caucasian-owned laundries were in brick buildings, and all the Chineseowned buildings were in wooden buildings?
a. Court will frequently say if you have valid non-racial reasoning (compelling state
interest), then okay, despite the discriminating impact.
4. Yick Wo was not a US citizen. Are aliens protected by the 14th amendment?
a. Aliens do have the right to due process.
i. 14th amendment gives rights to person, however Fed gov is allowed to
discriminate against aliens, when related to govt functions
ii. Aliens do not have the right to participate in the political process.
5. EP applies to everyone, including aliens.
(b) Ho Ah Kow v. Nunan
(i) Facts: SF ordinance required everyone arrested cut hair short. This practice had a particular
impact on males of Chinese ancestry who viewed their queues as an important cultural
statement and part of their personality.
(ii) Held: Using strict scrutiny, ordinance was found uncx as there was no non-racial rationale for
the requirement.
(iii) Point: Despite the discriminatory impact, would need evidence of discriminatory intent, which
could be the impact itself, to take the review to that of strict scrutiny.
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(c) Parr v. Municipal Court
(i) Facts: Carmel CA enacted an ordinance with a “findings” section which stated that the council
had observed an undesirable influx of “unsanitary visitors to the City, sometimes known as
hippies.” The operative section of the ordinance thereby prohibited all individuals from sitting
or lying on any public lawn.
(ii) Issue: Constitutional?
(iii) Reasoning:
1. Yes. Standard of review is rationality. Doesn’t get to strict scrutiny because doesn’t
subordinate a “suspect” class.
(d) Gomillion v. Lighfoot (1960) [192]
(i) Facts: political rezoning that had the effect of creating an odd-shaped result (28-sided figure)
as well as removing 400 of its 404 Negro voters from the City and no whites
(ii) Point: Impact can infer purpose/intent. *The bizarre shape speaks for itself!!!
(iii) Improper Motivation: record did not show that the purpose of the rezoning was to hurt the
black voters, however crt can make assumptions when it so obvious.
(e) Palmer v. Thompson, 403 U.S. 217 (1971) [193]
(i) Facts: City of Jackson, Miss., in 1962, following a court decree desegregated all of its public
facilities save five city operated swimming pools which were closed pursuant to a
determination by the city council that closure was necessary to preserve peace and order and
also b/c integrated pools could not be economically operated.
(ii) Issue: Racial, unconstitutional decision?
(iii) Black’s opinion:
1. Accepting the finding that the pools were closed to avoid violence and economic loss,
Court rejected the argument that abandonment of this service was inconsistent with the
outstanding desegregation decree.
2. The city was not overtly or covertly operating segregated pools and was extending
identical treatment to both whites and Negroes.
3. The opinion warned against grounding decision on legislative purpose or motivation,
thereby lending support for the proposition that the operative effect of the law rather
than its purpose is the paramount factor.
(iv) Held: The legitimate purposes of the ordinance - to preserve peace and avoid deficits - were
not open to impeachment by evidence that the councilmen were actually motivated by racial
considerations.
1. Difficult to discover the motives of a large multi-member body. Each legislator has
different motives.
2. Disrespectful of a coordinate political branch of government.
3. Futile. Difficult to determine the proper remedy. If leg is struck down b/c of its motive,
the leg can reenact the same leg, but for a different motive (or based on a better leg
record). [194]
(f) Washington v. Davis (1976) White
*EPC violation requires intent
(i) Background: Plaintiffs, African-Americans, alleged that the D.C. police dept’s hiring practices
were racially discriminatory because they included a written personnel test that operated to
exclude a disproportionately high number of black applicants. P’s claim was based on 5th
Amend DPC.
(ii) Held: A facially neutral statute that engenders a racially disproportionate effect violates the
EPC only where it is a product of a discriminatory purpose or intent. While showing of
disproportionate racial impact is a factor in ascertaining intent, it can never by itself be
sufficient to prove discriminatory intent.
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1. A law purported to be racially discriminatory must ultimately be traced to a racially
discriminatory purpose.
a. A facially neutral statute can still be applied so as to invidiously discriminate on the
basis of race. Disproportionate impact is not irrelevant, but it is not the sole touchstone
of an invidious racial discrimination forbidden by the Const.
b. The differentiating factor between de jure (allowed by law) segregation and de facto
(exists as a fact, not necessarily allowed by law) segregation is purpose or intent to
segregate.
2. Here, the police department did not engage in discriminatory hiring practices.
a. The written personnel test was designed to upgrade the communicative abilities of its
employees, a legitimate government purpose.
b. The statistically disparate impact that the test has had on blacks does not make it an
instrument of discrimination.
c. The police department engaged in affirmative efforts to recruit black officers, which
negated any finding of discriminatory purpose.
(g) 2 Step process in applying Washington Test:
(i) After observing the racially discriminatory impact, one must look for a racially discriminatory
purpose. (Occasionally the impact alone will be so dramatic that no nonracial purpose can be
imagined to justify the impact, and then racially discriminatory purpose will be presumed.)
(ii) If one finds the racially discriminatory purpose, then one imposes the strict scrutiny test, and
requires the gov to demonstrate a compelling interest and that is has used at least the least
dramatic approach.
(2) Proving discriminatory intent:
(a) Hawkins v. Town of Shaw (5th Cir. 1971) [194] – Crt held no need to prove discriminatory intent
(facts speak for themselves) where a city segregated blacks and white, and did not provide black
neighborhoods with sewer, street lights.
(b) Village of Arlington Heights v. Metropolitan Housing Development (1977) [202] – Local Village
officials refused to permit multi-unit housing projects (apartments, town houses) to be built, thus
preventing less affluent individuals (and non-whites) from moving into the Village. Violation of
EPC?
(i) Held: Although disproportionate impact is clear, the Πs must also establish discriminatory
intent. (disproportionate impact can be a starting point).
(ii) Πs can prove discriminatory intent by:
1. looking at the historical background of the decision
2. departures from the normal procedural sequence
3. contemporary statements by members of the decision-making body.
(iii) Notes:
1. Need not be the sole motive: Davis does not require that discriminatory intent be the
purpose, rather it just needs to be a purpose. (when there is proof that a discriminatory
purpose has been a motivating factor in the decision, this judicial deference is no longer
justified).
2. Two motivations: If there are two purposes, and only one of these was a discriminatory
against the suspect class, the presence of a second non-suspect motive, will not immunize
the statute from strict scrutiny, so long as the leg would have not passed the statute had the
discriminatory purpose not been present.
3. Second Bite at the Apple: After Π shows intent to discriminate was a motivating factor,
the burden shifts to the Δ to show the statute would have been passed anyway, even
without the intent. If this were est, the complaining party no longer fairly could attribute
the injury complained of to improper consideration of a discriminatory purpose.
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(c) Personnel Administrator v. Feeney (1979) [203]
*Level of intent
(i) Background: Massachusetts gave veterans of military service a preference for all civil service
positions. The veterans were overwhelmingly male, and thus state employees were
overwhelmingly male. Was that disproportionate impact (qualified woman can’t get the job) a
violation of the EPC?
(ii) Held: Applying rational basis review, although crt found discriminatory impact, it upheld
statute because there was no proof that leg adopted law for the bad reason of keeping woman
from jobs, rather they adopted for good reason for showing appreciation for those who served
in the military.
(iii) Rule: When impact is unavoidable in implementing a legitimate leg policy and when history
of available evidence demonstrates no discriminatory purpose, no inference of intent is found.
(iv) Class Notes:
1. Discriminatory purpose implies that the decision maker ..selected or reaffirmed a
particular course of action at least in part of, not merely in spite of, it’s adverse effect upon
an identifiable group.
2. When adverse consequences of a law upon an identifiable group are plainly inevitable, a
strong inference that the adverse effects were desired can rx by drawn.
(d) discriminatory intent can be proven by-(i) Degree of impact of the official action causing such discriminatory effects.
(ii) Historical background of the decision, particularly if it reveals a series of official actions taken
for invidious purposes.
(iii) The specific sequence of events leading up to the challenged decision.
(iv) Departures from the normal procedural sequence.
(v) The legislative or administrative history.
(e) Charles Lawrence—Unconscious Racism: A cultural meaning test should be used for facially
neutral classifications. If governmental conduct conveys a symbolic message to which the culture
attaches racial significance, the scrutiny should go up.
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II. The State Action Doctrine
A. Introduction – Interpretation of “state action”
(1) The Civil Rights Cases (1883)
(a) Background: The federal Civil Rights Act of 1875 made it a misdemeanor to deny persons within
the jurisdiction of the United States the full and equal enjoyment of public places. Five black
persons were allegedly excluded from hotels, theatres, and railroads in violation of the Act.
(b) Issue: Whether Congress had the power to enact the statute which clearly applied to private
conduct?
(c) Invalidating the Act, the Court made three main holdings
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AC
CT
TIIIO
ON
N. This
holding is still valid today, at least in the sense that in the absence of congressional legislation,
courts will not find exclusively private conduct to be violative of 14th Amend. guarantees.
(ii) Congress without power: The grant of power to enforce the guarantees of the 14th Amend. in
§ 5 does not authorize Congress to regulate solely private conduct. Under § 5 – Congress may
only prevent states, by their own action, from interfering with these rights. This holding is
probably no longer good law – six justices in Guest argued that Congress has such power.
(iii) 13th Amend. inapplicable: Although 13th Amend. is applicable to both private and state
conduct (b/c it prevents slavery), by its terms it only bars “slavery and involuntary servitude.”
Narrowly interpreting, crt found that refusing to allow blacks to use public accommodations
was not “slavery” nor a “badge of slavery.” This narrow view of what constitutes a badge of
slavery has been overruled w/respect to Congress’ power to enact legislation to enforce.
However, crt has continued to narrowly construe “slavery.”
(d) Harlan’s dissent:
(i) 13th Amend: Freedom from slavery necessarily entails eradication of all “burdens and
disabilities” suffered by blacks due to their race. Congress (under enforcement of 14th A)
could prevent black ppl from being denied “civil rights” including the right to use public
places. Denial of equal public accommodations constituted a "badge of slavery" that Congress
could prohibit.
(ii) 14th Amend: Harlan interpreted § 1 to mean that blacks were granted state citizenship, which
entitled them to “exemption from race discrimination in respect to any civil right belonging to
citizens of the white race in the same state.” Moreover, Harlan argued that with respect to
discrimination in public accommodations, the discriminating individuals or corporations acted
as "agents of the state."
(e) Synthesis of Civil Rights Cases and Washington v. Davis
(i) The EPC places no affirmative obligations upon government to attack societal (private actors)
inequalities, because the state need not act at all. Civil Rights Cases
(ii) Even if the state acts in ways that make matters worse for racial minorities, the EPC will
invalidate state action only if it were facially discriminatory (Loving), or intended to
disadvantage minorities, Yick Wo or Gomillion.
(iii) So, societal inequalities do not count constitutionally unless the government has acted in a
nonneutral fashion.
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B. The “Public Function” Approach
(1) Generally: The “public function” doctrine holds that when a private individual (or group) is
entrusted by the state with the performance of functions that are governmental in nature, he
becomes an agent of the state and his acts constitute state action. At one time the doctrine was
potentially broad-sweeping, but the Burger/Rehnquist Court has cut back the doctrine substantially.
(2) White Primary Cases
(a) Introduction: In a series of cases, the Court held that despite state attempts to delegate more and
more of the nominating process to private political parties, the entire electoral process is a public
function. Political parties are the agents of the state.
(b) Nixon v. Herndon (primaries): Court struck down Texas statutes that excluded blacks from voting
in the Democratic Primary. The state action was easily satisfied by the presence of a state statute
compelling a private organization (i.e. the Democratic Party) to discriminate.
(c) Smith v. Allwright (state conventions): Where a Democratic state convention established a rule
that only whites could vote in the Texas Democratic Primary (since Texas was a one-party state,
whoever won the primaries would probably win the general election), the rule was held in
violation of the 15th Amend. The Court held that (1) under Texas law, the primary is an integral
part of the election scheme; (2) the running of elections is a governmental function; and (3)
therefore, the running of primaries is a governmental function, even where it is delegated by the
state to a private party.
(d) Terry v. Adams (pre-primary): State action was found in racially-restrictive pre-primary elections
held by the Jaybird Democratic Association, a group whose candidate almost always won the
Democratic Primary. There was no majority opinion, but the prevailing rationale appeared to be
that the state, by inaction, permitted the unofficial pre-election to usurp the role of the official
primary.
*Duck Test – if it walks & quacks like a duck  it will be treated as a duck.
(3) Company towns and shopping centers
(a) Introduction: The issue in these cases was whether the owner of private property had the right to
use state trespass laws to keep out people who wished to speak or distribute literature.
(b) Marsh v. Alabama (1946) [216] (Company town): Marsh, a Jehovah’s Witness, attempted to
distribute religious materials on the sidewalk near a post office, in a town wholly owned by Gulf
Corp. She was arrested and convicted of trespassing. The Court, Black, held that her conviction
violated the 1st Amend., made applicable to this “state action” through 14th Amend. The operation
of the town was a public function because it operated like any other town. However, not all
activity that was related to the administration of the town would be subject to constitutional
scrutiny. The Court established a balancing test where the constitutional rights of property owners
are balanced against the right to freedom of press and religion. “People living in company-owned
towns are free citizens of their State and country, just as residents of municipalities, and there is no
more reason for depriving them of the liberties guaranteed by the First and Fourteenth
Amendments than there is for curtailing these freedoms with respect to any other citizen.”
(c) Pruneyard Shopping Center v. Robins (1980) (Shopping center): A state const. may provide
persons in the state more rights than the federal Constitution so long as the state-created rights do
not violate any federal constitutional protection. Court upheld the California S. Ct.’s ruling that
under the CA Const., peaceful picketers could not be excluded from a private shopping center.
(4) Parks (1966) – The maintenance of a park that had been previously maintained daily by the state was
found to a public function. (Rehnquist distinguishes – state’s daily activities)
(5) The requirement of state “exclusivity”: Narrowing
(a) Introduction: The Burger/Rehnquist Courts have dramatically narrowed the situations in which
“public function” analysis will apply, by requiring that the function be one which has
traditionally been exclusively the domain of the government.
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(b) Jackson v. Metropolitan Edison Co. (1974) [217] (utilities): Public function analysis is applicable
only where a private entity exercises “powers traditionally exclusively reserved to the State.” A
public electrical utility was not a “state actor” because the state was not obligated to furnish
power. Dissenting – Marshall: would have treated as state action the provision of any service
“uniquely public in nature,” and utilities are so heavily regulated that the private enterprise in
effect had surrendered many prerogatives and behaves in many ways as a govt body.
(c) Flagg Brothers v. Brooks (1978) [218] (warehouseman’s lien): A state adopted a UCC provision
that gave a warehouse company a warehouseman’s lien over goods in its possession to satisfy
unpaid storage charges. The Court found no state action.
(i) Exclusivity: The majority rejected the argument that the resolution of private disputes is
traditionally an exclusive government function. The dispute need not have been settled by the
sale of the property. The owner of the goods could have brought a replevin action, or could
have sued for damages.
(ii) Encouragement theory: Mere acquiescence by the state in the private individual’s conduct is
not enough to make it “state action.” The government must actively encourage or facilitate the
private conduct, not merely tolerate it. This is true even where the state has the power to
prevent the challenged private conduct, but chooses not to exercise that power.
(6) Future of “public doctrine” function: Will probably be applied where two stringent conditions are
met: 1) the function is one which is traditionally the exclusive prerogative of the state; and 2) some
statute or state cx provision in fact requires the state to perform the function.
(a) where satisfied – present court only found two cases to meet this requirement: Maintenance of
streets (Marsh) and maintenance of electoral system (White Primary Cases)
(7) Schools: States are obligated to provide education, however crts have found private schools, even
those whose income derives primarily from public grants are not a public function (not exclusive).
C. “Nexus” Theory—State Encouragement or Entanglement With Private Actors
(1) Introduction: This second branch of the state action doctrine relates not to the type of activity carried
out by the private actor, but to the conduct of the government. If the government is sufficiently
“involved” in the private actor’s conduct or “encourages” that conduct, or benefits from it, the private
party’s acts will be deemed state action, and subjected to constitutional review. The focus is on the
nexus, or the points of contact, between the state and private actor.
(2) “Commandment”: A state can become responsible for a private party’s conduct by commanding that
conduct. A statute ordering private restaurant owners to serve only white customers would clearly be
state action. There is also state action where a state enforces private agreements by applying facially
neutral laws (e.g., contract law).
(a) Shelley v. Kraemer (1948)
(i) Background: Property owners entered into a racially restrictive covenant. The Shelleys, a
black couple, bought one of the parcels of land covered by the cov. The landowners filed suit,
alleging violations of the cov. The Supreme Court of Missouri granted relief, rejecting
Shelley’s argument that the judicial enforcement of the covenant constituted state action
violating the EPC.
(ii) Holding: Impetus for discrimination need not originate with the State if it is state action that
enforces privately originated discrimination. The Court held that judicial enforcement of the
restrictive covenant would constitute state action, and would therefore violate the 14th Amend.
The Court stressed that the state court did not remain inactive. But for the active
intervention of state courts, the sale of the land would have been consummated. The case
involved willing sellers and buyers. It was only by utilizing the Court’s full coercive power
that the Court could cause the discrimination to occur.
(3) “Symbiosis”: A state can become so involved with private discrimination that the latter will be
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subjected to constitutional scrutiny if there is a “symbiotic” (i.e. mutually beneficial) relation between
the state and the private discriminator. That is, if there are extensive contacts between the state and the
private party in such a way that each benefits from the other’s conduct.
(a) v. Wilmington Parking Authority (1961): A parking building owned and run by the Wilmington
Parking Authority (a state agency) leased space to a restaurant run by a private company within the
building. The restaurant refused to serve blacks. There was no statutory provision requiring this.
The Court found there was state action, relying heavily on indications that the restaurant was
essential to successful operation of the overtly public facility. The State parking building’s success
depended upon the profitability of the restaurant, and thus benefited from the discrimination.
(The restaurant claimed their profitability relied upon segregation).
(i) Circumstantial evidence can justify that a govt has discriminatory motives.
(4) Involvement or “entanglement” by state: There can be state action where the state is so heavily
involved in or “entangled with” private action that, even though the state does not benefit or encourage
the private conduct (thus, no symbiosis), the court will nonetheless attribute to the state the private
conduct.
(a) Moose Lodge No. 107 v. Irvis (1972)
(i) Background: A member of Moose Lodge No. 107 invited a black person, Irvis, to the dining
room of the club. The club refused to serve Irvis per club rules. Irvis argued that the licensing
of Moose Lodge to serve liquor by the Liquor Control Board amounted to state action. Irvis
sought to enjoin the liquor authority from licensing the Moose Lodge until it ceased its
discriminatory practices.
(ii) The Court, Rehnquist, found that there was no state action.
1. While the discrimination need not originate from the state to be violative of the 14th
Amend., the Court has never held that there is state action if the entity receives any sort of
benefit or service at all from the State, or if it is subject to state regulation in any degree.
Such a holding would emasculate the distinction between private and state conduct.
2. “Significant involvement” standard: The state must be significantly involved with
invidious discrimination. The mere fact of licensing did not constitute such significant
involvement. The situation is distinguished from Burton, where there was a symbiotic
relationship between a public restaurant and a public building. This was a private club in a
private building.
(iii) Dissent: There was state-enforced scarcity of licenses that restricted the ability of blacks to
obtain liquor. If individuals wanted to form a club that would serve blacks, they would have to
buy an existing club license, and would have to pay a monopoly price. The creation of the
monopoly scheme was directly attributable to the state.
(5) “Joint participation”: The necessary state involvement with a private party will be found where the
private party and a state official have jointly participated in the activity being challenged
(a) Edmonson v. Leesville Concrete Co. (1991):
(i) Background: Π, construction worker, was injured in a job-site accident at Fort Polk, Louisiana,
a federal enclave. Π sued Δ for negligence in the U.S. D/crt, invoking right to a trial by jury.
During voir dire, Δ used two of its three peremptory challenges authorized by statute to
remove black persons from the prospective jury. Citing Batson v. Kentucky, 476 U.S. 79
(1986), Π, who is himself black, requested that the D/crt require Δ to articulate a race-neutral
explanation for striking the two jurors. The D/crt found Batson, a criminal case, does not apply
in civil proceedings. As impaneled, the jury included 11 white persons and 1 black person.
The jury rendered a verdict for Π, assessing his total damages at $90,000. It also attributed
80% of the fault to Π’s contributory negligence, , and awarded him the sum of $18,000....
(ii) Issue: Whether a Δ’s exercise of peremptory juror challenges in a private action constituted
state action.
(iii) The Court used the Lugar test for analyzing whether there was state action: (Lugar was about
the state action question in the context of a due process challenge to a State's procedure
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allowing private parties to obtain pre-judgment attachments.)
1. Whether the claimed constitutional deprivation resulted from the exercise of a right or
privilege having its source in state authority.
2. Whether the private party charged with the deprivation could be described in all
fairness as a state actor. Based on:
a. The extent to which the actor relies on government assistance and benefits
b. Whether the actor is performing a traditional gov’t function
c. Whether the injury caused is aggravated by the incidents of gov’t authority.
(iv) The Court held that there was state action:
1. The right or privilege has its source in state authority: There is state action when private
parties make extensive use of state procedures with the overt, significant assistance of
state officials. The judge exercises substantial control over voir dire in the federal system.
The private party could not exercise its challenges without the overt, significant
participation of the court. The party who exercises the challenge invokes the formal
authority of the court, which must discharge the potential juror.
2. The private party can be described as a state actor.
a. Actor is relying on gov’t for assistance and benefits. Without the direct and
indispensable participation of the judge, who beyond all question is a state actor, the
peremptory challenge system would serve no purpose.
b. There is performance of a traditional function of the government: The jury is a
government body since it exercises the power of the court. If the government gives a
private entity the power to choose the government’s employees or officials, the private
body will be bound by the constitutional mandate of race neutrality.
c. The injury is aggravated by gov’t authority. The injury caused by the discrimination is
made more severe because the government permits it to occur within the courthouse
itself. Race discrimination within the courtroom raises serious questions as to the
fairness of the proceedings conducted there. Racial bias mars the integrity of the
judicial system and prevents the idea of democratic government from becoming a
reality. . . . To permit racial exclusion in this official forum compounds the racial
insult inherent in judging a citizen by the color of his or her skin.
(v) O’Connor’s dissent: State action hinges on the judge advising the juror that he or she has been
excused when a challenge is exercised. This is a far cry from active governmental participation
in discrimination.
D. Purely private action: Beyond the reach of the Const., except
(1) 13th Amend. does reach private action when actions proliferate “badges of slavery”
(2) Failure of a state to act.
E. Big Picture
(1) The thread running through the state action cases is the tension between federalism and individual
autonomy. On one hand, the Court wants to defer to state courts. On the other, the Court wants to
preserve the sovereignty of the individual. The question is, the sovereignty of which individual?
Earlier cases took a libertarian approach which in effect preserved the autonomy of those who held
power (e.g., Civil Rights Cases). Later cases protected the autonomy of disempowered, minority
groups.
(2) Christianson’s view: Look at power bases. How is responsibility allocated and who do we hold
accountable for the responsibility?
(3) ACQUIESENCE AND TOLERATING private action is not enough. The state must actively
encourage or facilitate. *Even when the state has the power to prevent conduct.
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III. Affirmative Action and “Benign” Discrimination
A. Benign Discrimination generally: Govts, Universities, Major Corps are trying to reverse effects of past
discrimination, however it cannot be reversed w/o treating ppl differently.
(1) Strict Scrutiny is applicable standard of review – limited, carefully-tailored race-based scheme might
be held to be necessary to achieve the admittedly compelling goal of eradicating past discrimination.
(a) Presumption of unconstitutionality
(b) Only govt objective that will survive strict scrutiny – redressing clear past discrimination
(c) Past Discrimination – 1) proof – actual formal findings not necessary 2) discrimination by a the
particular govt agency in question.
B. Goals of Affirmative Action
(1) Compensatory Rationale – redress past discrimination
(a) General societal discrimination
(b) Specific targeted discrimination – specific sectors, businesses, etc.
(2) Distributive Rationale – forward looking, ensure that effective service will be provided to
underserved sectors of society and develop effective role models (Stevens)
(3) Diversity Rationale – Presently promote diversity in the classroom/workplace/community
(4) Preventative Rationale – Protect decision makers from unconscious racism, e.g. relying on test scrores
and GPA to the exclusion of other indicators (focus on language)
C. Regents of the University of California v. Bakke (1978) [241] Preferential School Admissions
(1) Background: Allan Bakke, a thirty-five-year-old white man, was rejected twice for admission to the
UC-Davis’s medical school. The school reserved 16 of 100 places in each entering class for
"qualified" minorities, as part of the university's affirmative action program, in an effort to redress
longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications (college
GPA and test scores) exceeded those of any of the minority students admitted in the two years Bakke's
applications were rejected. Π contended he was excluded from admission solely on the basis of race.
(2) 4 Justices (Burger, Stewart, Rehnquist, Stevens) avoided the constitutional question: No need to reach
the constitutional question because the “Davis program” (reserving quota of seats for minorities)
violated Title VI of the Civil Rights Act which bars racial discrimination by any federally-assisted
institution (UC Davis).
(3) 4 Justices (Brennan, White, Marshall, Blackmun) held Davis Plan was Cx and would permit the
explicit reservation of places in the class for disadvantaged minority students. Held Title VI
forbids only those racial classification that would violate the EPC.
(4) HOLDING: In reaching the EPC issue however, Powell, after applying strict scrutiny, concluded that
the program violated EPC. As a result, Powell along with the 4 who saw the program as a violation of
Title VI of the CRA made up the majority, concluding that the program was unconstitutional.
However, the majority (Brennan + Powell) held that race may be a factor under properly-constituted
admission programs.
(5) Powell’s view: Although a University should be able to take account racial minority, a racial “quota”
(explicit reservation) violated EPC.
(a) Strict scrutiny applies to any racial or ethnic classification, regardless of the class against
which it is directed or the reason for it. There is no “principled basis for deciding which groups
would merit ‘heightened judicial solicitude’ and which would not.” This has the effect of
guaranteeing equal protection to individuals, not to persons by virtue of their membership in a
group.
(b) Applying Strict Scrutiny (Powell) [Strict scrutiny: (1) compelling governmental interest – Powell
described as “permissible and substantial”; (2) least drastic alternative – “necessary to
accomplish objective”]
(i) Ends test:
1. 1) Improving the delivery of health care to underserved communities, 2) need to reduce
historic shortage of minority drs, and 3) need to cure results of past discrimination by
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society are insufficient ends.
2. Affirmative Action could not be used to redress broad societal discrimination, it could
only be used where there have been explicit judicial, legislative or administrative findings
of specific constitutional or statutory violations. *If University had been discriminatory –
it may have been sufficient.
3. Creating an ethnically diverse student body (educational value in the classroom) was
a permissible goal. But, Davis’ program fails the means test.
a. May be allowed if based on plus system (Harvard) not a quota.
(ii) Means test: It was not necessary to use a quota scheme that reserved certain seats exclusively
for members of particular races. Minority status should be just one factor in admissions
process.
1. Quota was not the least drastic alternative.
(6) View of the “Brennan Four”
(a) Strict scrutiny is inappropriate for “benign” racial classifications. Benign classifications means
those classifications that disadvantage a class that is 1) not saddled with history of purposeful
unequal treatment or politically powerless, and 2) not stigmatized by the classification.
(i) Brown was decided partly based upon the stigma against the excluded party, it is clear that
Bakke was probably not stigmatized from being excluded
(ii) Intermediate scrutiny, however, is appropriate because classifications could be misused.
(b) Applying Intermediate Scrutiny (Brennan Four) [Intermediate scrutiny: (1) important
governmental purpose, (2) substantial relationship]
(i) Ends test: Purpose of remedying the effects of past societal discrimination is sufficiently
important to justify use of race-conscious admissions programs where there is a sound basis
for concluding that minority underrepresentation is substantial and chronic.
(ii) Means test: No valid distinction b/Harvard’s plan b/c it was administered w/expectation that a
certain # of minorities would be admitted.
(7) Class Notes: Subsequent 1968 Class – 47 whites, 3 Asians, 0 blacks, Hispanic, American Indians
D. Compare Hopwood v. Texas (1996): 5th Cir. held that race may not be used as a factor at all in public
university admissions, unless consideration of race is needed to reverse the present effects of past
discrimination by the particular university making the admission decision. Effect is that public
universities may not consider race for purposes of increasing the diversity of their student populations. On
application for cert.
E. Fullilove v. Klutznick (1980) [244] Federal Set-asides
(1) Background: A 1977 federal statute provided federal funds to state and local government building
projects that required that at least 10% of the money had to be spent procuring goods or services from
minority business enterprises (MBEs). The statute was challenged on its face.
(2) Marshall, Brennan, Blackmun argued the statute passed the intermediate scrutiny approach in Bakke.
(3) C.J. Burger, White, Powell also voted to uphold the statute but did not adopt either approach suggested
in Bakke.
(a) Burger and White did not adopt approach in Bakke:
(i) C.J. sttd the use of “racial or ethnic criteria, calls for close examination.
(ii) In no organ of government is there more comprehensive remedial power than in Congress.
(iii) Means: The objective of attacking past discrimination, was constitutionally permissible.
(iv) Ends: The means used was unobjectionable (not either of the standards in strict nor
intermediate), especially given the statute’s limited/flexible nature (one shot allocation of
money and could get out of the MBE requirement if too difficult to meet.)
(b) Powell:
(i) Means: The statute survived the approach in Bakke because it serves a compelling
government interest in eradicating the continuing effects of past discrimination.
(ii) Ends: The distinction between permissible and impermissible remedial action rests on the
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existence of a constitutional or statutory violation. The interest in creating a race-conscious
remedy is not compelling unless the appropriate gov’t authority has found that such a
violation has occurred. Here, Congress (unlike the Regents in Bakke) identified the problem
and remedy of discrimination.
(4) Stewart and Rehnquist dissented, contending that the Constitution requires governmental blindness.
(5) Class Notes:
(a) This is an affirmative action statute designed to reach out to minority groups and give them the
opportunity to benefit from federal expenditures.
(b) Right after Bakke.
(c) Is this a quota similar to Bakke because whites can’t get this 10% just like they can’t get the 16
slots in Bakke.
(d) Would this case have passed strict scrutiny after Adarand?
(i) Means: Compelling interest – struggle for minorities to enter these fields, less background and
less capital. Is diversity in business activities a valid govt goal?
(ii) Ends: Least drastic terms – probably not, b/c they implement a quota.
F. Wygant v. Jackson Board of Education (1986) [245] Hiring and Layoffs
(1) Background: Collective Bargaining Agreement (CBA) btwn a public school board and teacher’s union
provided that layoffs be made on a seniority basis except that there could not be a greater % of
minority personnel laid off than the current % of minority personnel employed at time of the layoff.
(2) Powell, joined by Burger, Rehnquist, and O’Connor, rejected the CBA under a strict scrutiny.
(a) Ends test:
(i) Ensuring minority students with role models has “no logical stopping point,” and has no
necessary connection to any harm caused by prior discriminatory hiring practices.
(ii) The district never had been found to have discriminated in hiring.
(iii) Also, the school district was not authorized to remedy “societal discrimination,” as opposed to
its own illegal practices.
(b) Means test: “Denial of a future employment opportunity is not as intrusive as loss of an existing
job.” Layoffs impose the entire burden of achieving racial equality on particular individuals. Not
narrowly tailored.
(3) Class Notes:
(a) cases addresses general societal discrimination, possible that a compelling interest would be
satisfied if there had been specific discrimination
(b) crts says that role model rationale is unacceptable b/c when dealing w/employment you are dealing
with specifically known injured parties (when there is an immediate consequence it will not pass
muster under strict scrutiny)
G. Local 28, Sheet Metal Workers v. EEOC (1986): Court upheld a race-conscious remedy against a union
that had been found guilty of race discrimination in violation of Title VII. There was a finding of past
discrimination and the remedy was narrowly tailored to rectify the discrimination.
H. U.S. v. Paradise (1987): Court upheld a court order remedying public employment discrimination by
ordering that 50% of the subsequent promotions had to be blacks. Compelling state interest in remedying
past discrimination and a narrowly tailored remedy met even Bakke’s strict scrutiny.
I.
Johnson v. Transportation Agency, Santa Clara County (1987): Court avoided equal protection issue but
upheld a voluntary affirmative action plan for promoting female employees but not involving strict quotas.
J. City of Richmond v. J.A. Croson Co. (1989): Minority Business Enterprises
(1) Background: The city of Richmond adopted the Minority Business Utilization Plan, which required
contractors hired by the city to subcontract at least 30% of the dollar amount of the contract to one or
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more Minority Business Enterprises.
(2) The Court, O’Connor, applied a strict scrutiny test, and struck down the plan:
(a) Any governmental action that is explicitly race-based is subject to strict scrutiny. Rationale:
(i) Hard to tell: There is no easy way to tell which racial classifications are truly “benign” and
which are “discriminatory.” Strict scrutiny “smokes out” the illegitimate use of race.
(ii) Stigmatic harm: The group “benefited” by an aff. action program may in the long run be
harmed b/c society will believe that it is less competent and can’t succeed w/o special
protection.
(iii) Race neutrality is goal: Unless race-conscious aff. action plans are strictly scrutinized,
society will never achieve the goal of being truly race-neutral.
(b) Application:
(i) No direct evidence of discrimination by anyone in the Richmond construction industry.
(ii) No evidence that there would be more minority contracting firms had there not been past
societal discrimination.
(iii) No showing of how many MBEs in the local labor market could’ve done the work.
(c) Holding: Public aff. action programs are subject to strict scrutiny. Public entity must identify the
discrimination, public or private, w/ some specificity before it may use race-conscious relief. In a
6-to-3 decision, the Court held that "generalized assertions" of past racial discrimination could not
justify "rigid" racial quotas for the awarding of public contracts. O'Connor's noted that the 30%
quota could not be tied to "any injury suffered by anyone," and was an impermissible
employment of a suspect classification.
