ConLawII Final Outline
Fall 2014
Introduction: Cannons of Constitutional Interpretation
Sofia Tarafa
1. Originalism: The belief that the Constitution is dead and should be interpreted only through the lens of how
it would have been seen by the framers themselves. There are two prevalent strands of Originalism: (1)
Those who consider and analyze the framer’s intent, and (2) Those who consider and analyze the
perspective of those who ratified—not always one in the same.
2. Living Constitution: The belief that the Constitution should adapt to the times and be considered in terms
of modern understanding.
Originalism
Argue that the amendment process is the only
legitimate way through which to change the
meaning of the Constitution. If there is good
enough reason to, it allows for change, but, with
good reason, can’t be done on a whim.
Acknowledge that dead/live is a problem, but
still see O as the only way to protect the public
from having their laws overruled by unelected
officials.
The purpose of ensuring individual rights in the
Constitution is to prevent the constitution
reflecting changes in personal values (and having
those values imposed by judges)—Subversion I the
name of contemporary attitudes violates higher
lawmaking. [Scalia]
Accept changes in technology as able to alter a
pure Originalist interpretation. [Consider
Scalia’s 2A argument—outlawed should be
weapons which are highly unusual in society.]
A judge making decisions based on personal value
judgments violates the rights of the legislature and
of the people. [Bork]
Use history for an accurate as possible
interpretation of what the framers would have
wanted.
Living Constitution
Argue that the requirements of the amendment
process are too rigid (evidenced by the very low number
of amendments) and leave the constitution too unable to
adapt to the times.
Considering the difficulty of amending LC is the only
way to avoid the constitution becoming a strait jacket
[Posner]
Dead/Live Problem: Argue that Originalism allows
the dead hand to govern and is so bad theory (Michael
Moore).
No one living today has assented to the constitution.
Seems highly unlike that the framers would have
found it practical to freeze the constitution in time
[Posner-“In defense of Looseness”]
Believe this argument represents a false dichotomy.
Constructionists do not see themselves as making up
meaning or attempting to stretch language to whatever
supports their desired result, but it working to apply the
written word to the current time as faithfully as possible.
Almost impossible to truly use an Originalist
approach without reconciling our society with that of
the founders, which was wildly different ethnically,
sexually and culturally.
Heller: Stevens tries to show, by meeting Scalia on
his own originalist playing ground, that a true O
interpretation would have yielded the opposite result. O
as open to judicial interpretation as LC.
Very unlikely the framers had weapons for the home
in mind at all when drafting 2A.
A well-staffed justice can always find history on his
side.
History is the starting point but not necessarily the
end point
1
ConLawII Final Outline
More democratic by not allowing subversion in
name of higher value
Fixing meaning allows decisions to be made by a
democratic supermajority rather than 9 unelected
justices.
Fall 2014
Sofia Tarafa
Aside from the dead/live problem, the majority of
persons were excluded from the decisions of what was
put into the constitution and BoR. That is certainly
undemocratic.
Also, there is no fixed meaning.
Considering Important Factors
Judicial Restraint
Democratic
Process
Rules v Standards
Founders
Originalist Argument
Judge cannot resist inserting their own
ideologies.
A judge making decisions based on
personal values violates the rights of the
legislature and of the people.
Counter-majoritarian difficulty.
The constitution was written to be the
most democratic possible document.
Therefore, even if the will of today’s
voters, based on current popular opinion,
is unsupported, the greater good is being
served.
O helps to protect against contemporary
opinions in the name of greater justice.
The legislature is elected, it is more
democratic to allow them to make and
overturn laws.
Rules are clear cut and cannot be lied to.
Standards are more likely to be
manipulated to reach a desirable outcome.
Consistency and predictability should be
desired goals of constitutional
interpretation.
Cannot be said to be too inflexible because
the amendment process remains available.
Rules also allow the common person to
understand how to control their behavior
better.
The founders created this country and
their wisdom should be deferred to.
Even if the liberty are denied some
expression, this is done in the name of
higher democratic self-governance.
LC Argument
A judge following history alone is as able to
insert his own value judgments by following
only the history convenient to them—
Originalism does not ensure restraint.
It is more democratic to apply the constitution
to a way that reflects those currently living
under it.
The check of the judiciary on the legislature is
one of the most important parts of protecting
democracy. Judges have a right to overturn
laws they find are contrary to the spirit of
constitutional provisions.
The flexibility of standards allows for fairer
case by case application.
Flexibility allows for changes in technology
and values.
While the founders were wise, they lived in a
world entirely unlike our own in terms of
community members, technology and much
more. Allowing their dead hand to guide our
lives today is essentially a strait jacket.
2
ConLawII Final Outline
Fall 2014
SUBSTANTIVE DUE PROCESS
Sofia Tarafa
Test:
First Question: Is there a fundamental right at issue?
 Test for fundamental right is whether the right is implicit in the concept of ordered liberty or whether it is
deeply rooted in our nation’s history or traditions. [Harlan Griswold Concurrence/Glucksberg]
 Can explore history here. Remember KND in Lawrence “History is starting point, but not necessarily the end
point for such analysis.” For some justices history is the only question. Choose a route and justify it with
originalist or living constitution arguments.
 Fundamental Right v. Liberty Interest: Can point out the confusion in this area of the law. If citing an
early case that treated a right as fundamental, you can use fundamental. Otherwise liberty interest is more
appropriate because it’s what the Court more commonly uses now. [Change came when Court became less
willing to recognize rights.]
 Right Framing: Can influence outcome. Can point this out. Don’t explore both possibilities if you will
make many of the same legal points but for the other side. Counterargument will yield same points.
Second Question: Apply the appropriate level of scrutiny based on the response to the first question.
 If it is a right the court has considered fundamental (right to parent, marriage, etc.), apply strict scrutiny.
o Does the law serve a compelling govt interest?
o Is the law narrowly drawn to achieving its purpose?
 If it is a right that the court has treated as a “liberty interest,” more likely to be subject to heightened
scrutiny. The Court has not always been clear about exactly where it falls—feel free to point out
inconsistencies.
o Some recognized liberty interests: (1) Living with extended family (Moore); (2) In refusing unwanted
medical treatment (Glucksberg); (3) In not being criminally punished for thought, expression and certain
intimate conduct (Lawrence).
 If it is an economic regulation, or fails deeply rooted/ordered liberty test, apply rational basis.
o Does the law serve a legitimate government interest? [Note: Doesn’t have to be actual interest.
Morality alone can never satisfy—cite Lawrence]
o Is it rationally related to serving that interest?
 If abortion, the test is the undue burden test.
o A state may enact regulations, but any regulations which has a purpose or effect to place a substantial
obstacle in the path of a woman (prior to viability) will be overruled.
Reconstruction Amendments
14A, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside.
1. P&I Clause: No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States;
2. Due Process Clause: nor shall any state deprive any person of life, liberty, or property, without due process
of law;
3. Equal Protection Clause: nor deny to any person within its jurisdiction the equal protection of the laws.”
(Ratified despite strong opposition because it was a condition of reentry into the union).
3
ConLawII Final Outline
History:
Fall 2014
Sofia Tarafa
4. The constitution was originally concerned primarily with the structure of the govt and ignored individual
rights. Many took issue to this, which led to the eventual passing of the BoR. In Barron (1833) the Marshall
Court held that the BoR restricted the national government and not the states. Several states applied BoR
provisions to their states on their own.
