Constitutional Law II Outline
I.
The Fourteenth Amendment
a. All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
b. The 14th amendment directly implicates the states through its language “no State
shall”
c. Privileges and Immunities Clause
i. No substantive rights contained within the clause
ii. Slaughterhouse Cases
1. Where LA wanted to give monopoly to one slaughterhouse and Ps
sued under 13th, all 3 clauses of 14th
2. Under this clause, Ps argued they have right to work and pursue
their own profession, but USSC held that the clause only protects
the privileges and immunities guaranteed by the United States and
not by the individual states. The rights guaranteed by the United
States are very limited and historically do not include civil rights.
iii. Strauder
1. Held that WV could not prohibit blacks from serving on juries, that
the 14th Amendment protects against racial discrimination
2. Reversed by Plessy
d. Equal Protection Clause
i. “…nor deny to any person within its jurisdiction the equal protection of
the laws.”
ii. Desegregation
1. Plessy’s shaky foundation rested on whether or not the segregation
policy in dispute was rational, ignores constitutional right given by
14th amendment and settles for the “separate but equal” rationale
2. Brown I
a. Held segregation in schools was unconstitutional,
effectively overturns Plessy
b. Public schools were different in 1868; can’t look at that and
consider 14th’s intended effect on education
c. Can’t focus on equalization within schools, but segregation
generates feelings of inferiority, stigma impacting AA
d. Separate but equal is always wrong because even if they are
equal, being separate creates stigma
3. Bolling
a. 14th doesn’t apply to DC, so how does it get EP?
b. Due Process of 5th Amendment—implicit EP clause
4. Brown II
a. Desegregate with “deliberate speed” overseen by federal
courts
5. Loving
a. Violation of Equal Protection clause to say no interracial
marriage; based inherently on racial discrimination, no
“protecting both races” rationale
b. Just because both races are treated equally does not defeat
14th Amendment: NO RACIAL QUALIFICATIONS ARE
ALLOWED
c. With Brown, in essence, the government prohibits through
the 14th Amendment discrimination based on explicit race
classifications
6. Yick Wo
a. A neutral legal rule or regulation violates EP if it has a
disparate impact on different races AND some evidence of
a larger intent to do so is involved
b. Facially neutral law discriminating against the type of dry
cleaning building you can have disparately impacted
Asians
c. Two kinds of EP protection you get:
i. Equal laws that facially treat you equally
ii. Equal treatment under those laws in their
application
7. Washington v. Davis
a. DISPARATE IMPACT TEST
i. Where a test to become a police officer was not
facially discriminatory policy but had a disparate
impact on one race
ii. Disparate impact is NOT enough to trigger EP
violation
iii. A law or regulation is not unconstitutional solely
because it has a racially disproportionate
impact; there MUST be some sort of
discriminatory purpose underneath the neutral
language
iv. Disparate impact alone does NOT trigger strict
scrutiny (de jure discrimination is always wrong,
but de facto discrimination needs more)
v. Discriminatory purpose need NOT be express or
appear facially in the statute
iii. Sex Discrimination
1. Reconciling intention of 14th Amendment to prohibit race
discrimination expands into sex discrimination (Bradwell tried to
use Privileges and Immunities to be allowed to practice law,
wrong)
2. Minor—Privileges and Immunities doesn’t give you right to vote
either (15th)
3. Virginia
a. Intermediate scrutiny applied here where VMI was not
allowed to exclude women nor create an exclusively female
school to adequately remedy the situation
b. VMI needed an “exceedingly persuasive” justification for
the discriminatory policy
c. Tried to say post hoc that they were excluding for
diversity’s sake; can’t post hoc rationalize under
intermediate, strict scrutiny, or rational basis scrutiny for
purposes of litigation!
iv. Other EP Cases
1. Buck and sterilization of mentally ill was height of eugenics
2. Kotch says nepotism isn’t prohibited by 14th Amendment
e. Due Process Clause
i. Procedural Due Process
1. Remember, there’s a due process clause in 5th Amendment, it just
doesn’t expressly apply to states
2. Calder
a. Wonders if there are certain processes naturally required
that are not in Constitution
3. Mathews
a. Where DPC does not require that a recipient of SS
disability benefits gets a hearing prior to termination
b. Procedural DP imposes constraint on government decisions
which deprive individuals of liberty or property interests
within the meaning of the 14th Amendment
c. Fundamental requirement of procedural DP is “the
opportunity to be heard at a meaningful time and in a
meaningful manner”
d. See 3-factor test for what constitutes adequate process in
“Tests” section!
e. Court concluded: P had a private interest in uninterrupted
SS payments; P’s risk of government error and added value
of new safeguards was low because the decision was based
on narrow info and can be paid back timely if wrong
(additional regulations add no value); government interest
was high as the # of hearings would skyrocket and be $$$
ii. Substantive Due Process
1. Know that Lochner exists but is not the law
a. “Is this a fair, reasonable, and appropriate exercise of the
police power of the state, or is it an unreasonable,
unnecessary, and arbitrary interference with the right of the
individual to his personal liberty . . .” was too broad!