(3) Class Notes:
(a) O’Connor applies strict scrutiny rather than intermediate as in Fullilove. Local govts don’t have
same authority to deal w/racial matters as federal govts do. (spending clause)
K. Metro Broadcasting v. FCC (1990) Broadcast licensing
(1) Background: This case challenged the constitutionality of two minority preference policies of the FCC.
Under the first policy challenged by Metro, minority applicants for broadcast licenses were given
preference if all other relevant factors were roughly equal. The second policy, known as the "distress
sale," was challenged by Shurberg Broadcasting of Hartford Inc. This policy allowed broadcasters in
danger of losing their licenses to sell their stations to minority buyers before the FCC formally ruled
on the viability of the troubled stations. This case was decided together with Astroline
Communications Co. v. Shurberg, in which Faith Center Inc. made a "distress sale" of its television
license to a minority outfit owned by Astroline. Shurberg, a non-minority applicant for a similar
license, challenged the FCC's approval of Faith Center's sale to Astro.
(2) The Court, Brennan, applied intermediate level scrutiny
(a) Brennan, White, Marshall, Blackmun, and Stevens concluded that Fullilove (Fed contract
setasides) had not imposed strict scrutiny, but intermediate scrutiny (upholding program),
regardless of whether the federal classification was “remedial” or was a “forward-looking” effort
to diversify society. This is contrary to Croson (O’Connor’s MBEs re: “lost in a mosaic of
shifting preferences based on inherently unmeasurable claims of past wrongs.”)
(b) For benign federal racial classifications (facially neutral), the intermediate scrutiny standard is
used. That is the means chosen must be “substantially related” to the achievement of “important”
governmental objectives.
L. Adarand Constructors, Inc. v. Pena (1995) [264]
(1) Background: Adarand was a white-owned construction firm that put in the lowest bid for a subcontract (from Mountain Gravel) to supply guardrails to a federal highway project. But the general
contractor took a bid from a minority-owned firm (Gonzales Construction) that qualified under federal
regulations as a Disadvantaged Business Enterprise (DBE). The prime contractor was not required to
award the sub-contract to a DBE, but it received a financial incentive for doing so. Women and
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(2)
(3)
(4)
(5)
members of racial minorities were presumed to be socially and economically disadvantaged, subject to
rebuttal, and white males could qualify by proving social and economic disadvantage. Small whiteowned firms could also be DBEs, but a firm owned by an ethnic minority or a woman was rebuttably
presumed to be disadvantaged. A firm owned by a white male had to prove disadvantage by clear and
convincing evidence. Adarand did not qualify for DBE status. The lower courts understood Fullilove
and Metro Broadcasting to mandate “intermediate” rather than “strict” scrutiny on these facts and
denied relief.
The Court, O’Connor, overruled Metro and held that strict scrutiny (not intermediate scrutiny as
applied in Fullilove and Metro) applied to benign racial classifications.
(a) HOLDING: Strict scrutiny judicial review applies to all programs utilizing racial
classifications, whether established by the federal or state governments, and whether
designed to be benign or invidious.
(b) Application of intermediate scrutiny to Congressional actions per Metro undermines three core
principles, all of which derive from the basic principle that the 5th and 14th Amends. protect
persons, not groups. [264]
(i) Skepticism: Any racial preference must receive a most searching examination. Under Metro,
certain racial classifications (“benign” ones) should be treated less skeptically than others.
(ii) Consistency: The standard of review under the EPC is not dependent on the race of those
burdened or benefited by a particular classification. No matter what level of gov’t is involved,
“whenever the gov’t treats any person unequally because of his or her race, that person has
suffered an injury that falls squarely within the language and spirit of the Constitution’s
guarantee of equal protection.”
(iii) Congruence: Equal protection analysis of 5th Amend should be the same as that under the
14th Amend. 5th DPC contains an equal protection component.
(c) Strict scrutiny will discern between permissible and impermissible uses of racial classifications.
(i) Strict scrutiny “smokes out” impermissible governmental use of race.
(ii) Good intentions alone are not enough to sustain a benign racial classification because it rests
on the assumption that those who are granted the special preference are less qualified in some
respect that is identified purely by their race. This perception, especially when fostered by
Congress, only exacerbates racial prejudice. Until Congress clearly articulates the need and
basis for a racial classification and tailors the classification to its justification, the Court should
not uphold that kind of statute.
(d) Strict scrutiny is not necessarily fatal: The notion that strict scrutiny is “strict in theory, but fatal
in fact” is dispelled. Race-based action may survive IF the government is responding to “the
lingering effects of racial discrimination against minority groups,” and does so in a “narrowly
tailored way.”
Scalia’s concurrence: Government can never have a “compelling interest” in discriminating on the
basis of race in order to “make up” for past racial discrimination in the opposite direction. To pursue
the concept of racial entitlement is to pave the way for future mischief. In the eyes of government,
there is just one race: American.
Thomas’ concurrence: There is a moral and constitutional equivalence between laws designed to
subjugate a race and those that distribute benefits on the basis of race to foster some current notion of
equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal
before the law. Under the Const. the gov’t may not make distinctions on the basis of race. Racial
paternalism and its unintended consequences can be just as damaging as other forms of
discrimination. Affirmative action stamps minorities with a badge of inferiority.
Dissents of Stevens and Ginsburg:
(a) There is a significant difference between invidious discrimination and remedial race-based
preferences.
(i) Invidious discrimination is an engine of oppression while remedial race-based preferences
desire to foster equality in society.
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(ii) The consistency the Court espouses would disregard the difference between a “No
Trespassing” sign and a welcome mat.
(iii) The Court’s jurisprudence is capable of distinguishing between invidious and benign
discrimination.
(iv) The Court’s consistency approach is difficult to square against separate standards for different
classes of individuals.
(b) The Court’s conception of “congruence” is untenable. Deference should be made to Congress.
(i) Special enforcement powers: Congress’ powers as to racial matters were “explicitly
enhanced” by § 5 of 14th Amend. (giving Congress pwr to enforce by appropriate leg, the
provisions of the 14th Am), whereas the states’ use of race-conscious measures was what the
Amend. was specifically directed against.
(ii) Federal affirmative-action programs represent the will of our entire Nation’s elected
representatives, whereas a state or local program may have an impact on nonresident entities
who played no part in the decision to enact it.
(6) Class Notes:
(a) Is the purpose of the 5th & 14th Am really to protect persons and not groups? The 14th Amend was
passed to protect a group of people – freed slaves that needed protection, not individuals!
(b) The program was flexible. Recognized that non-whites had disadvantages, however whites could
also apply if they could prove they were socially or economically disadvantaged. Furthermore,
although blacks were presumed disadvantages, it was challengeable.
(c) Subsequently, Adarand was found to be disadvantaged and case became moot.
(d) O’connor cites United States v. Paradise to distinguish btwn specific and general discrimination –
Alabama State Troopers were ordered to integrate and ordered ½ of the new hires and promotions
had to be nonwhites. Because it was responsive to specific past discrimination it passed strict
scrutiny.
IV.
Grutter v. Bollinger (SC 2003)
(1) Background: In 1997, Barbara Grutter, a white resident of Michigan, was denied admission to the
University of Michigan Law School w/a 3.8 undergraduate GPA and an LSAT score of 161. Law
School admits that it uses race as a factor in making admissions decisions because it serves a
"compelling interest in achieving diversity among its student body." The school did not have a set
number of seats reserved for underrepresented minorities, but does seek to enroll a meaningful
number, or “critical mass” to enable the minority students to contribute to classroom dialogue w/o
feeling isolated. The D/crt concluded that interest in achieving diversity in the student body was not a
compelling one and enjoined its use of race in the admissions process. In reversing, the COAs held that
Justice Powell's opinion in Bakke constituted a binding precedent establishing diversity as a
compelling governmental interest sufficient under strict scrutiny review to justify the use of racial
preferences in admissions. COA finding that the Law School's "critical mass" = a quota.
(2) O’Conner delivered opinion:
(a) Court endorses Powell’s view in Bakke that student body diversity is a compelling state interest
that could justify the use of race in university admissions.
(b) Although Adarand requires strict scrutiny review of all racial classifications, it doesn’t make all
racial classification unconstitutional. They will be allowed IF they serve a compelling state interest
through narrowly tailored measures.
(3) Application of Strict Scrutiny:
(a) Ends: Is the Law School’s use of race justified by a compelling state interest?
(i) Yes. “Our conclusion, that the Law School has a compelling interest in a diverse student body,
is informed by our view that attaining a diverse student body is at the heart of the LS’s proper
institutional mission, and that “good faith” on the part of a university is “presumed” absent “a
showing to the contrary.”
1. university provided evidence to the benefits of a racially diverse student body.
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(b) Means: Is the program “narrowly tailored?” Do the “means chosen ‘fit’ . . .th[e] compelling goal
so closely that there is little or no possibility that the motive for the classification was illegitimate
racial prejudice or stereotype[?]”
(i) To be narrowly tailored, a race-conscious admissions program cannot use a quota system. “. . .
a university may consider race or ethnicity only as a “‘plus’ in a particular applicant’s file.”
Without “insulat[ing] the individual from comparison with all other candidates for the
available seats.”
(ii) Was the least drastic alternative utilized?
1. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative
(inconsistent with Adarand; more open to government innovation) [s-10]
2. It does require serious, good faith consideration of workable race-neutral alternatives
that will achieve the diversity the university seeks.
(iii) What other options were suggested – crt notes that these would require dramatic sacrifice of
diversity, and/or the academic quality of all admitted students
1. lottery
2. lower admission standards
3. select from the top percentage of colleges.
(4) When using race as a “plus” factor in university admission’s, a program must remain flexible enough
to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s
race or ethnicity the defining feature on his/her applicant. (Bakke – idyg the “denial.of the right to
individual consideration” as the “principle evil” of the med school’s admissions program.
(5) Holding:
(a) There was a compelling gov’t interest (achieving a racially diverse class)
(b) Policy was sufficiently narrowly tailored to be constitutional
(6) Notes:
(a) Durational Requirement: requirement that all governmental use of race must have a logical end
point. Race-conscious admissions policies must be limited in time.
(i) O’Connor: “We expect that 25 years from now, the use of racial preferences will no longer be
necessary to further the interest approved today.”
(ii) As a result, groups could “get out of” (women, blacks) and “into” (whites) the classification.
(b) Ginsburg’s dissent refers to the treaty from the Racial Discrimination Convention of 1966 – Art I,
para 4 – special measures…shall not be deemed racial discrimination, provided that the measures
don’t lead to maintenance of separate rights for different racial groups. At some point, these
should be phased out. However, Ginsburg finds the crt’s suggestion of a 25-year sunset on
affirmative action might be optimistic.
B. Gratz v. Bollinger
(1) Background: In the undergraduate admission process, Michigan utilized a 150 total point process, with
20 points automatically being awarded to applicants from underrepresented minorities.
(2) Majority – O’Connor, Scalia, Kennedy, & Thomas struck down the program as violating EPC b/c it
failed the narrow tailoring requirement.
(a) The program failed to provide the individualized evaluation of each applicant as required by
Grutter and Bakke. Even though “educational diversity” is a compelling government interest per
Grutter, the undergraduate program failed the narrow tailoring requirement.
(i) Automatic distribution of 20 points, (1/5th of the points needed to guarantee admission), to
every "underrepresented minority" applicant solely because of race was not narrowly tailored
and did not provide the individualized consideration Powell contemplated in Bakke.
(ii) Rehnquist – "because the University's use of race in its current freshman admissions policy is
not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the
admissions policy violates the Equal Protection Clause."
(iii) The approach amounted to a practical quota.
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(3) Dissent:
(a) Souter – program operated more like a plus-factor.
(b) Ginsberg – justified in light of ongoing racial inequality and the distinction between benign and
pernicious racial preferences
(4) Notes:
(a) Military amicus argued the need for a “mixed” social engineering of officers in the military.
Cannot have a majority of non-white enlisted men without non-white officers.
C. Johnson v. California (U.S. S/C 2005) [s-16]: Practice of placing xferd inmates w/cellmates of their own
race is subject to strict scrutiny.
(1) State’s justification was to reduce violence attributable to racially defined prison gangs.
(2) Crt sttd that “prisoners are dangerous places, and the special circumstances they present may justify
racial classifications in some contexts.”
(3) Stevens dissented finding the policy was simply unconstitutional and no remand was necessary.
D. S/S NOT NECESSARY FATAL
(1) COMPELLING OBJECTIVE – ENDS
(a) Diversity In Education – Grutter  Diversity in student body
(i) proof – in school’s mission
(ii) crt presumed school was using “good faith”
(b) Redressing of clear past discrimination
(i) Proof – quite strong and specific evidence (not general belief)
(ii) Who discriminated?
1. Particular Government entity in question
2. Same general domain (e.g. Industry)
(c) General Societal Discrimination is not valid compelling governmental interest
(d) Role Models – no necessary connection to prior discrim, no logical stopping point.
(e) Cases that have survived
(i) Local 8 – Union had been found guilty of race discrimination
(ii) U.S. v. Paradise – Alabama Troopers had been highly discriminatory towards black applicants
(2) LEAST DRASTIC ALTERNATIVE – NARROWLY TAILORED MEANS
(a) Not required to exhaust every conceivable race-neutral alternative (Grutter), requires serious, good
faith consideration of workable race-neutral alternatives
(b) Flexible plans may survive
(i) Fullilove – federal statute provided fed funds to projects that reqd at least 10% spent on goods
from Minority businesses. Statute was flexible/limited – one shot allocation & if requirement
too difficult the co. could get out of requirement.
(ii) Adarand – crt did not determine whether plan would survive S/S (remanded). Disadvantaged
Business Enterprise – members of racial minorities were presumed to be socially and
economically disadvantaged, subject to rebuttal, and white males could qualify by proving….
(c) Quotas:
(i) Rigid quotas not justified by generalized assertions.
(ii) Quotas upheld – Alabama Troopers ordered 50% of new hires and promotions had to be nonwhites.
(d) Plus Factor
(i) Program must remain flexible enough to ensure applicant is evaluated as an individual
(Harvard plan).
(ii) Automatic distribution of 20 pts (1/5th of reqd points) does not provide individualized
consideration.
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VII.
Republican
40%
Democratic
60%
Drawing of Election Districts – Race & Voting
A. Facially Neutral Classifications and Majority-Minority: Electoral Districting: Affirmative Action, Reverse
Discrimination, or Something Else Altogether?
(1) 15th Am § 1 – right of citizens of the US to vote shall not be denied or abridged by the US or by any
State on account of race, color, or previous condition of servitude. § 2 – Congress shall have the
power to enforce this by appropriate legislation.
(2) 1965 Voting Rights Law [279] – Cx basis: § 2, 15th Am – All new voting procedures require pre
clearance from US Atty. Removed barriers to registering and voting by minorities.
(a) State could only contest Atty Gen’s decision in D.C. fed crts.
(b) Effects of enfranchising blacks and allowing them to participate in elections.
(c) Cx basis - § 2 of 15th Amendment authorizes Congress to pass leg.
(d) Helped to overcome Jim Crow laws. Case-by-case litigation not working.
(e) As a result, major increase in the number of African-American voters.
B. Shaw v. Reno (1993) [279]
Racial Gerrymanders
(1) Background: NC’s black population is 20%, however all 12 members of Congress are white. NC’s
leg reapportioned 12 congressional districts based on the 1990 census to include only one district with
a black majority. The U.S. Atty General rejected the plan, demanding that the state add another
black majority district. The new district was a very peculiarly shaped district. Several residents
(white) of the district sued, claiming segregation of voters into districts on the basis of race violated
their constitutional right to participate in a color blind electoral process.
(2) Holding: Remand. The claim gives rise to an EP Challenge. in the absence of contradictory
evidence, the D/crt would have to decide whether or not some compelling governmental interest
justified NC's plan. The unusual district seemed to exceed what was rx necessary to avoid racial
imbalances.
(3) Rule: Extreme Racial Gerrymanders is subject to SS.
(4) The Court, O’Connor, articulated a “facially irrational” theory
(a) Inquiry into leg purpose is not necessary when the racial classification appears on the face of stat.
(b) Although NC's reapportionment plan was racially neutral on its face, the resulting district shape
was bizarre enough to suggest that it constituted an effort to separate voters into different districts
based on race.
(c) If Πs could show that the districting scheme was “so irrational on its face that it can only be
understood as an effort to segregate voters into separate voting districts because of their race,”
strict scrutiny would be triggered and districting would be struck down unless it was shown to be
“narrowly tailored to further a compelling govt interest.”
(i) That is, strict scrutiny will apply where a State concentrates a dispersed minority population in
a single district by disregarding traditional districting principles such as compactness,
contiguity, and respect for political subdivisions.
(5) Under what circumstances would “weird-shaped” districts pass the “narrowly-tailored” test?
(6) Big Picture: Before, in a claim of vote dilution, the claimant had the burden of showing racial
classification. After Shaw, the burden shifts. Πs may merely allege that a reapportionment scheme is
so irrational on its face that it can be understood only as an effort to segregate voters into separate
voting districts because of their race, thereby invoking strict scrutiny.
(7) White, Blackmun, Stevens – dissenting
(a) White – Even if there is a discriminatory purpose, Π failed to state a claim b/c no cognizable
injury was alleged. There is neither an outright deprivation of the right to vote nor a demonstration
that the challenged action had the intent and effect of unduly diminishing a groups’ influence on
the political process.
(i) Πs has the burden of proving discriminatory purpose and effect (that the plan was meant to,
and did in fact, exclude an identifiable racial group from participating in the political process).
(b) Stevens – Otherwise permissible redistricting to benefit an underrepresented minority group is not
impermissible when the minority group is defined by race. It is permissible to draw boundaries to
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provide adequate rep for rural voters, union, Jews, Pol Ams., Repubs…
(i)
EPC prohibits states from creating bizarre district boundaries for the sole purpose of
making it more difficult for members of a minority group to win an election, however it does
not prohibit gerrymandering when the majority acts to facilitate the election of a member of a
group that lacks power b/c it is underrepresented in the state leg.
(c) Souter, dissenting – There is no justification for treating the narrow category of bizarrely shaped
district claims differently from other districting claims.
(8) Class Notes:
(a) Crt finds Πs have standing through their claim that they are injured by not being able to vote in a
color blind election.
C. Miller v. Johnson (1995)
(1) Held: Court struck down districting for no compelling interest.
(2) Crt suggested that redressing past discrimination may have been compelling, however only interest
that the districting was addressing was the rules of the Justice Dept.
(3) O’Connor Concurrence: Πs must show state has relied on race in substantial disregard of
customary and traditional districting practices. Only EXTREME instances of gerrymandering
would be subject to SS.
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VIII.
Racial Discrimination and Native American Rights
A. Status of Native Peoples – recog in Constitution that natives shall be treated as separate
(1) Even though Cx states those who are born in U.S. will be citizens, Indians were not deemed to be
citizens of the U.S. nor were they eligible to become citizens until 1911
(2) Indian Commerce Clause – Art I, § 8, Clause 3. The congress shall have power … to regulate
commerce with foreign Nations and among the several States, and with the Indian Tribes
(3) House of Rep apportionments – Art I, § 2, p3. …excluding Indians not taxed….
(4) Trust Relationship. Cherokee Nation v. Georgia – describing Indian tribes as “domestic dependent
nations” and stating that “their relation to the US resembles that of a ward to his guardian.”
(5) Worcester v. Georgia – ruling GA could not enforce its state laws w/in Cherokee Lands.
(6) Treaties – Btwn 1778 to 1871, the U.S. Senate had ratified 370 Indian tribes *now being
reacknowledged
(7) Indian Reorganization Act of 1934 – Applied to only 48 states. Amended in 1936 to include certain
Alaska natives. Allows Natives to petition Dept of Interior for recognition.
(8) 557 Federally Recognized Tribes, since 1978 new tribes applying
(9) Autonomy: state govt cannot regulate what you do. Jdx of Fed govt.
(10)
1971 – Alaska Native Claims Settlement Act
B. History of U.S. dealing w/Natives
(1) Paternalistic Period – domestic dependent nations (through Civil war)
(2) Assimilation Period (1865 to 1970)
(a) U.S. sought to reduce the number of tribes and refused to recognize new ones.
(b) They were trying to get rid of Indian tribes as autonomous.
(c) No special status given to the natives when Alaska and Hawaii were acquired by the U.S.
(3) Current Approach – recognizing the validity and importance of a Separate Legal Status for Native
Peoples
(a) attempts to remedy prior injustices
(b) Federal recognition given to many tribes previously denied this status; significant land settlements
reached with a number of tribes
(c) Nixon reaffirms legitimacy of native autonomy in special message to Congress on July 8, 1970
(d) Intl law also recognizes the rights of indigenous ppls to self determination
C. Justification for special status of Native Peoples –
(1) unlike most other ethnic groups who migrated voluntarily to the US, and implicitly agreed to
participate in a multi-ethnic society, native people never made such a commitment
(2) Natives do not have another mother culture elsewhere
(3) intl law principles recognize natives are entitled to self determination, autonomy, and self gov.
(4) Native peoples have a distinctive and frequently unfortunate political and historical relationship w/ US
(5) NH have strong unresolved claims to reparations and land. The special status accorded to natives is
justified b/c of the obligations owed to these peoples.
D. Morton v. Mancari 417 U.S. 535 (1974) [h-15] Blackmun
(1) Background: BIA has an employment preference policy for Indians regarding new employment and
promotions. Non-Indian employees of BIA attacked preference for being a racial classification,
alleging that the Indian Preference statutes were repealed by the 1972 EEOA and deprived them of
their property w/o DP in violation of 5th Amendment.
(2) Holding:
(a) The 1972 EEOA did not overrule the Indian Preference Statutes.
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(b) Preferences for members of federally recognized tribes are political rather than racial in nature.
(c) Where Congress gives special preference to Native Americans that is designed to further self-govt,
the classification is to be evaluated on a “rational basis”, not the strict scrutiny standard.
(d) The preference is reasonably and rationally related to a legitimate, nonracially based goal and
therefore it does not violate DP.
(3) Rational Basis Test
(a) Ends: Legitimate State Interest
(b) Means: Rational Relation – govt not acting arbitrary and capricious
(i) Simply to have to show that someone could see it as rational. Does not have to be MOST
rational.
(ii) Deference to leg judgment fulfills requirement. Leg represents ppl. (Keeps crts from
meddling w/people’s decisions).
(4) Analysis:
(a) When two-statutes are capable of co-existence, it is the duty of the crts, absent a clearly expressed
congressional intention to the contrary.
(b) Other S/C cases consistently (use?) the rational basis test and defer to the decisions of Congress
regarding preferential programs for natives, even when one native group is preferred over another.
(c) Footnote 24: “The preference is not directed towards a ‘racial’ group consisting of ‘Indians’;
instead, it applies only to members of ‘federally recognized’ tribes. This operates to exclude many
individuals who are racially to be classified as ‘Indians’. In this sense, the preference is political
rather than racial in nature.”
(d) If elections are conducted by tribe itself, which is a quasi-sovereign entity, 15th amend not apply.
(5) Class Notes:
(a) Fiction: characterized as a political status, which trumps racial component.
E. Livingston v. Ewing, 601 F.2d 1110 (10th Cir, 1978): 1970s Caucasian couple was not allowed to sell their
products at the museum for Mexican history.
(1) Holding: Preference toward the Indians was based not on racial preference, but on a political
preference based on the special history of the Native Americans and the duty the U.S. has undertaken
to protect their interests.
(2) Rational basis: legitimate state interests – promotes self sufficiency, economic independence of
Natives
F. Ahuna v. Dept. of Hawaiian Home Lands (HI S/C, 1990): Court held that laws affecting Native
Hawaiians should be analyzed under the same tests that govern laws affecting Native Americans.
G. Rice v. Cayetano 120 S.Ct. 1044 (2000) [h-25]
(1) Background: Π, a citizen of Hawaii applied to vote in OHA trustee elections and was denied. At
statehood, U.S. granted HI title to all public lands, including 200,000 acres set aside under HHCA.
The leg authorizing the grant sttd proceeds were to be held as “public trust” … for one of five purposes
– one bing the betterment of the conditions of native Hawaiians. OHA is vested w/authority over two
cats of funds: 20% share of revenue from 5(b) lands for NHs, and any state or federal appropriations
or private donations that may be for the benefits for NHs or Hs. Only Hawaiians are allowed to vote
for board of trustees. Using a rational basis standard, the d/crt found the scheme was rationally
related to the State’s resp under Admission Act. COA affirmed, finding state may rationally conclude
that Hs, being the group to whom trust obligations run, and to whom OHA trustees owe loyalty should
be the group to decide to the trustees ought to be.
(2) Holding:
(a) Δ’s denial of Π’s right to vote in OHA elections violates the 15th Amendment.
(b) The provisions in HI’s Cx that limit voting for OHA Trustees to person of Hawaiian ancestry
constitute a proxy for race and thus establish a racial classification.
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(3) 15th Amendment: a state may not deny or abridge the right to vote on account of race.
(a) Crt finds the Amendment grants protection to all races, not just members of a particular race.
Voting has an absolute standard.
(b) Use of racial classification is corruptive of legal order democratic elections seek to preserve.
(4) Analysis:
(a) State run election for OHA – a state agency.
(b) Ancestry inquiry in this case implicates the same concerns of race and demeans a person’s dignity
& worth to be judged by ancestry instead of by his/her own merit and essential qualities.
(c) If group is a political group (e.g., federally-recognized tribe), not a racial group, then Mancari
rational-basis standard would apply.
(5) J Breyer’s Concurring Opinion –
(a) Acknowledges that “NHs considered as a group, may be analogous to tribes of other Native
Ams”… however, Analogy of HI’s justification are too distant (unreasonable) to save a race-based
voting definition.
(i) Although Nat Am tribes have broad authority to define its membership, there must be some
limit on what is rx (especially when state defines), and to define a membership to include
1/512th blood quantum – creating a vast and unknowable body of potential members
(combination of luck and interest) goes well beyond any reasonable limit.
(ii) concerned that OHA electorate consisted of 130K persons of Hawaiian ancestry w/ less than
50% Hawaiian blood, in addition to the 80K persons who met the 50 blood-quantum
(6) Stevens Dissenting opinion –
(a) Fed govt must be afforded wide latitude in carrying out its obligations arising from the special
relationship it has w/aboriginal peoples [h-16], and cases have consistently recognized Congress’
plenary power to implement federal duty.
(b) As “long as the special treatment can be tied rationally to the fulfillment of Congress’ unique
obligation towards the Indians, such legislative judgments will not be disturbed. Morton.
(c) Fed govt has not limited its special dealings w/native ppls to laws affecting tribes or tribal Indians
alone – BIA preferences in Mancari were extended to non-tribal member Indians.
(d) Ancestry is not always a proxy for race: distinction btwn ancestry and race is more than one of
plain language. Ability to trace one’s ancestry to a particular progenitor at a single distant point
may convey no info about one’s own apparent or acknowledged race today, neither does it of
necessity imply’s one’s own identification w/a particular race. [h-20].
(e) The special election for trustees is not equivalent to a general election, and the vote is not for
officials who will perform general govt functions in either a representative or executive capacity,
and it reflects that trustees’ fiduciary responsibilities run only to native Hawaiians and Hawaiians
(which is the best way to insure proper mgmt and adherence to fiduciary principles). [h-24]
(7) Notes:
(a) Hawaiians did not support 50% blood quantum (Prince Kuhio suggested 1/32 at most).
(b) Narrow interpretation: Crt does not reach issue on whether NHs are entitled to rational-basis
review under Mancari exception, because the 15th Amendment is absolute.
(c) Crt uses term quasi-sovereign entity, does not specify that they need to be federally recognized.
H. Kahawaiolaa v. Vorton Rational basis review for NHs (as a political classification)
(1) Background: Π – Hawaiians claimed that Congress enactment that allowed natives to seek federal
recognition, except those in HI violated the EPC (limited to contiguous states). T/crt held NHs are
indigenous ppl and that rational basis review applies, but challenge was barred by political question.
(2) Kays footnote: Kay recognized NHs as a “people indigenous to the US.” Kay explained that even
after the Rice decision, that the rational basis standard announced in Mancari should apply to benefits
and programs established for NH.
(3) Does the government have a “compelling interest” for such program?
(a) To acknowledge their status as native, aboriginal, and indigenous people and to facilitate and
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support their quest for self-determination and self-governance, and
(b) To provide compensation for their loss of land and resources, or to promote the return of those lost
lands and resources
(4) 9th Cir. held dispute was justiciable but ruled that crts should defer to Congress and applying rational
basis review – distinctions made by congress b/c Congress can treat native ppls differently.
I.
Barrett and Carroll (Nakatani) cases
(1) Background: Challenged validity of trusts – OHA, DHHL, gathering rights
(a) Dismissed for lack of standing b/c they failed to show an injury from allocation of benefits to
Hawaiians and Native Hawaiians.
(b) Specific to Carroll, note that Art XII of the HI constitution cannot be declared unconstitutional
without finding that the Admission Act is unconstitutional, in which case HI would not be a state.
J. Arakaki v. Lingle
(1) Background: OHA and DHHL are agencies of the State of Hawai'i whose beneficiaries according to
the state constitution are restricted by race. DHHL – gives benefits to Hawaiians with at least 50%
native blood quantum (although people with 25% can inherit a lease), while OHA can give benefits
only to people with any amount of native ancestry.
(2) THEORY OF THE ARAKAKI#2 LAWSUIT: 14 Πs, including Twigg-Smith, represented by Burgess
(who attended and voted for OHA at con-con) bring case as tax payers of the State of Hawai'i who
have standing to complain that their tax dollars are being spent for purposes that are unconstitutional.
Revenues earned from government operations on state lands are part of the money available for
running the government; so if land revenues are diverted to a racially restricted set of
beneficiaries, then either taxpayers will be forced to pay higher taxes or else their general
government services must be cut.
(3) It is contrary to the EPC of 14th Amend of the U.S. Cx for a govt agency to provide benefits to a
racially exclusionary set of beneficiaries?
(4) Judge Mollway opinion – dismissed on basis of political question because Congress has been
making progress toward recognizing a political status for ethnic Hawaiians (much of that "progress"
was made during the two years the lawsuit was in progress) and therefore the court should not
interfere in a political issue.
(5) Bybee ruled claims against DHHL could not proceed b/c U.S. is an indispensable party and is
protected by sovereign immunity and the no standing to challenge OHA 50% funds – b/c not tax
money. However Πs had standing for claims against OHA for revenues received from general fund, as
it came from tax payer funds.
(6) This ruling will require
(a) determining what level of judicial review applies to state-established programs benefiting NHs
(b) whether state tax payers can challenge in fed crt.
(i) Note: DaimlerChrysler v. Cuno currently granted cert by S/C. Issue: whether state tax payers
can sue state in federal crt? (currently barred by 11th Amend)
K. Akaka Bill, NH Govt Reorg Act of 2005 (pending before Congress)
(1) response to Rice v. Cayetano, would create a formal recognition as a “distinct indigenous group”
(2) sets in motion a process to org a NH governing entity, guarantees fed recognition after organizing
process is complete, calls for negotiations for the xfer of land, natural resources and other assets and
govt authority over them, settles no claims against the U.S.
L. Doe v. Kamehameha
(1) 1866 Civil Rights Act – prohibits discrimination based on race w/regard to the making of Ks.
(2) Should admission policy of K Schools, giving preference to persons of NH ancestry, be viewed as
discrimination based on “race” or on the “political” status of the NH people?
(3) Whether they are imbued w/state action b/c they serve a public function to be governed by cx?
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IX.
Economic, Social, and Gender Discrimination
Introduction: The underlying question is whether the EPC should be invoked against state action that uses
classifications other than race or national origin. If so, when, if ever, should something more stringent
than rational-basis review be applied to such classifications?
A. Minimum Equal Protection Scrutiny—The Rational Basis Test – Fundamental Rights?
(1) Slaughterhouse Cases, 83 U.S. 36 (1873) [299] Privileges and Immunities Clause
(a) Background: Louisiana had created a partial monopoly of the slaughtering business and gave it to
one company. Butchers excluded from monopoly argued that this created "involuntary servitude,"
abridged "privileges and immunities," denied "equal protection of the laws," and deprived them of
"liberty and property without due process of law." They claimed that the statute deprived them of
the opportunity to practice their trade, and thereby violated the 13th & 14th Amends.
(b) P&I: The crt held the 14th Amend. P&I Clause forbade state infringement of rights of national
citizenship, not he rights of state citizenship.
(i) Crt narrowly construed the privileges and immunities clause, which was interpreted to
apply to national citizenship, not state citizenship.
(ii) The 14th Amend. does not incorporate the Bill of Right guarantees.
(c) DPC: The due process claim simply imposes the identical requirements on the states as the fifth
amendment imposes on the national government. The Court won’t inquire into the legislative
process as long as the legislative act meets minimal scrutiny.
(d) EPC: The equal protection claim was misplaced since it was established to void laws
discriminating against blacks. The EPC was applicable against the states, not the federal gov’t.
(e) Big Picture: From 1872-1890s, all that was necessary to uphold a statute challenged on grounds of
the 14th Amend. was minimal rationality. In the Gilded Age (industrialization/big business), the
substantive due process test developed.
(2) Economic and Social Discrimination
(a) EP guarantees: 1) ppl who are similarly situated will be treated similarly 2) ppls who are not
similarly situated will not be treated similarly
(i) Sameness/Differentness is determined by reference to the objectives of the statute being
analyzed.
(b) EP arguments against govt regulation are either based on the use of underinclusive and/or
overinclusive means:
(i) Underinclusive: Statute that eliminates less than all the varieties of conduct which are
contrary to the statutory purpose. (Targets a single type of person to remedy a problem instead
of all who may be contributing to a problem. E.g., blind drivers; what about drunk drivers or
speeding drivers, why only blind drivers.)
(ii) Overinclusive: Statute that burdens someone who is not contributing to the targeted problem.
(Targets a whole group to remedy a problem when a section of that group may not even be
contributing to that problem. E.g., 80-year-old drivers; not all 80-year-old drivers pose a threat
to safety.)
(iii) Under AND overinclusive: Laws can be both at the same time. E.g., law regulates speeding
drivers. There may be safe drivers that speed = overinclusive and unsafe drivers that go under
the speed limit = underinclusive. MOST LAWS ARE BOTH.