5. 14A part of reconstruction—the first time we see the constitution adding express restrains to the states.
I.


The Privileges and Immunities Clause and Unenumerated Rights
Test
(1) Is the right being violated one that is protected by 14A?
(2) If so, does the state have a compelling reason for infringing on this right? [Implies strict]
Barron v. Mayor and City Council of Baltimore (1833)—The BoR applies to the federal government alone.
1. Rule: The state’s action is found to be in compliance with the Constitution. The just compensation
provision of 5A is intended solely as a limitation on the exercise of power by the government of the US.
2. Facts: Barron owned a wharf which, by diverting of water by the city, was made too shallow for most
vessels and negatively affected Barron’s business. Barron argued that this was in violation of the 5A taking’s
clause and that such a clause should restrain the state in addition to the federal government.
3. Reasoning: The Constitution was written to apply for the federal govt and each state has its own
constitution. Had the framers of the BoR intended to apply the provisions to the states, they would have
imitated the original framers and said as much. The purpose of these amendments was to guard against
abuse of power.
4. Historical Note: Some framers stated outright that they intended to overrule this decision in passing 14A.
Slaughter-House Cases (1873)—P&I Does Not Apply to States
1. Rule: The Privileges and Immunities clause of 14A is not intended to apply to the states. To do so would
give the federal govt too high a degree of power over the states which congress could not have intended.
i. Note: This opinion is well known for ruining the privileges and immunities clause as a vehicle for
unenumerated rights (which it was almost certainly intended to be). Also limited application only to
former slaves.
ii. Also contrary to the spirit and circumstances under which 14A was passed, which seemed that the
clear goal was to create this additional control over the states.
2. Facts: A Louisiana law of 1869 chartered a corporation and granted it a 25 year right to maintain
slaughterhouses, landing for cattle, and stockyards. Forced competing facilities to close. The law,
therefore, denied some butchers the right to practice their trade. The question was whether the
government-granted monopoly violates the privileges and immunities clause of the 14A by denying the
butchers the right to pursue a lawful profession.
4
ConLawII Final Outline
Fall 2014
Sofia Tarafa
Saenz v. Roe (1999)—Right to Travel is Fundamental Right of Federal Citizenship. (Last breath into Federal P&I)
2. Rule: A statute which limits welfare benefits of newer state residents violates the privileges and
immunities clause, which provides for a fundamental right to travel as a benefit of federal citizenship.
3. Facts: A 1992 California statute required 12 months of citizenship to receive full Cali welfare benefits.
Otherwise limited to the amount you would have received in previous state. Presumably done to protect
their superior welfare benefits from being abused. In 1996 congress passed an act authorizing such
action by states. Roe was denied full benefits.
4. Reasoning: If purpose is to discourage people from moving, the purpose is impermissible. Don’t think
the law will be a great help in the stated purpose of discouraging people from coming for a brief time
for benefits alone.
II.
Economic Substantive Due Process: Lochner and Its Demise
Lochner v. NY (1905)—Right to Contract Fundamental Right Protected by Due Process
1. Rule: (1) Fundamental right? Maximum hours law for bakers found to unconstitutionally burden the
right to contract with employees in violation of 14A due process. Due process clause protects right to K
of employer and employee.
i. (2) Compelling state interest? Once it is determined that there is a fundamental right, we must
determine whether the state nevertheless has a right to interfere with it. Here, no. Regulating labor
is not a legitimate govt goal. May regulate for purposes of safety but found the safety interest here
to be insufficient (baking not as dangerous as mining). Safety of public would also be compelling
but no clear link between sanitation and hours worked.
ii. Note: Seems to be intermediate scrutiny—the court says “there wasn’t at least some rational
relationship.”
2. Facts: NY created maximum hour’s law for bakers (60hr/week, 10 hrs/day). L was convicted for
violating.
i. Historical note: at end of 19th century there was a ton of new economic regulation in response to
industrialization and the growth of corporate power.
3. Harlan Dissent: right to k is protected, but the safety regulation is a lot more necessary than majority
makes it out to be—baking can be dangerous. Also implies rational basis is appropriate for economic
regulations.
4. Holmes Dissent: The majority has forced laissez faire philosophy into the constitution, which is clearly
not intended to embody an economic theory.
i. “Laissez faire” economic theory means to protect business from govt regulation to allow them to
flourish rather than to protect the worker.
ii. This dissent well respected for pointing out the despicability of Lochner.
5. Criticisms: (1) Origin of reading in a substantive component to due process—contradiction in terms.
(2) Even if this is the right vehicle for fund rights, right to K is not one. (3) Even if it is a fund right, the
court incorrectly balanced the components—not enough weight given to safety and health of workers.
(4) Completely irrational to rule out labor regulation as a legitimate govt purpose.
6. Aftermath: Many protective laws struck down under the guise of protecting the right to K. (1) Laws
against yellow dog Ks (which made an employee agree to never join a union), were struck down. (2)
Minimum wage for women laws struck down. (3) Many new deal reforms struck down.
i. Health justifications typically saved laws. Protecting the natural delicacy on women as well. Labor
alone never sufficient.
5
ConLawII Final Outline
Fall 2014
Sofia Tarafa
Consumer Protection Legislation: Laws setting maximum prices typically struck down as interfering with
freedom of K.
Nebbia v. NY (1934)—Price Control Laws are Subject to Rational Basis
1. Rule: Law setting prices for milk is constitutional. To be unconstitutional, price controls must be arbitrary,
unreasonable, or capricious. Any such price controls are unnecessary and unwarranted interferences with
individual liberty.
2. Facts: The New York legislature established a Milk Control Board that was vested with the power to “fix
minimum and maximum retail prices” for milk sold within the state. Appellant, Mr. Nebbia, an owner of a
New York grocery store, was convicted of selling milk for prices in excess of the price set by the Board.
3. McReynolds Dissent: Although “regulation to prevent recognized evils in business has long been upheld
as permissible legislative action…fixation of the price at which A, engaged in an ordinary business, may sell,
in order to enable B, a producer, to improve his condition, has not been regarded as within legislative
power,” adding “This is not regulation, but management, control, dictation.
West Coast Hotel v. Parrish (1937)—Freedom of K not fundamental. Regarded as having ended Lochner era.
1. Rule: Minimum wage law for women upheld (overruling Adkins). The health of a woman must be
protected from unscrupulous and overreaching employers because they are in an unequal bargaining
position, and the state has an interest in such a correction of the status quo. Also benefits the public who
will not have to pay extra taxes to support these underpaid individuals. State that without regulations, it is
actually the wealthy being favored bc they are already in a superior position.
2. Notes on relevance: Clear response to the economic realities triggered by the depression—laissez faire was
not working, did not create socially optimal effects. No law has been invalidated on these grounds since.
US v. Carolene Products (1938)—Rational Basis is Appropriate for Economic Regulations.
1. Rule: Economic regulations should be upheld so long as they are supported by a conceivable rational basis,
even if it cannot be proven that such a basis was the legislature’s actual intent.
a. However this deference to the government will not extend to regulations which (1) Interfere with
personal rights; (2) Restricts the political process (interferes with voting or speaking on issues); (3)
Discriminates against discrete and insula minorities.