2. Griswold and Eisenstadt
a. There are certain, non-express, unenumerated rights that
emanate from the liberties guaranteed in the Bill of Rights;
from these penumbras you get emanations of unlisted
rights, such as a more general right to privacy
b. Add up the 3rd, 4th, 5th, 9th amendments to get this privacy
right
c. Married couples can use contraceptives because marriage
falls within this zone of privacy where the State cannot
intrude
d. Goldberg concurrence in Griswold says in order to decide
what’s included, must look to “traditions and collective
conscience of people”
e. So there’s no particular source for holding in Griswold or
Eisenstadt—just the penumbras (early stages of SDP)
3. Abortion
a. Roe v. Wade
i. Three legitimate reasons TX could’ve enacted law
banning abortion unless mother in danger:
discourage illicit sex, protect women from
dangerous medical procedure, or protecting prenatal
life
ii. TX didn’t answer question of whether life begins at
conception, something no one can pinpoint
iii. Can’t completely deny abortion but no absolute
right
iv. Fetus is NOT = to person under 14th Amendment;
would make abortion illegal, no precedent
v. State’s compelling interest starts at viability (where
that was depended on trimester framework which
has been overruled)
vi. Less access to abortion in this day and age than
there was in the past—collective conscience leads
us here
vii. Doesn’t state specifically if privacy right is in SDP
14th or 9th or penumbras—just know that its there
b. Planned Parenthood v. Casey
i. Holding: (1) a woman has the right to choose to
have an abortion before viability and to obtain it
without undue interference from the state; (2) a state
may restrict abortions after fetal viability as long as
it passes a law that exempts pregnancies that
endanger the woman’s life or health; and (3) a state
has legitimate interests from the outset of the
pregnancy in protecting the health of the woman
and the life of the fetus.
ii. Front and center is stare decisis (connects with
Lawrence)
iii. Two paths to justify an unenumerated SDP right:
1. Casey path – Mysteries of Life
a. Heart of liberty = defining one’s own
concept of existence, government
can’t compel that (there are limits)
2. History and Traditions path
iv. There is a right to an abortion in SDP; not about
narrowing liberty to its conception at the time 14th
amendment was ratified
v. Adjudicating SDP, USSC uses “reasoned judgment”
vi. Abortion involves others but women are ultimate
arbiters; overturns trimester framework in Roe, but
says even if Roe was wrong in its central holding,
people have ordered their lives around it and there’s
a strong reliance interest at stake
vii. Not like overruling Plessy; the cases overturning it
rested on facts that were different than what the
earlier decisions rested upon, and now we
understand the world better (terrible price to pay if
we didn’t overrule, similar to the price paid if Roe
would be overturned, especially in USSC image)
viii. Keeps informed consent, parental consent (with
judicial bypass), and outlaws spousal consent
4. Glucksberg
a. Held that a state may outlaw physician-assisted suicide
without violating the Fourteenth Amendment
b. The Glucksberg standard for arriving at SDP is through
History and Traditions; two step analysis in determining
whether a fundamental right exists:
i. (1) whether the right is objectively, deeply rooted in
U.S. history and tradition and implicit in the
concept of ordered liberty such that neither liberty
II.
nor justice would exist if the right is sacrificed; and
(2) whether a careful description exists of the
fundamental liberty interest.
5. Same-Sex Intercourse and Marriage
a. Lawrence
i. DPC of 14th Amendment includes a right to liberty
in individual decisions regarding the intimacies of
their physical relationship
ii. About “appreciating the liberty interest involved” in
distinguishing from Bowers which allowed the
outlawing of sodomy
iii. Imposing morality on the law is wrong
iv. “Mysteries of Life” path!
b. Obergefell
i. Held that states must issue marriage licenses and
recognize lawful out-of-state marriages for samesex couples
ii. Issue of EP and DPC—located the right within the
idea of personal autonomy
iii. History and tradition within marriage and what it
means as well as understanding what liberty entails
iv. Does NOT label sexual orientation as a suspect
class
Summarizing the Tests/Standards for Due Process and Equal Protection
a. Equal Protection (3 general tests)