(c) Railway Express Agency v. New York (1949) Mere Rationality Test for Economic Regulation
(i) Background: New York law prohibited advertising on vehicles other than for selfadvertising because it constitutes a distraction to vehicle drivers and pedestrian (promotion of
traffic safety). Appellant, who was convicted under the statute for selling advertising space on
his trucks, challenged the statute on equal protection grounds
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(ii) The Court upheld the statute under a minimum rationality test
1. The classification has relation to the purpose for which it is made (and does not contain
the kind of discrimination against which the EPC affords protection).
2. Deference to NY legislation. The Court should not determine the appropriateness of the
regulation and second-guess leg. The fact that the statute is underinclusive is immaterial.
The legislature may deal with a problem “one step at a time.”
(iii) Big Picture:
1. Prior to new deal court), court was abusing its power in favor of economic rights of more
powerful/wealthy (50 yr period). Many irreconcilable opinions were made. Bizarre. New
judges (apptd by Roosevelt – Douglas, Black began to defer to leg w/regard to any
economic & social regulations.
2. THE CRT CAN SUPPLY THE RATIONALE AND MAKE UP REASONS FOR
THE LEGISLATURE. “the local authorities may well have concluded… (justice is
saying we’re not sure why, but….)
(iv) Jackson, Concurring:
a. Although Jackson seemed to view ordinance as a political compromise – whereby
lines were drawn to exempt powerful interests from regulation, he still upheld statute
because the crt does not have better tools to draw better lines and deal making among
interest groups is part of the normal political process and should be left to leg. [306].
b. This exception did have a point – there is a real difference btwn doing in self-interest
and doing for hire, it is one thing to tolerate action from those who act on their own
and it another thing to permit the same action to be promoted for a price. [304]
(v) Notes:
1. Some Rational Basics – Rational basis for classification must somehow identify a goal for
the statute and decide whether the means chosen in the statute to effectuate that goals are
rational.
2. Railway Express is a lenient (minimalist) application of the rational-basis test.
a. If one single rational person would think this program is rational, then the regulation
would be upheld. *very easy to meet
3. Ok that regulation is underinclussive. Those challengers have recourse – lobby leg to
change. Democracy is the answer, not judicial scrutiny.
4. Rationale for underenforcement of the rationality norm for economic regulations
a. normative reasons – leg is elected of ppl, fed judges are appointed
b. practical reasons – difficulty of developing workable standards for evaluating and
enforcing EP in sphere of economic regulation
c. federalism – national courts should defer to local regulations not having interstate
ramifications
d. duplicate routine review of administrative decisions
5. Why was the exception included? Lobbying efforts of NY’s newspapers.
a. Should crt be concerned that an effective lobbying group has carved out exception for
themselves?
(3) FCC v. Beach Communications, 508 U.S. 307 (1993) [308] *Justice Thomas – unanimous opinion
(a) Background: All cable and satellite tv systems were subject to governmental regulation except
facilities where multiple units were under common control (as opposed to separately ownd bldgs).
(b) Rational basis/minimal scrutiny review: In areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor infringes fundamental constitutional
rights stands “if there is any reasonably conceivable state of facts that could provide a rational
basis for the classification.”
(c) Held: common-ownership distinction is constitutional b/c the statutory classification neither
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proceeded along suspect lines nor infringed fundamental constitutional rights.
(d) There is a strong presumption of validity and those attacking the rationality of leg classification
have the BOP to negate every conceivable basis which might support it.
(e) The assumptions underlying these rationales may be erroneous, but the very fact that they are
'arguable' is sufficient, on rational-basis review, to 'immunize' the congressional choice from
constitutional challenge."
(4) Dandridge v. Williams (1970) [313]: Maryland increased welfare pmts based on family size and
standard of need, but imposed a maximum of $250 per family, regardless of size or need.
(a) Held: Minimum rationality applies, and scheme is rational.
(b) Means: Limit $250 per family.
(c) Ends: Discourage poor ppl from having a lot of children.
(5) USDA v. Moreno, 413 U.S. 528 (1973) [313]
No Legitimate Purpose
(a) Background: Food stamp program excluded households which contained persons who were
unrelated to any other member of the household.
(b) Held: Exclusion violated EP b/c no legitimate govt interest. Statutory classifications (unrelated
households) is clearly irrelevant to the stated purpose of the Act which is to assure minimal
nutrition and alleviate hunger (and rejected the argument that classification was to regulate
morality as it would raise constitutional problems under right to privacy).
(c) EP: Brennan rule that preventing “hippie communes” was an impermissible purpose – desire to
harm a politically unpopular group cannot constitute a legitimate govt interest.
(d) Notes: Purports to be using minimal rationality approach. Certain things aren’t even minimally
rational.
(6) 4 approaches to rational basis
(a) Presumption of rationality: One who attacks a law on the ground that it uses a classification that
violates equal protection has the BOP to show the law is not reasonable, but is arbitrary.
(b) Deference: Reasonable people can disagree, and since there are reasonable people in a legislative
body, the Court should defer to the legislature.
(c) “Babbling Idiots” test: If there is even a scintilla of rationality in the classification, the statute will
be upheld. The Court will strike down a statute only if it could have been enacted by a bunch of
babbling idiots—i.e. if the statute is hopelessly arbitrary or ridiculous.
(d) Rationality with a bite: Professor Gunther argues that the rationality of a statute should be justified
by enough empirical evidence.
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B. Women and Discrimination [314]
(1) Introduction:
(a) Gender discrimination differs from racial discrimination because it is based on deep-seated
values and not mere minority status. Statistically, women actually constitute a majority.
(b) There are differing perspectives/theories of feminism.
(i) Difference Theory (Old): There will always be essential differences between men and
women. “Separate Spheres.” (Bradley’s concurrence in Bradwell) “Nature of things.” “Law of
the Creator.”
(ii) Equal Treatment – focuses on the individual, not the group: Women and men are the same.
“What else comes with the right to vote?” The challenge that came to fruition in the 1970’s.
Came about as part of Civil Rights movement. Women lawyers began saying that there are
differences that should not be/exist. Applies to women AND men. (Craig) Ruth Bader
Ginsburg leader of this movement.
(iii) Difference Theory (New): There are some things that reflect a difference between men and
women and some that don’t. Carol Gilligan.
1. Founder of "difference feminism". Gilligan asserted that women have differing moral and
psychological tendencies than men. Men think in terms of rules and justice and women are
more inclined to think in terms of caring and relationships. She asks that Western society
begin to value both equally.
2. Three stages of moral development progressing from selfish, to social or conventional
morality, and finally to post conventional or principled morality. Women must learn to
tend to their own interests and to the interests of others. She thinks that women hesitate to
judge because they see the complexities of relationships.
(iv) Radical (?) Critique/Responsibility: Criticizes all prior theories. A lot of oppression takes
place in private and therefore statutes should reach private activity, not the court.
(2) Traditional Treatment of Women Under the Law
(a) Bradwell v. Illinois (1873) [316]: Bradwell’s application for a license to practice law had been
denied by the Illinois S. Ct. solely because she was a married woman. Bradwell claimed she was
denied a constitutional “privilege and immunity” under the constitution itself, article IV. (She did
not claim under the P & I clause of the 14th am because it expressly applies to males only.)
(i) Held: Affirmed denial, admission to the bar of a state is not one of the P&I of the US
citizenship
1. civil law and nature have always recognized a wide difference between men and women;
2. State could use its police power to protect women.
(ii) Bradley’s concurrence spoke to nature of inferior status of woman.
1. Maxim that a woman had no legal existence separate from that of her husband.
2. Women were citizens but didn’t have the right to vote or make/enforce contracts
3. If she couldn’t make and enforce contracts, how could she fulfill duties of a lawyer.
(b) Minor v. Happersett (1874): The Court ruled that the right to vote was not among the “privileges
and immunities of U.S. citizenship.” Therefore, states were not inhibited by the Cx from
committing “that important trust to men alone.” The Crt also said that women are “persons” and
may be “citizens” w/in the meaning of the 14th Amend.
(3) Traditional Due Process and Equal Protection Jurisprudence
(a) Due Process
(i) Muller v. Oregon (1908): Oregon passed a law setting maximum working hours for women.
The Crt upheld the law based on the state’s compelling interest in protecting women. The Crt
noted that the physical well-being of a woman was an object of public interest b/c “healthy
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mothers are essential to vigorous offspring.”
1. Different standard of review btwn men and women: Women are properly placed in a class
by herself and leg designed for her protection may be sustained even when like leg is not
necessary for men and could not be sustained.
2. Brandies brief upheld protecting women (using scientific information to uphold leg)
a. Courts were striking down pro-labor claims, based on liberty of contract (Lochner),
EXCEPT in legislation protecting/isolating women.
3. Notes: As a result of Muller, women began to oppose “protective” legislation.
(ii) Adkins v. Children’s Hospital (1923): Adkins arguing that if hospital was required to pay her
a minimum wage, she would lose her job. Crt struck down federal statute fixing minimum
wages for women and children. While Adkins was primarily a Lochner-style, liberty of
contract, decision, it also reflected society’s and the Crt’s tentative movement away from
complete acceptance of the separate spheres philosophy and the jurisprudence of natural
difference.
1. Stigma becomes an issue. Is protection always stigmatizing?
(b) Equal Protection
(i) Quong Wing v. Kirkendall (1912): The Court rejected an EP attack of a statute that exempted
a $10 licensing charge for laundry operation of two or fewer women. “The 14th Amend does
not interfere by creating a fictitious equality where there is a difference.”
(ii) Goesaert v. Clearly (1948) *Trivial Review
1. The Court upheld a statute allowing a woman to work as a bartender only if she was the
wife or daughter of the bar owner.
2. Ends: bartending women may cause “moral and social problems”
3. Means: It was not irrational for leg to conclude that oversight of the barmaid by her
husband or father will minimize probs.
4. The state could forbid all women form working in bars, the Cx does not require legs to
reflect sociological insight, or shifting social standards.
5. Court applied the Railway Express standard, leave to leg. (Political question doctrine.)
(iii) Hoyt v. Florida (1961): Hoyt killed her husband in his sleep with a baseball bat. (He was
abusive.) She was convicted and challenged the jury pool which excluded women. Women
could opt-in (not obligated as men are) to serve on juries but most didn’t. Hoyt claims that this
made a difference in her trial and conviction.
1. Holding: Distinguishing the case involving racial discrimination in jury selection, the crt
upheld the statute as it was based on a reasonable classification and male-female
disproportions on jury lists carried no constitutional significance.
2. Analysis: Women "still regarded as the center of home and family life," and the states
could relieve them from the civic responsibility of jury duty unless they themselves
determined that such service was consistent with their own "special responsibilities."
(iv) NOTE: Despite the Hoyt decision, women’s movement was taking flight with Kennedy’s
Commission of Status of Women and leaders like Pauli Murray. Ironic how Howard Smith’s
inclusion of “sex discrimination” into the Kennedy Administration’s Civil Rights Act ’64.
Smith was an advocate of state’s rights and opposed the CRA. He included “sex
discrimination” to make a point as to how “ridiculous” the statute was and the statute passed!
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(4) Heightened Scrutiny of Gender-based Distinctions
(a) Reed v. Reed (1971) Tugging at Intermediate Scrutiny
(i) B: Idaho statute provided preference for males over females as administrators of estates.
(ii) The Court, Burger, held unanimously struck down the statute. *more bite
1. Ends: The Court rejected the state’s purported objective of administrative convenience as
arbitrary (capricious – no logic behind it). [“In general, men are more likely than women
to have the sophistication in business affairs arguably needed to administer an estate, and
by eliminating one area of controversy where 2 or more persons seek to be appointed
administrator, probate courts avoid time-consuming issues.”]
2. The Court was reluctant to articulate a test of heightened scrutiny.
3. Application of “rational basis” test with a “little bit more”. Rational test PLUS.
a. Royster Guano Formulation: classification 1) must be rx, not arb, and 2) must rest
upon some ground of difference having a fair and substantial relation to the object of
the leg, so that all persons similarly circumstanced shall be treated alike.
b. Not sure what this exception to the test fits. Is it based on sex? Up in the air.
(iii) Ginsburg along with Dorothy Kenyon (amicus brief for ACLU in Hoyt) and Pauli Murray
(drafted memo to Kennedy’s PCSW persuading them to proclaim quality of rights, for males
and females, must be reflected in the fundamental law of the land) urged the court to renounce
the constitutional philosophy of Muller, Goesaert, and Hoyt.
(iv) Lawrence thinks that although crt purports to use RB and strikes down for irrational objective
of administrative basis, the purpose may have been acceptable under non-gender classification
(e.g. age).
(b) Frontiero v. Richardson (1973) [324] (Plurality decision) Support for Strict Scrutiny
(i) Background: A federal statute allowed a male in the armed services to automatically claim a
wife as a dependent for allowances, but required a female in the armed services to prove that
her husband was more than 50% financially dependent in order to claim allowance.
(ii) Held: the statutory scheme involved the very kind of arbitrary legislative choice forbidden by
the U.S. Cx because it drew a sharp line between the sexes, solely for the purpose of
achieving administrative convenience, necessarily commanding dissimilar treatment for men
and women who were similarly situated
(iii) The Court rejected “mere rationality” standard for gender classifications, but was
divided as to whether strict scrutiny applied.
1. Brennan, Douglas, White, and Marshall argued that any classification based on sex was
inherently suspect and was therefore subject to strict scrutiny. Women are a suspect class
because of a (a) history of pervasive discrimination, (b) lack of political power, (c)
immutable characteristic.
a. Sex characteristic frequently bears no relation to ability to perform on contribute to
society.
2. Powell, Burger, and Blackmun concur in judgement – agree that the statutes were uncx
under 5th Amend. DPC, but did not agree that women were inherently a suspect class
subject to strict scrutiny.
3. Powell believes that the Court should not make sex a suspect class, subject to strict
scrutiny, but should wait to see what the result will be with the ERA which is in the
process of ratification at the time this case is decided. Political question.
4. Rehnquist dissents
(iv) Notes
1. Because this affect benefit to males (dependant on wives in service), if it is struck down,
(thereby arguable disadvantaging women) does that help women?
2. Government claims that the rule/statute favors administrative efficiency. Could have
required that all dependants would have to prove dependency. “Letting” female
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“dependants automatically qualify”, decreases the number of claims that would have to be
reviewed as is based on the factual data of the high number of female dependants on male
servicemen and the limited number of males dependant on females in the service.
(c) Craig v. Boren (1976) [332] Intermediate Scrutiny Established – Retreat
(i) Background: An OK statute prohibited the sale of 3.2% beer (un-intoxicating) to males under
age 21 and to females under 18. Statute based on the public safety objective given the negative
societal statistics regarding males, age 18-21. Only prohibits these males from purchasing not
consuming. The statute was challenged as denying equal protection to males aged 18-20.
(Obviously challenged by liquor sellers.)
(ii) The Court, Brennan, applied intermediate scrutiny and struck down statute.
1. New standard not explicitly announced. Brennan said the applicable standard was that
“classifications by gender must serve important governmental objectives and must be
substantially related to achievement of those objectives.” He purported to be applying
standards established in previous cases, including Reed and Frontiero.
2. Applying the standard, there was a poor overall fit b/c the means of the statute and its end
(traffic safety).
a. Maleness is not a “proxy”: Since such a small portion even of males in the relevant
age group were convicted of drunk driving (2%), maleness could not serve as a proxy
for drinking and driving. *NO Close FiT
b. Non-intoxicating beverage: The state did not establish that the regulation of 3.2% beer
was reasonable since it was supposed to be non-intoxicating.
c. Only sale prohibited: The statute only prohibited the sale of 3.2% beer to males, not
their consumption of it.
d. Poor overall fit. Means (regulation) and End (promotion of traffic safety) was too
tenuous to constitue required substantial relation.
(iii) Intermediate Scrutiny: Important interest + statute or program must be substantially related.
(iv) Rehnquist, dissenting – argued for mere rationality standard.
(v) Big Picture: This case illustrates the difference between a normative justification of the EPC
and an empirical justification. Normatively, the statute presents no problem b/c the law does
not promote a norm that’s contrary to the EPC. Empirically, however, there is a problem. The
statistics suggest an inequality problem. On which basis should we justify applying
intermediate scrutiny analysis?
(d) Personnel Administrator of Massachusetts v. Feeney (1979)
(i) Background: A woman challenged a MA civil service statute which gave an absolute hiring
preference to any veteran who passed a competitive exam. At the time of suit over 98% of the
veterans in MA were men, the preference had an overwhelming disparate impact on women.
(ii) The Court, Stewart, upheld the statute.
1. The test for a law that is gender-neutral on its face but that disproportionately impacts
upon women is:
a. Whether the statutory classification is indeed neutral in the sense that it is not gender
based.
b. Is there discriminatory purpose?
i. It is not enough that a person “intends the natural and foreseeable consequences of
his voluntary actions.” Awareness of consequences is not sufficient to prove
discriminatory purpose. There is intentional discrimination only if the legislature
chose its course “because of,” and not merely “in spite of,” its adverse effects
upon women.
2. The statute passes muster.
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a. The classification here (veterans) is not covertly or overtly based on gender.
b. The statutory history shows that the benefit of the preference was consistently offered
to “any person” who was a veteran. There was no evidence that the legislature
intended for the statute to have an adverse effect on women.
(iii) Note: Case does not get to standard of review b/c court finds no discriminatory purpose.
(e) J.E.B. v. Alabama Ex Rel. T.B. (1994) As Applied Challenges – Facially neutral *Intermediate
(i) Background: Alabama, acting on behalf of T.B. (the mother), sought paternity and child
support from J.E.B.(the putative father). A jury found for mother. In forming the jury,
Alabama used its peremptory strikes to eliminate nine of the ten men who were in the jury
pool; J.E.B. used a peremptory challenge to strike a tenth man in the pool. J.E.B objected to
the state’s exercise of peremptory challenges to strike all men as violative of the EPC.
(ii) The Court held that the EPC forbids use of peremptory strikes on the basis of gender.
1. The issue was phrased as being “whether discrimination on the basis of gender in jury
selection substantially furthers the State’s legitimate interest in achieving a fair and
impartial trial.”
2. The Court said “no,” arguing that the assumption that women jurors will have certain
types of attitudes in certain cases reinforced stereotypical assumptions about women.
(iii) Big Picture: Intermediate scrutiny applies to discrimination against both women and men
(e.g., in this case where P, the petitioner, was the putative father in the paternity suit).
(f) United States v. Virginia [343] (1996) Intermediate Scrutiny heightened Skeptical Scrutiny –
“Exceedingly persuasive justification”
(i) Background: VMI is a public all-male educational institute, which uses the “adversative
method” of instruction. The U.S. brought suit, contending that VMI’s male-only admission
policy violated equal protection. The Ct App agreed, ordering Virginia to remedy the
violation. Virginia proposed a separate program for women, VWIL, that was incomparable in
its resources and opportunities.
(ii) The Court, Ginsburg, held that Virginia’s actions violated equal protection.
1. The male-only admission policy violated equal protection.
a. Virginia’s justifications for excluding women from VMI fail:
i. Educational benefits of single-sex education: This was not one of the “actual
state purposes” that motivated the policy and the state only came to its diversity
purpose after the S/C called policies into question in Hogan.
ii. Preserving adversative method of education: Virginia’s argument that the VMI
program would have to be materially changed b/c women wouldn’t like the
adversative program is unfounded. Gender-based classifications must not rely on
overbroad generalizations about the different talents, capacities or preferences of
males and females. Some women find VMI’s mode of instruction suitable.
b. The remedial program was insufficient: The VWIL program did not place women in
the position they would have occupied in the absence of discrimination. The womens
program was qualitatively different and quantitatively inferior. Furthermore, VMI’s
stature will not be downgraded by admitting capable women (seeing as the armed
forces have successfully integrated).
2. Exceedingly persuasive justification” required: The Court applied the intermediate
scrutiny standard in a quite rigorous way, which makes it closer to strict scrutiny that
“mere rationality” review. Perhaps the most important aspect of the new standard is that
when the government articulates a justification for its gender-based classification (imp
govtl obj + means are substantially related), it must describe “actual state purposes” and
not just post-hoc rationalizations (i.e. the purpose must have motivated the making of
the classification when it was made.)
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(iii) Scalia, dissenting – Function of the crt is to preserve our society’s values regarding EP, not the
revise them. Whatever tests we choose to devise, they cannot supersede those constant and
unbroken national traditions that embody the ppl’s u/s of ambiguous texts. When a practice is
not expressly prohibited by Bill of Rights … we have no proper basis for striking it down.
(iv) Notes: Gender based scheme is especially likely to be invalidated where it is an older one that
arguably stems form a traditional, stereotypical way of thinking about gender roles.
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(5) Deference to Traditional Gender Classifications Based on “Real Differences”
(a) Parham v. Hughes (1979) [351] *Using Rational Basis – mothers v. fathers (not gender discrim)
(i) Held: Upheld GA statute that allowed only mother of an illegitimate child to bring suit for the
child’s wrongful death.
(ii) Analysis:
1. State discrimination required rational basis, because mothers and fathers are not similarly
situated – only a father can by voluntary unilateral action make an illegitimate child
legitimate and those who do can sue for wrongful death in precisely the same
circumstances as married fathers.
2. Classification does not discriminate against fathers as a class, but distinguishes those who
have legitimated their children and those who have not. This protects against fraud.
(iii) Concurrence – agreed w/ the result b/c it served an important state goal of encouraging fathers
to acknowledge paternity and form relationships
(iv) Dissent – This is still sex discrimination to treat fathers differently in any way than mothers.
(b) Michael M. v. Superior Court of Sonoma County (1981) [349] Biological Differences
(i) Background: California’s statutory rape law applied only to male defendants.
(ii) A plurality of the Court upheld the statute.
1. Intermediate scrutiny: Rehnquist, Burger, Stewart, and Powell applied intermediate
scrutiny since the statute discriminated based on sex. The test could only be met if men
and women were situated differently in a way that was relevant to the statutory purpose.
2. Statutory purpose: The purpose of the statute was to prevent illegitimate teenage
pregnancies. This is an “important governmental objective.”
3. Substantial relation: The plurality felt there was a substantial relation with the end b/c
a. Since only women can become pregnant and suffer disproportionately the profound
physical, emotional, and psychological consequences of sexual activity (male had no
direct disincentive from having sex with an unmarried minor). The statute “roughly
equalized” the deterrence on the sexes.
b. Enforcement of the statute was more feasible if the girl was exempted from
prosecution, since she would probably not report a statutory rape if she too were
subject to prosecution.
(iii) Brennan, White, Marshall, and Stevens’ dissent: Even if the prevention of illegitimate
pregnancy was the statute’s goal, male-only prosecution did not substantially advance that
objective. Original purpose of the statute reflected the outmoded sexual stereotype that the
male was more guilty, and that a woman’s chastity had to be protected.
(iv) Big Picture: The underlying rationale of the statute is the preservation of a deeply-hidden
hierarchy. Young women aren’t supposed to have sex. The statute is paternalistic--it protects
women.
(6) Rostker v. Goldberg (1981) [352] Military Necessity – crt does not see as AA *Middle Level
(a) Background: The Military Selective Service Act (MSSA) requires registration of every male
citizen between 18- 26. No women have to register. The MSSA was challenged on EP grounds.
(b) Crt rejects mere rationality standard and implied it was implying a heightened scrutiny
(c) The Court, Rehnquist, upheld the statute on heightened scrutiny standard (as used in Craig) (seems
to be intermediate scrutiny).
(i) Ends: The purpose of the MSSA is to make the conscription of an army speedy and efficient
should that be necessary.
(ii) Means: Since women are not eligible for combat (not similarly situated), Congress’ decision
to authorize the registration of only men does not violate the EPC component of the 5th
Amend’s DPC. The exemption of women from registration is closely related to Congress’
purpose in authorizing registration.
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(d) Nguyen v. INS (2001) [354]
Surviving IS – Fathers and Mothers not similarly situated
(i) Background: Fed statute said that a child born of a US mother out of wedlock and abroad is
automatically a US citizen. But a child born of a US father and a foreign mother in the same
circumstance can only become a US citizen if the father took steps to acknowledge paternity.
(ii) Held: Crt upheld statute finding it had a imp. govt interest + means were substantially related.
(iii) Means: The crt found sex discrimination to be justified by two govt interests.
1. Importance of insuring biological parent-child relationship exists.
a. Fathers and mothers are not similarly situated. Mothers have unique relationship to
child by the event of birth.
2. Ensure that the child and citizen parent have some demonstrated oppty or potential to
develop a real relationship – every day ties that provide a connection btwn child and
citizen parent and U.S.
(iv) Ends: Differentiation was narrowly enough tailored to fit asserted interests. *far from perfect!
(v) Who is discrim against in this statute? Should Cts be suspicious of discrimination against
males, or apply any level of heightened scrutiny to such classifications? What were the gov’s
interests? 1) to be sure that the alleged father is actually a biological parent of the child. 2) to
be sure that a real relationship exists b/n the alleged father and the child. Did the majority
apply heightened scrutiny? Narrow tailoring or a close fit b/n these interests and the statute?
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(7) Gender-based remedies (Affirmative Action Programs)
(a) Gender-conscious remedies that attempt to remedy specific past discrimination against women
will almost always have to satisfy both prongs of the intermediate scrutiny test.
(b) Stevens dissent in Adarand – “as the law currently stands, the crt will apply intermediate scrutiny
to cases of individuous gender discrimination and strict scrutiny to cases of individuous race
discrimination, while applying the same ....
(c) Califano v. Webster (1977) [338]: The Court upheld a statute allowing women higher monthly
benefits than men with the same earning history, on the basis that women had been unfairly
hindered from earning as much as men in the past. The provision was strictly a remedial one,
whose purpose was one of “redressing society’s long standing disparate treatment of women,” not
one of “role-typing” women by assuming they are “the weaker sex” or “more likely to be childrearers or dependents.”
(d) Schlesinger v. Ballard: A federal statute allowing women an addtl four years to reach a particular
rank before being discharged was upheld. Statute was said to reflect the real differences between
male and female Navy officers because women were prohibited from serving in combat and many
forms of sea duty, they could not be expected to compile a record for promotion as quickly as men.
(e) Mississippi University for Women v. Hogan (1982) [340] Single Sex Schools
(i) Background: A male was denied entry to the Nursing School at the Mississippi University for
women, a state school, because of his sex.
(ii) The Court, O’Connor, applied the intermediate level of scrutiny prescribed by Craig and held
the exclusion of men violated the EPC.
1. A party seeking to uphold a statute with a gender-based classification must show an
“exceedingly persuasive justification for the classification.” The burden is met by
showing:
a. “Important governmental objectives.” Care must be taken in ascertaining whether the
statutory objective itself reflects archaic and stereotypic notions.
b. “Substantial relationship between the objective and the means,” to assure that the
validity of a classification is determined through reasoned analysis rather than through
the mechanical application of traditional, often inaccurate, assumptions about the
proper roles of men and women.
2. The State did not show that the women in the school were disadvantaged by the
classification. They lacked no opportunities to obtain training or leadership positions in
the field of nursing. Rather than compensate for discriminatory barriers faced by women,
MUW’s policy of exclusion perpetuates the stereotype that nursing is exclusively a
woman’s job. State did not meet means test either.
Elements of a “suspect category”
- immutable/congenital
- history of purposeful use of category to oppress
- no relationship between category and legitimate decision-making criteria
- oppressed group is politically powerless
- recognition that classification is “morally neutral”
o recognize that a certain category ‘deserves to be discriminated against’
- [compare Bradley’s opinion in Bradwell]
- [sex/gender, age, wealth, alienage, illegitimacy, sexual orientation]
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(8) Classifications that Disparate Impact Upon Women
(a) Geduldig v. Aiello, 417 U.S. 484 (1974) [360]
(i) Background: CA’s disability program excluded pregnancy-related disabilities from coverage,
however did cover male prostate problems. Π claimed that men were being treated more
favorably than women  men were privileged and women were denigrated in public and work
sphere b/c women’s unique ability to bear children
(ii) Held: Apply RB standard the crt ruled pregnancy exclusion was rationally related to the
insurance program’s self-supporting goals; benefits are covered by premiums, and some lines
have to be drawn.
(iii) Dissent argued lenient rationale in light of Reed & Frontiero was inappropriate.
(iv) Stewart argued that the exclusion was not “gender discrim”: It does not divide the world into
men and women, rather it classifies the world into men+non-pregnant women and pregnant
women.
(v) Notes:
1. Lawrence says that crt is reaching to find that the classification is not based on race.
(b) Personnel Administrator of Massachusetts v. Feeney (1979) [361]
(i) Background: A woman challenged a MA civil service statute which gave an absolute hiring
preference to any veteran who passed a competitive exam. At the time of suit over 98% of the
veterans in MA were men, the preference had an overwhelming disparate impact on women.
(ii) The Crt, Stewart, using Washington’s discriminatory purpose requirement upheld the statute.
1. The test for a law that is gender-neutral on its face but that disproportionately impacts
upon women is:
a. Whether statutory classificatn is indeed neutral in the sense that it is not gender based.
b. Is there discriminatory purpose? – Π has burden of showing that a gender-based
discriminatory purpose, has helped to shape MA vertan’s preference leg.
i. It is not enough that a person “intends the natural and foreseeable consequences of
his voluntary actions.” Awareness of consequences is not sufficient to prove
discriminatory purpose.
ii. There is intentional discrimination only if the legislature chose its course “because
of,” and not merely “in spite of,” its adverse effects upon women. [362]
2. The statute passes muster.
a. The classification here (veterans) is not covertly or overtly based on gender.
b. Nothing in record demonstrates that preference for veterans was originally devised or
reenacted for purposes of keeping women in a stereotypic and predefined place in MA
civil service.
c. The statutory history shows that the benefit of the preference was consistently offered
to “any person” who was a veteran. There was no evidence that the legislature
intended for the statute to have an adverse effect on women.
(iii) Marshall, Brennan dissenting
1. Discriminatory intent can be inferred by looking at the “degree, inevitability, or fx of any
disproportionate impact as well as the alternatives reasonably available. Arlington.
2. Given the armed forces’ longstanding exclusion of women, an overwhelming impact was
inevitable and fx.
3. Where the fx impact is soo disproportionate, the burden should shift to state to establish
that sex-based considerations played no part in the choice of the leg scheme.
(iv) Note: Case does not get to standard of review b/c court finds no discriminatory purpose
(c) Orr v. Orr (1979) [367]. Crt invalidated state laws imposing alimony (or by implication, child
support) payments on husbands and not wives.
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(d) Price v. Waterhouse (1989) [365]. Π had been allegedly denied partnership at Price Waterhouse
on grounds that partners felt she was uncharming and macho. Held that it is sex discrimination if
an employer disadvantages an employee b/c she violates tradtl gender roles.
(e) Griffin v. Breckenridge (1971) [381]
(i) Crt interpreted § 1985(3) to provide relief against private conspirators who are motivated by
animus that is “racial or perhaps otherwise class-based, invidiously discriminatory,” and who
also interfere with rights protected against private and official encroachment.
(ii) Ramifications: Lower crts upheld lawsuits by abortion clinics against participants in
Operation Rescue, who allegedly conspired to deprive women of the right to travel interstate
to use abortion clinics in D.C.
(f) Bray v. Alexandria Women’s Health Clinic (1993) [381]
(i) Held: Scalia reversed holding “women seeking abortion” could not qualify as a class for
purposes of the § 1985(3).
(ii) Limited in holding: Scalia did not rule out possibility that women could be protected class, b/c
record did not support charge that Op Rescue was motivated by animus against women
generally.
(iii) Crt also ruled that clinics did not present a right that is cx protected against private and public
action, the right to travel is protected against private action, but the target of Op Res was
against abortion and abortions are not assured against private action.
(9) Hawaii Cases
(a) Holdman v. Olim (1978) [h-49]
(i) Background: Woman visitor denied entry to prison b/c she was not wearing a bra.
(ii) The Hawaii Supreme Court upheld the directive.
1. Federal Constitution: There was no violation of the federal Constitution on an
intermediate scrutiny basis. The maintenance of order or control in a prison is an
important government objective, and the regulation was substantially tied to this objective.
2. State Constitution:
a. The Court declined to determine whether strict scrutiny applied, but said that even
under that standard the directive passed muster. Maintaining order or control in a
prison is a valid compelling state interest and is narrowly tailored in this case. See HI
Const., art. I, § 5.
b. HI has an ERA, but that deals with particular attributes of individuals, not with sex. So
long as the law deals only with a characteristic found in all (or some) women but no
men, or in all (or some) men but no women, it does not ignore individual
characteristics found in both sexes. Such legislation doesn’t violate the ERA. So, laws
can classify based on actual physical differences (e.g., bathrooms, locker rooms).
(b) State v. Rivera (1980)
(i) Background: Appellant convicted under previous rape statute which was male-specific, but
changed to gender-neutral, sought reversal of original conviction on grounds that it violated
the Hawaii ERA.
(ii) Holding: The fundamental legal principle underlying the ERA is that the law must deal with
particular attributes of individuals. A classification based upon a physical characteristic unique
to one sex doesn’t violate the ERA b/c the differentiation is based on the presence of a
physical characteristic found in one sex and not in both sexes.
(c) State v. Tookes, Tarkington (1985)
(i) Background: Police used male “volunteers” in a sting operation against female prostitutes. The
prostitutes argued that the operation discriminated against women.
(ii) Holding: Where the law is gender-neutral, it does not violate equal protection unless there is
an overwhelming pattern of discriminatory enforcement against one sex so that the intent to
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discriminate can be inferred.
(d) State v. Levinson (1990)
(i) Background: Action against state judge in a murder case for his decision not to dismiss an
impaneled jury after the defendant used peremptory challenges to skew the gender of the panel
in his favor.
(ii) Holding: The right to serve on a jury is a privilege of citizenship, guaranteed by the
constitution. The right cannot be taken away for any of the prohibited bases of race, religion,
sex, or ancestry.
(e) Baehr v. Lewin (1993)
(i) Background: Several same-sex couples applied for, and were denied, marriage licenses.