2. Footnote 4: Famous for the footnote which led to much of the same ideas in equal protection.
Williamson v. Lee Optical (1955)—Modern Test—Ultimate Deference to the Legislature. **Cite for Scrutiny for
Economic Regulations**
1. Rule: Law requiring opticians to obtain a prescription before duplicating a lens is upheld. Though it is not
logically necessary and arguable wasteful—an optician can easily create the lens without the prescription—it
is for the legislature, and not the courts, to weigh the pros and cons in making such decision.
2. Effect of Decision: End to economic substantive due process. The court will not strike down state laws
regulating business and industrial conditions because they consider them unwise, improvident or out of
harmony with a school of though. The court also shows that any potential reason can satisfy rational basis—
no actual evidence of reason needed.
6
ConLawII Final Outline
III.
Fall 2014
Modern Subs Due Process: Privacy
Sofia Tarafa
Meyer v. Nebraska (1923)—Parents Have a Fundamental Right to Control the Upbringing of Their Children.
1. Rule: A Nebraska law outlawing the teaching of the German language materially interferes with 3
fundamental rights: (1) calling of language teachers; (2) children’s to pursue knowledge; (3) parents to
control education of children.
Pierce v. Society of Sisters (1925)—Liberty of Parents to Control Upbringing
1. Rule: A law requiring children to attend public school also interfered with parents’ right. Child found to
belong to the parents as much as to the state.
Skinner v. OK (1942)—Strict Scrutiny for an Unenumerated “Fundamental Right.” Relied on EP.
1. Rule: Compulsory sterilization after 3rd felony conviction is a clear interference with the fundamental rights
of marriage and procreation—both of which are basic rights of man and vital to survival of the race.
a. EP considerations: Clear cut discrimination bc excluded some felonies such as embezzlement (more
commonly committed by rich white men). Also offers no redemption for those effected by the law.
Therefore strict scrutiny was applied.
b. Note: Likely relied on EP only because Lochner had recently been overruled.
IV.
Contraceptive Rights
Griswold v. Connecticut (1965)—Fundamental Right to Privacy Found in the “Penumbras” of the Bill of Rights.
1. Rule: A Connecticut law that prohibited the sale, distribution, and use of contraceptives in unconstitutional
because it operates directly to regulate the intimate relation of husband and wife and the role of their
physician in that relation.
a. A right to such privacy is found implied in the BoR: (1) 1A right of association; (2) 3A zone of
privacy in the home; (3) 4A privacy in the home.
b. Also points to a history of cases which bear witness to the fact that the right of privacy is legitimate
in law.
2. Notes: Find that sale/manufacture laws would be more acceptable, regulation of use too intimate.
a. Sweeps unnecessarily broad in regulating an area of protected freedoms.
b. Douglas (majority) original draft actually rested on another constitutional basis. Seems everyone
thought this law just must be unconstitutional but had nowhere to point. Judicial restraint absent?
c. Important to note that all 9 justices did believe it was bad policy. Black, however, viewed this
decision as no different in basis to Lochner. Created bitterness among justices.
3. Goldberg Concurrence: Liberty of due process should be informed by 9A.
4. Harlan Concurrence: Believes the question should be whether the law violates some right “Implicit in the
concept of ordered liberty.” Thinks that finding the answer to that question should be guided by history and
the basic values that underlie our society.
a. From Poe v Ullman Dissent: DP represents the balance between individual liberty and the demands
of an organized society. Cannot and should not be limited by specific guarantees in the constitution.
Should exist on a continuum
5. White Concurrence: Thinks the law fails to achieve its purpose of preventing illicit sexual relationships.
Doesn’t think all laws in this area would be invalid.
6. Black Dissent: Makes Originalist argument—Offensive, but not unconstitutional. The state has a right to
invade privacy except for at certain times and in certain places. Marriage is not mentioned in the
7
ConLawII Final Outline
Fall 2014
Sofia Tarafa
constitution. Believes the majority is merely using whatever words to invalidate acts they personally find
unreasonable.
Eisenstaedt v. Baird (1972)—Unmarried Couples have an Equal Right to Contraceptives [EP Case]
1. Rule: Law banning distribution of contraceptives violates EP under even a minimum rationality standard.
Like Griswold, a marriage is a union of 2 individuals and that the right laid out there must be available free
from govt intrusion into matters as fundamental as the decision of whether to bear or beget a child.
Carey v. Population Services International (1977)—Strict Scrutiny for Laws Regarding Access to Contraceptives [Minors]
1. Rule: A law prohibiting the distribution or sale of contraceptives to minors under 16 is an unconstitutional
violation of the right to make decisions regarding reproductive choices. Applied strict scrutiny following the
decisions I Griswold, Einstadt and Roe.
a. Weighing: Although minors have less rights, interest in deterring sexual activity not significant
enough to overrule right.
2. White Concurrence: State failed to demonstrate that the prohibition actually acts as a deterrent as claimed.
3. Stevens concurrence: Finds this is an irrational way to achieve end—merely subjects minors to STDs and
unwanted pregnancies.
4. Powell Concurrence: Disagrees with the heavy protection of sexual acts, but finds law defective bc it also
stops parents from distributing to children (right of parents to control upbringing).
V.
Abortion
Test:
 Undue Burden Standard [A form of intermediate]: A state may enact abortion regulations based on its
interest in potential life and the health of the mother. However, any regulation which has a purpose or
effect to place a substantial obstacle in the path of a woman prior to viability, will be overturned.
o Obstacles: (1) Funding not undue burden—state does not need to fund abortion on a par with
other options; (2) Spousal notification undue; (3) 24 hour waiting period not undue; (4) Informed
consent not undue; (5) Parental notification for minors not undue as long as there is an option
for judicial bypass.
 After viability (3rd trimester), the state’s interest in potential life increases to a point to permit all
regulations except for those for the health of the mother.
Cases on Contraception, like Griswold, opened the door for due process rights relating to reproductive choice.
Roe v. Wade (1973)—Woman have a Fundamental Right to Reproductive Choice [Strict Scrutiny]
1. Rule: The right to privacy is safeguarded through the due process clause of the 14th and 9th amendments.
The Texas law, making it a crime to procure an abortion except to save the life of the mother, imposes on a
woman’s fundamental right to reproductive choice too broadly to survive the Court’s scrutiny. The right is
embedded in the liberty component of the due process clause of 14A.
a. Rights previously recognized by the Court to marriage, procreation, contraception, family
relationships, childrearing and education, are broad enough to encompass the right here.
b. Detriment (psychological harm, distressing future life, financial imposition, stigma of unwed
motherhood) too severe to impose,
c. “Person” of 14A should only have effect postnatally.
2. Trimester Framework (Later overruled by Casey): A balance struck to protect the state’s 2 interests of
protecting the potentiality of human life and he health of the mother.
8
ConLawII Final Outline
Fall 2014
Sofia Tarafa
a. In the 1st trimester, the decision must be left wholly to a woman and her physician without the
state’s interference.
b. In the 2nd trimester, the state may regulate with regards to the health of the woman.
c. In the 3rd trimester (“after the stage of viability”), the state can regulate to protect potential rights,
but an exception must always exist for the health of the mother.
3. White Dissent: The majority has here created new rights and unfairly overrode an enormous number of
statutes. Extreme and improvident exercise in judicial review.