i. Tests and/or Standards of Scrutiny
1. NO POST HOC RATIONALIZATION FOR ANY STANDARD!
2. Strict Scrutiny (statute is presumptively invalid)
a. Requires: government must show that the law is (1)
narrowly tailored to achieve a (2) compelling state
interest
b. Applies: to “suspect classifications” including race,
national origin, or alienage; also applies to classifications
that infringe “fundamental rights”
c. Virtually impossible for a law to withstand strict scrutiny,
but some variance regarding “least restrictive means”
d. Burden: Government to satisfy (1) and (2) requirements
3. Intermediate Scrutiny
a. Requires: government must show that law is (1)
“substantially related” to an (2) “important government
interest”; Virginia adds the language of “exceedingly
persuasive” justification for the statute
b. Applies: to distinctions based on sex; legitimacy
c. Can be overcome with sufficient, nondiscriminatory
reasons advanced by the government
d. Burden: Government to satisfy (1) and (2), not as high as
strict scrutiny
4. Rational Basis
a. Requires: Plaintiff must show that the government action
is not rationally related to a legitimate government interest
(no relation whatsoever to a legitimate interest)
b. Laws almost NEVER fail rational basis review
c. Burden: Plaintiff must demonstrate no relation,
government almost ALWAYS wins
ii. Disparate Impact Test for Race Discrimination: Choosing Between Strict
Scrutiny and Rational Basis
1. If law treats people facially discriminatory based on race, strict
scrutiny applies, and a violation of the 14th Amendment EP occurs
2. If law has disparate impact of race discrimination, rational basis
applies, and you need something more in the way of discriminatory
purpose to violate EP
iii. Determining a New Suspect/Quasi-Suspect Class
1. Look to see if there’s a history of invidious discrimination
2. See if there is an immutable characteristic within the proposed
class
3. See if the class is a discrete and insular minority
b. Procedural Due Process (1 general test)
i. Analysis:
1. IS there a deprivation of life, liberty, or property?
2. IF so, what process is “due process” where there is an
“opportunity to be heard at a meaningful time and in a
meaningful manner?”
3. Mathews Three-Factor Test for DP Definition:
a. Look at the private interest that will be affected by the
government action;
b. Look at the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and
c. Look at the government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would
entail
c. Substantive Due Process
i. Mysteries of Life Path to SDP
1. Autonomy, Privacy, “Mystery of the Universe”
2. Eisenstadt, Roe, Casey (“mystery of the universe = heart of
liberty”), Lawrence, Obergefell
3. Obergefell = using the importance of marriage and deep
importance of the privacy involved with marriage (think, if history
was used, it was illegal for so long, but on an exam, use both paths
to get to the conclusion you want!)
4. Abortion—Undue Burden Standard
a. Abortion, unless it runs afoul of Casey, is given rational
basis review!
b. The Casey Test for whether a state regulation on abortion is
unconstitutional
c. Overrules trimester framework:
i. Only where state regulation imposes an undue
burden on a woman’s ability to make this decision
does the power of the State reach into the heart of
the liberty protected by the DPC
ii. Some governmental intrusion is warranted and
allowed—trimester framework undervalued State’s
interest in the potential of life in the womb
iii. Not all burdens in terminating in pregnancy will be
undue
d. Undue burden = “conclusion that a state regulation has the
purpose or effect of place a substantial obstacle in the path
of the woman seeking an abortion of a nonviable fetus”
i. “A statute with the aforementioned purpose is
invalid because the means chosen by the state to
further the interest in potential life must be
calculated to inform the woman’s free choice, not
hinder it”
ii. History and Traditions Path to SDP
1. Holmes’ dissent in Lochner (“deeply rooted things at the heart of
liberty”), a little bit in Griswold, little bit in Roe (old abortion bans
not enforced as strictly for example), BEST CASES = Glucksberg
and its discussion of Cruzan
2. Cruzan = force someone to take medical treatment they don’t want
is a battery historically
3. Glucksberg = can’t extend the Cruzan right to assisted suicide,
because throughout history, it’s been illegal for 700 years
4. High point of history and traditions defining unwritten substantive
due process rights
d. Stare Decisis Approach
i. Casey Approach
III.
1. Sometimes we need to overrule past decisions where they now
have proven “unworkable”
2. There’s also a need to balance a reliance interest in many cases as
in Roe; people organize their lives and personal decisions around
the frameworks USSC lays out
3. Even if a past decision might be morally or constitutionally
incorrect, the risk of overturning given the reliance interest
involved is very weighty
4. If USSC is always overturning past decisions, can look weak
5. Not an “inexorable command” to heed precedent
ii. Lawrence Approach
1. Changing facts and past rulings failing to appreciate the liberty
interests involved at the time
The First Amendment—Free Speech Clause
a. The Categorical Approach
i. Chaplinsky
1. Held that the First Amendment is not absolute. Punishment of
certain narrow categories of speech has never been questioned
under the Constitution. These categories included lewd and
obscene, profane, and libelous speech, as well as insulting speech
or “fighting words”—those that, by their very utterance, inflict
injury or tend to incite an immediate breach of the peace.
ii. Brown
1. On violent video games being sold to minors, held that a state law
that seeks to prohibit the sale of violent video games to minors
must be narrowly tailored to serve a compelling government
interest
2. Generally, the government lacks the power to restrict expression
because of its message, its ideas, its subject matter, or its content.
However, content involving obscenity, defamation, incitement, or
specific other categories can be restricted in some circumstances.
While it is true that a state can use its power to protect children
from harm, it does not have free reign to restrict the ideas to which
children may be exposed. Here, California offered no significant
evidence to link violent video games and incidents of harm to
minors. The studies the government did weren’t enough.
iii. Strict Scrutiny of Free Speech per Brown
1. Must be narrowly-tailored to serve a compelling state interest; but,
here:
a. Government’s studies are insufficient—they only showed
correlation, not causation
b. Government’s law was underinclusive—so many other
violent things out there too! Parents could buy the video
games anyway
c. Government’s law is also overinclusive—a lot of parents
don’t care! So, in essence, the law doesn’t have the right fit
at all
iv. Not everything that deals with speech is protected
1. Hard to add new red dots—long, historical (Brown)
b. Content-Neutrality
i. This is the first thing you think about when you’re within 1A
Speech—is the speech contest-based or content-neutral?