(ii) Holding: Sex is a suspect category for purposes of equal protection under HI Const. art. I, §5,
and is thus subject to strict scrutiny. Levinson’s formulation of the strict scrutiny test
(arguably more exacting than traditional SS): The marriage law is presumed unconstitutional
unless the state shows:
1. Compelling state interests which justify such classifications; and
2. Laws were narrowly drawn to avoid unnecessary abridgments of constitutional rights.
(iii) Heen’s dissent: Men and women are equally barred from marrying a person of the same sex,
so there is no sex-based discrimination.
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X. Other Suspect Classifications
A. Age: No heightened scrutiny for age classifications.
(1) No:
(a) We all go through all the ages (if we live a full life), hence any decision to discriminate on the
basis of age affects all persons equally. Therefore, a reviewing court need not be suspicious of an
age-based classification and should defer to the legislative judgment.
(b) Age classifications are by their very nature inevitably somewhat arbitrary.
(2) Yes:
(a) The young have no say in legislative decision-making, the legislators will never by young again,
and hence classifications.
B. Alienage
(1) Court purports to apply strict scrutiny, but in general, it attempts to distinguish between state statutes
that are economically protectionist and those rationally related to reserving sovereign functions for
citizens.
(a) Voting: goes to the point of representative government. The legitimate argument goes to
disallowing aliens, who have not sworn allegiance to this country and its constitution, from
representing the people under this structured government.
(b) Welfare benefits: States that denied welfare benefits to noncitizens lawfully present in the country
were held in violation of equal protection. Noncitizens as a class are a “discrete and insular”
minority for whom heightened scrutiny is appropriate. Rationale was that aliens pay taxes (from
which funds to pay welfare benefits come) just as citizens do. Graham v. Richardson (1971)
(c) Bar admissions and civil service: Court struck down across-the-board rules excluding all
noncitizens from employment in the state civil service (Sugarman v. Dougall) and the state bar
(In re Griffiths).
(d) Political positions: In dictum in Sugarman, the Court stated that a state could prevent aliens from
holding state elective government positions, and even important nonelective positions. The
rationale is that such persons “perform functions that go to the heart of representative gov’t.” Just
as a state could exclude aliens from voting, it could exclude them from participating in democratic
political institutions. See Foley v. Connelie (law excluding noncitizens from the state police
force).
(2) Federal legislation is reviewed under rational basis scrutiny, because the Constitution authorizes the
Federal Government to regulate immigration.
(3) State legislation is reviewed under strict scrutiny, unless it concerns core political decision-making
matters, such as voting, jury service, teaching, and law enforcement.
C. Wealth [383]:
(1) Generally, not suspect classification
(2) HOWEVER, should be viewed as a suspect when access to essential things under the government’s
exclusive control is in question
(a) Right to counsel in criminal cases, and appeals, and right to trial transcripts. Gideon v. Wainright
(b) Right to divorce – Boddie v. Connecticut (1971)
(c) Right to vote – Harper v. Virginia Bd of Elections
(d) NO in other situations:
(i) US v. Kras (1973) [384]. Crt upheld across the board filing fee for bankruptcy proceedings.
(ii) San Antonio Ind. Sch. Dist. V. Rodriguez (1973) – Πs claimed that Texas system of financing
public education violated EP because it relied principally on local property taxes. Thus this
resulted in districts with high property taxes per pupil consistently spent more on education.
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1. Held: Applying Rodriguez mere rationality test the crt upheld the TX system.
Residents of property-base-poor districts were not a “suspect class,” and inequalities
education is not a fundamental right which should be subject to SS.
2. Ends: Scheme enacted for the purpose of giving each local district a large measure of
control over the education to its residents
3. Imperfect means-ends fit not fatal: The fact that some districts (those with lower property
tax bases) had less control over their spending does not negate the existence of a rational
relationship btwn use of local property taxes (means) and local control (ends).
4. Analysis:
a. The fact that districts w/smaller property tax bases spent less per pupil on education
did not make residents a suspect class.
b. The class (residents) was “large, diverse, and amorphous..unified only by common
factor of residence in a district that happens to have less taxable wealth.
c. Class is not saddled with such disabilities, or subjected to a history of purposeful
unequal treatment or relegated to such a position of political powerlessness as to
command extraordinary protection.
5. Crt implies that even a class composed entirely of poor ppl would not by that fact alone be
“suspect.”
6. Notes:
a. Rodriguez essentially allows states to provide a better quality education for students
who live in high-income districts to those who live in low-income ones.
(iii)
Dandridge v. Williams (1970) – RB also.
(iv)
US Dept of Ag v. Moreno (1973) – Ct rules differently than previous cases. No person
living in a household containing persons who are unrelated can receive food stamps. Why was
this statute enacted? To prevent hippie communities. To prevent fraud. Does that matter?
What standard of judicial review applies? Ct ruled that seemed to be based on mean spirited
animus against hippies so struck law down.
(v)
Intro: for a time there were indications that the Ct was applying heightened scrutiny to
statutes that disadvantaged the poor by imposing a charge for govt services or failing to
provide support for the necessary expenditures of life. In the earl 70’s however, Ct rejected the
proposition that wealth-based classifications are suspect. Taken out of judicial domain, and
made a legislative call.
(vi)
M.L.B. v. S.L.J, (1996) [385]
1. Held: Ct ruled that the state could not Cxaly apply the fee requirement to MLB, who had
earlier lost her parental rights b/c she could not afford the appeal fees ($2,352).
2. The EP concern relates to the legitimacy of fencing out would-be appellants based solely
on their inability to pay core costs.
3. J Ginsburg considered the character and intensity of the individual interest at stake, on the
one hand, and the State’s justification for its exaction on the other, and found that MLB’s
stakes (lost of child) were most severe and greatly outweighed the state pecuniary
interest.
4. Dissent (J Thomas, Reinquist, Scalia) – EPC is not a panacea for perceived social or
economic inequality; it seeks to guarantee equal laws, not equal results. Feeney.
D. Illegitimacy
(1) More recent precedents apply “intermediate scrutiny.” Clark v. Jeter (1988).
(a) Intestate inheritance: Court held that a state can’t categorically deny intestate inheritance to
illegitimate children, Trimble v. Gordon, but may limit such inheritance to persons who were
adjudged by a state court to be his children during his lifetime, Lalli v. Lalli.
(b) Child support obligations: A state is prohibited from limiting such obligations to marital children
and must provide nonmarital children a meaningful opportunity to establish paternity.
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E. Physical or mental disability
(1) Disability Rights Movement from the beginning has viewed benign neglect as large as a problem as
formal discrimination. They have demanded formal equality as well as functional equality. Contend
that the states must take rx measures to accommodate needs of the disabled. [394]
(2) City of Cleburne v. Cleburne Living Center (1985) [386] *Crts decision based upon “as applied”
(a) Background: Cleburne’s zoning regulations required a special use permit for the construction of
hospitals for the insane or feeble-minded. Cleburne Living Center attempted to establish a group
home for the mentally disabled. The city classified the proposed home as one for the “feebleminded,” and denied the special use permit. The d/crt denied relief based on a rational basis test.
COA reversed, concluding that the mentally disabled are a “quasi-suspect” class, and that, under
intermediate scrutiny, the zoning regulation was invalid on its face and as applied.
(b) Governmental interests
(i) Negative attitudes and fears of the neighbors
(ii) Across the street from a junior high school
(iii) Located on a 500-yr flood plain
(iv) Too many people in the building.
(c) The Court, White, struck down the zoning regulation.
(i) COA erred in holding mental retardation as a quasi-suspect classification calling for
intermediate scrutiny.
1. No judicial second-guessing: States have a legitimate interest in giving special treatment
to the mentally retarded because of their “reduced ability to cope with and function in the
everyday world.” But, the treatment should be left to the legislature.
2. Legislature has acted: Legislature has already responded to the plight of the mentally
retarded, so no judicial oversight necessary.
3. Not politically powerless: The fact that legislature has acted means that the mentally
retarded are not politically powerless.
4. Other groups: If the large and amorphous class of the mentally retarded were deemed
quasi-suspect, it would be hard to distinguish a variety of other groups in a principled way.
(ii) Applying rational basis affords govt to pursue policies designed to assist the retarded in
realizing their full potential AND to freely and efficiently engage in activities that burden the
retarded in incidental manners.
(iii) Applying rational basis with a bite--City flunked the test: Denying the mentally retarded quasisuspect status does not leave them unprotected from invidious discrimination. Classifications
still have to be rationally related to a legitimate governmental purpose.
1. The regulation allows the construction of a number of other structures (e.g., hospitals,
apartment hotels) that don’t require a special use permit, and the record does not reveal
any rational basis to treat the Featherston home differently because there is no evidence
that it would pose any special threat to the city’s legitimate interest.
2. The law cannot give private biases effect. (Palmore) Mere negative attitudes or fear are
not permissible bases for treating a home for the mentally retarded differently from those
permitted structures.
3. Denying the permit for fear that the students across the street may harass the occupants is
too vague a claim. It is also underinclusive because the school also had handicapped
students whom could “handle” being harassed by the other students.
(d) Stevens’ concurrence: There isn’t a multi-tiered system of judicial review of classifications. The
Court’s cases “reflect a continuum of judgmental responses to differing classifications which have
been explained in opinions by terms ranging from ‘strict scrutiny’ at one extreme to ‘rational
basis’ at the other.” [The Court may be moving in this direction]. Stevens found that from the
record that the permit was required b/c of irrational fears of neighboring property owners, not for
the protection of those who reside in the Featherston home.
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(e) Big Picture: Court seems reluctant to establish additional “quasi-suspect” classes.
(f) Notes:
(i) Recall: heightened scrutiny starts with a presumption of uncx, shifts the burden to the govt
and limits the kinds of arguments that govt can make. Ordinary rational basis review starts
w/presumption of cx
(ii) Rationality with a bite (Cleburne) – starts with presumption of validity, but allows challenger
to create a PF case of invalidity by showing to rational fit with the asserted purpose or by
demonstrating antipathy. Shifts burden to state to demonstrate a rational and neutral
justification for its discrimination.
(iii) Stevens, C.J. Burger, Marshall, Brennan, Blackmun support a balancing approach rather than
the tiers approach.
(iv) Handicapped – really are different, as opposed to racial and gender arguments
(v) After Gender, the crt is reluctant to apply that other classifications are suspect
(3) Heller v. Doe (1993) [394] : KY’s statutes permitted the involuntary commitment of mentally ill and
mentally retarded persons upon a showing that 1) they were dangerous to themselves or others, that 2)
they could reasonably benefit from treatment, and 3) that no less restrictive alternative existed. For the
mentally ill, the BOP was beyond a reasonable doubt, whereas for the mentally retarded it was clear
and convincing evidence, making it easier to institutionalize a retarded person.
(a) Held: Kennedy, upheld the statute under conventional rationality review. The majority found that
it was harder to diagnose correctly mental illness than mental retardation.
(b) Differences justified different standards b/c of the different risk of error.
(c) It was rational for the state to believe that the liberty deprivation would be more grievious for the
wrongfully institutionalized mentally ill person that retarded person (treatment was much more
invasive).
(d) Four Justices dissented on the question whether the differential BOPs were rational.
F. Sexual orientation
(1) The Court has never held that legal classifications based on sexual orientation are subject to
heightened scrutiny.
(2) At times the Court has created a statutory discrimination against homosexuals and bisexuals even
though the statute did not on its face discriminate. Boutilier v. INS.
(3) Bower v. Hardwick (1986): sodomy is a crime.
(4) Watkins v. US Army (1989) [398]: 9th Cir held Army’s exclusion of bisexuals, gay men, and lesbians
from the armed forces violates EP strict scrutiny.
(a) Argument for application of SS
(i) Whether group had suffered a history of purposeful discrimination.
(ii) Whether the discrimination embodies a gross unfairness that is sufficiently inconsistent with
the ideals of EP to term it invidious.
1. whether the disadvantaged class is defined by a trait that frequently bears no relation to
ability to perform or contribute to society
2. whether the class has been saddled w/unique disabilities b/c of prejudice or inaccurate
stereotypes - – classifications based on sexual orientation reflect prejudice and inaccurate
stereotypes
3. whether the training defining the class is immutable – whether immutable or not, sexual
orientation rests outside the conscious control or choice of the individual
(iii) Whether the penalized group lacks effective political representation needed to protect itself
form social and state prejudice.
(iv) Dissent, Reinhardt focused on conduct rather that homosexual status. Therefore he would
have upheld Watkins dismissal b/c homosexual sodomy is illegal.
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(v) Note: En Banc 9th Cir. vacated Norris option but ordered Sergeant Watkins reinstated upon
estoppel grounds.
(5) Robinson v. CA (1962) [398]: Crt held that criminal sanctions could not placed on person for being a
drug addict, even though underlying conduct was properly illegal.
(6) NYC Transit v. Beazer (1979): applying RB court upheld NYC’s policy of not hiring people of
methodone programs, as it was a signal of addiction (underlying conduct was illegal; seems to go
against Watkins). Crt sttd gay ppl can be treated the same as addicts, the govt cannot imprison them
for the sexual preference but could discriminate against them civilly. Reinhardt sttd that where sexual
orientation includes a propensity to engage in illegal conduct, they cannot be a suspect class.
(7) Reynolds v. US (1878): SC upheld the criminalization (in Utah) of polygamy against Mormons who
committed the crime out of religious duty.
(8) Davis v. Beason (1890): court upheld the denial of civil rights, including right to vote and serve on
juries, to people who either were polygamous or even advocated polygamy.
(9) Baehr v. Lewin (Haw. S. Ct. 1993): see supra
(10)
Steffan v. Perry (1994)
(a) Background: Steffan was a Naval Academy cadet who privately admitted to being gay, and was
later asked formally. After admitting he was, he was separated and he sued.
(b) The D.C. Circuit, en banc, upheld the regulations under a rational basis standard.
(i)
The military has a legitimate purpose in banning gays.
(ii)
The military is entitled deference in presuming that an admitted homosexual either
engages or is likely to engage in homosexual conduct in order to avoid the administrative cost
of adducing proof of conduct or intent, as long as there is a rational basis for believing that the
presumptions furthers that end. The regulation survives rational basis review even when there
is an imperfect fit between means and ends.
(c) Dissent: Homosexual orientation and conduct are analytically distinct concepts. Prior conduct
does not demonstrate a propensity to engage in the same actions.
(11)
Romer v. Evans (1996) [402]
(a) Background: CO passed a provision, known as “Amendment 2,” that modified the CO Cx to
provide that neither the state nor any subdivision shall “enact, adopt or enforce any statute,
regulation, practices, or policy” that gave homosexuals, lesbians or bisexuals protection from
discrimination, or entitlements, based on minority status. Under the provision, homosexuals could
not secure protective legislation except through a constitutional amendment.
(b) By a 6-2 vote, the Court apply RB, per Kennedy, struck down Amendment 2.
(i) Amend 2 does not put Gays in “same position” as others: Kennedy rejected CO’s argument
that the amend put gays and lesbians in the same position as all other persons. The amendment
singled gays out for worse treatment by forbidding them safeguards that other groups enjoyed
or may seek without constraint. It’s not so much what class is being excluded from availing
themselves of the legislation, but the fact that a class is denied access that violates EP.
(ii) Desire to harm not a legitimate interest: A bare desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest. [404]
(iii) Citizens’ freedom of association rationale rejected: Colorado’s argument that Amend. 2 was
rationally related to the protection of other citizens’ freedom of association (e.g., freedom of
landlords or employers who have personal or religious objections to homosexuality).
(c) Δ’s claimed purposes  Ends:
(i) Protection of other citizens’ freedom of association
(ii) Trying to conserve resources
(d) Means:
(i) Means was so broad and discontinuous with the rxs offered for the amend, that it seems
inexplicable by anything but animus towards the class that if affects and lacks rational
relationship.
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(e)
(f)
(g)
(12)
(a)
(b)
1. Overbreadth indicates animus because there it is impossible to figure out the purpose –
takes everything away without explaining why.
(ii) Amend is too narrow and too broad – it ids persons by a single trait and then denies them
protection across the board.
(iii) Resulting disqualification of a class of persons from the right to seek specific protection from
the law is unprecedented.
Scalia’s dissent (C.J. Rehnquist, Thomas join)
(i) No singling out: Amendment 2 didn’t single out homosexuals for unfavorable treatment. All
the Amendment did was to say that gays could not get preferential treatment without
amending the state constitution. This is not a violation of equal protection.
(ii) Inconsistent with Bowers: The Court held in Bowers that states may criminalize homosexual
conduct. If a state can do that, it may enact other laws that disfavor homosexual conduct.
Where criminal sanctions are not involved homosexual orientation is an acceptable stand-in
for homosexual conduct.
(iii) Rationally related: Amend. 2 was rationally related to the legitimate gov’t interest of the
prevention of the “piecemeal deterioration of the sexual morality” of the CO community. A
measure denying homosexuals preferential treatment was an appropriate means of achieving
that end.
(iv) Scalia describes the leg as a modest attempt to preserve sexual mores against the efforts of a
politically powerful minority to revise those more through use of the laws.
Notes:
(i) Interpretations of Evans, Amend 2 was unCx b/c…
1. It deprived gay ppl of the right to participate equally in the political process
2. the law was a denial of the EP of the laws in the most literal sense, as it closed off state
process as it closed off state process to ONE vulnerable group
3. the law was may not draw moral distinctions based upon sexual practices btwn consenting
adults (overruling Hardwick)
4. The state cannot, without justification, single out one single group for “pariah” status by
creating a Cx right to discriminate against that group, or the state has an obligation to
remedy pervasive discrimination against a vulnerable group similar to those the state does
protect.
5. The law’s goal – state action reflecting widespread animus against gay ppl – was
impermissible
6. The measure, unprecedented in its sweep, was way overbroad.
Class Notes:
(i) The amend effectively would create a harder process for gays to get something done by leg.
When a groups is seeking laws to protect themselves they would need to go to leg (state or
local) and lobby for a particular law. However, after amend. gays would have to actually get
Cx amendment, which is a much more difficult process and would be state wide.
(ii) Violates EP because it excludes gays from participating in political process. A blanket state
cx amend. would prevent gays from getting political assistance in particular communities. e.g.
San Francisco may be more sensitive to gay issues and therefore may pass local laws
protecting gays. Amend would prevent that.
(iii) Law is stigmatizing  sends out state message
(iv) Scalia – how does Scalia know that ppl will understand the term “homosexual conduct” to be
sodimy. We align being gay to this particular imagined activity. That totalizes the person.
Rests on belief sysm that immediately brings up connotations about their sexual activity.
(unconscious prejudice – deeply engrained in belief sysm).
Baehr v. Lewin (Haw. 1993) [415]
Background: Several same-sex couples applied for, and were denied, marriage licenses.
Holding: Plurality found denial of marriage license constituted sex discrimination. Sex is a suspect
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category for purposes of equal protection under HI Const. art. I, §5, and is thus subject to strict
scrutiny. Levinson’s formulation of the strict scrutiny test (arguably more exacting than
traditional SS): The marriage law is presumed uncx unless the state shows:
(i) Compelling state interests which justify such classifications; and
(ii) Laws were narrowly drawn to avoid unnecessary abridgments of constitutional rights.
(c) Burns concurrence – If heterosexuality, homosexuality, bisexuality, and asexuality are
“biologically fated, then the word “sex” also includes these differences.
(d) Heen’s dissent: Distinguishing Loving because it was not based on same sex marriages, Heen
found since men and women are equally barred from marrying a person of the same sex, there is
no sex-based discrimination.
(i) Further, the statute’s classification is clearly designed to promote the leg purpose of fostering
and protecting the propagation of the human race and bears a reasonable relationship.
(e) Levinson counters Heens arguments through the U.S. S/C analysis in Loving,
(i) Marriage is “one of the basic civil rights of men and women.
(ii) Although neither sex is being granted a right or benefit the other does not have, and neither
sex is being denied a right or benefit that the other has (mere equal application), “equal
application does not immunize the statute from the very heavy burden of justification which
the 14th Amend. has traditionally reqd of state statutes drawn according to race”/sex.
(f) Notes:
(i) 1988 Hawaii voters (by more than two-to-one) endorsed Cx amend giving the leg the power to
reserve marriage to opposite-sex couples, overturns Baehr. HI S/C remanded case for entry
for judgment in favor of the state.
(ii) Is the Cx Amend. ….
(13)
Baker v. State (1999): VT S/C fouind “Common Benefits Clause” of VT’s Cx extend marriage
benefits and protections to same-sex couples. The crt did not find that same sex couples had the right
to “marry,” rather they left it to the leg.
(a) VT leg declined to extend marriage to same-sex couples, but in 2000 passed a law creating “civil
unions.” Civil unions carry with them all the same benefits and obligations of marriage, but not the
name.
(b) As of January 1, 2003 only the Netherlands formally recognized same-sex marriages.
(14)
Goodridge v. Dept of Pub Health, (Mass. 2003) [s-17]
(a) Background: Seven lesbian and gay couples sued the state to invalidate its exclusion of same-sex
couples from marriage.
(b) Held: Applying RB Crt struck down statute for violating Cx.
(c) Analysis:
(i) Δs justified the statute for the following purposes (Ends):
1. Ensuring the optimal setting for child rearing, which the dept defines as ‘a two-parent
family with one parent of each sex’;
2. Preserving scarce state and private financial resources.
(ii) Crt found “Providing a favorable setting for procreation” a justifiable state interest, however it
was not advanced by excluding lesbian and gay couples from marriage (failed means).
1. Fertility is not a condition of marriage, rather it is the exclusive and permanent
commitment of the marriage partners to one another, not the begetting of children, that is
the sine qua non of civil marriage.
2. Marriage restriction to same-sex couples impermissibly “identifies persons by a single
trait and then denies them protection across the board (Romer) and further perpetuates the
destructive stereotype that same-sex relationships are inherently unstable
(iii) Crt found restricting marriage to opposite sex couples cannot plausibly further the policy that
children are best raised in optimal setting. (fails means)
1. the best interest of the child standard does not turn on a parent’s sexual orientation or
marital status.
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(iv) The crt finds that an absolute statutory ban on same-sex marriage bears no rational relationship
to the goal of economy.
1. The depts. conclusory generalization – same sex couples are less financially dependent –
ignores that same-sex couples have children and other dependents.
2. MA marriage laws do not condition receipt of public and private financial benefits to
married individuals on a demonstration of financial dependence.
(v) The crt addresses the argument that allowing same-sex couples to marry will destroy the
institution of marriage – While the decision will significantly change the definition of
marriage as it has been understood, it does not disturb the value of marriage in our society,
rather it reinforces the importance of marriage to individuals and communities.
(vi) Notes:
1. Obviously this crt does not use Railway Express review (which does not require leg to
prove facts and that rx leg could accept facts supporting either argument), rather it appears
to be more like Craig which was defended by reference to valid state goals, but fell b/c
supporting evidence was weak and the classification was driven by stereotypes rather than
good policy.
2. Role of Animus – Cleburne and Romer found discrim rested upon animus for the disabled
and gay, which explains RB with a bite, and finds if the “real” state policy is prejudice,
then the post-hoc justifications cannot save the statute.
3. Crt stayed opinion for 180 days to permit leg to take action.
4. Leg’ response was to propose statute that would have reaffirmed marriage limited to
different-sex couples but also creating VT style civil unions. Crt ruled in an advisory
opinion that it would violate MA Cx and that state could not create a separate but equal
regime.
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PROTECTING FUNDAMENTAL RIGHTS--THE DUE PROCESS CLAUSE
I. Generally: Fundamental rights are those personal freedoms that the government may not interfere
with. The notion of fundamental rights is rooted in natural law.
A. Which rights can the Court assert as being fundamental?
(1) Rights guaranteed protection in the Bill of Rights (BOR).
(2) Rights protected in other parts of the Const.
(A) What about the death penalty? Is it unconstitutional given
(i) 8th amendment
1. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
(ii) How does this conflict, if at all, with 5th amend, DPC.
(3) Rights not included in the Const., but which are nonetheless fundamental (i.e. natural rights)
(A) 9th amend can be looked at as a “catch all”
(i) The enumeration in the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people.
B. Calder v. Bull (1798)
(1) Background:
(a) The CN Probate Ct disapproved a will, allowing petitioners to inherit as heirs at law. The
CN leg enacted a resolution setting aside the decree and ordering a new hearing, at which
the will was approved. The resolution did not violate Art I, § 10 of the Cx (prohibiting ex
post facto laws) because that clause is limited to criminal legislation.
(i) An ex post facto law (Latin for "from a thing done afterward" or “after the deed”),
a.k.a. retrospective law, retroactive, i.e. that affects facts or legal relationships that
have existed prior to the enactment of the law. Criminal law – it is an attempt to
criminalize an action that was not a crime at the time it was committed.
(ii) A law may have an ex post facto effect without being technically ex post facto. E.g.
Repealed legislation will no longer apply to situations even when those situations
arose before the law was repealed.
(b) Justice Samuel Chase’s Opinion: said that “the very nature or our free Republic
governments” prevent such action, because it “is against all reason and justice.”
(c) Justice James Iredell’s Dissent: “The ideas of natural justice are regulated by no fixed
standard; the ablest and the purest men have differed upon the subject; and all that the
court could properly say, in such an event, would be, that the legislature, possessed of an
equal right of opinion, had passed an act which, in the opinion of the judges, was
inconsistent with the abstract principles of natural justice.”
II. Bill of Rights: The BOR embodies most of the fundamental rights protected in the Constitution.
A. Purpose of the BOR – protect individuals against various sorts of interference by the fed govt.
(1) Guarantees of BOR were not directly binding upon the state govts.
B. Applicability to the states:
(1) P&I Clause
(a) 14th Amend § 1 – “NO state shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States…”
(i) Some members of Congress expected and hoped that this Clause would constitute a
substantial restraint on state govt action against individuals.
(b) Privileges and Immunities Clause, Art IV, §2, cl. 1 of the Cx provides: “The Citizens of
each State shall be entitled to all Privileges and Immunities of Citizens in the several
states.”
(i) Function: Prevents states from discriminating against out-of-state individuals.
Attempt to “help fuse into one Nation a collection of independent, sovereign States.”
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(ii) “Citizenship” v. “residence”: Discrimination against non-residents is barred. Doe v.
Bolton struck down for only permitting GA residents to obtain abortions w/in GA.
(iii) “citizens” eliminates corporations and aliens from being protected.
(iv) Only fundamental rights covered: only rights that are “fundamental to national
unity” are covered, they are all related to commerce: right to be employed, practice
one’s profession, engage in business. Conversely, non-economic rights are generally
not fundamental to national unity – hunting, fishing.
(2) Slaughterhouse Cases (1873) [428] (see supra):
(a) Background: A 1869 LA statute prohibited all slaughter houses within the city limits of
New Orleans but made an exception for Crescent City Co., which created a monopoly.
Statutes was enacted by a “carpetbagging” legislature whose members had been promised
the right to buy stock in the corporation. The 1,000 New Orleans butchers who were not
connected w/the Co. challenged the law, arguing that it violated (1) their right to “liberty”
under the DPC of the 14th amend; (2) their right to the EP of the law, and (3) their rights
to work at their trade under the P & I clause.
(b) Issues:
(i) Whether right to pursue a trade protected under the P/I clause?
(ii) Are statutorily-created monopolies constitutional?
(c) Three types of rights as resident of a state under 14th amendment
(i) Privileges or Immunities as US citizen
(ii) DPC – can’t be deprived of life, liberty, property without DP
(iii) EPC – have to have ‘equal’ protection of laws
(d) Held: The P&I clause of the 14th Amend protects individuals from state infringement of
(a limited set of) national privileges, not that of state privileges. e.g. right to access to
federal agencies and the right to use navigable waters. (5-4 decision). DP & EP were
placed in 14th Amend to protect blacks.
(e) Analysis:
(i) Crt focused on the language of 14th Amend P&I Clause – “the P&I of citizens of the
United States, and contrasted it with the language of the P&I of Article IV, which
refers to the P&I of citizens of a state.
(ii) Although the right to pursue a trade was probably within the range of interests
protected by the Art IV clause, it is applied only to discrimination against noncitizens. (The “sole purpose” of art IV “was to declare to the several sates, that
whatever those rights, as you grant or establish them to your own citizens . . .the
same, neither more not less, shall be the measure of the rights of citizens of other
States within your jdx)
(iii) Crt found that if the same interests were protected by the 14th Amend. against state
abridgement, then the effect would be massive transfer of power to the fed govt
(f) Dissent argued for a broad reading of the P&I Clause – what the Art IV clause did not
protect citizens against discrimination by other states, “the 14th Amend does for the
protection of every citizen of the U.S. against hostile and discriminating leg against him
in favor of others, whether they reside in the same or in different states.” In particular, all
pursuits, all protections are open to American citizens equally.
(g) Big Picture:
(i) After the passage of the Civil War Amendments, the Court held that the Privileges
and Immunities Clause in the 14th Amend. referred to state citizenship, and
accordingly, the federal BOR did not apply against the states. Persons are citizens of
the U.S. first and then incidentally citizens of the state second.
1. There was a plausible reason for statute – health/statute
a. Should the court look into these reasons to insist on least drastic means of
accomplishing these reasons.
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(ii) Miller left open the possibility that the BOR might be incorporated into the P&I
Clause – he listed among the natl privileges and immunities the rights to “peaceably
assemble and petition for redress of grievances.”
C. The Incorporation Doctrine
(1) Generally: Shortly after the 14th Amend. the Ctt implicitly rejected the notion that the
Amend. automatically made applicable to the states all of the BOR. The doctrine of
incorporation involves the effect of the 14th Amend. There are two main contrasting views:
1) selective incorporation and 2) total incorporation.
(2) Selective Incorporation (Ordered Liberty)
(a) 14th Am does not incorporate the entire BOR. The term “liberty” in the Amend. is
interpreted without regard to the BOR. Only rights that are “fundamental to ordered
liberty” are protected by the 14th Amend. against states. This approach also means that
the BOR does not set limits on what liberties are protected by the 14th Amend.
(b) Palko v. Connecticut (1937) [431] [Right not to be tried 2xs for same crime]:
(i) Background: Petitioner was indicted for first-degree murder & jury found him guilty
of second-degree murder. The state appealed, pursuant to a state statute, on the
ground that the judge wrongly excluded evidence and gave jury was wrongly
instructed on difference btwn 1st & 2nd degree murder. Palko’s conviction was
reversed on appeal and a new trial was ordered. The state objected that a new trial
would place him in double jeopardy.
(ii) Issue: Whether the 14th Amend embodies the prohibitions of the 5th Amend and
whether whatever would be a violation of the orig BOR (Amend I to VIII) if done by
the fed govt is not equally unlawful by force of the 14th Amend if done by a state?
(iii) Cardozo, held the ban on double jeopardy, was not found to be sufficiently
fundamental (at least when a Δ has been acquitted due to a legal error) therefore the
5th Amend. prohibition against double jeopardy didn’t apply against states.
(iv) Analysis
1. Although the DPC of the 14th Amend makes in unlawful for a state to abridge by
its statues the freedom of speech safeguarded by the 1st Amend, it is not a blanket
inclusion of the orig BOR (Amend I to VIII), and they are not all the very
essence of a scheme of ordered liberty. To abolish some of them is not to violate
a “principle of justice so rooted in the traditions and conscience of our people has
to be ranked as fundamental.” [432]
a. “ . . . immunities that are valid as against the federal government by force of
the specific pledges or particular amendments have been found to be implicit
in the concept of ordered liberty, and thus, through the 14th amendment
become valid against the states.” [431]
b. If the 14th Amend has absorbed them, the process of absorption has had its
source in the belief that neither liberty nor justice would exist if they were
sacrificed.
2. The test of whether the right in question is of “the very essence of a scheme of
ordered liberty,” and whether it is one of those “fundamental principles of liberty
and justice which lie at the base of all our civil and political institutions.” The
14th Amend. protects freedom that is the “matrix . . . of nearly every other form
of freedom.”
3. Here, “justice would not perish” if the accused was asked to respond to an
orderly inquiry.
(v) Big Picture: Cardozo knew that he had to ground his theory on more than natural law,
as that was being discredited. So, he grounded it in “ordered liberty.”
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1. Cardozo clearly reluctant to find that BOR is protected under 14th Amend.
(3) Total Incorporation
(a) The total incorporation view holds that all of the guarantees specified in the BOR are
made applicable to the states by the 14th Amend. DPC
(b) Adamson v. California (1947) [433] Reed
(i) Background: Adamnson was convicted of murder in CA crt and challenged the cx of
CA provision allowing the judge and prosecutor to point out to the jury that he did
not testify and therefore made no effort to explain or deny evidence against him.
(ii) Held: Although the DPC of the 14th Amend forbade compulsion to testify through
torture or other coercion, the CA procedure did not violate the “concept of ordered
liberty.”
(iii) Analysis:
1. It is settled that the clause of the 5th Amend is not made effective by the 14th
Amend as a protection against state action. Essentially, the state is free to
abridge, within the limits of the DPC, the p&I flowing from state citizenship.
2. DPC of th14th Amend does not draw all the rights of the BOR under its
protection.
(iv) Frankfurter (concurring): No. Selective Incorporation.
1. “whether they offend those canons of decency and fairness which express the
notions of justice of English-speaking ppls”
(v) Black’s view (dissenting):
1. Black argued that since the prosecution would not be permitted to comment on
the accused’s failure to take the state in a fed crim trial, such commentary was
not permitted in a state trial either.
2. The procedural guarantees applied to the fed govt by the 5th Amend was
automatically applicable to the states via the 14th Amend. The original purpose
of the 14th Amend. was to make the entire BOR applicable against the states.
3. The “fundamental rights” approach of the majority [Frankfurter] permitted the
Court “to roam large in the broad expanses of policy and morals and to trespass,
all too freely, on the legislative domain of the states as well as the federal
government.” NOTE: This view has not been adopted by the Court.
4. Black held that the entire BOR was incorporated, no more no less. Thus ONLY
the guarantees of the BOR should be considered part of the 14th Amend DPC.
(vi) Total incorporation PLUS: [Justice Murphy] Concurred w/Black that the guarantees
of the BOR should be carried over intact into the 14th Amend, but is not limited by
the BOR. NOTE: No one presently on the Court holds this view. “Liberty” is not
limited by what is in BOR and it is up to judges to ascertain whether other rights
should be protected.