4. Rehnquist: The penumbras argument began as a zone of privacy in the home under 4A. Says the right
protected here is not even the distant relative of such a right. Although the concept of liberty necessarily
includes rights beyond those enumerated in BoR, it can only guarantee the deprivation of such rights without
due process.
5. Notes: Framing is important here. Right to decisional autonomy is “inherent in concept of ordered liberty
or deeply rooted in our nation’s history or traditions” while the right to an abortion would likely not have
been.
Note: On Page 23 of Combined notes, there is interesting Roe analysis, and some cases discussing state regulations
after Roe and before Casey.
Maher v. Roe (1977)—Restricting Funding for Abortions is Constitutional
1. Rule: Preventing Medicare coverage of medically unnecessary abortions doesn’t interfere with the right as
laid out in Roe. Roe does not dictate that the legal ability to get an abortion extends to a right for public
allocating to such a decision. As long as access isn’t restricted, OK.
2. Brennan Dissent: A woman’s right to privacy is being interfered with when denied funding coerces her to
bear children she wouldn’t otherwise bear.
3. Marshall Dissent: Reads this as a clear imposition of a moral viewpoint the state has no right to.
Harris v. McRae (1980)—Restricting Funding for Medically Necessary Abortions Still Constitutional
1. Rule: The Hyde Amendment which bars payment even for most medically necessary abortions does not
interfere with right to decisional autonomy dictated in Roe. Does not rationally follow that a woman’s right
extends to full funding for her range of protected choices. Nothing in due process guarantees a right so
broad as subsidization for a person’s personal rights; such a decision of whether to subsidize belongs
rightfully in the hands of congress.
2. Brennan Dissent: For an impoverished woman, the unequal funding could easily lead to an interference
with her right to choose. Unequal funding can discourage activity as easily as criminalization.
3. Stevens Dissent: Was part of Maher majority, but finds this case fundamentally different because it reaches
medically necessary abortions.
9
ConLawII Final Outline
Fall 2014
Sofia Tarafa
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)—Replaces Roe with Undue Burden Standard **Cite for
current abortion standard**
1. Rule: Roe trimester framework is thrown out. Replaced with undue burden standard: A state may enact
regulations, but any regulations which has a purpose or effect to place a substantial obstacle in the path of a
woman (prior to viability) will be overruled. Maintain Roe concept that after viability, the state has a greater
interest in potential life, with an exception for the health of the mother.
a. 3 Provisions found constitutionally sound, one found unconstitutional:
i. (1) 24 hour waiting period does not impose an undue burden. Not unreasonable to require a
period of reflection for a more informed decision.
ii. (2) Informed consent (requiring prior information given) only leads to wiser decision making
and cannot be said to impose an undue burden.
iii. (3) Parental consent is an acceptable limitation so long as judicial bypass is made available.
iv. (4) Spousal notification is a significant burden and is therefore invalidated. Though this may
impose an enormous imposition only on the 1% of women, which is where the analysis must
begin and end.
b. Notes:
i. Significant that this case downgrades decisional autonomy from a fundamental right to a
liberty interest.
ii. Stare Decisis: Majority points out that many people have “planned their lives” around the
Roe decision and it would be improper to overrule now. Precedent rules bc decision has not
proven unworkable, and nothing such as in B v B so clearly at odds with what they know to
be true. Overruling under fire subverts court’s legitimacy.
2. Blackmun Concurrence/Dissent: Roe standard was stronger and less likely to be manipulated. Strict
should have been applied and would have struck down all provisions.
3. Rehnquist Dissent: Roe was incorrectly decided and should be overruled now. A generation of people
getting used to a law is no reason to keep it.
4. Scalia Dissent: Thinks the majority misunderstands stare decisis. The only relevant inquiries should be (1)
whether roe was correctly decided; (2) whether it succeeded in producing a settled body of law. In his view it
did neither (only complicated the issue) and should be overruled. Would have applied rational basis and
upheld all provisions.
Partial Birth Abortions
Stenberg v. Carhart (2000)—A Partial Birth Abortion Ban Must Have an Exception for the Health of the Mother
1. Rule: A later term partial birth abortion ban without an exception for the health of the mother is
overturned. At minimum, Casey requires statutes to include health exceptions when the procedure is
necessary for preservation of life or health of the mother.
2. Stevens Concurrence: How could any state following relevant precedent think they could have a law
without a medical necessity provision?
3. Kennedy Dissent: Finds no substantial obstacle here and therefore think the state has a right to come
down on whichever side of the debate they so choose.
10
ConLawII Final Outline
Fall 2014
Gonzalez v. Carhart (2007)—No Undue Burden in Banning a Particular Procedure
Sofia Tarafa
1. Rule: The Partial Birth Abortion Ban is upheld. Banning a particular procedure, even if the doctor
considers it to be the safest option for the mother, does not create an undue burden. The act does not
impose an obstacle to pre-viability abortions, but prevents the dismemberment of the fetus moments from
the birth process. The govt has a right to express such dignity for human life.
a. Note that the legislature has broad authority where science remains uncertain.
2. Ginsburg Dissent: Finds the Court unfaithful to earlier rules of law in Casey and Roe. Finds dangerous
precedent that allows for a prohibition with no safeguard for the health of the mother. Uncomfortable with
the majority’s reference to moral concerns…any law could eventually yield to them.
VI.
Sexual Acts
Bowers v. Hardwick (1986)—No Fundamental Right to Homosexual Sodomy. [Rational Basis Applied/Later
Overruled]
1. Rule: Under relevant precedent, there is no fundamental right to homosexual sodomy which can overturn a
Georgia law that punishes sodomy with up to 50 years in prison. Passes rational basis by supporting the
state’s interest in “morality.”
a. Find the Constitutional rights associated with bearing and begetting a child are too dissimilar to a
right to engage in homosexual sodomy. No reasonable association to marriage, family, or
procreation.
b. History: Such laws are well embedded in the nation and the world’s history. Also point to roots in
Judeo-Christian tradition.
2. Powell Concurrence: Agrees with substantive due process analysis, would have invalidated on 8A grounds
if such a claim was brought.
3. Blackmun Dissent: Focuses on the framing of the right. Thinks it should have been the right to be left
alone. The decision is one that is fundamentally personal and strongly tied to identity and that should be
reason enough
4. Stevens Dissent: Would have applied heightened scrutiny. The language of the law forbids all such acts yet
enforces it only against homosexuals—discrimination against only a subset of the community. Must justify
such discrimination with more than dislike or ignorance.
5. Good Case for Considering History:
a. History used in majority. Arguably promotes stability and limits judicial discretion.
b. Dissent points to history failing to reflect social changes in society and values. Doing so could lead
to a less democratic system in which the will of the current society is not recognized. Also a focus
on history is beyond the court’s competence.
Lawrence v. Texas (2003)—A Right to Engage in Consensual Intimate Conduct Embedded in Concept of Liberty [LC
approach used]
1. Rule: A Texas statute which makes it illegal for two members of the same sex to engage in certain intimate
conduct is a violation of due process of 14A because it furthers no legitimate interest which can justify its
intrusion into the personal and private life of the individual.
a. Uses “liberty interest”—concept of liberty assumes allowing for personal autonomy which includes
freedom of thought, expression and certain intimate conduct. The law seeks to control a personal
relationship which is within the liberty of persons to choose without being treated as criminals. The
conduct itself is but one element of a more enduring bond.