1. If content-based, strict scrutiny (Brown)
2. If content-neutral, intermediate scrutiny (TPM test & O’Brien
Test)
ii. O’Brien
1. Man burns draft card, held that where speech contains both speech
and nonspeech elements, an important or substantial governmental
interest in regulating the nonspeech element may justify some
limitations on constitutionally protected speech elements.
2. Symbolic speech gets intermediate scrutiny and this test (as
opposed to public forum TPM under Clark)
3. TEST (intermediate scrutiny):
a. A government regulation of expressive conduct is
sufficiently justified if:
i. It is within the constitutional power of Government;
ii. It furthers an important or substantial governmental
interest (intermediate scrutiny);
iii. The governmental interest is unrelated to the
suppression of free expression; (examples when it is
not unrelated might include when the government
only wants to punish things done in public and not
private)
iv. The incidental restriction on alleged First
Amendment freedoms is “no greater than is
essential to the furtherance of that interest”
iii. Texas
1. Says the O’Brien test and TPM test from Clark are the same
(intermediate scrutiny)
a. We should try to apply them in their appropriate situations
2. Where man burned flag at RNC, held that criminalizing flag
burning as a means of protest violates 1A
a. Content-based regulation, so got strict scrutiny from Brown
and not O’Brien
iv. Reed Test for Content-Neutrality
c. Public Forums and Protests
i. Chicago Park District
1. Plaintiffs denied permit for a protest, held that the content-neutral
licensing scheme for gatherings was constitutional; contained valid
safeguards against restricting 1A
ii. Clark
1. Park Service prohibited camping overnight in national parks.
Demonstrators wanted to build/sleep in tent cities in the park. Held
that reasonable, content-neutral regulations of the time, place, and
manner of expressive speech or conduct do not violate the First
Amendment as long as they are narrowly-tailored to further a
substantial government interest, and as long as the regulation
leaves open ample alternative avenues of expression.
iii. Claiborne Hardware
1. NAACP published business owner names while organizing a
protest for boycott purposes; protesters later damaged the
businesses. Held that even though the defendants used social
ostracism to coerce individuals to join the boycott, the threat is not
sufficient to overcome the First Amendment protections. There
goals would have had to have been unlawful.
2. 1A doesn’t protect violence, but, when violence occurs within
constitutionally protected activity, precision of regulation is
demanded
3. Have to go after the people who actually broke the law! (can’t just
ban all protests on the National Mall because 4-5 people started
punching people during a protest there)
iv. McCullen
1. Law: can’t stand within 35 feet of abortion clinic. Held that a law
that serves purposes unrelated to the content of expression is
content-neutral, even if it has a disproportionate incidental effect
on some speakers or messages. In public fora, the government can
impose reasonable, content-neutral restrictions on the time, place,
or manner of speech. Even then, such a restriction must be
narrowly tailored to serve a legitimate governmental interest. By
this standard, the restriction cannot burden more speech than is
necessary to serve the stated interest.
v. Time-Place-Manner TEST (Clark)—intermediate scrutiny
1. Regulations of the time, place, and manner of speech are valid
provided that:
a. They are content-neutral;
b. They are justified without reference to the content of
speech;
c. They are narrowly-tailored to a significant government
interest; (THIS IS STILL INTERMEDIATE SCRUTINY
EVEN THOUGH “NARROWLY-TAILORED” IS
USED!)
d. They leave open ample alternative channels for
communication
d. Incitement, Threats, and Offensive Speech
i. Brandenburg, incitement
1. Part of the categorical approach—incitement has always been
2. Where KKK leader held a rally and advocated for white
supremacy, held that a state may only forbid speech that advocates
violence or the use of force if that speech is directed and likely to
incite imminent illegal activity without abridging the freedoms of
speech and the press.
3. The mere abstract teaching of a need to resort to force or violence
is upheld as protected by the First Amendment because this
activity is far different from preparing a group for violent action
and encouraging it to commit that action.
ii. RAV, incitement
1. Kid burns cross on front lawn, court holds that you’re allowed a
“no-fighting words” rule, but government can’t choose who to
apply that to (can say “no defamation,” but can’t say “no
defamation for Republicans”)
2. No content/viewpoint-based favorites; a statute that regulates the
content of speech on its face will only survive a constitutional
challenge if it is necessary to serve a compelling state interest.
3. The statute specifically applies to fighting words that provoke
violence “on the basis of race, color, creed, religion, or gender.”
Under these terms, fighting words are permissible as long as
they do not address one of the disfavored topics. This
constitutes a prime example of impermissible content
discrimination, and even viewpoint discrimination, under the First
Amendment.
iii. Cohen, offensive speech
1. “Fuck the Draft” jacket; court held that Cohen’s conviction is
based entirely on the offensiveness of his speech, rather than any
form of conduct. Additionally, the case does not fall into any
recognized categories of unprotected speech based on the Court’s
prior jurisprudence, such as obscenity or “fighting words.”