(c) Notes:
(i) Alludes to “jury” structure of our courts. (Making distinction between AngloAmerican courts and others, the most notable difference being that the jury (vs.
judge) is the trier of fact.
(ii) Question: Is the right to self incrimination fundamental?
(iii) Black doesn’t want to go beyond BOR b/c he is worried about subjectivity.
(iv) What is natural law? It is a valid source for judicial decision making?
(v) Which body is better equipped
(4) Modern view: The Warren Court subscribed to the selective incorporation view, but
modified the test. Crt modified its incorporation inquiry from whether the right was “implicit
in the concept of ordered liberty (Palko), to whether it was “fundamental to the American
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scheme of justice.” Duncan v. Louisiana (1968). The focus is shifted from whether the right
was necessary to a democratic system of govt to whether it was important in Am society.
(a) Almost all guarantees incorporated: virtually the entire BOR has been incorporated.
(b) The only guarantees NOT incorporated are: 1) the 5th Amend prohibition of criminal
trials w/o a grand jury indictment [not “all that” because now some states have instituted
“preliminary hearing” which is more open] and 2) 7th Amend’s right to jury trial in civil
cases [$20 distinction not as relevant anymore], 3) 2nd Amend. Guarantee of a right to
bear arms [because refers to militia; what does that mean/do?]
(i) Further dialogue on 2nd amendment: A well regulated militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.
1. Perspective: colonists were opposed to a standing army based on based
experience with English army but people new that protection was important and
thus the reference to local malitia (notion of community defense.)
2. BOR was a restrain on fed gov’t; state wanted to retain right to have local militia,
to potentially protect us from fed gov’t.
(5) Skinner v. Oklahoma (1942) [439] *turning point
(a) Background: Oklahoma habitual Criminal Sterilization Act decreed that “habitual
criminals” (anyone convicted twice for “felonies involving moral turpitude”) should be
rendered sexual sterile. Skinner had been convicted 2xs for armed robbery and once for
stealing chickens during an 8-year period. There were “exceptions” in the OK law –
“prohibitory laws, revenue acts, embezzlement, political offenses.”
(b) Held (Douglas): Applying SS the crt struck down the statute for violating the EPC of the
14th Amend. (they didn’t say sterilization is uncx, only the discrimination of the statute.
The Court rested its decision on the fundamental right to “marriage and procreation.”
(i) This legislation “involves one of the basic civil rights of man.” “Marriage and
procreation are fundamental to the very existence and survival of the race.”
1. “He is forever deprived of a basic liberty.”
2. “The power to sterilize, if exercised, may have subtle, far-reaching and
devastating effects. In evil or reckless hands it can cause races or types which are
inimical to the dominant group to wither and disappear.”
(ii) When the law lays an unequal hand on those who have committed intrinsically the
same quality of offense and sterilizes one and not the other, it has made as
individious a discrimination as if it had selected a particular race or nationality for
oppressive treatment.
(c) Big picture:
(i) New Deal judges (Roosevelt), focused on overruling Lochner cases that struck down
statutes b/c they violated freedom to K and economic rights (previously abused).
They didn’t apply DPC because they felt it was overused and applied EPC.
(ii) Although crt uses EPC, it begins to develop (fundamental rights) the concept of what
the essence of being a human being is and what rights are inherent therein.
(iii) Level of scrutiny: “Strict scrutiny of the classification which a State makes in a
sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations
are made against groups or types of individuals in violation of the constitutional
guaranty of just and equal laws.”
(iv) Why was the statute was struck down, while NYC’s delivery-truck-sign ordinance
was upheld? Not a fundamental right to allow advertisement.
(v) Does this case imply that every law will be struck down that impedes on marriage
and procreation.
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(6) Buck v. Bell (1927) [443]
(a) Background: Carrie Buck was a feeble minded woman who was committed to a state
mental institution. Her condition had been present in her family for the last three
generations. A Virginia law allowed for the sexual sterilization of inmates of institutions
to promote the "health of the patient and the welfare of society." Before the procedure
could be performed, however, a hearing was required to determine whether or not the
operation was a wise thing to do.
(b) Holding (Holmes):
(i) The Court found that the statute did not violate the Cx. Holmes made clear that
Buck's challenge was not upon the medical procedure involved but on the process of
the substantive law. Since sterilization could not occur until a proper hearing had
occurred (at which the patient and a guardian could be present) and after the Circuit
Crt and the Supreme COA had reviewed the case, if so requested by the patient. Only
after "months of observation" could the operation take place. That was enough to
satisfy the Court that there was no Cxl violation. Citing the best interests of the state,
Holmes affirmed the value of a law like Virginia's in order to prevent the nation from
"being swamped with incompetence . . . Three generations of imbeciles are enough."
(ii) “It is better for all the world, if instead of waiting to execute degenerate offspring for
crime, or to let them starve for their imbecility, society can prevent those who are
manifestly unfit from continuing their king. The principle that sustains compulsory
vaccination (Jacobson v. Massachusetts (1905)) is broad enough to cover cutting the
Fallopian tubes. Three generations of imbeciles are enough.”
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III. Substantive Due Process
A. (Generally): The 14th Amend. DPC has been interpreted to guarantee 1) procedural due process
and 2) substantive due process (SDP).
(1) SDP stems from interpretation of the DPC as a limitation upon the substantive power of state
legislatures to regulate various areas of life.
(2) The “liberty” interest in the DPC is the conduit for analysis of the substance of state
legislation.
(3) History: a) rise of SDP with respect to economic regulation, 2) abandonment of doctrine in
late 1930s (at least as to economic regulation), 3) rebirth of doctrine as a means for protecting
non-economic interests.
(4) Historical Perspective
(a) Substantive Due Process
(i) An awkward term that can be understood only in its historical context.
(ii) “nor shall any State deprive any person of life, liberty, or property, without due
process of law”
(iii) This clause ensures procedural protection. But it has also been interpreted to protect
substantive rights from diminution, even with procedural protections.
(iv) The “liberty” is usually though of as the source of substantial due process
(b) Fundamental Rights Requiring Heightened Judicial Scrutiny (while not explicit in
constitution, have been found to be implicit)
(i) freedom of association (1st amend)
(ii) right to vote and participate in the electoral process (15th amend)
(iii) right to interstate travel (Art 4, P & I)
(iv) right to fairness in the criminal process (6th amend)
(v) right to fairness in procedures concerning individual claims against governmental
deprivations of life, liberty, or property (14th amend)
(vi) right to privacy (implicit)
B. Economic Liberty
(1) Coppage v. Kansas (1915) [456]: The crt invalidated Kansas statute prohibiting employers
from requiring employees to sign “yellow dog Ks” – i.e. agreements that would not join
unions. Employers argued that statute interfered with their right to K.
(2) Allgeyer v. Louisiana (1897) [450]: Applying SS, Court struck down a LA law requiring all
insurance on LA property to be issued by insurers registered to do business in the state b/c it
infringed on the right of out-of-state brokers to pursue their livelihoods.
(3) Holden v. Hardy (1898): The crt upheld against a DP attack on a Utah statute which limited
mining and smelting workers to eight-hour days.
(4) Lochner v. New York (1905) [450]
(a) Background: A NY law limited the hours which a bakery employee could work to 10 per
day and 60 per week. NY defended the statute on the basis of its police power.
(b) Issue: Whether the act is within the PP of the state?
(c) The Court struck down the statute: The Court invalidated the New York law.
(i) The majority (Peckham) maintained that the statute interfered with the freedom to
K, and thus the 14th Amend's right to liberty afforded to employer and employee.
(ii) The Crt has the authority to determine whether a law is within the police power of the
state. Leg may use PP when it relates to the safety, health, morals and general welfare
of the public.
(iii) A state may pass a law under its general police power that affects “liberty” under
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(d)
(e)
(f)
(g)
(h)
(i)
the 14th amendment only if the law has a “real and substantial” relation to a
legitimate state end. The Court viewed the statute as a labor law; the state had no
reasonable ground for interfering with liberty by determining the hours of labor.
Liberty of K: The general right to make a K in relation to his business is part of the
“liberty” of the individual protected by the 14th amendment (Allegeyer).
Public health: The state’s interest in regulating the working hours of bakers is
illegitimate because the bakers are not a class needing protection.
(i) Legislature’s motives: The infringement of a fundamental “liberty” triggers a nondeferential determination of the underlying purpose--here the health and safety
purpose was a “pretext” for labor regulation (interferes with laissez faire).
(ii) Means-ends test: Even if the health and safety purpose were legitimate, this is still a
bad means-ends fit because there is not a “real and substantial” relationship of hours
regulation of bakers to health of bakers because their working environment is not
dangerous.
Holmes’ dissent:
(i) Freedom of K is a flawed economic theory, for there are many laws that interfere
with contractual relations. Court had no right to impose its own economic theory on
legislatures. “Liberty,” as used in the 14th Amend., should be found to be violated
only when “a rational and fair man necessarily would admit that the statute . . .
would infringe fundamental principles as they had been understood by the
traditions of our people and our law.” [minimum rationality] Under that test the
NY law passed muster. The judiciary has no neutral constitutional principles to apply
to economic regulations. There is no fundamental right that is being infringed by
letting Mr. Lochner’s bakers go after 60 hours.
(ii) The 14th amendment does not enact Mr. Herbert Spencer’s Social Statics.”
(iii) “A constitution is not intended to embody a particular economic theory, whether of
paternalism and the organic relation of the citizen to the State or of Laissez faire.”
Harlan, dissenting
(i) After examining evidence, Harlan found that the state had a legitimate state interest
 to protect the physical well-being of those who work in bakeries
(ii) test: if such reasons exist that ought to be the end of the case…...unless such
enactments are plainly, palpably, beyond all question, inconsistent w/Cx (let’s see if
leg did their jobs, if they did, then we will defer v. holmes – we will assume leg did
their jobs)
Significance:
(i) Close fit: The Lochner test required a very close fit b/ the statute and its objectives--a
real and substantial relationship.
(ii) Limited objectives: Only certain legislative objectives were acceptable. Regulation of
health and safety was permissible, but not readjustment of economic power or
economic resources.
Notes:
(i) liberty:
1. Physical liberty: freedom from physical confinement
2. Civil and political liberty: freedom to speak, write, associate, vote, run for office,
file law suits, enforce Ks, have access to gov’t services, etc.
3. Personal autonomy liberty (privacy): freedom to be yourself, freedom of religion
and thought, right to privacy, freedom to engage in intimate physical activity of
your choice
4. Economic freedom: freedom to own property, enter into K, engage in
entrepreneurial activity, hire, fire, work for others
5. Question is whether court should play the same role in protecting econ liberties
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like all the others or leave that to the leg?
a. We have moved away from economic liberty being something the court
should protect and great deference is given to legislature.
(ii) Police powers
1. Right of legislature to regulate safety, health, morals and general welfare of the
public.
2. Peckham feels there is a limit to these regulations (e.g., can’t offend liberty of K)
(iii) Justices’ positions:
1. Peckham: normative
2. Holmes: judicial role (no review of ends)
3. Harlan: review of means
4. Williamson: extreme social and economic deference, even if weak justification.
(j) Class Notes:
(i) we value economic freedoms e.g. own property, enter into Ks, engage in
entrepreneurial activity, hire, fire, work for others
(ii) Is the court the correct place to protect economic liberties (as opposed to physical,
civil and political, and personal autonomy liberties)? Lochner has been overturned,
and is studied for the proposition that we don’t use courts to protect economic
liberties.
(iii) What about the requirement to attend law school to become a lawyer? It law school
necessary?
(5) Retreat from The Lochner Doctrine
(a) West Coast Hotel v. Parrish (1937): The Court upheld a state minimum wage law for
women, thereby explicitly overruling the Lochner-era precedent of Adkins. The state had
a legitimate interest in redressing women’s inferior bargaining power. The Court held
that a readjustment of economic bargaining power in order to enable workers to obtain a
living wage was a legitimate limitation on the freedom of contract. The legislation need
only be not arbitrary and capricious.
(b) U.S. v. Carolene Products (1938) [34]
(i) Background: a federal statute prohibited the interstate sale of “filled milk” – a
beverage in which the butter fat has been extracted from milk and substituted with
vegetable fat. This product is now called “imitation milk.”
(ii) Held: Crt upheld statute, deferring to leg.
(c) Williamson v. Lee Optical (1955): Deference to leg.
(i) The Court upheld an Oklahoma which prevented opticians from fitting eyeglass
lenses into frames w/o a prescription from an ophthalmologist or optometrist.
(ii) Ends: The statute was a rational health measure b/c the legislature “might have
concluded” that in some instances prescriptions were necessary to permit accurate
fitting.
(iii) Douglas: sttd that it is “needless, wasteful and not in every respect logically
consistent with its aims,” however, “it is for the leg, not the courts, to balance the
advantages and disadvantages.”
1. The day is gone when this Crt uses the DPC .. to strike down state laws,
regulatory of business and industrial conditions, b/c they may be unwise,
improvident, or out of the harmony with a particular school of thought.”
(iv) The case illustrates how the crt can hypothesize reasons which would support the
legislature’s action even though there isn’t any evidence that those reasons in fact
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motivated the lawmakers. The court will defer to the legislature’s judgment.
(v) Notes: those who disagree with the statute have the ability to petition the leg.
(d) Since the New Deal, the Court has almost completely abandoned the Lochner strict
scrutiny approach to social and economic legislation. The Court will defer to legislative
goals and is willing to uphold social and economic regulations based on any conceivable
basis the Court itself can imagine to support the statute.
(6) Hawaii Cases on SDP
(a) Hasegawa (DLIR) v. Maui Pineapple Co. Ltd. (Haw. 1970) [h-55]
(i) Background: HI statute required an employer who employed more than 25 persons to
compensate any employee who served on a jury or a public board. Employer claimed
the statute violates the equal protection guarantees of the HI and Fed. Const., and
resulted in a taking of private property for public use w/o just compensation
(ii) Applying RB, the HI Supreme Court struck down the statute.
(iii) The statute works an invidious class distinction in violation of the EPC of the HI &
Fed Cx. *applying RB
1. Leg may not act arb, the classification must be reasonable in relation to the
purpose of the legislation.
2. Ends: increasing the civic responsibility of citizens & ensuring that those who
serve their community do not suffer economic deprivation are undoubtedly goals
which serve a high and benevolent purpose.
3. Means: There is no rational basis for singling out this group from general
populace in seeking to achieve the leg purpose. There is nothing in the nature of
the employment relationship that would reasonably justify the requirement to
oblige employers to pay their employees for public service.
(iv) The statute is not justified under the PP or taxing power of the U.S., amounts to a
taking of private property for a public use without just compensation of the HI Cx
and 14th Amend.
1. The State sought to enhance the economic value of govt service at the direct
expense of a particular individual or group--precisely the kind of “taking” which
requires just compensation.
(v) Alabama Statute was upheld by USSC in Dean v. Gadsden Times Publishing Corp.,
deferring to the legislature. As a result, should this be something that the court
regulates or should they defer to the legislature.
(vi) Day-Brite Lighting v. Missouri (1952) – All employees receive four paid hours off in
order to vote. [56].
1. distinguish – less random, all employers required to give four hours off.
Furthermore, jury duty is a responsibility and voting is a right. An employer can
not prevent their employees from serving, however they can create a situation
which would prevent their employees from voting. especially if the employer
has a specific political affiliation.
(b) Nelson v. Miwa (1976) [s-59]
(i) Background: Nelson was a professor at Hilo College. Hilo College’s retirement
policy sttd: “a person 65 years or older may be appointed to or continued on the
faculty if it is demonstrated that his services are needed and that he is more
competent for the position than any other person available.” Once profs turned 65,
they were evaluated for “competence” and a determination was to be made as to
whether or not they could be held over for employment, until age 70 [mandatory
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retirement age], on a yearly basis. The process involved review by a committee of his
peers, whose duty it was to determine whether the prof was the most competent and
qualified as compared to the pool of applicants. This recommendation was
forwarded to the Chancellor who took this recommendation under advisement [but
didn’t have to follow it] and then made a determination as to whether the prof’s
services were needed. IF, the Chancellor felt the prof should be held over, he placed
an item on the BOR’s agenda for approval. In this case, Nelson was found to be the
most competent by his peers (7-3), but the Chancellor felt his services were not
essential to the University since a replacement for appellee was available, and
recommended his termination. P brought suit claiming that the UH policy was
violated state and fed EPC and was unconstitutional. TC found for P and State
appealed.
(ii) The HI Supreme Court held that as interpreted and implemented the policy is Uncx
1. The crt found that the policy does not even pass the RB test
a. Ends: The University and state have a valid interest in maintaining the
quality of education, and therefore the U has the right to maintain high
standards of competence and to demand faculty have the ability to teach,
relate to students and manage their classes.
b. Means:
i. Although the competency evaluations were based upon individual
qualities, the record shows that Π’s termination as based solely upon the
Chancellor’s finding that Π’s services were not “essential” to the
University.
ii. “ . . . [the policy’s] provision permitting the continued employment of a
post-65 faculty member upon a showing of superior competence,
provided that his services are needed, is not reasonably related to a state
interest and is totally arbitrary.”
iii. “. . . we fail to see the logic in a system which provides an elaborate
procedure for determining that a person is the most qualified individual
for the job but, after so determining, refuses to continue to employ him
solely because he has reached the age of sixty-five years.”
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C. The Takings Clause [458]
(1) Govts have the right to take private property for public use, provided that “just
compensation” is paid under eminent domain powers. Berman v. Parker (1954), eminent
domain to reduce slums. HHA v. Midkiff, eminent domain to distribute property ownership
more broadly. [466]. (Nothing in the Cx explicitly confers this power).
(2) 5th Amend Takings Clause prohibits the govt from taking private property from public use
w/out just compensation.
(a) What is Just Compensation?
(b) What is Public Purpose
(3) Federal govts are explicitly bound by 5th Amend and S/C has held that state govts are
similarly held by the 14th Amend’s DPC. (theories – direct incorporation or implicit)
(4) Physical Taking
(5) Regulatory Taking
(a) mere regulation consistent with the state’s police power does not require compensation,
even where owner’s use (or value of property) has been substantially diminished.
(b) For a land use regulation to avoid being a taking, it must satisfy two requirements: 1) it
must “substantially advance legitimate state interests,” and 2) it must not deny an owner
economically viable use of his land. Agins v. Tiburon.
(c) Pennsylvania Coal v. Mahon (1922) [459] *Taking can exist if govt goes too far in
regulating uses of private property, even though govt did not physically invade or take
title to the property.
(d) Penn Central Transportation Co. v City of NY (1978) [461]
(i) Held: There was no taking due to the refusal of the NY City Landmarks Preservation
Commission to approve plans for construction of 50-story office building over Grand
Central Terminal, which had been designated a landmark. So long as landmark
preservation is carried out as part of a comprehensive preservation scheme,
development of individual landmarks may be curtained without effecting a taking.
(ii) Analysis:
1. Factors recognized by the court: economic impact of the reg and extent to which
the reg interfered with distinct investment-backed expectations.
2. Taking jurisprudence does not divide a single parcel into discrete segments and
attempt to determine whether rights in a particular governmental action has
effected a taking.
3. Ct focuses rather both on the character of the action and on the nature and
extent of the interference w/ rights in the parcel as a whole.
4. The law does not interfere in any way w/ the present uses of the Terminal, which
they regarded as the primary expectation concerning the use of the parcel.
5. It permits Penn Central not only to profit, but also obtain a Rx return on its
investment.
a. There is no denial of all economically beneficial uses.
b. NY City had given the owners ”transferable development rights” (TDRs),
which could be used to increase permissible size of other non-landmark
buildings owned by same owner.
(iii) J. Rehnquist (dissenting): argues that appellees have placed an affirmative duty on
Penn Central to maintain the Terminal in its present state and in good repair.
Appellants are not free to use the property as they see fit. Rehnquist differentiates
zoning, states while zoning at times reduces individual property values, the burden is
shared relatively evenly and it is rx to conclude that an individual who is harmed by
one aspect of zoning will be Rehnquist differentiates zoning, states while zoning at
times reduces individual property values, the burden is shared relatively evenly and it
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(e)
(f)
(g)
(h)
is rx to conclude that an individual who is harmed by one aspect of zoning will be
benefitted by another.
(iv) Notes –
1. is the airspace above a building separate piece of prop? “Taking jurisprudence
doesn’t divide a single parcel into discrete segments and attempt to determine
whether rights in a particular segment have been entirely abrogated
(Denominator Problem).”
2. Miller v. Schoene (1928) [462, 465], the Ct upheld a Virginia statute requiring
owners of blighted cedar trees to cut down their trees to protect apple trees that
might be affected. State entomologist ordered owners of red cedar trees to cut
them down b/c they produced cedar rust fatal to apple trees cultivated nearby.
There was no compensable taking, only a regulation. Whatever decision the
state made would be constructive of “property” rights and “tort” duties, and that
such rights and duties did not preexist the problem but were an outgrowth of
“considerations of social policy which are not unRx.” This analysis would allow
`the state wide latitude in setting and resetting rights and duties in response to
social and economic problems.
a. Is Miller still good law after Lucas? How do character a nuisance, which
would mean no compensation?
3. Physical Intrusion v. Limitations on Use. Penn Central recognizes 2 branches of
taking doctrine: 1) physical intrusions, which are likely to be found as takings. 2)
The other involves limitations on use, where the Ct applies a 2 part test assessing
whether there is a broad plan to produce public benefits, and Rx effect on
investment backed expectations.
Kaiser Aetna v. U.S. (1979) [466]: Crt held giving the public access to the marina would
be uncx taking of the developer’s property.
Loretto v. Teleprompter Manhattan (1982): Crt found taking when NY reqd landlords
to give their tenants access to cable. Reasoning – cable box would “take” some of the
space on the building’s roof.
Tight means-end fit required: S/C has required a very close fit btwn the means chosen
by the state and the governmental objective being pursued. (new approach contrasts
sharply with Crt’s general approach in other economic regulation contexts, where all that
is reqd is “minimally rational relation” btwn the manes and ends.)
Nollan v. California Coastal Commission (1987) [466] *Substantially advance
requirement
(i) Background: as a condition for receiving a permit to build a larger beach house, the
CA Coastal Commission reqd the Πs to allow the public to wakl along the beach.
(ii) Held: Applying heightened scrutiny, the court found the condition to be a taking.
(iii) Rule: The means must “substantially advance” the govt’s objective being pursued.
(iv) Analysis:
1. Ends: Protecting the view from the ocean.
2. Means: NO NEXUS btwn condition and prohibition. The lateral easement
wasn’t closely related to the protection of the view of the ocean (govt required
lateral public access along the beach, rather than from the street).
a. The harms feared by the govt would not be cured or even materially lessened
by the easement.
b. Rather, the easement would only help ppl already on the beaches.
(v) Notes:
1. Analyzing the situation to a 1st Amend situation – without a nexus, the situation
is the same as if CA law forbade shouting fire in the crowded theater, but granted
dispensations to those willing to contribute $100 to the state treasury.
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2. Crt conceded that CA could have banned the construction entirely as a means of
preserving the public’s right to see the ocean from the street.
(i) Dollan v. City of Tigard (1994) [467] *Rough Proportionality Requirement
(i) Background: Local ordinance required Π (store owner) dedicate the floodplain area
and the adjacent 15 feet for a green space accessible to the public and a bicycle path
as conditions to her expansion permit.
(ii) Analysis:
1. Means:
a. Ct found a nexus b/n expansion and the city’s needs to reduce traffic
congestion and limiting development w/in the floodplain (govt interest).
b. Adopting a test of “rough proportionality,” the Ct required the city to make
“some sort of individualized determination that the required dedication is
related both in nature and extent to the impact of the proposed
development.”
c. The city had not tried to show how much of the traffic would be reduced by
the proposed bikeway – it was not enough for the city to conclude, as it had,
that the proposed bikeway “could” offset some of the traffic demand.
(iii) Dissent – we should have “strong presumption of cx validity” for “business reg.”
(iv) Notes:
(j) Lucas v. South Carolina Coastal Council (1992) [469]
(i) Background: Lucas bought 2 residential lots, where he intended to build single
family homes, but the SC legislature subsequently enacted the Beachfront
Management Act, which has the direct effect of barring petitioner from erecting any
permanent habitable structures on his parcels (Lucas could have camped on prop, or
built mini golf course, but still no economically beneficial use left).
(ii) Held: Where regulation prohibits all economically beneficial use of land, and the
proscribed use could not have been prohibited under state nuisance law, the
regulation is a “taking” which requires “just compensation” to be paid to the owner.
(iii) Analysis:
1. Δ’s claimed that the govt interest was to prevent Π’s use of land from “harming”
South Carolina’s ecological resources.
2. On remand, South Carolina must identify background principles of nuisance and
property law that prohibit the uses he now intends in the circumstances in which
property is presently found.
(iv) Notes:
1. Difficulty w/ test are what are background principles that allow gov to regulate?
Zone where regulation is permissible, beyond that = a taking. Right of gov to
prevent flooding is one. How about a nuclear power plant on an earthquake
fault? Taking? No – nuclear power plant is a nuisance and dangerous to public
heath. W
2. When a regulation forbids all economically viable uses of a unit of property,
according to the majority, the owner is entitled to compensation unless her
property interest never included the right to engage in those uses in the first
place.
(v) Class Notes:
1. J.V.D.’s parents have a view from apartment which will be blocked b/c of
growing mangroves. FL law prohibits cutting of mangroves.
(k) Eastern Enterprises v. Apfel (1998) [475] – Π, coal mining co was required to make
massive contributions to a fund for health care costs for retired miners under a 1992 Fed
statute. Ct in plurality found a taking of the funds needed to comply w/ the statute. When
govt action “singles out certain employers to bear a burden that is substantial in amt,
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based on the employer’s conduct far in the past, and unrelated to any commitment that
the employers made or to any injury they caused, the govt action implicates fundamental
principles of fairness underlying the Takings Clause.” J. Kennedy in his concurrence
stated that the Govt ought not to have the capacity to give itself immunity from a takings
claim by the device of requiring the transfer of property from one private owner directly
to another.
(l) Palazzolo v. Rhode Island (2001) [476] – Palazzo owned waterfront property designated
as coastal wetlands under RI law, and his development proposals were rejected by the
state. Although the date of title does not bar petitioner’s taking claim (the Takings
Clause, in certain circumstances, allows the landowner to assert that a particular exercise
of the State’s regulatory power is so unRx or onerous as to compel compensation), the Ct
held that all economically beneficial use was not deprived b/c the uplands portion can
still be improved.
(m) Notes on Palazzolo – Retroactivity v. Fairness – The Contracts Clause applies only to
laws having retroactive effect on existing Ks, not to new Ks entered into later. But under
Phillips and Palazzolo, a taking claim can still be in order if the property is acquired
after the regulation. Thus, the Ct seems to be construing the Taking Clause to have
more of regulation, but new owner can attack if there is a taking.
(n) Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002) [476]
(i) Background: Development in Tahoe area caused runoff, which fed algae in Lake.
This threatened the clarity of the lake. To preserve “national treasure,” Tahoe
Regional Planning Agency (TRPA) formed to preserve lake. Because of the
complexity of the planning process a 32-month moratorium was imposed on all
development in the area. TRPA’s proposed plan was challenged by the state of CA,
and development was prohibited for roughly 3 years under an injunction. Developer
() claims the moratorium was a total taking of economic use of the land.
(ii) Holding: Applying the Penn Central partial taking rule, the crt found there was no
taking because Π was not deprived of all economically beneficial uses.
(iii) Analysis:
1. Partial taking b/c the property value will recover as soon as the prohibition is
lifted. Crt looks at the parcel as a whole. Court doesn’t like cutting up time
chunks, won’t find a total taking for 32 months, otherwise every delay would be
a taking.
2. A permanent deprivation of the owner’s use of the entire area is a taking of “the
parcel as a whole,” whereas a temporary restriction that merely causes a
diminution in value is not.
3. A fee simple estate cannot be rendered valueless by a temporary prohibition on
economic use, because the property will recover value as soon as the prohibition
is lifted.
4. Crt found that a per se rule should be resisted. Per se rule would not let states
carry out their police powers and it is better to look at all the relevant
circumstances of each case.
5. Moratoria are essential tool of development process, better to encourage
deliberation and informed decision making than to rush bad choices, this is a
“regional plan,” not just one parcel being planned for, probably in best interests
of everyone rather than just burdening the  in this case.
(iv) Dissent: Prohibition lasted 6 years! This is not typical/acceptable moratorium
(o) Kelo v. City of New London, 2005 [s-25]
(i) Background: Δ approved a development plan that “was projected to create in excess
of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically
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distressed city. Δ purchased property from willing sellers and proposed to use
eminent domain to acquire the remainder of the property from unwilling owners in
exchange for just compensation.
(ii) Issue: whether the city’s development plan serves a public purpose? whether the
cit’s proposed disposition of this property qualifies as a “public use” within the
meaning of the Takings Clause of the 5th Amend?
(iii) Held: The crt held that the plan unquestionably serves a public purpose, which
satisfies the public use requirement of the 5th Amend.
(iv) Analysis:
1. Berman crt explained that community redevelopment programs need not be on a
piecemeal basis – lot by lot, building by building.
2. Crt found that the City’s determination that the area was sufficiently distressed to
justify a program of economic rejuvenation is entitled to deference, and
reaffirmed Bernman and HHA’s deferential approach to leg judgments.
a. city carefully formulated an economic development plan that it believes will
provide appreciable benefits to the community.
b. Crt noted Δ’s comprehensive actions and thoroughly deliberations.
3. Promoting economic development is a traditional and long accepted function of
govt. Moreover, there is no principle way of distinguishing economic
development from other public purposes that have been recognized.
4. Crt rejects to require that for takings of this kind a “rx certainty” that the
expected benefits will actually accrue. A cx rule requiring postponement of the
judicial approval of every condemnation until the likelihood of success of the
plan assured would unquestionably impose a significant impediment to the
successful consummation of many plans.
(v) Notes:
1. Nov 7th House of Rep
a. Rep Abercrombie voted in favor of bill, Case voted against it.
(p) Lingle v. Chevron (2005) [s-33]
(i) Background: Relying on dicta of prior S/C takings decisions (Agins v. City of
Tiburon) (required govt land use regs to “substantially advance legitimate state
interests”), the 9th Cir struck down a HI statute that limits the rent oil companies can
charge service-station operators, on the grounds that the statute did not serve its
purported purpose of helping to control retail gas prices.
(ii) Held: Unanimous crt overruled 9th Cir. and rejected dicta, finding that correct
standard is provided in Penn Central. Govt regulations cannot be characterized as a
“taking” of property unless they eliminate all economic use of the property.
(iii) Standard: Tests focus on the burden to the owner, not the strength of the govt’s
interests. Whether the govt has “singled out” a property owner to bear a burden that
should be more widely borne by the govt?
(iv) Analysis:
1. O’Connor differentiates the present case w/those “relatively narrow categories”
of permanent physical invasions and total takings, and the “special context of
land-use exactions.”
2. All takings tests are seeking “to identify regulatory actions that are functionally
equivalent to the classic taking in which govt directly appropriates private
property ousts the owner from his domain.
(v) Notes:
1. Seems to eliminate partial taking analysis and denominator problem – thus no
more partial taking.
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a. After Chevron, difficult to bring regulatory takings argument unless there is a
Lucas (no economic use) or Nolan/Dolan situation (a constitutional
argument).
b. Recall, Nolan and Dolan – need to determine whether there is a uncx taking.
It is uncx if there is no nexus.
c. Penn Central still good law
i. ad-hoc, case by case determination
d. Palazzolo v. Rhode Island (2001) [476]
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IV. Equal Protection and “Fundamental Interests” [481]
A. Recall
(1) We have studied EP concerning fair allocation of govt benefits or detriments, not with the
underlying question of whether the govt has the authority to regulate the benefit or
deteriment. *Minimal Rationality
(2) Heightened Scrutiny under EPC is warranted only if govt action overtly classifies ppl on the
basis of a sensitive criterion or although facially neutral, is rooted in intentional
discrimination against such a group.
B. Voting [483]
(1) Crt traditionally reluctant to address malapportionment or legislative apportionment claims,
considering them political questions that were not amenable to judicial remedy.
(2) Shift when NAACP challenged voting practices in South that excluded or diluted the votes of
African Americans in Gomillion (1960), which invalidated a gerrymander.
(3) Cases
(a) Harper v. Virginia BO Elections (1966) [483]: Crt held that chagrining people to vote is
not Cx.
(b) Baker v. Carr (1962): Πs challenged the apportionment of the TN Assembly which had
not been reapportioned in 60 years, despite a state cx requirement that representation be
on the basis of population and despite significant population changes over the years. Crt
held allegations that a state leg was malapportioned were justiciable and properly
conceptualized as EP clams.
(c) Gray v. Sanders (1963): Crt invoked EPC to invalidate GA “county unit system” used in
state primary elections for statewide offices, under which a candidate who received the
highest number of votes in a county received two votes for each rep the county had in the
lower state leg chamber. Because the counties were represented in the lower state house
on a basis other then population, counties with only about 1/3rd of the state’s population
could control the primary election outcome.
(d) Wesberry v. Sanders (1964): Πs challenged a state’s apportionment of its federal
congressional districts. Crt interpreted Art 1 §2’s requirement that representatives be
chosen “by the People of the several States” as requiring that “as nearly as practicable
one man’s vote in a congressional election is to be worth as much as another’s.” Crt
struck down GA statute allocating that state’s districts in the fed House of Rep under
which some districts had more that 2x the populations of others.
(4) Reynolds v. Sims (1964) [485] *One Person, One Vote for both leg chambers
Πs: voters of dense counties
(a) Background: Despite Alabama Cx requiting state leg to reapportion its seat in response
to a fed census taken every 10 yrs, the last reapportionment was based on 1900 census.
Alabama’s population had grown substantially in urban, not rural areas resulting in many
more persons in urban districts. (only 25.1/25.7% of population resided in districts
represented by a majority of the members of the senate/house). Cx prescribed that each
county was entitled to at least one representative and that there were to be as many
senatorial districts as there were senators, thus highly dense counties and scarce counties
were only given one senator.