11
ConLawII Final Outline
Fall 2014
Sofia Tarafa
b. History: Homosexual persons not specifically targeted until ‘70’s.
c. Important: Morality alone can never satisfy rational basis. Rational basis implied in decision,
never stated outright. However, they did not make up a potentially rational basis as is typically done
in such analysis.
2. OCR Concurrence: Finds the law invalid under equal protection rather than due process.
3. Scalia Dissent: History has always accepted bans on immoral and unacceptable behavior as enough to
satisfy rational basis. Too many good laws would be invalidated if you do not permit morality as a state
interest (bestiality, prostitution, etc.). Thinks the majority has taken sides in a culture war.
United States v. Windsor (2013)—Striking down DOMA
1. Rule: The federal refusal to recognize same sex marriages of states is found unconstitutional under Due
Process of 5A. Concept of liberty within 5A discussed, but substantive due process not specifically invoked.
Also state, as in Lawrence, that moral disapproval is never a legitimate govt interest.
2. Scalia Dissent: Thinks the Court has unfairly opened the door to striking down all state bans on same sex
marriage.
Brenner v. Scott (Florida 2014)—Same Sex Marriage Ban Struck Down, Uses Classic Substantive Due Process.
1. Rule: Holds that marriage is a fundamental right as that term is used in cases arising under the Fourteenth
Amendment's Due Process and Equal Protection Clauses, that Florida's same-sex marriage provisions thus
must be reviewed under strict scrutiny, and that, when so reviewed, the provisions are unconstitutional.
2. Reasoning: The institution of marriage survived when bans on interracial marriage were struck down, and
the institution will survive when bans on same-sex marriage are struck down. Liberty, tolerance, and respect
are not zero-sum concepts. Those who enter opposite-sex marriages are harmed not at all when others,
including these plaintiffs, are given the liberty to choose their own life partners and are shown the respect
that comes with formal marriage. Tolerating views with which one disagrees is a hallmark of civilized
society.
VII. Right to Die
Cruzan v. Director, Missouri Dept. of Health (1990)—Clear and Convincing Standard does not Violate Liberty Interest
in Death
1. Rule: Requiring a clear and convincing standard of evidence for removing life support of an incompetent
person does not violate liberty interest in refusing unwanted treatment. State has an interest in (1) protecting
and preserving human life and (2) in protecting against abuse.
a. Tailoring: Procedural safeguard to ensure that a surrogate conforms as best as it may to the wishes
of the person when competent. The decision is one of overwhelming finality, and the state may
regulate with heightened evidentiary standard.
b. A state is not required to make judgments about the quality of life they are preserving.
2. Brennan Dissent: No state interest could outweigh her right to die with dignity. A general interest in
preserving life should not be abstracted from the reality of the interests of the person living that life. If the
person doesn’t have an interest, the state cannot have an interest.
3. Note: No clear standard of scrutiny.
a. Compare to Casey—right to bodily integrity dictated there could be relevant. Also decisional
autonomy.
b. Complicated like abortion questions by the definition of what it means to be alive.
12
ConLawII Final Outline
Fall 2014
Washington v. Glucksberg (1997)—No Liberty Interest in Physician Assisted Suicide
Sofia Tarafa
1. Rule: The Washington law which makes physician assisted suicide a felony offense does not violate 14A on
its face or as applied to competent and terminally ill adults because there is no liberty interest in physician
assisted suicide.
a. Originalism: Focuses primarily on history and how history is very much in favor of a ban on suicide
or assistance with death.
b. Framing: Would right have been different if framed as the right to control time and manner of one’s
death?
2. Test: Because no liberty interest, rational basis applied.
a. Legitimate govt interest? Yes—(1) Interest in preserving life; (2) Preventing suicide and treating its
causes; (3) Protecting the integrity and ethics of the medical profession; (4) Protecting the vulnerable
from abuse, neglect and mistakes.
b. Rationally related? Yes. Avoiding finality of death best way to avoid these dangers.
3. Souter Concurrence: Thinks base concern in subs due process should be the right to be free from arbitrary
impositions. Thinks here the state’s interest is sufficiently serious. Finds merit to the other side that is best
resolved by the legislature.
4. Note: There were 5 concurrences—no real consensus on Rehnquist’s majority opinion.
Vacco v. Quill (1997)—EP Companion Case to Glucksberg.
1. Rule: New York’s decision to prohibit assisted suicide while permitting refusal of life saving treatment does
not violate equal protection. There is a rational and widely accepted difference between refusing treatment
and assisted suicide. Point to tort principles of causation and intent (commission v omission). Also a long
standing tradition to the distinction as evidenced by the laws of many states.
2. Stevens concurrence: Dislikes causation and intent argument because he feels that it fails to apply to many
cases. Also withdrawing treatment is in itself an act.
3. Rehnquist Footnote: Thinks someone else could prove differently but would require a much stronger
argument.
VIII. Right to Family
Moore v. City of East Cleveland (1977)—Liberty Interest in Living with Extended Family
1. Rule: California zoning ordinance that limits occupancy of a dwelling to a narrowly defined nuclear family
violates the liberty embedded in substantive due process because it interferes with familial rights in a way
that only marginally serves the state’s interest in preventing overcrowding and reducing traffic.
2. Test: “Something stricter than deferential rationality” required when the government intrudes on family
living arrangements. Must examine (1) The importance of the government interest; (2) The extent to which
the interest or interests is served by the regulation.
a. Find the institution of families is not so limited and familial unions of different types are “deeply
rooted in this nation’s history.”
3. White and Stewart Dissents: Both argue that the historical interpretation here manipulates and expands
substantive due process beyond recognition. Don’t see these rights coming near liberty interest.
13
ConLawII Final Outline
Fall 2014
Belle Terre v. Boraas (1974)—No Liberty Interest in Living with Unrelated Individuals
Sofia Tarafa
1. Rule: The Court should be deferential to the ordinance because it represents economic and social
legislation. There is no privacy right to living with unrelated individuals deeply rooted in our nation’s history
or traditions. The state therefore may regulate as they see fit to serve other interests.
2. Marshall Dissent: The choice of housemates involves deeply personal considerations relating to the quality
of intimate relationships within the home. Strict scrutiny should have been applied.
Troxel v. Granville (2000)—Parents Have a Fundamental Right to Make Decisions Concerning Care and Custody of
Children
1. Rule: A mother has a fundamental right to the care, custody and control of their children (might be
different outcome if framed as best interest of a child). Therefore, a mother’s due process rights are violated
by a state court allowing grandparents to visit grandchildren over the objections of the sole surviving parent.
a. As long as a parent adequately cares for its child, the court has no right to inject itself into the
private realm of the family.
b. Denying deference to a parent’s determinations violates his or her due process rights.
2. Stevens Dissent: Does not consider the rights on a parent so absolute as to bar interference for any reason
other than harm to the child. Due process leaves room for the state to consider the impact of parenting
decisions on the child.
3. Kennedy Dissent: Less deference should be given to a parent’s decision regarding another direct family
member.
Michael H. v. Gerard D. (1989)—The Constitution Protects the Rights of the Marital Family Only.