2. The disorderly conduct depended on the message, content-based!
iv. Brandenburg Test for Incitement:
1. “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 when:
a. Such advocacy is directed to inciting or producing
imminent lawless action; and
b. Is likely to incite or produce such action”
e. Compelled Speech
i. Wooley
1. Court held that government can’t compel a state’s motto to be on
your license plate without violating First Amendment. The right to
refrain from speech is as important to the First Amendment as the
right to speak. Strict scrutiny.
ii. Hurley
1. Where LGBTQ+ organization was denied the ability to march in a
parade Hurley was putting on, court held that a private group
holding a parade could not be compelled to include another private
group.
2. Hurley was making an expressive statement by choosing who to
include, which is 1A protected speech.
iii. Abood
1. Held that compelled financial contributions to a union implicate
the contributors’ First Amendment rights when those funds are
used to promote the union’s activities. An employee may have a
moral or political disagreement with the union’s agenda, such that
the financial contribution is an endorsement of activity that the
employee would not have otherwise made.
iv. Janus
1. Held that compelled speech is subject to strict scrutiny.
Requiring nonmembers of a union to pay fees to the union is not
necessary to furthering a compelling government interest.
f. Groups and Expressive Association
i. Democratic Party
1. Where WI allowed non-Democrats to vote in Democratic
primaries, court held that the First Amendment’s freedom of
association includes a right to identify those people who constitute
the association and to limit the association to only those people.
2. The power of identification and exclusion is inherent in the
freedom of association. Requiring an association to include
individuals that it does not wish to include could impair the
purpose of the association and thereby the very guarantee of the
First Amendment.
ii. Roberts
IV.
1. Court held that Jaycees couldn’t discriminate against woman on
the idea that it was part of their freedom of association. The only
way to prevent discrimination against women is to not allow them
to be discriminated against. The statute prohibiting Jaycees from
discriminating is viewpoint-neutral and constitutional.
iii. Boy Scouts
1. The forced inclusion of an unwanted person in a group infringes
upon the group’s freedom of expressive association if the presence
of that person significantly affects the group’s ability to advocate
public or private viewpoints. However, the freedom of expressive
association is not absolute. It may be overridden by “regulations
adopted to serve compelling state interests, unrelated to the
suppression of ideas that cannot be achieved through means
significantly less restrictive of associational freedoms.”
2. Aren’t forced to include homosexuals.
The First Amendment—Free Exercise Clause
a. There is no intermediate scrutiny in religion cases—only STRICT and
RATIONAL BASIS
b. Yoder
i. State law mandated school attendance until 16. Amish objected to high
school education on religious grounds.
ii. Court held that a state law mandating school attendance by children 16
and under is NOT constitutional as applied to Amish children whose
parents take them out of school after eighth grade. A parent’s interest in a
child’s religious upbringing and the rights secured by the Free Exercise
Clause are fundamental.
iii. NOT CURRENT LAW (RFRA reinstitutes this but is not being tested)
c. Smith
i. Native Americans wanted to smoke peyote for religious sacrament, but
OR had a law against it. Court held that the Free Exercise Clause of the
First Amendment protects the right of individuals to believe whatever they
wish, but does not necessarily protect the right to act on those beliefs.
ii. An individual’s religious beliefs have never been held to excuse him from
compliance with an otherwise valid and neutral law prohibiting conduct
that the State is free to regulate.
iii. This is where you start a Free Exercise analysis!
iv. Within the test (see the slideshow)—if you have neutrality and general
applicability, you get rational basis. If you don’t, carry through the entirety
of the Smith test, but then apply strict scrutiny.
d. Hosanna-Tabor
i. Where evangelical church terminated a minister-teacher because of her
disability. Court held that a church-school that fires a teacher with a
e.
f.
g.
h.
disability falls within the ministerial exception to federal antidiscrimination laws under the Religion Clauses of the First Amendment.
ii. The church-minister relationship is different than the typical employeremployee relationship. The government cannot force a church to keep a
minister or punish the church for firing her without violating the Free
Exercise Clause of the First Amendment, “which protects a religious
group’s right to shape its own faith and mission through its appointments.”
Government interference with hiring and firing decisions also violates the
Establishment Clause, “which prohibits government involvement in such
ecclesiastical decisions.”
Brooklyn/Agudath Israel
i. Court held that Gov. Cuomo’s hard caps on church attendance during
COVID violated Free Exercise.
ii. The hard cap laws are not neutral and generally applicable. Some
businesses are allowed to remain open and have larger capacities based on
percentage-based limitations than religious institutions. No evidence that
religious groups have furthered the spread. Received strict scrutiny.