(b) Issue: Did Alabama's apportionment scheme violate the 14th Amend's EPC by mandating
at least one representative per county and creating as many senatorial districts as there
were senators, regardless of population variances?
(c) Held: In an 8-to-1 decision, the Court struck down the Alabama apportionment (or rather
malapportionment) scheme, (5 justices) held that Equal Protection Clause requires that
the seats in both houses of bicameral state leg must be apportioned on a population
basis… An individual’s right to vote for state leg in unconstitutionally impaired when its
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(d)
(e)
(f)
(g)
(h)
weight is in a substantial fashion diluted when compared with votes of citizens in other
parts of the state.”
Analysis:
(i) The right to vote freely for the candidate of one’s choice is the essence of a
democratic society and restriction strike at the heart of a representative govt.
(ii) Since legislators represent the people, not trees or acres,” there was no apparent rx
for making one person’s vote worth more than another’s in the election of those
legislators. The right to direct representation is "a bedrock of our political system”
(iii) Each and every citizen has an inalienable right to full and effective participation in
the political processes of his state’s legislative bodies. [486]
(iv) Population is, of necessity, the starting point for consideration and the controlling
criterion for judgment in leg apportionment controversies.
(v) EP generally requires the “uniform treatment of persons standing in the same relation
to the govtl action questioned or challenged.”
Some deviations allowed:
(i) Crt did not require strict mathematical equality. Some deviations from the equalpopulation rule would be permissible, if they were directed towards carrying out a
“rational state policy.”
(ii) Neither history alone, economic or other sorts of group interests, are permissible
factors…
(iii) Even pursuit of a “clearly rational state policy” (e.g. constructing districts along
political subdivisions lines to deter possibilities of gerrymandering) by an
apportionment scheme would not be valid if “population is submerged as the
controlling consideration.
(iv) States were required to use “honest and good faith" efforts to construct districts as
nearly of equal population as practicable.
Harlan dissenting: Framers of EPC did not intend that the Clause be used to limit the
powers of the states to apportion their leg however they wished.
Stewart concurring (joined by Clark): *Weaker standard
(i) Stewart agreed that Alabama’s scheme was “completely lacking in rationality”,
however he did not think the EPC barred a state’s divergence from mathematical
equality of votes if was done for purpose of providing “effective and balanced
representation of all substantial interests.” (e.g. rational attempts to provide
insulation from influence of factions ok).
(ii) Stewart would uphold apportionment as long as it was rationally defensible or did not
violate the EPC by permitting the systematic frustration of the will of a majority of
the electorate of the State. (found this to be the only limitation imposed by the
EPC).
(iii) So long as a majority was not consistently blocked from electing a majority of the
legislators, the scheme must merely be rational.
Notes:
(i) Reynolds’ “one person, one vote” principle aided the resolving of apportionment
questions ….
(ii) Crt has been flexible under Reynolds in reviewing apportionment of state and local
leg bodies, allowing political subdivision lines and other factors to influence
apportionment to some extent.
(iii) Crt distinguishes congressional districting and state and local govt districting.
1. In congressional districting the rule is that “as nearly as is practicable, one man’s
vote in a congressional election is to be worth as much as anothers.” Kirkpatrick
v. Preisler (1969). States must make “good faith effort to achieve precise
mathematical equality.
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2. Karcher v. Daggett (1983) [489] *extreme example
a. Crt rejected NJ apportionment scheme (which had a max variance of .7%),
the crt was unwilling to recognize an exception for even de minimus
variations, unless the state showed why greater precision could not be
achieved by use of the best available census data.
(iv) While Reynolds requires that each county has the same # of voters, it leaves room for
a maneuver which may have even more dramatic ability to dilute some voters
strength.
1. Gerrymandering: device by which the strength of a particular voting bloc is
curtailed by restricting its members to carefully and artificially construct districts.
2. Karcher v. Daggett (1983) [489] – Crt struck down redistricting based solely
upon the taking of partisan advantage and to consider the noncompact shape of
district configurations and “extensive deviation from established political
boundaries” as evidence of illicit political gerrymandering.
a. Such a bizarre and uncouth map prompts inquiry into the process that led to
its adoption.
b. Record indicates decision making process to be far from neutral, and that the
plan was designed to increase # of democrats and to decrease the # of
republicans in Congress.
(i) Class Notes:
(i) What is the test? Reynolds and Dunn seems to mandate SS, while other cases
involving durational requirement for running for office and resign rules did not apply
strict scrutiny.
(5) Anderson v. Celebrezze, 460 U.S. 780 (1983) *Voting Standard of Review
(a) Background: Anderson ran for President. In some states it is difficult to get on ballot if
you are not Democrat or Republic. Ohio has a March deadline for third party candidates
(elections are not until November). Π brings suit to challenge Ohio’s rule.
(b) Held: Crt struck down Ohio rule for discouraging third party candidates. Ohio's
statutory deadline placed an unconstitutional burden on petitioner voters' right of
association, under U.S. Const. amend. I.
(c) Analysis:
(i) The early deadline burdened independent voters by restricting their candidates to
those that declare by March, while voters of the major parties could select a candidate
placed on the ballot at a later date.
(ii) The state's interest in voter education could not justify the burden because it was
possible to educate the voters in a short period of time.
(iii) The state's "equal treatment" interest also failed because independent candidates were
treated differently.
(iv) Protecting against fractionating of the major parties could not justify the restriction
where the result was that independent candidates were excluded.
(d) “Strong” Balancing Test:
(i) Character and magnitude of the injury to the individual (protected by 1st & 14th
Amends)
(ii) Precise interest of the state as justifications for the burden imposed by the rule – state
has to articulate exact interest
1. crt will determine the legitimacy and strength of each of those interests
(iii) The extent to which it is necessary to burden the individual interest in order to serve
the state interest.
(e) Notes:
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(i) Freedom to engage in association for the advancement of beliefs and ideas is an
inseparable aspect of the "liberty" assured by the Due Process Clause of U.S. Const.
amend. XIV, which embraces freedom of speech.
(ii) It is especially difficult for the state to justify a restriction that limits political
participation by an identifiable political group whose members share a particular
viewpoint, associational preference, or economic status. The focus is on the degree to
which the challenged restrictions operate as a mechanism to exclude certain classes
of candidates from the electoral process. The inquiry is whether the challenged
restriction unfairly or unnecessarily burdens the availability of political opportunity
(6) Burdick v. Takushi, 504 U.S. 428, 1992
(a) Held: Applying the balancing “strong” test, the crt held the prohibition on write-in
voting, taken as part of the state's comprehensive election scheme, did not impermissibly
burden the right to vote b/c the legitimate interests asserted by the state were sufficient to
outweigh the limited burden that the write-in voting ban imposed upon state voters.
(b) The crt explicitly rejects the notion that a law that imposes any burden on the right
to vote must be subject to strict scrutiny. Rather it recognizes the more flexible
standard of Anderson: A court considering a state election law challenge must weigh the
character and magnitude of the asserted injury to the 1st and 14th Amend rights that the
Π seeks to vindicate against the precise interests put forward by the State as justification
for the burden imposed by its rule, taking into consideration the extent to which those
interests make it necessary to burden the plaintiff's rights.
(c) Under this standard, a regulation must be narrowly drawn to advance a state interest of
compelling importance only when it subjects the voters' rights to "severe" restrictions.
(i) Narrow tailored requirement only applicable when voters are subject to severe
restrictions. Norman v. Reed, 502 U.S. 279.
(ii) If it imposes only "reasonable, nondiscriminatory restrictions" upon those rights, the
State's important regulatory interests are generally sufficient to justify restrictions.
(7) Bush v. Gore (2000) [490] *EP right to have votes counted according to uniform standards
(a) Background: Following the U.S. Supreme Court's decision in Bush v. Palm Beach
County Canvassing Board, and concurrent with Vice President Al Gore's contest of the
certification of Florida presidential election results, on December 8, 2000 the Florida
Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000
contested ballots from Miami-Dade County. It also ordered that every county in Florida
must immediately begin manually recounting all "under-votes" (ballots which did not
indicate a vote for president) because there were enough contested ballots to place the
outcome of the election in doubt. However the FL S/C did not specify uniform
standards and each county’s commissioners decided whether an indented chad should
count. Governor George Bush and his running mate, Richard Cheney, filed a request for
review in the U.S. Supreme Court and sought an emergency petition for a stay of the
Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the
stay on December 9. It heard oral argument two days later.
(b) Question Presented:
(i) Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S.
Constitution by making new election law?
(ii) Do standardless manual recounts violate the Equal Protection and Due Process
Clauses of the Constitution?
(c) Held: The entire recount procedure violated the voters’ EP rights, however holding a
fresh constitutionally-adequate recount and requiring FL to miss the safe harbor, would
have violated FL election code, and therefore there could be no recount, thus the original
FL certification of Bush as the winner stood.
(d) EP Analysis:
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(e)
(f)
(g)
(h)
(i)
(j)
(i) Recount mechanisms implemented in response to the decisions of the FL S/C do not
satisfy the minimum requirements for the non-arbitrary treatment of voters
necessary to secure the fundamental right to vote.
(ii) Noting that the Equal Protection clause guarantees individuals that their ballots
cannot be devalued by "later arbitrary and disparate treatment," the per curiam
opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was
unconstitutional.
(iii) Even if the recount was fair in theory, it was unfair in practice. The record suggested
that different standards were applied from ballot to ballot, precinct to precinct, and
county to county.
Solution Analysis:
(i) Because of those and other procedural difficulties, the court held that no
constitutional recount could be fashioned in the time remaining (which was short
because the Florida legislature wanted to take advantage of the "safe harbor"
provided by 3 USC Section 5).
(ii) Ruling handed down Dec 12, which was the last day that FL could certify its vote and
still be certain that the vote would not be challenged by Congress.
(iii) Vote could be reported by Dec 18th when the Electoral College met, however w/o
protection of safe harbor Congress would be able to decide proper winner.
Limiting Precedence: Loathe to make broad precedents, the per curiam opinion limited
its holding to the present case.
Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount
scheme was also unconstitutional because the Florida Supreme Court's decision made
new election law, which only the state legislature may do.
Breyer and Souter (writing separately) agreed with the per curiam holding that the
Florida Court's recount scheme violated the Equal Protection Clause, but they dissented
with respect to the remedy, believing that a constitutional recount could be fashioned.
They would have remanded to the FL S/C with instructions that the state try to get the
recount done, with uniform standards by the Dec 18th deadline. Time is insubstantial
when constitutional rights are at stake.
Ginsburg and Stevens (writing separately) argued the EP problem was not substantial and
that for reasons of federalism, the Florida Supreme Court's decision ought to be
respected. Moreover, the Florida decision was fundamentally right; the Constitution
requires that every vote be counted.
Class Notes:
(i) difficult to ascertain why standard of review courts will use regarding voting
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C. SDP – Protection of Non-Economic” Rights
(1) Generally
(a) Two-tier scrutiny: The Court has applied two (or more) different standards of review in
SDP cases. In the case of economic rights, the Court has required merely that there be a
rational relation between the statute and a legitimate state objective. But where the Court
finds that a fundamental right is impaired by a statute, it has applied a stricter scrutiny
much like it has in equal protection cases:
(i) The state’s objective must be compelling and not just legitimate.
(ii) The relation between that objective and the means (means-end “fit”) must be very
close, so that the means is necessary to achieve the end.
(b) Which rights are “fundamental”: The rights which the Court has found to be
fundamental tend to be in the areas of sex, marriage, child-bearing, and child-rearing.
(2) Early non-economic cases:
(a) Basic Rights for the least advantaged
(i) San Antonio Independent School District v. Rodriguez (1973)
1. Background: In addition to being funded through a state-funded program,
designed to establish a minimum educational threshold in every school, TX
public elementary and secondary schools rely on local property taxes for
supplemental revenue. The San Antonio Independent School District (SAISD),
acting on behalf of students whose families reside in poor districts, challenged
this funding scheme arguing that it underprivileged these students b/c their
schools lacked the vast property tax base that other districts utilized. Claim:
reliance on assessable property caused severe interdistrict disparities in per-pupil
expenditures.
2. Issue: Did Texas' public education finance system violate the 14th Amends EPC
by failing to distribute funding equally among its school districts?
3. Opinion by Powell: No.
a. The Court refused to examine the system with strict scrutiny since there is no
suspect class and no fundamental right to education in the Cx, and since
the system did not systematically discriminate against all poor people in TX.
Given the similarities between TX system and those in other states, it was
clear to the Court that the funding scheme was not "so irrational as to be
invidiously discriminatory."
b. On the question of wealth and education, "the Equal Protection Clause does
not require absolute equality or precisely equal advantages."
4. Class Notes:
a. Alamo Heights (81% Caucasian) - $594 per pupil
b. Edgewood (90% Mexican) (ii) Plyer v. Doe (1982) [501]
1. Background: By amend to state ed statutes, the TX leg refused to provide state
funds to local school districts for the education of children not “legally admitted”
into the U.S., and school districts were authorized to deny enrollment to such
children. Several class actions were brought by school-age children Mexican
descent living in TX who could doc legal immigration status. Lwr crts concluded
the statute violated the EPC.
2. Held: Sharply divided crt affirmed, holding that the statute violated EPC
applying rational basis standard. (5-4)
3. Means: Crt found no legitimate state interest. (“discrim can hardly be rational
unless it furthers some substantial goal of the state.”
4. Analysis:
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a. “EPC was intended to work nothing less than the abolition of all caste-based
and invidious class-based leg.”
b. Crt rejected the claim that “illegal aliens” are a suspect class b/c:
i. illegal entry is voluntary – they should be prepared to bear the
consequences
ii. it is not in general a cx irrelevancy (govt has pwr to control access to
U.S.)
c. Children of illegal aliens are not “comparably situated” having no control
over the situation
d. The leg violated the fundamental premise that “no child is responsible for his
birth and penalizing the .. child is an ineffectual and unjust way of deterring
the parent.”
e. Although education is not a fundamental right, neither is it merely some
govt benefit indistinguishable from other forms of social welfare leg.
f. Statute imposes lifetime hardship on a discrete class of children b/c stigma of
illiteracy will mark them for the rest of their lives.
5. Concurring
a. Blackmun argued that classifications involving the complete denial of
education are unique, and strike at the heart of EP values by involving the
State in creating a permanent class distinction.
b. Powell: the legislation threatens to create a permanent underclass of future
citizens and residents cannot be reconciled w/14th amend. He distinguished
Rodriguez b/c no group of children were singled out by state or penalized b/c
of their parents’ status, nor way any group totally deprived of all education.
6. Dissenting, Burger
a. Rational basis satisfied – it simply is not “irrational” for a state to conclude
that it does not have the same responsibility to provide benefits for persons
whose very presence in the state and this country is illegal as it does to
provide for persons lawfully present.
7. Notes:
a. Recall Marshall’s sliding scale in Rodriguez dissent – “the Crt should be
particularly militant against laws discriminating against important individual
interests w/Cx implications and against particularly disadvantaged powerless
classes.”
b. Zablocki v. Redhail (1978) [502] – recognized right to marry as a
fundamental right and struck down statute barring dead beat dads from
remarrying.
c. Rights and remedies: recall crt was struggling w/school segregation.
Justices were concerned about federal crts “destroying” the state sysm if they
legislate equality in education.
(iii) Edgewood Independent School District v. Kirby (1989, TX) [504]
1. Background: TX Cx imposes on leg an affirmative duty to establish and provide
for the public free schools. Standards: leg must make suitable provision for an
efficient system for the essential purpose of a general diffusion of knowledge.
Current system is funded 42% by state (sales/excise taxes) and 50% by district
(property tax). Wide disparities in spending per student – from $2,112 to
$19,333. Prop-rich districts can tax low and spend high, property-poor districts
must tax high to spend low.
2. Held: Crt held the school financing system to be uncx b/c the mandate of
efficiency has not been met. The leg has duty to provide for an efficient system
of education.
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3. Analysis:
a. presumption of Cx
b. Con Convention – delegates spoke at length on the importance of education
for all the ppl of the state, rich and poor alike (not only for the preservation
of democracy but for the prevention of crime and the growth of the
economy).
c. Crt determined purpose of an “efficient system” was to provide for a general
diffusion of knowledge and in mandating efficiency, the cx framers did not
intend a sysm w/such vast disparities.
d. Current system of inequalities is directly contrary to the cx vision of
efficiency.
e. Efficient system requires that the funds avail for education be distributed
equally and evenly.
4. Big Picture: Education can be fundamental under a state Cx.
5. Notes:
a. A decision by state S/C on state law is definitive unless there is a blatant
misinterpretation of state law which might undermine enforcement of a fed
cx right. S/C may not review Edgewood b/c no federal issue decided.
(b) Right to Travel
(i) All elective officers … shall be residents of the State for at least three years
1. Candidacy – Hankins v. State of Hawaii, 639 F. Supp. 1552 (D.Haw. 1986)
a. In examining an EP claim, the crt considers three elements: the character of
the classification in question; the individual interests affected by the
classification; and the governmental interests asserted in support of the
classification. Dunn.
b. Held: The fact that, under the HI Cx, an individual must set aside his plans
to become Governor for five years after moving to the State cannot seriously
be said to constrict the freedom of interstate travel. This crt finds that the
relationship between the requirement at issue and the right to travel is "too
attenuated to warrant invocation of the strict standard of scrutiny.
c. Issue: SS?
d. U.S. S/C has not yet ruled directly on the validity of durational residency
requirements for candidacy for public office.
e. Yes?
i. Most of the state and federal courts that have addressed the issue have
held that strict scrutiny should be applied to such requirements,
ostensibly because such restrictions affect the right to travel, the right
to vote, and/or the right of political expression and association. Joseph
v. City of Birmingham, 510 F. Supp. 1319. 9th Cir. has embraced such a
test. Howlett.
f. No?
i. it is far from settled that the right to hold public office is itself a
fundamental constitutional right.
ii. although durational residence requirements for voters clearly infringe the
personal right to travel (Dunn), the mere fact that an individual cannot
immediately become governor when he moves to a new state does not
automatically trigger a higher standard of review.
iii. A burden on interstate travel in cases such as this is impermissible only
when it imposes a "penalty" on the new arrival, a residency requirement
does not truly penalize a traveler.
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iv. Unlike the situation in Dunn, the requirement at issue here does not force
a person to "choose between travel and the basic right to vote," because
there is no analogous basic right to candidacy.
v. Recent comments from the Court have indicated that heightened scrutiny
in such cases may be unnecessary. Durational residence requirements
have apparently been referred to as one of the rare "instances in which
length of residence could provide a legitimate basis for distinguishing
one citizen from another" under rationality review. Zobel v. Williams,
457 U.S. 55 (1982) (Brennan, J., concurring). In discussing the related
situation of a "waiting period" prior to candidacy, the Court mentioned
Chimento, and commented, "We conclude that this sort of insignificant
interference with access to the ballot need only rest on a rational
predicate in order to survive a challenge under the Equal Protection
Clause." Clements v. Fashing, (1982).
2. All appointive officers …who are department heads and deputies or assistants…
shall be residents of the State for at least one year
3. All persons seeking employment shall be residents of the state at time of their
application (except for UH Faculty)
(ii) Crandall v. Nevada (1868) [511] - $1 tax on anyone leaving NV by coach or train
stuck down based on structure of govt.
(iii) Edwards v. California (1941) [511] – ban on bringing indigents into the state – struck
down, five justices utilizing Commerce Clause, four utilizing 14th Amend. P&I
Clause.
(iv) U.S. v. Guest (1866) [891] – upholds statute protecting right to travel from private
infringement – no particular source idd.
(v) Dunn v. Blumstein (1972) [512]: Crt struck down one-year residence requirement for
voting, utilizing the right to travel as basis.
(vi) Shapiro v. Thompson (1969) [511]
1. Background: Several states and D.C. denied welfare assistance to residents who
had not resided in the jdx for at least one year.
2. Held: Applying strict scrutiny, Brennan held statute was uncx, as Πs had a cx
right to travel, and the challenged laws (which penalized the exercise of that right
based on an impermissible classification) were not necessary to promote a
compelling governmental interest.
3. Means: Apparent purpose of deterring in-migration of poor people’s cannot
serve as justification .. since that purpose is constitutionally impermissible as a
penalty of chilling ppl’s exercise of their cx rights.
4. Ends Analysis:
a. Recognizing a right to travel the crt demanded a compelling state interest to
justify its residence requirement.
b. Brennan recognized that planning the state budge, having an objective test
for apportioning welfare benefits and minimizing fraud were permissible
state purposes, but they were not constitutionally compelling.
5. Notes:
a. unclear whether Shapiro is a fundamental rights/EP case or as Rodriguez
interpreted it a penalty on interstate travel case.
b. Results – Shapiro has been basis for invalidating state benefit schemes that
discriminate based upon residence in the state.
c. Right to travel has been main basis for striking down one-year residence
requirements for voting, for receiving non-emergency medical care at public
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expense, but was not sufficient to invalidate one year res req for bringing a
divorce action against non-resident.
(vii)
Zobel v. Williams (1982)
(viii) Dunn v. Blumstein (1972) [512]: Crt struck down one-year residence
requirement for voting, utilizing the right to travel as basis.
(ix) Saenz v. Roe (1999) [512]
1. Background: In 1992 CA enacted statute limiting max welfare benefits avail to
newly arrived residents to the amount payable by the state of the family’s prior
residence.
2. Issue: Whether statute was cx when it was enacted and if not, whether an amend
to the Soc Security Act enacted by Congress affects that determination?
3. Held:
a. The crt struck down statute for having no relationship to the state interest. A
State violates the P&IC when it “discriminates” against citizens who have
been domiciles in the State for less than a year in the distribution of welfare
benefits.
b. Congress may not authorize the states to violate the 14th Amend, moreover
the protection afforded to the citizen by the Citizenship Clause of that
Amend is a limitation of the powers of the Natl govt as well as the States.
4. Analysis:
a. Right to travel embraces three diff components:
i. Protects right of citizen of one State to enter and to leave another State
ii. Right to be treated as a welcome visitor rather than unfriendly alien when
temporarily present in second State (Art IV §2 P&I) (states cant
discriminate against non-residents)
iii. To become permanent residents and to be treated like other citizens
 also protected under P&I of the 14th Amend
 Slaughter House: 14th Amend’s P&I confers that a “citizen of U.S.
can become a citizen of any state of the Union by a bona fide
residence therein, with the same rights as other citizens of that State”
 Stricter Scrutiny applicable
b. Citizenship Clause of the 14th Amend expressly equates citizenship
w/resident – does not provide for or allow for degrees of citizenship based on
length of residence.
c. Ends: save state $$, make equitable allocations
d. Means: NO justification. The duration of Πs’ residence, nor the identity of
their prior states of residence has any relevance to their need for benefits.
Neither do they have any relationship to the State’s interest in making an
equitable allocation of the funds to be distributed among their needy citizens.
5. Rehnquist dissenting:
a. Rehnquist finds that right to travel and right to become a citizen of another
state are separate and distinct rights. A person is no longer “traveling” when
he decides to settle down in a state.
b. Rehnquist finds although majority recognizes the rights of States to
determine the bona fides of an individual’s claim to residence, they avoid the
issue.
c. Rehnquist implies that the length of residence may be used to determine an
individual’s claim to residence and therefore would affect their rights to
benefits………
6. Thomas dissenting:
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a. Justice Washington found that Art IV encompassed only fundamental rights
that belong to all citizens of the U.S. (does not guarantee access to all public
benefits that a State choose to make avail)
b. Thomas found that framer of the 14th Amend were influenced by Washington
and so has the 39th Congress when passing the SS Act.
c. Thomas held that the majority’s conclusion appears contrary to the orig u/s
of the P&IC.
7. Notes:
a. A state cannot prohibit non-residents from practicing law in their state.
b. Articles of Confederation – Art IV: .. and the ppl of each State shall have
free ingress and regress to and from any State
(x) Nehring v. Ariyoshi (1977 Haw d/crt) [h-67]
1. Background: HI requires one-year durational residency requirement for public
employment
2. Held: Crt held that the HI statute requiring one-year durational residency for
public employment violates the 14th Amend’s EPC, the Δ has failed to estab a
compelling state interest (reqd), or even a rational basis for this statute.
3. Issues:
a. whether the durational residency requirement must pass strict scrutiny?
4. Precedence:
a. U.S. S/C has applied strict scrutiny to durational residency requirements in
reference to welfare benefits and voting. (Shapiro, Dunn).
b. Memorial Hospital v. Maricopa County (1974) – Crt invalidated a statute
which provided that resident indigents could not receive free non-emergency
medical care unless they had been residents for over a year.
i. Test: To determine whether the compelling state interest test should be
invoked, a crt must analyze the extent of a law’s impact on interstate
travel by considering 1) whether the waiting period would deter
migration and 2) the extent to which it penalizes those who nevertheless
choose to travel.
c. Sosna v. Iowa (1975) [h-71]
i. Crt sustained a one-year residency requirement for the filing of a petition
for a divorce.
ii. Crt did not explicitly determine whether it should use SS by considering
statute’s impact on interstate travel either through deterrence or as a
penalty (as suggested in Maricopa).
iii. Rather they distinguished voting, medical care, and welfare from
obtaining a divorce. Crt described statute as “of a different stripe” since
it promoted more than budgetary and recordkeeping goals, and since the
Π was not irretrievably foreclosed form getting a divorce.
iv. Ends:
 importance of regulating divorce for all parties concerned, not
merely the state and the newly resident petitioner
 prevention of collateral attack of the state’s divorce decrees in the
crts of other states
5. Public Employment Analysis:
a. WA, AK, MI – apply SS, MA did not
b. Denial of the oppty to apply for public employment does have a sufficient
enough impact upon the right to travel to require that the statute be justified
by a compelling state interest
c. 12% of jobs avail in HI are w/State or local govt
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d. Forced inability of a new resident to apply for 12% of available jobs is a
penalty
e. Crt characterizes employment as a fundamental right and therefore governed
by Shapiro, Maricopa, Sosna
f. Ends:
i. Environmental: Control growth and protect HI’s unique island
environment by restricting the number of ppl migrating to the state
 crt found this amounted to an “interstate immigration policy”
 Maricopa – “to the extent the purpose of such a law is to inhibit
immigration of ppl generally, that goal is cx impermissible
ii. Apportion employment oppties and other resources so that long-term
residents of the state will obtain jobs in preference to better qualified
outsiders who may be more able too go elsewhere and look for jobs
g. Means:
i. Environment: The state did not show that the classification of new and
old residents of the state was even rationally related to protection of the
environment.
 no witnesses could testify as to any significant connection btwn the
number of ppl moving into HI who were planning to or would take
public jobs and the environmental probs faced by state
 no statistics of present number of public employees who had been
residents of HI for less than a year
ii. Apportion argument is not clearly tailored and cannot even withstand the
more limited scrutiny of the rational basis test.
6. Notes:
a. 1978, Governor Ariyoshi asked HI leg to consider imposing “higher tax rates
on future new residents on the basis that their presence directly and
immediately places new places new costs upon public sector.”
(xi) Hawaii Boating Assoc v. Water Transportation (9th Cir. 1981) [h-75]
1. Background:
a. Application fees: residents - $15, Nonresidents - $100
b. Mooring fees: no difference
c. Liveaboard fee: residents – 2x mooring fee, Nonresidents – 3x mooring fee
2. Held:
a. Durational residency requirements for preferential rates for mooring
privileges in recreational boat harbors was not significant penalty on
fundamental right to travel and trial crt properly applied rational basis
standard
b. “non-residents” of HI did not comprise a suspect class so as to require
application of SS
c. Fee structure was rationally related to valid leg goal – equalizing costs
attendant to maintaining and constructing small boar harbors and thus did
violate EP rights
d. P&I C was not applicable
3. NO significant penalty on right to travel
a. deprivation is merely uncomfortable
b. analogous to college tuition cases
c. recreational character – limited liveaboard use does not convert the
recreational character of the boat harbors into a “basic necessity of life”
4. NO suspect class
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5.
6.
(xii)
1.
2.
3.
a. the contention that “non-residents of Hawaii” comprise one racial class
defies reality
b. no evidence of a racially discriminatory motive, thus disproportionate impact
is not sufficient to trigger SS
Rationally related
a. no evidence that the cost differential was arbitrary or irrational
b. Means: fee structure rationally related. residents have recently contributed
to the state’s economy through employment to the state’s economy through
employment and state taxes, while non-residents have not.
c. End: equalizing costs.
P&I – Art IV
a. the Πs are not challenging discrimination against non-residents (purpose of
P&IC to protect non-residents from discrimination)
b. (my notes: recall 14th Amend P&I protects those who want to become
citizens of new states and therefore will be given same rights)
c. Mooring privileges are not fundamental
d. Baldwin held Montana’s elk hunting license scheme which imposed higher
fees on non-residents did not fall w/in purview of P&IC, as it was not basic
to the maintenance or well being of the union. Πs do not claim they are
deprived of livelihood and elk hunting is not fundamental right.
e. Hicklin invalidated an AK statute which reqd that all Alaskan oil/gas leases
and right of way permits for oil/gas pipelines contain requirement for that
residents be hired in preference.
i. Brennan (writing for unanimous crt) criticized fundamental right inquiry
however, Baldwin had already explicitly sttd that the right of a nonresident to earn a livelihood was “fundamental”
ii. Thus, Hicklin doesn’t overrule Baldwin, Brennan’s criticism is dicta and
does did not signal an abandonment of the fundamental right approach.
(if Hicklin did not involve a fundamental right, then clearly the crt would
have been signaling that a fundament right is not reqd to trigger the
P&IC).
f. Test for P&IC applicability
i. Baldwin – right must be fundamental
ii. Hicklin – state must justify its discrimination by satisfying the
requirements articulated in Hicklin
g. Crt recognizes in certain areas, a sovereign state may act in the interests of its
own citizens and retain a significant degree of autonomy
Daly v. Harris (D.Hawaii 2002)
Two visitor from CA and CO challenged the City’s fees for Hanauma Bay.
Held: Crt applied rational basis review because no fundamental rights or suspect
categories are involved. Crt ruled that engaging in recreational activity at the Bay
P&IC does not help b/c activities are recreational, not economic.
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(3) Fundamental Privacy Rights
(a) Meyer v. Nebraska (1923) [518] *Lochner Era
(i) Held: Applying a mere rationality test, the Court struck down a state law which
prohibited the teaching of foreign languages to children for violating the DPC. The
term “liberty” in the 14th Amend. includes many non-economic yet important rights.
The right of teachers to teach and students to acquire knowledge were such rights.
(ii) Analysis:
1. “liberty” of DPC includes the rights of individuals to K, acquire useful
knowledge, to marry, estb a home and bring up children, worship God, c/l
privileges “essential to the orderly pursuit of happiness by free men,” engage in
any of the common occupations of life
2. American ppl have always regarded education and acquisition of knowledge as
matters of supreme importance which should be diligently promoted.
3. The leg materially interferes with the calling of modern language teachers, with
the opportunities of pupils to acquire knowledge, and with the power of parents
to control the education of their own.
4. Individuals have certain fundamental rights which must be respected.
5. Ends:
a. Foster a homogenous people w/American ideas (OK)
b. Protect the child’s health by limiting his mental activities – no foundation
since statute only interferes w/teaching modern foreign languages
6. Means: exceed limitations upon the power of the state and conflict with the
rights assured to Π
(iii) Holmes dissenting: It is rational to set up a system that directs you to speak English.
(iv) Notes:
1. Understanding zones of privacy in 1920s [520]
a. Privacy as Family Governance – marriage and how to raise a family
b. Privacy as Life Choices
i. c/l privileges “essential to the orderly pursuit of happiness by free men”
 facts of Meyers (WWI, disrespecting German communities) suggest
that activities and knowledge that help bind together minority groups are
entitled to some protection against state suppression
c. Privacy as Inaccessibility – body restraint
2. Focus was on teacher’s rights – free speech?
(b) Pierce v. Society of Sisters (1925) [519]: The Court struck down a statute requiring
children to attend public schools, thus preventing them from attending private and
parochial schools. DPC barred the state from using compulsory education laws to
suppress private, especially religious schools. The “liberty of parents and guardians to
direct the upbringing and education of children under their control.”
(i) Notes: Crt actually focuses on right to K.
(c) Skinner v. Oklahoma (1942): The Court struck down an Oklahoma statute providing for
compulsory sterilization of persons convicted three times of felonies showing “moral
turpitude,” but which did not apply to “white-collar” crimes like embezzlement. The
Court rested its decision on the fundamental right to “marriage and procreation.” The
Court applied strict scrutiny.
(d) Contraception
(i) Poe v. Ullman (1961) [521]
1. Majority: The Court decided that a suit challenging a law preventing doctors
from providing contraception for health reasons was not ripe.
2. Harlan’s dissent:
a. Fundamental approach: Harlan subscribes to an “ordered liberty” approach
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to incorporation. It is “the purposes of those guarantees and not their text, the
reasons for their statement by the Framers and not the statement itself” that is
important.
b. No simple formula: The DP liberty interest is not a simple formula, but a
balance between liberty and the demands of organized society.
c. Statute invaded privacy: marital privacy is expressly protected against
governmental intrusions by the 3d and 4th Amends and by the “principle of
liberty” found in the DPC “against all unreasonable intrusion of whatever
character.” The intrusion of the whole machinery of the criminal law into
marital privacy is unjustifiable..
3. What does the Due Process Clause mean?
a. It protects substantive as well as procedural rights.
b. Substantive rights are found not in the 1st 8 amendments, but rather in “those
right ‘which are fundamental’; which belong . . . to the citizens of all free
governments’”
c. “Due process has not been reduced to any formula . . . [I]t has represented
the balance which our Nation . . has struck between that liberty and the
demands of organized society.”
d. Judges should not proceed by “unguided speculation” cut should examine the
traditions from which our country developed as well as the traditions from
which it broke.
e. It is a rational continuum which, broadly speaking, includes a freedom from
all substantial arbitrary impositions and purposeless restraints, and which
recognizes . . that certain interests require particularly careful scrutiny of the
state needs asserted to justify their abridgment.”.
(ii) Griswold v. Connecticut (1965) [525]
Δs: director of the local Planned Parenthood Ass’n and its medical director.