1. Rule: Although a parent outside of a marriage may have a fundamental liberty interest to a biological child,
to warrant heightened scrutiny the interest must also be one which is traditionally protected by our society.
There is a historical sanctity to the marital family, but none to outside fathers. Therefore, a California law
which establishes a presumption that a child of a wife is a child of the marriage does not violate the due
process rights of a 3rd party father.
2. Note: Rearguing is on page 41 of Combined Notes.
14
ConLawII Final Outline
Fall 2014
EQUAL PROTECTION
Sofia Tarafa
Test:
Choosing a Level of Scrutiny:
 Is the law discriminatory on its face? If so, apply strict for race, intermediate for gender, etc.
 If neutral on its face, it must have both a discriminatory motive and a discriminatory effect to apply the same
level of scrutiny. (Washington v. Davis)
o Discriminatory motive OK if no discriminatory effect [Palmer v. Thompson]
o Ways of proving intent: (1) Context; (2) Legislative History; (3) Extent of Disparate Impact—use
precedent to see what extent of effect the court sees capable of proving intent [No in Davis, yes in
Gomillion.]
Standards of Scrutiny: More realistic to think of a spectrum than 3 tiers.
Strict Scrutiny: [Applies for Race—Korematsu]
 Does the law serve a compelling government interest?
 Is the law narrowly tailored to achieving that interest? [Cannot be grossly under or overinclusive.]
 Does the law employ the least restrictive means for achieving that interest? [If arguing there are alternate
means, give examples]
Intermediate Scrutiny: [Applies for Gender—Craig v. Boren]
 Does the law serve an important government interest?
 Is the law substantially related to achieving that interest?
Rational Basis Scrutiny: [Applies for Disability—Cleburne]
 Does the law serve a legitimate government interest? [Does not need to be the actual interest.]
 Is the law rationally related to achieving that interest?
5 Factors from Brown v. Board: Use when level of scrutiny is not specified [Sexual Orientation]
 Does the characteristic relate to the original intent of the 14th amendment?
 Is the characteristic ever relevant to a legitimate government interest?
 Is the characteristic one that has historically been used to stigmatize or subordinate?
 Is the law being challenged likely the result a defect in the democratic process?
o If the law were passed by a legislature consisting only of members of the group specified/effected by
the legislation, would the law ever have passed? Or is the law likely a result of indifference of
lawmakers towards a particular group?
o Is the group politically powerless? Less access to the political process or underrepresented in
Congress?
o Is the law based on stereotypes?
 Does the law judge people blindly or as members of the class?
In the Slaughterhouse Cases, the court proclaimed that the pervading purpose of the reconstruction
amendments was to solidify the freedom of the slave race and protect the newly made freeman and citizen from the
oppression of those who previously had had dominion over him. See page 43 of Combined Notes for Civil Rights
Statutes of Reconstruction Era.
15
ConLawII Final Outline
Fall 2014
I. The Requirement of State Action
Sofia Tarafa
Civil Rights Cases (1883)—Private Actors Are Not Bound by the 14A.
1. Rule: Congress did not have the constitutional authority under 14A to create the Civil Rights Act of 1875,
which outlawed racial discrimination by private individuals and organizations, rather than state and local
governments. Congress cannot give itself the power to legislate over subjects that are under the state’s
domain.
a. “It would be running the slavery argument into the ground to make it apply to every act of
discrimination which a person may see fit to make as to guests he will entertain, or as to the people
he will take into his coach or cab or car; or admit to his concert or theatre, or deal with in other
matters of intercourse or business."
b. 13A can regulate individual action only to the extent of outlawing the owning of slaves. Regulating
individual acts of discrimination goes far beyond that. Individuals should otherwise be assumed to
give service as they wish to “unobjectionable persons” who in god faith apply for them. To offer
additional protection to former slaves would be to make them “special favorites of the law.”
2. Harlan Dissent: The majority has destroyed the substance and the spirit behind 14A. Clear that 13A also
intended to remove the badge of slavery. Does not give congress the right to grant additional rights to former
slaves, but should allow the prohibition of discrimination on the basis of race.
II. Racial Segregation




Theories for Abolishing Separate but Equal
[Interpretations of Warren in B v. B]
Colorblindness: Race is never a permissible basis on which to distribute public benefit or burdens.
Caste System: Race is an impressible basis for distributing benefits or burdens when doing so has the
social or psychological effect of stigmatizing or subordinating one racial group.
White Supremacy: Laws intended to maintain the superiority of the white race are impermissible under
equal protection (in Brown, providing better education to white students.)
Integration: The idea that integrated schools would offer school children the best possible educational
results.
Segregation in Other Public Facilities: Segregation ruled impermissible in beaches, golf courses, buses, parks,
airport restaurant. In 1963, Court proclaimed that they would hear no more such cases and that public facilities
may never be constitutionally segregated.





Justifications for Strict Scrutiny for Race
Original Goals of 14A: If 14A was aimed at correcting the great imbalance between the races, shouldn’t
race be an acceptable consideration if it is used in an attempt to correct that imbalance?
Relevance: Race is rarely ever relevant to a legitimate public interest. No blanket ban because in rare cases
they can perhaps be justified for racial purposes.
Stigmatizing: Laws which make distinctions based on race are intended to subordinate or stigmatize a
single race.
Democratic Defect: Defect in the democratic process. Discrete and insular minorities are
underrepresented in the political process and therefore distort the democratic process because members of
the group at question are not present to correct stereotypes during law making.
Racial Indifference: Decisions are often made on the basis of racially selective sympathy and indifference.
16
ConLawII Final Outline
Fall 2014
Strauder v. West Virginia (1880)—Equal Protection Ensures Former Slaves Basic Civil Rights
Sofia Tarafa
1. Rule: Denying African American male’s opportunity to participate in jury process violates their right to
equal protection under the law. The purpose of the reconstruction amendments was to ensure the same civil
rights to former slaves as to the rest of society. No such clear-cut discrimination in an area of such basic
civil rights is permissible.
Separate but Equal
Plessy v. Ferguson (1896)—14A Ensures Only Political, Not Social, Equality. Separate but Equal Acceptable.
1. Rule: The law requiring separate but equal accommodations for train passengers does not violate 14A
because the amendment is intended to grant only rights to political equality. The Court also does not believe
that the laws imply the inferiority of one race over another. Law is within police powers of the state if
enacted in good faith for public good and not for annoyance or oppression of a particular class.
2. Harlan Dissent: Clear that the purpose behind the law was to keep the blacks away from whites and not
vice versa. The Constitution is intended to be colorblind and not promote one race over the other.
In Public Education
Missouri ex rel. Gaines v. Canada (1938)—Substantially Equal In-State Education Required
1. Rule: The state denial of a student’s admission to the state law school on the basis of his race cannot be
corrected by paying tuition at the out-of-state law school. The law school must furnish the students within
its borders in facilities substantially equal to those offered to students of the white race.
Sweatt v. Painter (1950)—A Separate School Must be Substantially Equal to Satisfy Equal Protection
1. Rule: Texas attempt at a separate law school for blacks is unacceptable under EP because the white school
remains superior in number of faculty, variety of courses, opportunities for specialization, size of student
body, scope of library, and availability of law review. Also unequal for it lacks the intangible qualities of the
established UT law school (reputation, alumni, faculty experience.)