Tandon
i. Court held that the law prohibiting Tandon from hosting outdoor Bible
study in his backyard due to COVID was not neutral and generally
applicable, triggering strict scrutiny.
ii. Government regulations are not neutral and generally applicable, and
therefore trigger strict scrutiny under the Free Exercise Clause, whenever
they treat any comparable secular activity more favorably than religious
exercise. It is no answer that a State treats some comparable secular
businesses or other activities as poorly as or even less favorably than the
religious exercise at issue. As long as some comparable secular thing is
occurring alongside religion and the secular is getting better
treatment, it’s not a neutral/generally applicable law.
iii. Government would’ve had to show that the religious exercise at issue is
more dangerous than the secular conduct allowed to continue.
Fulton
i. Court held that the city forcing CSS to certify gay/lesbian couples for
foster care violated their free exercise.
ii. A law is not generally applicable if it invites the government to consider
the particular reasons for a person's conduct by providing a
mechanism for individualized exemptions. Further, a law also lacks
general applicability if it prohibits religious conduct while permitting
secular conduct that undermines the government's asserted interests in a
similar way.
Sherbert Strict Scrutiny Test
i. Need strict scrutiny if punishing someone for their religious exercises.
Denying someone the government benefit to exercise religion is an
V.
unconstitutional condition. Courts are not enforcers of religious
orthodoxy.
i. Smith Standard—Neutral and Generally Applicable (Rational Basis Scrutiny)
i. If neutral and generally applicable, apply rational basis.
1. How to determine “neutral” and “generally applicable”?
a. Is it neutral toward religion? (Lukumi, Masterpiece)
i. Fulton, “government fails to act neutrally when it
proceeds in a manner intolerant of religious beliefs
or restricts practices because of their religious
nature.”
b. Is it generally applicable?
i. Not if it leaves out comparable secular conduct
(Tandon/Brooklyn)
ii. Not if it government can judge the reasons for the
conduct and grant waivers (Fulton)
ii. If the law doesn’t pass this determination, apply strict scrutiny
j. Smith Exceptions for Hybrids/Individualized Governmental Assessment
i. Hybrid—Yoder
ii. Individualized Assessment—Sherbert
k. Hosanna-Tabor—Religious Group Autonomy (can select own ministers)
l. Fulton
i. Commentary on general applicability (COVID cases, etc.)
ii. Can’t have a mechanism of individualized exemptions for other things
within a generally applicable law—it’s not truly generally applicable then
The First Amendment—Establishment Clause
a. Engel
i. Wanted teachers to pray with their classes every morning. Court held that
the state may not compel any official prayer. Violates Establishment
Clause.
ii. The prayer is clearly a religious activity, and thus it is unconstitutional for
the state officials, acting in their official capacity, to both compose the
prayer and require it to be said by students.
b. Town of Greece
i. Court held that the monthly meetings being opened with prayer from a
different clergyman from different religions every month did not violate
the Establishment Clause.
ii. Establishment Clause must be interpreted according to historical practices
and understandings with respect to prayer at government gatherings.
Benign prayer at government gatherings has been an accepted practice
since the Constitution was drafted. The tradition of solemn and respectful
prayer at the outset of legislative sessions has been in place to put
lawmakers in a reflective state of mind as they begin the difficult task of
governing.
VI.
iii. Standard
1. Determine whether the prayer practice fits within the tradition long
followed in Congress and the state legislatures
a. Offense does not equal coercion
b. Having government dictate the terms of prayer creates
more constitutional problems than it solves however
c. Corp. of Presiding Bishop
i. Accommodations to relieve burdens on religion are generally permissible
d. Everson
i. Court held that a state transportation subsidy program that applies
generally to students attending both public and parochial schools does not
violate the Establishment Clause of the First Amendment.
ii. While the First Amendment requires states to remain neutral in their
treatment of religious institutions, it also requires states not to show
hostility towards religion in a manner that interferes with the free exercise
of religion by the state’s citizens.
e. Lemon
i. Court held that direct state funding of religious-school teachers' salaries
and instructional materials, with the direction that the funding be used
only for secular courses, violated the Establishment Clause.
f. Lemon Test
i. There are three main evils that Establishment Clause was meant to protect
against: sponsorship, financial support, and active involvement of the
sovereign in religious activity. A three-part test for the constitutionality of
state statutes is:
1. First, the government’s action must have a secular legislative
purpose; AND
2. Second, the government’s action must not have the primary effect
of either advancing or inhibiting religion; AND
3. Third, the government’s action must not result in excessive
government involvement (an “entanglement”) with religion.
ii. On the exam, DO EVERY STEP OF ANALYSIS! Even if it fails the
first prong, analyze all for the sake of demonstrating knowledge
The Second Amendment
a. “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.”
b. Heller
i. Court held that a law prohibiting the possession of usable handguns in the
home violates the Second Amendment to the United States Constitution.
The purpose of having a militia ultimately does not change the fact that
the Second Amendment was designed to create an individual right to keep
and bear arms.
c. Second Amendment Analysis
VII.