1. Background: A CT law criminalized the use of contraceptives and the aiding or
counseling of others in their use. Δs were convicted as accessories to the
offense of using drugs for purpose of contraception – i.e. counseling married
persons in the use of contraceptives.
a. “Any person who uses a drug, medicinal article or instrument for the purpose
of preventing conception shall be fined not less than $50 or imprisoned not
less than 60 days nor more than 1 yr or be both fined and imprisoned.”
i. note: no statute prohibited sale of birth control devices, but it was a
crime to use any drugs for purposes of preventing conception
ii. “loophole” – state medicine was being used for reasons other than
contraception. As a result, the statute wasn’t being enforced.
2. Majority of the Court, Douglas, struck down the statute
a. The crt characterized the law as operating directly on an intimate relation of
husband and wife and their physician’s role in one aspect of that relation.
b. Though the Cx does not explicitly protect a general right to privacy, various
guarantees within the Bill of Rights create penumbras, or zones, that
establish/create a right to privacy. Together, the 1st (right of association),
3rd (no quartering soldiers), 4th (no unreasonable searches), 5th (privilege
against self-incrimination) and 9th (other rights exist) Amendments, creates a
new constitutional right, the right to privacy in marital relations. The CT
statute conflicts with the exercise of this right and is therefore null and void.
c. A large part of the rationale in striking down the statute was the privacy
implications of proof in prosecutions. Douglas argued that the idea that
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3.
4.
5.
6.
7.
8.
police could search marital bedrooms for contraceptives was “repulsive to
the notions of privacy surrounding the marriage relationship.”
Goldberg’s concurrence (9th Amend.): Goldberg believed the 14th Amend DPC
protected all “fundamental” rights, whether or not listed in the BOR. The 9th
Amend supported this view. 9th Amend reveal that framers of Cx believed there
are addtl fundamental rights, protected from govt infringement. Just as the 9th
Amend exemplify that certain non-BOR rights were protected from federal govt,
the 14th Amend should be found to protect fundamental rights against state
action. Marital privacy was such a right.
a. 9th amendment: The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.
Harlan’s concurrence (Ordered Liberty): The 14th Amend. DPC does not just
incorporate the BOR, but protects those basic values “implicit in the concept of
ordered liberty.”
a. Note: Harlan’s Griswold/Poe opinions stopped short of finding a general
right to privacy for sexual relations. He explicitly rejected the idea that
adultery, homosexuality, fornication and incest were protected. He
distinguished these from the marital relation.
White, concurrence: CT as applied to married couples deprives them of “liberty”
without DP of law, as used in 14th Amend.
a. Permissible Ends: Policy against all forms of promiscuous or illicit sexual
relationship, be they premarital or extramarital.
b. No Means: White fails to see how the ban on the use of contraceptives by
married couples in any way reinforces the State’s ban on illicit sexual
relationships. Contraceptives are not contraband material, availability is not
disputed, contraceptives to prevent disease is clearly legal.
Black and Stewart’s dissents:
a. Black reiterated his theory of total incorporation. Black objects to the “broad,
unbounded judicial authority” which allows judges to identify and protect
rights using “formulas based on ‘natural justice.’” Black’s dissent is similar
to Bork’s dissent.
b. Stewart failed to find a right of privacy in any specific guarantee, and also
rejected Goldberg’s 9th Amend analysis. *note: stewart seems to think the
law is unwise, even asinine, however doesn’t raise to level of violating Cx.
Criticism: Douglas’ “penumbra” theory has been criticized as illogical. How does
he jump from emanations from specific guarantees to a general right of privacy?
That the Cx protects some elements of privacy, but not others, implies it did not
mean to protect those not mentioned.
Big Picture:
a. Significance: The holding of Griswold, read most narrowly, is that marital
privacy and the choice of whether to procreate heterosexually are private
choices protected by the DPC, and if the state interfered with the choice, they
must have a compelling interest. Ready most broadly, Griswold holds that
the Cx protects individual decisions from being burdened by the State in
the absence of a compelling interest.
b. Context: Griswold was decided at the start of the women’s movement.
During this time, many archaic 19th century laws were still on the books, but
very few laws were enforced. Meanwhile, there was a radical change in the
structure of families. The heterosexual relationship itself was being separated
from the marital relationship and procreation. This led to a rise in the belief
in individual choice. There was a fear of the loss of the old ways.
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(iii) Class Notes:
1. Ends: Encourage pro-creation (and reduce non-marital sex?) – is that rational?
2. Could the govt require women to accept Norplant or a birth-control shot as a
condition of receiving welfare?
3. Is it okay to prohibit adultery?
(iv) Eisenstadt v. Baird (1972) [532] “RB” – EP & DPC
1. Held: Crt invalidated a statute which, by permitting contraceptives to be
distributed only by registered physicians and pharmacists, and only to married
persons, discriminated against the unmarried.
2. Rationale: Majority invoked EP & SDP. The right of privacy means that an
individual, whether married or single, has the right to be free from unwarranted
govt intrusion into matters so fundamental as the decision whether to bear or
beget a child.
3. Brennan purported to be apply rational basis.
4. Notes:
a. While Griswold articulated the privacy right in family governance terms,
Eisenstadt rearticulated it in terms of the individual’s life choices.
b. No “general right” to privacy in sexual or procreational matters.
i. Although Eisenstadt broadened the contraceptive aspect of privacy to
non-married couples, the Court has not yet recognized a general right of
privacy in sexual or procreational matters so as to protect homosexuality,
adultery, fornication, or other conduct which a state may forbid.
ii. Justice Brennan’s opinion in Eisestadt pretended that the state was not
trying to regulate nonmarital sexuality, and his opinion in Carey
conceded that the crt has never ruled that a particular sexual act is
constitutionally protected.
c. Minors. Carey v. Population Services Intl (1977) [533]:
d. Class Notes:
i. Does this case stand for the proposition that the unmarried have
freedoms to have sex?
(e) Marry
(i) Loving – right to marry (DPC)
(ii) Griswold – spoke of marriage as “an association for as noble a purpose as any
involved in our prior decisions.”
(iii) Zablocki v. Redhail (1978) [539]: Crt invalidated WI law precluding the issuance of
marriage licenses to ppl w/outstanding support obligations to children from a
previous marriage.
1. Marriage:
a. “right to marry” is a fundamental right
b. It is not surprising that the decision to marry has been placed on the same
level of importance as decisions relating to procreation, childbirth, child
rearing, and familial relationships.
c. … relationship that is the foundation of the family in our society.
2. Analysis:
a. Any state discrimination in allocating the right to marry must be scrutinized
strictly under EPC.
b. Ends: ensuring collection of support obligations owed one’s children
c. Means: state has other, less constitutionally intrusive, ways of effectuating
the interest
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(iv) Turner v. Safley (1987) [540]: unanimous crt struck down a state regulation barring
the ability of prisoners to marry. O’connor applied the Crt’s precedents requiring a
reasonable relationship btwn a prison reg and legitimate penological objectives.
Preventing inmate marriages did not narrowly serve legitimate penological purposes.
(v) Troxel v. Granville (2000) [540]
1. Background: WA law authorized crt-order visitation of a child whenever such
visitation was in the best interest of the child. Grandparents of deceased father
seeked greater contact w/children over objections of mother, who agreed to
limited visitation. WA S/C struck down statute for: 1) statute based state
intervention on “best interest” of child rather than on actual harm to child, 2)
statute was too sweeping in allowing the state to make significant decisions
concerning the custody.
2. Held: Fractured crt affirmed. Plurality by O’connor, concurrences by Souter and
Thomas, Dissents by Stevens, Scalia, Kennedy.
3. Did the statute implicate a protected liberty interest? Plurality – in light of
extensive precedence, it cannot be doubted that the DPC of the 14th Amend
protects the fundamental right of parents to make decisions concerning the
care, custody, and control of their children.
4. Facial or as-applied analysis? Plurality considered the statute as applied b/c the
constitutionality of any standard for awarding visitation turns on the specific
manner in which that standard is applied. We would be hesitant to hold that
specific non-parental visitation statutes violate DPC as per se matter.
5. What factors are relevant to the constitutionality of a visitation order? Several
factors making the visitation order invalid: breathtakingly broad – no
presumption of validity to the parental decision; no finding that the mother had
failed to care for the children adequately; the mother never tried to cut off
visitation entirely;
6. Significant: Seven justices endorsed the use of SDP to protect unenumerated
rights, one was non-committal and only one rejected.
(f) Abortion
(i) Conceptualizations of the right to an abortion
1. Autonomy: The privacy interest is better termed an interest in “autonomy.”
2. Sex discrimination: Statutes banning abortion are discriminatory to women b/c
there is no law which forces men to sacrifice their bodies and restructure their
lives to permit children to survive. The state cannot impose a burden on women
not felt by men.
(ii) HI enacted the first broad legalization of Abortion in 1970, followed by AK & NY
1. Led by HI medical association – we need to be able to facilitate abortions,
improper abortions were leading to problems.
2. Major media supporter was the Honolulu Star-Bulletin.
3. Limitations: Permitted abortions only by licensed physicians, 90 day residency
requirement, needed to be done in hospital
4. Catholic Governor Burns declined to veto
(iii) NY legalized w/o residency requirement
(iv) Roe v. Wade (1973) [542]
1. Background: Texas law banned abortion completely, except for purpose of
saving a pregnant woman’s life.
2. The Court, per Blackmun, struck down the statute of all 50 states [pro-choice]
a. General holding: A woman’s right to privacy is a fundamental right under
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the 14th Amend. Blackmun grounds this fundamental right in the 14th
amendment’s concept of personal “liberty” as opposed to the penumbras of
the BOR that Douglas used in Griswold. Therefore, the legislature only has a
limited right to regulate, and may not completely proscribe, abortions. The
state has a compelling interest in protecting the life of the fetus after
viability.
b. The trimester system:
i. 1st trimester: A state may not ban, or even closely regulate, abortions.
All abortions okay;
 Rationale: The mortality rate for mothers having abortions during
state cannot ban
this trimester is lower than the rate for full-term pregnancies. So, the
(only require license
state has no valid interest in protecting the mother’s health (but the
phys)
state may require that the abortions be performed only by licensed
physicians).
ii. 2nd trimester: A state may protect its interest in the mother’s health by
Abortions still okay;
regulating the abortion procedure in ways that are “reasonably related” to
state can however
her health (e.g., requiring the procedure to take place in a hospital rather
regulate for sake of
than a clinic).
mother’s health
 State may only protect the mother’s health, not the life of the fetus.
So, a complete ban is not permitted.
iii.
3rd
trimester: The fetus typically becomes viable. Thereafter, the state
State can regulate to
protect “viable” fetus;
has a compelling interest in protecting the fetus. It may regulate or ban
abortions only okay
abortions. But, the abortion must be permitted where necessary to
to save mother’s
preserve the life or health of the mother.
health
c. Rationale: Roe was an extension of the line of cases delineating the right to
privacy, from Pierce and Meyer to Griswold. Roe held that a woman’s
interest in deciding whether to get an abortion was “fundamental.”
i. Strict scrutiny test: The privacy right could be outweighed only if 1)
there was a compelling state interest in barring or restricting abortion;
and 2) the same statute was narrowly drawn so that it fulfilled only that
legitimate state interest.
ii. Countervailing state interest: Two state interests in particular
circumstances might be compelling: protecting the health of the mother
and protecting the viability of the fetus. But, these interests vary in
weight according to the trimester. (See supra). (other claimed interest –
maintaining medical standards).
iii. Fetus not a person: The Court held that before viability, the fetus is not
a “person” in the sense of the term in the 14th Amend.
3. Dissents (concurrences of Stewart and Douglas omitted)
a. White: He objected to what he called the Court’s imposition of its own value
scheme, preferring the mother’s life over the life of the fetus. The weighing
of these interests should be left to the people and the political process.
b. Rehnquist: [conservative/pro-life] Only a mere rationality test should be
applied. At least some of the abortion regulations forbidden by the majority
could meet this standard. Criticized the majority’s three-part test as “judicial
legislation.”
4. Big Picture: Roe turned on the conception of “personhood.” One way to protect
the fetus is to raise its status to a “person.” No constitutional decision confirms
this conception of personhood.
5. Criticisms of Roe
a. Extent of “privacy” interest: The Court doesn’t precisely define the “right to
privacy.” It doesn’t say which privacy interests are “fundamental” and which
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ones are merely “ordinary.” The Court can appear to be imposing its view of
what is important.
b. Judicial legislation: The Court makes many factual assumptions about
medicine. These kinds of factual decisions are more properly decided by the
legislature.
(v) Road to Casey--Court rulings on state regulation of abortion after Roe. (Note that
some of these cases may be decided differently under the “undue burden” approach
of Casey)
1. Accreditation: State may not require all abortions to be performed in accredited
hospitals. Appropriately license clinics must be permitted to perform abortions.
Doe v. Bolton (1973)
2. Additional doctor’s consent: State may not require the consent of a hospital staff
abortion committee or of any physician other than the woman’s own personal
physician. Doe v. Bolton.
3. Husband’s consent: State cannot require consent by the husband. Both parents
have rights at stake, but since woman is more directly affected by the pregnancy,
she should decide. Planned Parenthood v. Danforth (1976).
4. Waiting period and abortion counseling: State cannot require 24-hour waiting
period and informing the woman of various aspects and risks involved in the
abortion. Akron v. Akron Center for Reproductive Health (1983). But see Casey.
5. Restricted public funding: States may refuse to provide Medicaid funding for
abortions where it is not necessary to protect the mother’s life or health, even
though it gave Medicaid financing for costs of ordinary childbirth. Maher v. Roe
(1977). Reaffirmed by Harris v. McRae (1980). The existence of a
constitutionally-protected right did not obligate the govt to grant funds needed to
exercise that right.
6. Parental consent: Court upheld state law requiring pregnant minor to obtain
parental consent OR judicial approval. Planned Parenthood v. Ashcroft (1983).
State can require that minor’s parents be notified whenever possible. H.L. v.
Matheson (1981).
7. Two-parent consent: Statute requiring minor to notify both parents was upheld
only because it provided for judicial bypass. Hodgson v. Minnesota (1990).
8. Ban on public facilities: State may prohibit all use of public facilities and
publicly-employed staff in abortion. Webster v. Reproductive Health Services
(1989).
(vi) Webster v. Reproductive Health Services (1989) [553]: MI law reqd drs to
determine viability before performing an abortion after the 20th week of pregnancy.
1. Held: Applying unspecified level of review, Plurality (Rehnquist) held MI
testing requirement is reasonably designed to ensure that abortions are not
performed where the fetus is viable – an end which all concede is legitimate –
and that is sufficient to sustain its constitutionality.
2. Plurality conceded that abortion involved a liberty interest protected by DPC
(however, declined to revisit Roe’s holding that abortion has some cx protection).
3. Contended that trimester sysm should be rejected.
4. O’connor concurred on basis that MI law did not impose “undue burden” and in
anyevent was consistent w/Crt’s prior decisions. Her support for Roe was
unclear.
5. Scalia, concurring: berated majority for refusing to overrule Roe outright.
(vii)
Hodgson v. Minnesota (1990) [553] *Two-parent notification
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1. Background: Minnesota reqd notification of both parents and had virtually no
loopholes except for an alternate procedure for judicial bypass, as reqd by
Danforth. T/C struck down law and found 1) req that father be notified was a
burden on minor b/c they legitimately feared violence and same minors would be
too intimated to use bypass, 2) leg intended 2 parent notification as deterrence,
and 3) both bypass judges and public defenders believed notification and bypass
procedures did not serve any goal of informed consent.
2. Held: (Kennedy) Crt upheld law, applying Ashcroft which upheld parental
notification and consent requirements that had opportunities for judicial
bypass, while considering t/crt’s findings to be irrelevant.
3. O’Conn or concurring: Two-parent notification req was an undue burden,
however judicial bypass saved the statute.
(viii) Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
1. Background: A Pennsylvania statute placed a number of significant restrictions
on abortion. (5 clinics, including PP, and 5 doctors, sued State governor Casey.)
DC held entire act invalid. App Ct reversed, upholding entire act, except husband
notification requirement. P appealed.
a. 24hour waiting period so the woman could consider information regarding
the nature and risks of the procedure.
b. minors had to obtain the consent of one parent (with judicial-bypass option)
c. Married women were required to notify their spouse
2. The plurality joint opinion--centrist bloc (O’Connor, Souter, Kennedy) affirmed
Roe applying undue burden test rather than fundamental right test.
a. Roe reaffirmed: Roe was reaffirmed as to its “essential holding,” consisting
of (1) right of the woman to choose to have an abortion before viability and
to obtain it without undue interference from the state; (2) State’s power to
restrict abortions after fetal viability, with exceptions for pregnancies
endangering woman’s life or health; (3) state’s legitimate interests from
outset of pregnancy in protecting the health of the woman and the life of the
fetus.
b. Rationale: The joint opinion agreed with the constitutional analysis of Roe.
i. Privacy as to basic decisions: The Cx limits the State’s right to interfere
w/a person’s most basic decisions about family and parenthood, such as
those present in the context of contraception, See Griswold, and abortion.
ii. Personal decision: The abortion decision must be left to the woman alone
for it impacts upon her in a uniquely personal way. This attacks theorem
that if rx people differ, the crt should leave it to the leg to decide.
c. Stare decisis: The joint opinion indicated that the authors might not endorse
the principles of Roe if the issue were before the Court for the first time. But,
stare decisis tipped in favor of reaffirming Roe. First, the Court shouldn’t
overrule under political pressure for that would undermine its legitimacy.
Second, a constitutional decision should not be overturned if it is not
unworkable and overturning it would damage reliance interests.
i. Not unworkable: The core principles of Roe--e.g., woman’s liberty
interest in deciding, or viability as a measuring stick--are still workable.
ii. Reliance: People have organized intimate relationships, made choices,
and women participated in economic and social life by relying on their
ability to control their reproductive lives.
d. “Undue burden” standard: The trimester system was abandoned, as it
undervalues the State’s interest in potential life during the first two
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trimesters. A statute which serves a valid purpose, one not designed to
infringe on the right to abort, but which incidentally makes it more difficult
or expensive to get an abortion is not invalid. Only a state regulation which
imposes an undue burden on a woman’s ability to make the decision of
whether to abort is unconstitutional.
i. What’s an “undue burden?: A state regulation constitutes an undue
burden if it has the purpose or effect of placing a substantial obstacle in
the path of a woman seeking an abortion of a nonviable fetus. Thus, a
state regulation may: 1) express its respect for the life of the unborn
through structural mechanisms if it doesn’t place a substantial obstacle in
the woman’s path; 2) regulate in furtherance of the woman’s health or
safety; 3) after viability, proscribe all abortions not needed to protect the
health or life of the mother.
ii. Implicit lowering of scrutiny: Casey implicitly shied away from the
“fundamental right” approach to abortion. The test is “undue burden,”
not strict scrutiny.
3. Votes
a. Upholding 24 hr waiting period & one-parent consent joined by Rehnquist,
White, Scalia, Thomas (7-2) *note – they also dissented in the reaffirmance
of Roe
b. Striking down spousal notification joined by Blackmun & Stevens (5-4)
*note – Blackmun and Stevens argued that trimester sysm should be retained
4. Dissents:
a. Rehnquist: The right to abortion was not, and should not have ever been
declared to be, fundamental. Abortion is different from marriage,
procreation, and contraception because it involved the termination of life.
Additionally, abortion was not rooted in the historical traditions of the
American people, which he believes is the only way a right could become
fundamental. Rational basis review is appropriate.
i. Spousal notification: Husband’s interest in procreation w/in marriage in
potential life of his unborn child are substantial. State has interest in
protecting potential life and interests of husband. Provision makes it
more likely that the husband will participate in deciding the fate of his
unborn child, which may result in a decision to proceed w/the pregnancy.
b. Scalia: The right to abortion is not a liberty interest protected in any way by
the Cx Scalia presented two reasons: 1) the Cx says absolutely nothing about
abortions, and 2) long-standing traditions of American society have
permitted it to be legally proscribed. [563-564]
5. Big Picture:
a. Significance of Casey: Casey held that the woman’s right to decide whether
to have an abortion receives special constitutional protection. But,
regulations of the abortion process are easier to sustain than under Roe. Note
that even the “central holding” of Roe hangs by a single vote.
b. What’s an undue burden?
i. Spousal notification: In Casey, a married woman couldn’t receive an
abortion w/o a signed statement that she had notified her spouse
beforehand. Exceptions were made for victims of spousal sexual assault,
fear of bodily injury. This was a substantial obstacle to abortion b/c it
may engender fear of psychological abuse or child abuse. A State may
not give to a man the kind of dominion over his wife that parents
exercise over their children. Slipperly slope – husband’s interest in fetus
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safety, in his wife’s reproductive organs.
c. What’s not an undue burden?
i. Informed consent, and
ii. 24 hour waiting period: In Casey, PA required a physician to inform the
woman of the nature of the procedure, the health risks, and the probable
gestational age of the fetus at least 24 hours before performing an
abortion. The woman must also be informed of the availability of state
materials describing the fetus and non-abortion alternatives. An
exception to the waiting period was made for “medical emergencies.”
The waiting period was the most suspect. The Court did not reject it in
the context of a facial challenge. But, the waiting period could amount to
an undue burden in a future case where poor or rural women in a
particular locale could not afford an overnight stay at an abortion facility
(i.e. an as applied basis).
 Note: Parallel requirements had been invalidate in Akron.
iii. Parental consent: Unemancipated women under 18 couldn’t obtain an
abortion unless one of her parents provides informed consent. Exception
for medical emergencies. Statute provided for judicial bypass (see
supra). Difference was that parent’s consent must be informed. Upheld
b/c just as adult women must consent, so do parents.
iv. Record keeping: PA required each facility performing abortions to
comply with detailed record keeping provisions. Disclosure of mother’s
identity not required. Record keeping was upheld as “reasonably directed
to the preservation of maternal health.”
(ix) Stenberg v. Carhart, (2000) [570]
1. Background: Nebraska banned partial birth abortions (an abortion procedure)
both post and pre-viability, where Drs “partially delivers vaginally a living
unborn child before killing the unborn child.” The statute was aimed at a
procedure called “dilation and extraction”, where during later stages of
pregnancy the fetus is withdrawn intact. Evidence produced at trial that this
procedure was the safest procedure.
2. Held: Majority struck down the statute as uncx for both post viability and pre
viability abortions.
3. Analysis – post viability:
a. Casey – any regulation of abortion, whether pre or post viability, must allow
abortions “necessary in appropriate medical judgment, for the preservation of
life or health of the mother.”
b. No exceptions in statute.
c. Crt rejected Δs argument that no exception was reqd b/c other safe abortion
procedures were available. Crt emphasized judicial need to tolerate rx
differences in med opinion, and trial crt had found that in some
circumstances the D&X is the safest procedure.
4. Analysis – pre viability:
a. The statute imposed an undue burden on a woman’s ability to choose an
abortion b/c the wording of the ban reached beyond D&X to illegalize the
most common procedure for previability second trimester abortions – D&E,
where at least some fetal tissue is removed by surgical instruments.
5. Kennedy & Rehnquist Dissenting: State intended only to prohibit D&X and
should be allowed to make moral decision that killing fetus outside the womb is
more gruesome and horrifying than killing it in the womb (D&E). The state
should be able to take sides o a disputed medical questions.
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6. Thomas, Rehnquist, Scalia dissenting: Thomas argued that the crt should
distinguish btwn the situation in which a woman seeks an abortion b/c her
pregnancy risks her health and in which she elects abortion for whatever rx and
simply prefers one procedure over another.
(4) Consensual Sexual Activity
(a) Generally: Apart from issues of procreation or family life), the Court has refrained from
establishing any general protection of adult consensual activity.
(b) Bowers v. Hardwick (1986)
(i) Background: Plaintiff, a homosexual, challenged a Georgia statute criminalizing
sodomy on SDP grounds. The statute did not on its face distinguish between
heterosexual and homosexual behavior.
(ii) By a 5-4 vote the Court upheld the statute.
1. Issue: The majority phrased the issue as being “whether the Federal Constitution
confers a fundamental right upon homosexuals to engage in sodomy.”
2. Distinguishing other privacy cases: The majority concluded that the cases
recognizing a right of privacy for matters of family, marriage, or procreation did
not bear “any resemblance” to the right of homosexuals to practice sodomy.
3. No fundamental right: Court should only regard as “fundamental” only those
liberties that are either implicit in the concept of ordered liberty, Palko, or deeply
rooted in American history and tradition. Homosexual sodomy was not such a
liberty under either of these formulations. Basis was traditional morals.
4. Privacy of home irrelevant: The plaintiff argued that conduct occurring in the
privacy of his home should be protected. See Stanley v. Georgia. The majority
distinguished Stanley on the ground that it was based on the 1st Amend., not
14th. Also, the majority was “unwilling to start down [the] road” of protecting all
voluntary sexual conduct in the home, which could stifle prosecution of adultery,
incest, and other sexual crimes even they are committed in the home.
5. Reluctance to recognize new rights: The Court also went out of its way to say
that the Court should be very careful in expanding the “substantive reach” of the
DPCs of the 5th and 14th Amend., and in particular, in defining new fundamental
rights.
(iii) Blackmun’s dissent: The case was not about a “fundamental right to engage in
homosexual sodomy,” but about the “right to be let alone.” The statute by its terms
covered heterosexual conduct as well.
1. There are two strands of privacy recognized in prior Court decisions:
a. Decisional aspect: A right to be free of gov’t interference in making certain
private decisions.
b. Spatial aspect: The rt. to privacy of certain places w/o regard to the activities
that go on there.
2. The statute violated each aspect.
a. Decisional: Sexual intimacy is a sensitive aspect of human existence that is
central to family life, community welfare, and the development of human
personality. The majority did not merely refuse to recognize a fundamental
right to engage in homosexual sodomy, but also the fundamental interest all
individuals have in controlling the nature of their intimate associations with
others.
b. Spatial: Activities that take place in one’s home deserve special protection.
The right of an individual to conduct intimate relationships in the intimacy of
his or her own home is the heart of the Const’s protection of privacy.
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(c) Lawrence v. Texas (2003)
(i) Background: Responding to a reported weapons disturbance in a private residence,
Houston police entered John Lawrence's apartment and saw him and another adult
man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and
Garner were arrested and convicted of deviate sexual intercourse in violation of a
Texas statute forbidding two persons of the same sex to engage in certain intimate
sexual conduct. In affirming, the State COA held that the statute was not uncxl under
the DPC of the 14th Amend, with Bowers controlling.
1. TX Cx – “Equality under the law shall not be denied or abridged b/c of sex, race,
color, creed, or natl origin.” COA found statute violated CX – based upon sex
discrimination.
(ii) Issues:
1. Do the criminal convictions of John Lawrence and Tyron Garner under the Texas
"Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex
couples, but not identical behavior by different-sex couples, violate the 14th
Amend guarantee of EP of laws? NO.
2. Do their criminal convictions for adult consensual sexual intimacy in the home
violate their vital interests in liberty and privacy protected by the DPC of the 14th
Amend? Should Bowers be overruled? YES. YES.
(iii) Held: In a 6-3 opinion delivered by Kennedy, the Crt held that the TX statute making
it a crime for 2 persons of the same sex to engage in adult consensual sexual
intimacy in the home violates the DPC and overruled Bowers.
(iv) Analysis:
1. The crt found that Bowers contained doubtful and overstated premises.
a. Bowers failed to appreciate the extent of the liberty at stake. The crt
narrowly phrased the issue in Bowers to be whether homosexual sex was a
fundamental right.
b. Early American sodomy laws were not directed at homosexuals as such but
instead sought to prohibit nonprocreative sexual activity more generally.
c. Crt finds they have an obligation to define the liberty of all, not to mandate
our own morale code. Casey.
2. The statutes seek to control a personal relationship that, whether or not entitled to
formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals.
3. The Crt reasoned that the case turned on whether Lawrence and Garner were free
as adults to engage in private conduct in the exercise of their liberty under DPC.
4. "Their right to liberty under the DPC gives them the full right to engage in their
conduct without intervention of the govt,"
a. Casey confirmed our laws and tradition afford cx protection to persona
decisions relating to .., these matters, involving the most intimate and
personal choices a person may make in a lifetime, central to personal dignity
and autonomy, are central to the liberty protected by the 14th Amend. At the
heart of liberty is the right to define one’s own concept of existence.
b. Persons of homosexual relationship may seek autonomy for these purposes
just as heterosexuals do.
c. Not characterized as a “fundamental right,” but rather as an important right.
5. Star decisis:
a. No individual or societal reliance.
b. Bowers itself causes uncertainty – precedents before and after its issuance
contradict its central holding.
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c. Rationale does not withstand careful analysis. It was not correct when it was
decided and is not correct today.
6. Means:
a. Bowers precedent demeans the lives of homosexual persons.
b. TX criminal conviction carries w/it other collateral consequences .. such as
notations on job application forms.
c. "The TX statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual," continued
Kennedy.
(v) O'Connor concurring – O’Connor did not join in overruling Bowers, however found
that the TX law violated the EPC.
1. When a law exhibits a desire to harm a politically unpopular group, we have
applied a more searching form of rational basis review to strike down such laws
under EPC.
2. The TX statute makes homosexuals unequal in the eyes of the law by making
particular conduct – and only that conduct – subject to criminal sanction. State
cannot single out one identifiable class of citizens for punishment that does not
apply to everyone else.
3. TX sodomy laws brands homosexuals as criminals, thereby making it more
difficult for homosexuals to be treated in the same manner as everyone else.
4. Differentiates Bowers holding – Bowers did not hold that moral disapproval of a
group is a rational basis under EPC to criminalize homosexual sodomy, rather it
ruled on the DPC.
5. No Ends: Moral disapproval of a group cannot be a legitimate govt interest
under the EPC b/c legal classifications must not be drawn for the purpose of
disadvantaging the group burdened by the law. Romer.
6. Because TX so rarely enforces is sodomy laws as applied to private, consensual
acts, the law serves as a statement of dislike and disapproval.
(vi) Thomas, Scalia, Rehnquist Thomas dissenting
1. Scalia – the majority opinion “dismantles the structure of the cx’l law that has
permitted a distinction to be made btwn heterosexual and homosexual unions.”
2. “state laws against bigamy, same-sex marriage, adult incest, prostitution,
masturbation
(vii)
Notes:
1. Kennedy examines decisions of the European Crt of Human Rights – which
struck down laws that outlaw same sex sodomy. Was it appropriate to examine
intl tribunals when making domestic decisions?
2. Majority does not rule upon claim for EP, they wanted to make it clear that this
case was explicitly overruling Bowers and finding the law uncx under the DPC.
3. Court strikes down statute but does not find the consensual sex is not a
fundamental right.
4. Crt does not announce test being used, but govt action would not even meet
rational basis.
5. Upon his retirement, Justice Powell sttd he thinks the court got Bowers wrong.
(5) Hawaii Privacy Cases
(a) While the US Const does not contain an explicit right to privacy, the HI Cx does.
(i) Original HI Cx, Art 1, § 7 stated a privacy clause (based on the US Const 4th amend)
1. Tanaka (1985) – ppl have a rx expectation of privacy in their trash
2. Rothman (1989) – police need to obtain a warrant before it uses “pen register” to
record phone number of incoming/outgoing calls. *broader rights than fed govt
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(ii) 1978 Con Con, added HI Const, Art I, § 6
1. The Right of the People to Privacy is Recognized and Shall Not Be Infringed
Without the Showing of a Compelling State Interest. The Legislature Shall Take
Affirmative Steps to Implement This Right.
a. Background: A lot of people in HI at the time thought that the media was
intruding too much into people’s lives.
(b) Most of privacy claims have lost
(c) Right to privacy of information – NO successful claims
(i) Nakano v. Matayoshi (1985) No Right to withhold personal financial information for
county employees
(ii) Painting industry v. Alm (1987) DCCA could not withhold terms of settlement
agreement
(iii) State v. Klattenhoff (1990) – No right of privacy in Bank Records.
(iv) Shapo v. City and County of Honolulu
(d) Right to privacy in the “Autonomy Sense”
(i) Mueller (1983)
(ii) Kam (1989) *Privacy claim prevailed*
(iii) Mccloskey v HPD (1990) Drug testing of police officers
(iv) Doe v. C&C of Hnl (ICA 1991) drug testing of fire fighters
(v) Baehr v. Lewin (1993)
(vi) Mallan (1998)
(vii)
Janra Enterprises v. City and County of Honolulu (2005) (Panoram Booths)
(e) State v. Mueller (1983) [h-83]
(i) Background: Criminal Δ was convicted of prostitution. She claimed that her decision
to engage in sexual activities for hire w/ consenting adults in the privacy of her home
was protected under the right to privacy afforded by the HI Const.
(ii) The HI S. Ct held that engaging in sex for hire with consenting adults in the privacy
of one’s home is not a fundamental right protected by the right of privacy protected
by the State or Federal Const.
1. The HI Cx’s explicit right to privacy, art. I, § 6, does not necessarily create a
broader right of privacy than the U.S. Cx. While the proposal envisioned a
broader right to privacy, what was explicitly approved is similar to the privacy
right set out in Griswold, Eisenstadt, and Roe.
2. Looking at the line of cases discussing the right to privacy, the Court has
extended the privacy right only to marriage, procreation, contraception, family
relationships, and child rearing and education.
3. Based on previous cases, the decision to engage in sex for hire is not part of the
fundamental right to privacy since it is not a right “implicit in the concept of
ordered liberty.”
4. Difference between sex with and without money.
a. Court looks to public policy which, throughout history, has criminalized
prostitution. Rxs – disease prevention, innocent women from exploitation,
organized crime. And even though the reasons given are “not convincing”
(fn 6, pg 89), the burden here was on the Δ to prove that prostitution was a
fundamental right but she didn’t meet that burden.
(f) State v. Kam (1989) [right to view porn in privacy extends to right to buy porn] [h-93]
(i) Background: Clerks at adult bookstores were convicted for selling adult magazines
per HRS § 712-1214(A). Clerks challenged the statute as violative of the right to
privacy under the HI Cx. Kam claims standing for customers, based on the notion
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that his customers have a right to view porn in their homes and, that criminalizing the
purchase/sale of porn inhibits this right of privacy.
(ii) Know for now that obscenity (offensive explicit sexual material) can be prohibited
b/c no 1st Amendment protections.