McLaurin v. OK State Regents (1950)—Physically Separating a Student leads to Unequal Education
1. Rule: Requiring a black student attending a white program to sit in a separate section of the classroom, sit at
a private table at lunch and in the library violates equal protection because it hinders him from learning his
chosen profession on equal footing with his classmates.
Brown v. Board of Education (1954) [Brown I]—Separate but Equal in Public Education is Inherently Unequal.
1. Rule: Segregation of children on the basis of race, even if the physical facilities and other tangible factors
are equal, deprives children of the minority group of equal protection opportunities. Special weight given to
public education because it is the most important function of local government and determines the future of
the child in large part—education is a right which must be available on equal footing to all. Moreover, the
detrimental effect is clearly greater to the colored children.
2. Constitutional Interpretation: Finds framer’s intent inconclusive and focuses on the reality of schools
today. Clear Living Constitution interpretation.
3. Note: Theories, background and interpretations of Brown on page 51 of Combined Notes
17
ConLawII Final Outline
Fall 2014
Bolling v. Sharpe (1954)—Extending Desegregation to the Federal Government
Sofia Tarafa
1. Rule: The principles of 5A due process embody many of the same ideals of equal protection. Liberty under
the law extends to a full range of conduct an individual must be free to pursue, and segregation in schools is
a violation of that liberty. Such segregation is not reasonably related to any government purpose—it
arbitrarily burdens students due process rights [implies it would fail even rational basis—Nebbia].
a. Note: The federal govt should never have less duty than the states.
Brown v. Board II (1955)—Implementation of Brown I Must be done in Good Faith
1. Rule: Defendant’s must make a prompt and reasonable effort towards full compliance of desegregation.
Enforcement left largely to lower courts to evaluate whether good faith compliance procedures were
implemented. Essentially, Brown I was merely the first step towards state sanctioned desegregation.
a. “All deliberate speed” as opposed to immediate. Possibly because of fear of violence from
immediate integration.
b. Note: De facto desegregation outlawed, but much remained due to housing patterns.
III. Strict Scrutiny for Race-Specific Classification
McLaughin v. Florida (1964)—Laws against Interracial Cohabitation Violate Equal Protection
1. Rule: A criminal adultery and fornication statute prohibiting cohabitation by interracial unmarried couples is
a form of invidious race-based discrimination forbidden under the Equal Protection clause of 14A.
2. Test: Because 14A was created primarily to eliminate racial discrimination emanating from official sources,
racial classifications must be treated as constitutionally suspect and subject to the most exacting scrutiny.
a. Race will in most cases be irrelevant to any legislative purpose.
Loving v. Virginia (1967)—Antimiscegenation Statutes Violate the Central Meaning of Equal Protection
1. Rule: Virginia’s statutory scheme to prevent marriages between persons solely on the basis of race violate
equal protection. Equal application to members of both races does not save such a statute because it is still
based wholly on race and forbids only conduct which is acceptable if done by people of the same race.
2. Test: Applied “most rigid scrutiny”: Failed to prove that it was necessary to the accomplishment of some
permissible state objective independent of racial discrimination.
3. Brown Theory: Find the law was most likely enacted to maintain white supremacy.
Palmore v. Sidoti (1984)—Best Interest of a Child Standard Cannot Consider Race a Relevant Factor.
1. Rule: Allowing a lower court to remove a child from a parent’s custody for a race-based reason alone is to
give legal effect to private prejudices in violation of equal protection. Although the child may be affected by
the stigma of an interracial marriage, that is an intolerable reason to remove the child from its natural
mother. To do so is to give effect to existing racial prejudices and punishing one person for the purpose of
satisfying the biases of others.
2. Facts: A white mother remarried a black man. The court granted custody to the father on the basis of
sparing the children the stigma of being the child of an interracial marriage. Note that the decision therefore
rested wholly on race as the outcome would have been opposite had she remarried a white man.
18
ConLawII Final Outline
Fall 2014
IV. Facial Discrimination against Racial Minorities [Strict Scrutiny]
Sofia Tarafa
Korematsu v. US (1944)—Creating Strict Scrutiny for Race-Based Discrimination (and Surviving It). **Cite for Strict
Scrutiny for Race-Based Discrimination**
1. Rule: Disparate treatment based on race must be justified under the most rigid scrutiny. Here, the executive
order for interment of more than 100, 000 Americans and non-citizens of Japanese origin in camps during
WWII passes such scrutiny because it was deemed a pressing matter of public necessity.
a. Racial antagonism could not satisfy, but pressing public need does. Overinclusiveness acceptable
here because it was impossible to separate the disloyal from the loyal.
b. In times of war, the logic of the executive must be relied upon. Cannot now, in the calmness of
hindsight, call such behavior unjustified.
2. Frankfurter Concurrence: Behavior may be held to a different standard during wartime. Also such war
time decisions are the business of the legislature and executive, not of the Courts.
3. Murphy Dissent: Said that even keeping in mind military necessity, the action fails even rational basis. The
deprivation was unrelated to any imminent public danger. The racial animosity is obvious—not German
because they look like average Americans?
4. Jackson Dissent: This decision places a loaded weapon in the hands of any authority with a plausible claim
of urgent need.
5. Note: Both underinclusive [fails to capture all spies—most could be of other descents] and overinclusive
[bound to gather thousands of loyal Americans.]
a. This is a good example the court failing to ferret discrimination because they have the same biases.
V. Race-Neutral Classifications
Racially Discriminatory Purpose Underlying Facially Neutral Laws
Gomillion v. Lightfoot (1960)—Using County Boundaries to Disenfranchise Black Voters Violates 15A
1. Rule: Changing a county from a square to a 28 sided figure which removed from the city the vast majority
of black voters and none of the white ones is a clear attempt to disenfranchise black voters in violation of
15A’s protection of former slave’s voting rights.
2. Rule: Although the law says nothing about race (neutral on its face), the effect of the law makes it clear that
it was made with discriminatory purpose.
Griffin v. County School Board of Prince Edward County (1964)—Desegregation is an Illegitimate State Purpose
1. Rule: In response to Brown v Board, Prince Edward County closed public schools and used the funds for
grants to white children to attend whites only private school. The clear grounds of opposition to
desegregation cannot hold up as a state purpose.
Palmer v. Thompson (1971)—Discriminatory Motive Okay if No Discriminatory Effect [Operating Swimming Pool]
1. Rule: Jackson did not violate 14A in closing its public swimming pools after they had been ordered
desegregated because the city has no affirmative duty to operate swimming pools. Although the motivation
was racial animus, that is insufficient reason to rule that the action violated EP—motive is too difficult to
ascertain.
a. Differentiation from past cases that considered motive: those cases (such as Gomillion) considered
the effect more than the motive—here the discrimination effected members of both races equally.
b. Note: Diminished Gomillion by lowering from motive to effect.
19
ConLawII Final Outline
Fall 2014
Facially Neutral Laws with Racially Discriminatory Effect
Sofia Tarafa
Washington v. Davis (1976)—Racially Discriminatory Effect Alone Does Not Trigger Strict Scrutiny. **Cite for
Facially Neutral with Discriminatory Effect**
1. Rule: The DC Police Department exam does not violate EP although a disproportionately greater number
of blacks failed. The test is neutral on its face and therefore does not trigger strict scrutiny unless the motive
behind the test is found to be discriminatory.
a. Reject the provision of the Civil Rights of 1964 Act which states that hiring practices may not be
saved which exclude a substantially disproportionate number of blacks.