VIII.
i. Scalia divides the Second Amendment into a prefatory clause (“militia”
and “security of a free state”) and an operative clause (“right of the people
to keep and bear arms”)
1. “right of the people” and not a “right of the militia”—so an
individual right
The Takings Clause
a. Kelo
i. Court held that because the plan “unquestionably serves a public purpose”
the taking is permissible
b. Analysis
i. "Takings" Clause: The 5th Amendment provides that private property
shall not be taken for public use without just compensation. This
prohibition applies to the states as well through the 14th Amendment.
ii. Taking v. Regulation: Where the state validly regulates for health, safety,
or welfare purposes under its police power, then the government action
merely amounts to a regulation without duty to pay compensation. A
taking generally results where there is an actual appropriation, destruction,
or permanent physical invasion of one's property (even a small one).
c. Takings/conditions TEST
i. Must further a legitimate/substantial government interest
ii. Must be a “nexus”—must be related to the interest served by restricting
development (compare easement to viewing stand)
iii. Impact must be “roughly proportional”—need some individualized
determination that the imposition is related in both nature and extent of
impact to the impact of the proposed development.
COMPLETE LIST OF TESTS
a. Equal Protection (3 general tests)
i. Tests and/or Standards of Scrutiny
1. NO POST HOC RATIONALIZATION FOR ANY STANDARD!
2. Strict Scrutiny (statute is presumptively invalid)
a. Requires: government must show that the law is (1)
narrowly tailored to achieve a (2) compelling state
interest
b. Applies:
i. to “suspect classifications” including race, national
origin, or alienage; also applies to classifications
that infringe “fundamental rights”
ii. to content-based speech restrictions (free speech),
laws burdening religion that are not “neutral and
generally applicable” (free exercise), through RFRA
to other religious burdens
c. Virtually impossible for a law to withstand strict scrutiny,
but some variance regarding “least restrictive means”
d. Burden: Government to satisfy (1) and (2) requirements
3. Intermediate Scrutiny
a. Requires: government must show that law is (1)
“substantially related” to an (2) “important government
interest”; Virginia adds the language of “exceedingly
persuasive” justification for the statute
b. Applies: to distinctions based on sex; legitimacy
c. Can be overcome with sufficient, nondiscriminatory
reasons advanced by the government
d. Burden: Government to satisfy (1) and (2), not as high as
strict scrutiny
e. Analogous to free speech TPM test and O’Brien test for
content-neutral speech laws (NO RELIGIOUS
PARALLEL)
4. Rational Basis
a. Requires: Plaintiff must show that the government action
is not rationally related to a legitimate government interest
(no relation whatsoever to a legitimate interest)
b. Laws almost NEVER fail rational basis review
c. Burden: Plaintiff must demonstrate no relation,
government almost ALWAYS wins
d. Analogous to Smith test for laws that are neutral and
generally applicable (NO FREE SPEECH PARALLEL)
e. This is the basic rule that applies to all laws, even if no
constitutional right is at issue
ii. Disparate Impact Test for Race Discrimination: Choosing Between Strict
Scrutiny and Rational Basis
1. If law treats people facially discriminatory based on race, strict
scrutiny applies, and a violation of the 14th Amendment EP occurs
2. If law has disparate impact of race discrimination, rational basis
applies, and you need something more in the way of discriminatory
purpose to violate EP
iii. Determining a New Suspect/Quasi-Suspect Class
1. Look to see if there’s a history of invidious discrimination
2. See if there is an immutable characteristic within the proposed
class
3. See if the class is a discrete and insular minority
b. Procedural Due Process (1 general test)
i. Analysis:
1. IS there a deprivation of life, liberty, or property?
2. IF so, what process is “due process” where there is an
“opportunity to be heard at a meaningful time and in a
meaningful manner?”
3. Mathews Three-Factor Test for DP Definition:
a. Look at the private interest that will be affected by the
government action;
b. Look at the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and
c. Look at the government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would
entail
c. Substantive Due Process
i. Mysteries of Life Path to SDP
1. Autonomy, Privacy, “Mystery of the Universe”
2. Eisenstadt, Roe, Casey (“mystery of the universe = heart of
liberty”), Lawrence, Obergefell
3. Obergefell = using the importance of marriage and deep
importance of the privacy involved with marriage (think, if history
was used, it was illegal for so long, but on an exam, use both paths
to get to the conclusion you want!)
4. Abortion—Undue Burden Standard
a. Abortion, unless it runs afoul of Casey, is given rational
basis review!