(iii) Issue: Whether the right to own porn, also violates the right to obtain porn?
(iv) The HI Supreme Court struck down the statute.
1. Privacy right extends to owning pornography: The Court, relying on Stanley v.
Georgia, acknowledged a fundamental right to own and view pornographic
material in the privacy of one’s home. (The Court does not say the privacy right
extends to purchasing it).
2. HI goes beyond the Stanley - makes it okay to purchase porn and take it home.
3. Strict scrutiny applies:
a. HI Cx’s right to privacy affords much greater privacy rights than the
federal right to privacy.
b. Under the HI Cx, the State must show a “compelling interest” before it may
intrude into those “certain highly personal and intimate affairs of a person’s
life.”
c. The personal decision to read or view pornographic material in the privacy of
one’s own home is protected by the HI Const.
4. End: No effect on public
a. The Court noted that reading or viewing pornographic material in the
privacy of one’s home in no way affected the general public’s rights.
b. The state cannot demonstrate a compelling interest to prohibit the sale of
pornographic material.
5. Mueller distinguishable: In Mueller, prostitution was not protected by the right to
privacy, so the govt didn’t have to prove a compelling state interest.
6. Question: This court says HI CX gives broader rights, while Mueller says NO.
7. Notes:
a. combines free expression + privacy
(g) Baehr v. Lewin (1993) [same-sex marriage]
(i) Held: Crt held that the right to marry a person of one’s own sex is protected under
HI’s right to privacy, but it violated the EPC.
(ii) Analysis:
1. Marriage is an event linked to procreation. Turner v. Safley [540] (right of
prisoners to marry). Same-sex couples cannot procreate
2. Not rooted in the traditions and collective conscious of our people or implicit in
the concept of ordered liberty.
(iii) Does the Cx protect the “right to marriage?”
1. Loving – right to marry someone of a difference race. EP + fundamental right to
marry.
2. Zablocki v. Redhail (1978) – right to marry for deadbeat dads.
3. Turner v. Safley (1987) – right of a prisoner to marry
(h) State v. Mallan (1998)
(i) Background: Mallan convicted of promoting a detrimental drug in the 3rd degree
when he was arrested in the p/lot of the Shell after police smelled marijuana burning
and found a roach in his car. Mallan claimed that he was “pursing [his] sense of
happiness and that it would enhance my appreciation of the music. . . I thought I was
in privacy.”
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(ii) The court upholds the statute
1. “ . . . the purported right to possess and use marijuana is not a fundamental right
and a compelling state interest is not required.”
(i) Janra Enterprises
(i) Background: Suzie’s has booths to watch erotic materials. City passed ordinance to
remove door from booths.
(ii) Held: NO right to privacy in public commercial place.
(j) Reviewing right to privacy claims
(i) Is the activity a “fundamental right,” i.e., is it “rooted in the traditions and
collective conscience of our people” and “implicit in the concept of ordered liberty.”
(ii) Mueller / Baehr approach: focuses on “personal decisions relating to marriage,
procreation, contraception, family relationships, and child rearing and education”.
(iii) Stanley / Kam approach: focuses on right to privacy in the (1) home and the fact
that (2) freedom of speech and freedom of the press are strongly implicated.
(iv)Right to privacy includes
1. personal autonomy
2. to dictate one’s own lifestyle
3. to be oneself
4. to make a fool of oneself
5. make decisions
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(6) The Right to Die
(a) Washington v. Glucksberg (1997)
(i) Background: A Washington statute made physician-assisted suicide a felony. Several
doctors who treated terminally ill patients, three terminally ill patients, and
Compassion in Dying, brought a suit challenging the statute. The Court of Appeals
held the statute unconstitutional as applied to terminally ill, mentally competent
patients.
(ii) The majority of the Court, per Rehnquist, reversed the Court of Appeals upholding
statute
1. The expansion of the concept of substantive due process should be exercised with
the “utmost care.” Rehnquist articulated a two-step test for SDP analysis.
a. The DPC protects fundamental rights and liberties which are, objectively,
i. “deeply rooted” in history and tradition, and
ii. “implicit in the concept of ordered liberty”
iii. such that “neither liberty nor justice would exist if they were sacrificed.
b. There must be a “careful description” of the asserted fundamental liberty
interest.
2. Rehnquist’s formulation of the issue: The “careful description” of the liberty
interest here is whether there is a “right to commit suicide which itself
includes a right to assistance in doing so.”
3. There is no fundamental right to die
a. There is a consistent and almost universal tradition of rejecting the
asserted right. The asserted right did not come close to being “deeply
rooted” in this Nation’s history and tradition. Therefore, there is no
fundamental “right” to assistance in committing suicide.
i. Cruzan distinguishable: In Cruzan, the Court recognized a
constitutionally protected liberty interest in refusing unwanted medical
treatment. However, that right has long been afforded legal protection
(e.g., battery – unwanted medial treatment could be seen as battery by
the medical care giver to the patient).
ii. Casey distinguishable: Casey does not say that any and all important,
intimate, and personal decisions are protected by the DPC.
4. The state’s interest in regulation was “rational”
a. Protecting the vulnerable: The state had an interest in protecting vulnerable
groups from abuse of physician-assisted suicide, and from societal prejudice.
The state’s ban on suicide reinforced the policy that the lives of the
terminally ill, disabled, and elderly people are no less valuable than healthy
people.
b. Slippery slope: The state could rationally fear that legalizing physicianassisted suicide would set it down a slippery slope towards voluntary and
involuntary euthanasia.
(iii) O’Connor’s concurrence: There is no generalized right to commit suicide, but there is
the possibility that a terminally-ill patient suffering great pain might have a limited
right to have a physician prescribe medication to alleviate that suffering, even where
this would hasten death.
(iv) Stevens’ concurrence: Stevens concurred with the result, but not with the majority’s
reasoning. The liberty interest protected by the DPC does not include the categorical
right to commit suicide, which includes a right to assistance in doing so. But, there
are times when the right to commit suicide is entitled to constitutional protection.
1. Broader view of Cruzan: To Stevens, Cruzan established the principle that
“some individuals who no longer have the option of deciding whether to live or
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to die because they are already on the threshold of death have a constitutionally
protected interest that may outweigh the State’s interest in preserving life at all
costs.” That interest is in deciding how, rather than whether, a critical threshold
shall be crossed.
2. Facial v. as applied challenge: Just because the statute was not facially invalid
doesn’t mean it is valid in all circumstances. There may be situations in which
the interest in hastening death is legitimate.
(v) Souter’s concurrence: Concurring in result only, Souter would apply a different test
for determining whether the statute violated substantive due process. The test is
whether the statute sets up “one of those ‘arbitrary impositions’ or ‘purposeless
restraints’ at odds with the Due Process Clause.” If a statute did this, it would violate
due process even if it didn’t burden a fundamental interest, and even if it wasn’t
wholly irrational. Like a sliding scale approach to due process.
(vi) Breyer’s concurrence: Breyer concurred with the result only. He would reformulate
the liberty interest as the “right to die with dignity.” At the core of that right is
personal control over the manner of death and the avoidance of unnecessary and
severe physical suffering.
(vii)
Big Picture:
1. Five members of the Court (O’Connor, Stevens, Souter, Ginsburg, and Breyer,
leave open the possibility that an “as applied” challenge to a statute banning
physician-assisted suicide may succeed. They probably didn’t dissent b/c this is a
facial challenge.
2. Currently, states are free to permit assisted suicide if they want to.
3. In a companion case, Vacco v. Quill, the Court upheld a statute which
distinguished between active physician assistance to terminate a patient’s life and
the removal of life support with the same purpose and effect. The Court applied
equal protection analysis. Per Glucksberg, the right to die was not fundamental.
Therefore, the statute was subject to rational review, which it easily survived-there is a rational distinction between prohibiting intentional killing and
preserving life, preventing suicide and maintaining a physician’s role as healers
of patients..
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V. Procedural Due Process – Dean Soifer
A. Two steps: 1) whether any procedures at all are required by DP and 2) what procedures are due.
B. Generally
(1) “. . . nor shall any State deprive any person of life, liberty, or property, without due process
of law. . .
(2) Why is PDP important? Two central concerns of PDP (Jerrico, (1980)):
(a) Utilitarian value: the govt should not deprive a person of an important interest unless the
correct understanding of the facts and the law allows it to do so. (helps ensure that the
govt determines the truth and makes the correct decision). *relates to actuality of justice
(b) Dignitary Value: to give the aggrieved party the sense that the claim is being heard by
neutral decisionmaker and that justice is being done – giving the victim his or her day in
court. *relates to appearance of justice.
(c) These values sometimes lead to different results re the amt of ‘process” that is “due”?
(3) When must the government provide DP? Are any procedure at all reqd by DP?
(a) When an individual is being deprived of a right or statutory entitlement. Application of
rule. e.g. Tax
(b) Legislative promulgation does not require PDP. Leg is not required to conduct
hearings.
(c) Bi-metallic Investment Co. v. State Board of Equalization (1915) [593]
(i) Individualized fact-determinations are usually subject to some DP requirements.
When an individual is being deprived of a right or state entitlement – adjudicative
decision making – contested cases.
(ii) Not Legislative policy decisions. When a leg body is considering a generalized
enactment that may deprive many people of rights or entitlements – legislative
decision making.
(iii) Example: in passing a tax statute the leg does not have duty to conduct hearings,
however if imposing the tax – the tax payer must be given some oppty to establish
that she does not fall w/in requirement. e.g. tax payer can prove she does not own >
one car and therefore is not subject to the tax.
(4) Components of due process are:
(a) Having an understood rule
(b) Giving notice
(c) Hearing, if applies to an individual.
(5) Range of procedural protections in a hearing:
(a) Right to a clear rule
(b) Notice of the charges or basis for the government’s decision
(c) Hearing – opportunity to present oral and written evidence – before or after the
government’s action?
(d) Right to counsel
(e) Impartial decision-maker
(f) Right to confront and cross-examine opposing witnesses. (6th amendment)
(g) Right to subpeona evidence
(h) Right to engage in discovery
(i) Is hearsay evidence admissible?
(j) What about circumstantial evidence?
(k) What is the standard of proof?
(l) Who has the burden of proof?
(m) Right to a written decision
(n) Right to a transcript (or tape) of the hearing
(o) Right to appeal.
C. “Liberty” and “Property” – what are protectable property and liberty interests?
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(1) Liberty Interests
(a) Freedom from physical constraints
(b) Political freedoms - speech, association, voting
(c) Autonomy freedoms – privacy, religion, beliefs
(d) Economic freedoms – job, housing, food, welfare??
(e) Reputational interests??
(f) Vitek v. Jones (1980) [602]: Transfer from prison to state mental hospital for treatment
involves a liberty interest b/c of resulting stigma and increased restrictions on action.
(g) Board of Pardons v. Allens [602]: Parole statute created an expectancy of release.
(2) Property Interests:
(a) Physical property – real property & chattels
(b) “New property” – statutory entitlements
(i) franchises
(ii) licenses (i.e., to practice law)
(iii) government jobs
(iv) welfare benefits
(v) hospital privileges (for a doctor)
(vi) faculty tenure at a public university
(vii)
student status at a public university.
(c) What about an applicant for one of the above?
(d) Does it depend on state law or federal law? Federalism issue.
(i) State law is a source of interpreting what is property.
(3) Goldberg v. Kelly (1970) [596]
(a) Background: Welfare recipients challenged the termination of their benefits without a
prior evidentiary hearing.
(b) Brennan’s opinion ruled that the continued receipt of welfare benefits is property whose
deprivation triggers the protections of the DPC. “Such benefits are a matter of statutory
entitlement for persons qualified to receive them. Their termination involves state action
that adjudicates important rights.”
(c) What process is due? “. . . influenced by the extent to which he may be ‘condemned to
suffer grievous loss’ and depends upon whether the recipient’s interest in avoiding that
loss outweighs the governmental interest in summary adjudication.” Crt characterizes the
pre-evidentiary hearing as indispensable.
(d) Balancing Test:
(i) The crucial factor .... is that termination of aid pending resolution over eligibility may
deprive an eligible recipient of the very means by which to live while he waits.
(ii) Important govt interests are promoted by affording recipients a pre-termination
evidentiary hearing. Nation’s commitment to fostering dignity and well-being of all
persons w/in its borders.
(iii) State’s justifications – conservation of fiscal and administrative resources can not
offset other govt interests.
(e) Burger, Black & Stewart Dissent: Disagree with the court’s “made-up” balancing test.
This balancing test is not inherent in the constitution. Black – “fairness” approach,
unmoored to the cx test or intent, were invations to jurocracy.
(4) Board of Regents v. Roth (1972) [597]
(a) Background: Roth was a non-tenured instructor at Wisconsin State University. After a
year, Roth was not rehired and was not given a rx or oppty to challenge the deicison. His
K secured him no rights to employment after its expiration at the time of Roth’s
termination. Roth brought this action alleging (1) insufficient notice/hearing and (2) a
deprivation of a property right in his job along with (3) a deprivation of a liberty interest
to make statements against the University, which he alleged led to his dismissal.
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Applying a balancing test the d/crt granted Roth’s motion for SJ. COA affirmed.
(b) Stewart’s Opinion (Reversed, in favor of board, remanded): Roth did not have a property
interest/right, protected by the 14th amendment PDPC, to a hearing before the interest was
lost. Roth was hired for one year and no more, and he is not deprived of a right because
he was not offered another K. There were no provisions for renewal whatsoever in the K.
Any property right he may have had was explicit in the K. (No liberty deprivation when a
person “simply is not rehired in one job, but remains free as before to seek another”.)
(c) Analysis:
(i) Requirements of PDP apply only to the deprivation of interests encompassed by the
14th Amend’s protection of liberty and property. When protected interests are
implicated, the right to some kind of prior hearing is paramount.
1. To determine whether DP requirements apply in the first place, crt must look to
the nature of the interest at stake, regardless of how strong the Π’s interests are.
2. Boundaries
3. The 14th Amend’s procedural protections of property is a safeguard of the
security of interests that person has already acquired in specific benefits.
4. To have a property interest in a benefit, a person clearly must have more than
an abstract need or desire for it. He must have a legitimate claim of
entitlement to it.
5. Property interests are created and its dimensions defined by existing rules or
understandings that secure certain benefits and that support claims of
entitlements to those benefits. (Goldberg recipients had claims grounded in
statute defining their eligibility). No state statute or University rule secured Πs
interest or claim.
(d) “An employee of a state-operated facility has no property interest in future employment
guaranteed by the Constitution beyond those grated in his employment contract.”
(e) Marshall dissenting:
(f) Notes:
(i) Roth rejects interpretation that “property” in the administrative state might include al
of the many important economic interests flowing from the govt, however does
recognizes that a bona fide expectation of continuing employment arising under state
law is “property.”
(ii) Perry v. Sindermann (1972) [600] Implied Tenure?
1. Test: Whether there is more than unilateral expectation. Realistic belief that his
employment would be renewed.
(iii) Paul v. Davis (1976) [602]: the Π’s interest in his reputation, by itself, was not a
constitutionally protected liberty or property interest.
(iv) Whether state law creates an “entitlement?”
1. Bishop – police officer held job at will of city despite being classified as
“permanent employee.”
2. Goss – school children were deprived of property interest by their temporary
suspension from school b/c state law stated that students could be suspended only
for “misconduct.”
(5) Cleveland Board of Ed v. Loudermill (1985) [601] *How much process is due?
(a) Background: employee fired by school board contended that he should have been
granted a pre-termination hearing.
(b) Rule: If the entitlement under state law is shown, then property is present and PDP
applies non-withstanding any procedural conditions found in the employee’s K.
(c) Analysis:
(i) Whether he had a “property interest” for PDP?
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1. Yes bc OH statutes provided that “classified civil service employees” were
entitled to retain their positions “during good behavior and efficient service” and
could only be dismissed for “misfeasance, malfeasance, or nonfeasance in the
office.”
(ii) Whether the procedures accorded complied w/PDP? NO.
1. Even though the statute purported to specify the procedures for termination, The
crt considered it irrelevant that the school board followed the statutory
procedures.
2. The DPC provides that certain substantive rights – life, liberty, and property –
cannot be deprived except pursuant to constitutionally adequate procedures.
3. While the leg may elect not to confer a property interest in public
employment, it may not constitutionally authorize the deprivation of such an
interest, once conferred, w/out appropriate procedural safeguards.
D. “What Process is Due?” – what procedures are reqd by DP? Prior hearing reqd?
(1) Matthews. V. Eldridge (1976) [604]
(a) Background: (not stated in casebook)
(b) Powell’s Opinion: DPC does not require that prior to the termination of Social Security
disability benefit payments the recipient be afforded an opportunity for an evidentiary
hearing. A recipient is given a hearing after termination of benefits and if he prevails, he
is grated full retroactive relief. Thus, the sole property interest is in the uninterrupted
receipt of this source of income pending final administrative decision on his claim.
(c) Distinction from Goldberg: The court held that an evidentiary hearing was required prior
to the deprivation of welfare benefits. Welfare benefits differ from disability benefits
because welfare benefits was given to persons “on the very margin of existence” while
disability benefits are not based on financial need. The interest however of an individual
in receipt of disability benefits is a statutorily created property interest protected by the
5th amendment, but the administrative procedures followed by the SS Dept provide all the
process that is constitutionally due before a recipient can be deprived of a property
interest. All that is necessary is that the procedures be tailored, in light of the decisions to
be made, to the “capacities and circumstances of those who are be heard,” Goldberg to
insure that they are given a meaningful oppty to present their case.
(d) Issue: Whether admin procedures provided are constitutionally sufficient requires
analysis of the govt and private interests that are affected?
(e) Three factor balancing test:
(i) Private interest that will be affected by the official action
(ii) Risk of erroneous deprivation of such interest through procedures used, and the
probable value, of addtl or substitute procedural safeguards
(iii) Govt’s interest, including the function involved and the fiscal and administrative
burdens that the addtl or substitute procedural req would entail.
(f) Application in Mathews:
(i) Lower Stake: Unlike, welfare payments at issue in Goldberg, the disability payments
were less likely to be the individual’s sole source of income, so his stake was lower.
The beneficiaries have other sources such as welfare, etc…
(ii) Value of safeguard: Second, the value of an evidentiary hearing was less than in
Goldberg, because the disability issue turned upon a medical assessment of the
worker’s physical or mental condition, which assessment could probably be
evaluated through written documents rather than oral testimony.
(iii) Burden of govt: The burden of supplying a full administrative hearing was likely to
be substantial, and the cost of it may in the end come out of the pockets of the
deserving beneficiaries since resources available for any particular program of social
welfare are not limited.
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(g) Notes:
(i) Goldberg indicates that the possible length of wrongful deprivation of .. benefits is
also an imp factor in assessing the impact of official action. Secretary conceded in
this case that the delay may be > one year.
(ii) Ultimate balance involves a determination as to when, under our constitutional sysm,
judicial-type procedures must be imposed upon administrative action to assure
fairness.
(iii) Law School Case: In the early 1980s
1. Unprofessional Conduct … illegal conduct … dishonesty, fraud … otherwise
adversely reflects on the fitness….
(2) Dignitary Cases
(3) Educational Cases
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VI. Cases or Controversies: Standing
A. Article 3, Section 2: The judicial power shall extended to all cases, in law and equity, arising
under this Constitution, the laws of the US, and treaties made, or which shall be made, under their
authority;
(1) --to all cases affecting ambassadors, other public ministers and consuls;
(2) --to all cases of admirality and maritime jurisdiction;
(3) --to controversies to which the US shall be a party;
(4) --to controversies between two or more states;
(5) --between a state and citizens of another state;
(6) --between citizens of different states;
(7) --between citizens of the same state claiming lands under grants of different states, and
between a state, or the citizens thereof, and foreign states, citizens or subjects.
B. Article III: Judicial Power extends only to “Cases” or “Controversies” enumerated in § 2.
(1) Federal courts will not issue advisory opinions but will require (1) an actual case/controversy
(2) between adversary parties before invoking their Art III powers..
C. Case or Controversy Requirement
(1) No advisory opinions [note some STATES do allow for advisory opinions]
(a) Arguments against
(i) Issues are abstract
(ii) No lower court decisions
(iii) May not have adverse briefing
(iv) Intrudes judiciary into leg process.
(b) Argument for
(i) Resolves uncertainty about rights and obligations
(ii) Money does not need to be spent unnecessarily.
(c) Example: 1793 Exchange of Letters
(i) French were seizing British ships, taking them into US ports, and transforming them
into French ships. President Washington was concerned. He wanted to maintain US
neutrality, and wanted to keep the French out of the US ports. He submitted a series
of questions to the SC Justices regarding the principles of international law that
governed the situation. Should the Justices have answered the questions?
1. Pres isn’t without another source for advice but wanted a definitive answer.
2. Harm is in extending judicial power.
3. Evidence/record is “one-sided.”
4. No opinions from lower court
(2) Standing
(a) Components
(i) Injury
(ii) Causation
(iii) Redressibility.
(b) Baker v. Carr: “A litigant must have “a personal stake in the outcome of a controversy as
to assure that concrete adverseness which sharpens the presentation of issues upon which
the Court so largely depends for illumination of difficult constitutional questions.”
(c) 3-part test
(i) Actual “injury in fact”
(ii) Causation – the injury must have resulted from the other party’s conduct
(iii) The injury in like to be redressed by the judicial relief sought.
(d) Allen v. Wright
(i) Background: In an effort to curb racially discriminatory practices in private schools,
the Internal Revenue Code denies tax-exempt status to schools which promote such
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practices. The Code also prohibits individuals from making tax-deductible donations
to private schools which racially discriminate. Inez Wright and others filed a
nationwide class action suit arguing that the IRS had not fulfilled its obligations in
enforcing these provisions of the Code, and thus, that government was subsidizing
and encouraging the expansion of segregated education in private schools. This case
was decided together with Reagan v. Wright.
(ii) Issue: Did the IRS shirk its enforcement duties and encourage private schools to
racially discriminate, thus, harming desegregation efforts in the nation's public
schools?
(iii) Opinion: The Court found that the circumstances involved in this case did not
warrant federal-court adjudication. Justice O'Connor's opinion argued that the Court
could not act since the injuries that the suit identified were not "judicially cognizable"
and because they were not "fairly traceable to the assertedly unlawful conduct of the
IRS." Citing past precedents, O'Connor found that, by itself, an assertion that the
government is not acting in the bounds of the law is not enough to bring a suit to a
federal court. To allow so would open the door to a myriad of legal challenges in
which the courts would become buried by the minutiae of governing, acting as
"continuing monitors of the wisdom and soundness of Executive action."
(iv) Components of Standing:
1. Actual injury
a. How does the continuation of these schools harm the Ps?.
2. Causally linked to the gov’t failure to act
a. It was a general grievance
i. Should court take on “generalized grievances?
3. Like to be redressed?
a. Maybe some schools would go out of business, but they may very well
survive by other means.
(v) Brennan’s Dissent: “More than one commentator has noted that the causation
component of the court’s standing inquiry is no more than a poor disguise for the
Court’s view of the merits of the underlying claim.”
(e) Frothingham v. Mellon [Taxpayer Standing]
(i) Taxpayers do not have a sufficient injury, because their loss is too general, and even
if they win their taxes will almost certainiliy remain the same
(ii) Exceptions: State cases (is the taxpayer loss less general
1. Flast v. Cohen: Challenges to expenditures in violation of the Establish Clause
a. High-water mark of the Warren Court where court was interested in
regulation.
(iii) 9th circuit taxpayer standing: seems that state taxpayers can challenge state programs
1. HI Const doesn’t have the US-const language limiting judicial power to
“Cases/Controversies.”
a. In fact, Art XI, Sec 9 allows for public interest standing (everyone has right
to clean and healthful environment.)
b. Also, under HRS Sec. 11-172, any 30 voters can challenge any election at the
SC level. Logic? Important to have elections be settled and thus the
allowance of this expedited proceeding.
2. Ho’ohuli v. Ariyoshi
a. Background: 11 residents of HI and the Tax payers Union brought an action
against Ariyoshi re: non 50% Hwns benefiting from 50% Hwn programs.
Court held that they had standing.
3. Barrett and Carroll: Challenges to OHA and DHHL arguing that they violated
constitution but neither articulated injury. Carroll’s DHHL claim dismissed
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because US gov’t is party in that they estab’d DHHL and they have sov
immunity.
4. Arakaki v. Lingle
a. At issue is whether the group of 16 Ps have standing as taxpayers and have
suffered specific legal injuries because tstate land and money is being used to
pay fro programs for Hws offered by the OHA and the state DHHL, the Ds
in the case.
5. Life of the Land v. Land Use Comm’n (1981)
a. “Our touchstone remains the needs of justice.” “[S]tanding requirement
should not be barriers to justice”
b. Since this, SC has gotten more technical and is looking to the 3-elements of
the fed test.
(f) NFC of Asssociation Gen Contractor’s of America v. Jacksonville
(i) Non-minority contractors challenged the bity’s 10% set-aside requirement for MBE.
Do they have standing? Do they have to prove “but-for” causesation?
(ii) TEST: Any member of a group disadvantaged by a barrier established by gov’t is
injured by the denial of equal treatment and thus hads standing to challenge the
program. But Ps must still be “able and ready” to take advantage of the program they
are challenging.
(iii) Court waters down the threshold for affirm action cases because want to hear as long
as P was disadvantaged by a barrier = reduced threshold.
(g) Raines v. Byrd
(i) Background: Several individual members of the 104th Congress, who voted against
the passage of the Line Item Veto Act (Act) giving the President authority to veto
individual tax and spending measures after having signed them into law, sued to
challenge the Act's constitutionality. After granting them standing, the District Court
ruled in the congressmen's favor as it found the Act unconstitutional. Direct appeal
was granted to the Supreme Court.
(ii) Issue: Did the congressmen have Article III standing to challenge the Line Item Veto
Act as a violation of the Presentment Clause in Article I?
(iii) Opinion: No. In a 7-to-2 decision, which avoided the question of the Act's
constitutionality, the Court held that the individual congressmen lacked proper
Article III standing to maintain their suit. The Court explained that the congressmen
failed to show how the allegedly unconstitutional Act resulted in their personal
injury, since it applied to the entire institution of Congress. Moreover, the
congressmen based their claim on a loss of political power rather then a
demonstration of how the Act violated one of their particularized legally protected
interests. The Court concluded that, having failed to meet both of these standing
requirements, the congressmen did not present the Court with a case-or-controversy
over which it had jurisdiction.
(3) Ripeness
(a) Specific fact situation required.
(4) Mootness
(a) Court must be able to remedy injury
(b) Exception: “Capable of repetition, yet evading review”
(c) What about “voluntary cessation?”
D. Misc sections under which potential claims could be made
(1) Art I, Sec 6 P 2: Legislator cannot take another gov’t job in office IF that job was either
created while he was in office or the job’s salary was increased by he was in office.
(2) Art I, Sec 9, P 8: “No Title of Nobility shall be granted by the US. . .”
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(3) 1st Amendment Rights (SPEECH) (w/Dean Soifer)
(a) Essential Reason for inclusion of 1st amend discussion into curriculum
(i) Does 1st amendment represent a special category where court should give higher
scrutiny to 1st amendment issues.
(b) Text: 1st Amend: Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the government for a
redress of grievances.
(i) “Congress”: also applies to executive branch, judiciary and states
(ii) “No law”: some regulations of speech are justified
(iii) “Of speech, or of the press”: applies to other forms of communication beyond oral
and printed.
(c) History
(i) Comes to the forefront in Gitlow.
1. Threshold issue: Does the 1st amendment apply to the states? Yes, by virtue of
the liberty protected by due process that no state shall deny (14th Amendment).
On the merits, a state may forbid both speech and publication if they have a
tendency to result in action dangerous to public security, even though such
utterances create no clear and present danger. The rationale of the majority has
sometimes been called the "dangerous tendency" test. The legislature may decide
that an entire class of speech is so dangerous that it should be prohibited. Those
legislative decisions will be upheld if not unreasonable, and the defendant will be
punished even if her speech created no danger at all.
(ii) What gets protected?
1. Religion: has been interpreted to mean “separation of church and state.”
2. Speech: not necessarily jus the “act of speaking.”
3. Press: evidences value of a complete, unfettered, gamut of information being
disseminated throughout society.
4. Assembly:
5. Petition gov’t for redress of grievences.
(iii) Text
1. Is the text clear enough to articulate/explain the applicability of the 1st
amendment and what exactly it protects? Not necessarily.
(iv) Definitions
1. Have changed over time
a. Commercial speech not originally protected, now protected
b. Definition of obscenity has changed over time
(v) Content, Regulation v. time, place, & manner (specialized EP)
(vi) Cases
1. US v. O’Brien
a. Background: David O'Brien burned his draft card at a Boston courthouse. He
said he was expressing his opposition to war. He was convicted under a
federal law that made the destruction or mutilation of drafts card a crime.
Was the law an unconstitutional infringement of O'Brien's freedom of
speech?
b. Rule: 4-prt test: If gov’t interest is unrelated to the freedom of speech and the
restriction on 1st amendment is incidental and this restriction is no greater
than is essential to the furtherance of that interest, the regulation is justified.
c. Warren’s opinion: Law was not unconstitutional. The 7-to-1 majority,
speaking through Chief Justice Earl Warren, established a test to determine
whether governmental regulation involving symbolic speech was justified.
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The formula examines whether the regulation is unrelated to content and
narrowly tailored to achieve the government's interest. "[W]e think it clear,"
wrote Warren," that a government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers an important
or substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidential restriction on
alleged First Amendment freedoms is not greater than is essential to the
furtherance of that interest."
2. Schenck v. US
a. Background: During World War I, Schenck mailed circulars to draftees. The
circulars suggested that the draft was a monstrous wrong motivated by the
capitalist system. The circulars urged "Do not submit to intimidation" but
advised only peaceful action such as petitioning to repeal the Conscription
Act. Schenck was charged with conspiracy to violate the Espionage Act by
attempting to cause insubordination in the military and to obstruct
recruitment.
b. Holmes’ Opinion, upholds conviction: (question of proximity and degree and
context) “ . . . the character of every act depends upon the circumstances in
which it is done. ***The question in every case is whether the words used
are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree.”
3. Abrams v. US
a. Background: The defendants were convicted on the basis of two leaflets they
printed and threw from windows of a building. One leaflet signed
"revolutionists" denounced the sending of American troops to Russia. The
second leaflet, written in Yiddish, denounced the war and US efforts to
impede the Russian Revolution. The defendants were charged and convicted
for inciting resistance to the war effort and for urging curtailment of
production of essential war material. They were sentenced to 20 years in
prison.
b. Issue: Do the amendments to the Espionage Act or the application of those
amendments in this case violate the free speech clause of the First
Amendment?
c. Clarke's majority opinion: the amendments to the Espionage Act or the
application of those amendments in this case do not violate the free speech
clause of the 1st Amend. The act's amendments are constitutional and the
defendants' convictions are affirmed. In Clarke's majority opinion, the
leaflets are an appeal to violent revolution, a call for a general strike, and an
attempt to curtail production of munitions. The leaflets had a tendency to
encourage war resistance and to curtail war production. Holmes and Brandeis
dissented on narrow ground: the necessary intent had not been shown. These
views were to become a classic libertarian pronouncement.
d. Dissent (Holmes and Brandies): Based on Holmes’ Schneck opinion, the
speech is only protected if not effective.
i. If you thinks its not having power, then you are saying something about
your own position. (Honorability of passion for a cause.)
ii. “ . . . the best of truth is the power of the thought to get itself accepted in
the competition of the market, and that truth is the only ground upon
which their wishes safely can be carried out.”
iii. “While that experiment is part of our system I think that we should be
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eternally vigilant against attempts to check the expressions of opinions
that we loathe and believe to be fraught with death, UNLESS . .
 TEST: “they so imminently threaten immediate interference with the
lawful and pressing purposes of the law that an immediate check is
required to save the country.”
4. Whitney v. CA
a. Background: Charlotte Anita Whitney, a member of the Communist Labor
Party of California, was prosecuted under that state's Criminal Syndicalism
Act. The Act prohibited advocating, teaching, or aiding the commission of a
crime, including "terrorism as a means of accomplishing a change in
industrial ownership. . .or effecting any political change."
b. Opinion: The Act did not violate DP norEP. In a unanimous decision, the
Court sustained Whitney's conviction and held that the Act did not violate the
Constitution. The freedom of speech guaranteed by the First Amendment was
not an absolute right. The Court argued "that a State. . .may punish those who
abuse this freedom by utterances. . .tending to. . .endanger the foundations of
organized government and threaten its overthrow by unlawful means" and
was not open to question. The decision is most notable for the concurring
opinion written by Justice Brandeis, in which he argued that only clear,
present, and imminent threats of "serious evils" could justify suppression of
speech.
5. Dennis v. US
a. Background: In 1948, the leaders of the Communist Part of America were
arrested and charged with violating provisions of the Smith Act. The Act
made it unlawful to knowingly conspire to teach and advocate the overthrow
or destruction of the United States government. Party leaders were found
guilty and lower courts upheld the conviction.
b. Opinion: Upheld convictions. In a 6-to-2 decision, the Court upheld the
convictions of the Communist Party leaders and found that the Smith Act did
not "inherently" violate the First Amendment. In the plurality opinion, the
Court held that there was a distinction between the mere teaching of
communist philosophies and active advocacy of those ideas. Such advocacy
created a "clear and present danger" that threatened the government. Given
the gravity of the consequences of an attempted putsch, the Court held that
success or probability of success was not necessary to justify restrictions on
the freedom of speech.
6. Brandenburg v. Ohio
a. Background: Brandenburg, a leader in the Ku Klux Klan, made a speech at a
Klan rally and was later convicted under an Ohio criminal syndicalism law.
The law made illegal advocating "crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing industrial or political
reform," as well as assembling "with any society, group, or assemblage of
persons formed to teach or advocate the doctrines of criminal syndicalism."
b. Rule: The constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force or of law
violation except
i. Where such advocacy is directed to inciting or producing imminent
lawless action, and;
ii. Is likely to incite or produce such action.
Opinion: The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free
speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is
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"directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such
action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring
whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to
make this distinction rendered the law overly broad and in violation of the Constitution.
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