b. The Casey Test for whether a state regulation on abortion is
unconstitutional
c. Overrules trimester framework:
i. Only where state regulation imposes an undue
burden on a woman’s ability to make this decision
does the power of the State reach into the heart of
the liberty protected by the DPC
ii. Some governmental intrusion is warranted and
allowed—trimester framework undervalued State’s
interest in the potential of life in the womb
iii. Not all burdens in terminating in pregnancy will be
undue
d. Undue burden = “conclusion that a state regulation has the
purpose or effect of place a substantial obstacle in the path
of the woman seeking an abortion of a nonviable fetus”
i. “A statute with the aforementioned purpose is
invalid because the means chosen by the state to
further the interest in potential life must be
calculated to inform the woman’s free choice, not
hinder it”
ii. History and Traditions Path to SDP
1. Holmes’ dissent in Lochner (“deeply rooted things at the heart of
liberty”), a little bit in Griswold, little bit in Roe (old abortion bans
not enforced as strictly for example), BEST CASES = Glucksberg
and its discussion of Cruzan
2. Cruzan = force someone to take medical treatment they don’t want
is a battery historically
3. Glucksberg = can’t extend the Cruzan right to assisted suicide,
because throughout history, it’s been illegal for 700 years
4. High point of history and traditions defining unwritten substantive
due process rights
d. Stare Decisis Approach
i. Casey Approach
1. Sometimes we need to overrule past decisions where they now
have proven “unworkable”
2. There’s also a need to balance a reliance interest in many cases as
in Roe; people organize their lives and personal decisions around
the frameworks USSC lays out
3. Even if a past decision might be morally or constitutionally
incorrect, the risk of overturning given the reliance interest
involved is very weighty
4. If USSC is always overturning past decisions, can look weak
5. Not an “inexorable command” to heed precedent
ii. Lawrence Approach
1. Changing facts and past rulings failing to appreciate the liberty
interests involved at the time
e. Free Speech Clause (4 tests)
i. First Question—is the speech contest-based or content-neutral?
1. If content-based, strict scrutiny (Brown)
a. Government must show that the law is (1) narrowly
tailored to achieve a (2) compelling state interest
b. No worth in a “marginal percentage point” showing by the
government—has to be very compelling!
2. If content-neutral, intermediate scrutiny (TPM O’Brien)
a. O’Brien Test: A government regulation of expressive
conduct is sufficiently justified if:
i. It is within the constitutional power of Government;
ii. It furthers an important or substantial governmental
interest (intermediate scrutiny);
iii. The governmental interest is unrelated to the
suppression of free expression; (examples when it is
not unrelated might include when the government
only wants to punish things done in public and not
private)
iv. The incidental restriction on alleged First
Amendment freedoms is “no greater than is
essential to the furtherance of that interest”
b. TPM Test: Regulations of the time, place, and manner of
speech are valid provided that:
i. They are content-neutral;
ii. They are justified without reference to the content
of speech;
iii. They are narrowly-tailored to a significant
government interest; (THIS IS STILL
INTERMEDIATE SCRUTINY EVEN THOUGH
“NARROWLY-TAILORED” IS USED!)
iv. They leave open ample alternative channels for
communication
ii. Is the accused speech incitement? If yes:
1. Brandenburg Test for Incitement: “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 when:
a. Such advocacy is directed to inciting or producing
imminent lawless action; and
b. Is likely to incite or produce such action”
iii. Is the accused speech being compelled by the government?
1. Janus, being forced to pay union fees as a nonmember—compelled
speech is subject to strict scrutiny
iv. Does the speech involve a group engaged in expressive association?
1. NO change in analysis
f. Free Exercise Clause (3 tests)
i. Smith Standard (to determine Rational Basis or Strict Scrutiny)
1. If law is neutral and generally applicable, apply rational basis.
a. How to determine “neutral” and “generally applicable”?
i. Is it neutral toward religion? (Lukumi, Masterpiece)
1. Fulton, “government fails to act neutrally
when it proceeds in a manner intolerant of
religious beliefs or restricts practices
because of their religious nature.”
ii. Is it generally applicable?
1. Not if comparable secular conduct is getting
better treatment/is left out of regulation
(Tandon/Brooklyn)
2. Not if government can judge the reasons for
the conduct and grant waivers (if it invites
the government to consider the particular
reasons for a person's conduct by
providing a mechanism for individualized
exemptions) (Fulton)
b. If passed, now apply rational basis!!!
2. If the law doesn’t pass this determination, apply strict scrutiny.
g. Establishment Clause
i. Town of Greece Standard
1. Determine whether the prayer practice fits within the tradition long
followed in Congress and the state legislatures
a. Offense does not equal coercion
b. Having government dictate the terms of prayer creates
more constitutional problems than it solves however
ii. Lemon Test
1. There are three main evils that Establishment Clause was meant to
protect against: sponsorship, financial support, and active
involvement of the sovereign in religious activity.
2. A three-part test for the constitutionality of state statutes is:
a. The government’s action must have a secular legislative
purpose; AND
b. The government’s action must not have the primary effect
of either advancing or inhibiting religion; AND
c. The government’s action must not result in excessive
government involvement (an “entanglement”) with
religion.
3. On the exam, DO EVERY STEP OF ANALYSIS! Even if it fails
the first prong, analyze all for the sake of demonstrating
knowledge
h. Second Amendment
i. “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.”
ii. Scalia divides the Second Amendment into a prefatory clause (“militia”
and “security of a free state”) and an operative clause (“right of the people
to keep and bear arms”)
1. “right of the people” and not a “right of the militia”—so an
individual right
i. Takings Clause
i. Takings/conditions TEST
1. Must further a legitimate/substantial government interest
2. Must be a “nexus”—must be related to the interest served by
restricting development (compare easement to viewing stand)
3. Impact must be “roughly proportional”—need some individualized
determination that the imposition is related in both nature and
extent of impact to the impact of the proposed development.