2. Test: A facially neutral law must have both (1) Racially discriminatory motive; and (2) Racially discriminatory
impact.
VI. Affirmative Action
Test
Laws that work to advantage minorities are also subject to strict scrutiny. [Not always fatal in fact.]
 Does the program serve a compelling interest?
o 2 Interests in AA have been identified as compelling: (1) Attempting to remedy discrimination;
(2) Creating diversity of students in higher education. [Seattle Schools didn’t answer the question for
lower education.]
 Is the program narrowly tailored to serving that compelling interest?
o Systems rejected: Granting 20/100 points (Gratz); Saving 16/100 spots (Bakke).
o System accepted: Using race as a “plus” in considering the overall student as an individual. (Grutter).
 Part of tailoring consideration: Did the school make a serious good-faith consideration of workable raceneutral alternatives?
 Other factors that can be discussed: (1) Whether AA in general perpetuates stigma against races;
(2) Whether innocent victims of the majority are bearing the harm of these programs when their spots are
given to less qualified minorities; (3) Whether AA merely serves to correct unequal education in lower
levels.; (4) Whether admitting minorities to schools they may not be qualified to attend but for their race
actually hinders their success; (5) Whether the means of becoming “qualified” (standardized testing, etc.)
are themselves biased. System made my majority may be skewed towards majority; (6) Whether higher
education is the appropriate place to correct the inequality; (7) Whether natural desegregation by housing
patterns are themselves innocent—banks once refused to grant mortgages to blacks trying to move to a
white neighborhood. Patterns themselves vestiges of discrimination.
Regents of University of California v. Bakke (1978)—Making Strict Applicable for Affirmative Action Challenges **Cite
for Strict in Affirmative Action Cases**
1. Rule: Because racial and ethnic distinctions are inherently suspect, those intended to benefit minorities are
also subject to strict scrutiny. A school is entitled to make some consideration of race in a properly devised
admission program (for example, Harvard’s system of using race as a “plus”). However, in this case the
respondent is entitled to an injunction which allows him admission into the university, because the
university failed to prove that but for this program the student would not have been admitted (had GPA
and MCAT scores significantly higher than some applicants admitted under special program).
a. So called “benign” versions of preference are also unacceptable because (1) it may not always be
clear that it is fact benign; (2) preferential treatment only reinforces common stereotypes that the
minorities cannot achieve on their own; (3) there is inherent inequality in forcing innocent persons
like petitioner to bear the burden of redressing inequality that they are not responsible for.
20
ConLawII Final Outline
Fall 2014
Sofia Tarafa
2. Facts: The program reserved 16 out of 100 medical school spots for members of minority groups.
3. Strict Scrutiny Applied:
a. Compelling government interest? The purposes put forth are to (1) reduce historic deficit; (2)
counter effects of societal discrimination; (3) increase physicians in underserved communities;
(4) obtain benefits of ethnically diverse student body.
i. Remedying discrimination and the goal of student body diversity to be compelling.
b. Narrowly tailored?
i. The special admissions program, because it is focused only on ethnic diversity, would
actually hinder genuine diversity.
4. Brennan Concurrence/Dissent: Agrees with strict scrutiny. Argues that the racial classification in the
present case is remedial, serves an important government objective and also substantially related to that
objective and thus insulated from the Fourteenth Amendment’s general prohibition of such classifications.
a. Disagrees with the majority’s statement that the Harvard program is better because it is not as
forthright as Davis in terms of the requirements of its program.
5. Marshall Dissent: how can a Constitution which permitted 200 years of discrimination against blacks now
stand as a barrier to a remedy to that discrimination?
6. Stevens Dissent: The original goals of 14A was to protect blacks in particular. This is at odds with those
goals.
Grutter v. Bollinger (2003)—Plus Program is Narrowly Tailored to Serving the State’s Compelling Interest in Diversity
1. Rule: EP does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further
a compelling interest in obtaining the educational benefits that flow from a diverse student body. Additional
benefits of the program are improving cross-racial understanding and offers more democratic legitimacy by
ensuring that a more diverse group are given equal opportunity to participate.
2. Test: (1) Tailoring: Find it narrowly tailored because it looks at applicant as a whole. Tailoring does not
require exhaustion of every conceivable race neutral alternative. Requires only serious good faith
consideration of workable race neutral alternatives of achieving diversity. (2) Refers to a need to give
deference to university’s decisions while claiming to apply strict.
3. Thomas Dissent: find it inconsistent with strict and demeaning to the race. Sees this as a 25 year license to
violate the constitution based on personal value judgments. Thinks that sending them to students they are
less qualified to attend actually harms them in the long run.
Gratz v. Bollinger (2003)—Point System Insufficiently Tailored to Satisfy Strict Scrutiny
1. Rule: LSA’s undergraduate admission program which grants 20 out of 100 points required for admission is
not narrowly tailored to achieving the government’s interested in diversity. The admissions policy therefore
violates equal protection.
a. Rests on overly mechanical grounds that does not offer sufficiently individualized consideration.
b. Argument that they receive too many applications is not sufficient grounds to violate the
constitution.
c. Takeaway: Seems court will only approve of AA plans that are not honest about their methodology.
[Souter dissent points to this.]
2. Ginsburg Dissent: The consideration of race is appropriate when considering the history of rank
discrimination against minorities in this country. As long as each student is qualified to attend college, as
they are all sure to be considering it grants only 1/5 of the points needed, there is no reason not to allow
such a program.
21
ConLawII Final Outline
Fall 2014
Racial Diversity in K-12 Public Education
Sofia Tarafa
Parents Involved in Community Schools v. Seattle School District (2007)—Voluntary Integration Program Failing Strict
Scrutiny.
1. Facts: Louisville and Seattle Voluntary Integration Programs Challenged:
a. Seattle, which had never operated segregated schools, operated a voluntary integration program to
correct the racial imbalance between schools due to effects of housing patterns. Students were able to
rank their choice of schools. As tie breakers for the more popular selections, tie-breakers were used.
Among these were an enrolled sibling and, after determining the racial composition of that school,
race.
b. Functioned under a desegregation decree initially, which was dissolved when they were found to be
unitary to the greatest possible extent. Followed up with a voluntary school assignment plan that
required non-magnet schools to maintain b/w 15 and 50% black enrollment (no more no less).
2. Rule: The allocation of school age children to public schools on the basis of race violates 14A because
whether or not racial diversity in public school education is a compelling interest (not answered), the means
are not narrowly tailored to achieving any substantial educational benefit. Does expressly what Brown
forbade in serving different interests.
a. Racial balance as a sole goal of a program is an illegitimate goal. Working backwards from race is a
fatal flaw.
b. “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
3. Thomas Concurrence: Racial imbalance is no segregation and there is no risk of segregation in either
district. Coerced racial mixing lacks any educational benefit. Uses colorblind constitution argument to
benefit.
4. Kennedy Concurrence (5th vote—CONTROLS): Finds “ensuring equal educational opportunity to all”
as a compelling interest. For that purpose race should be able to be used as a factor. Thinks the argument
that this is what Brown forbade oversimplifies brown’s holding which understood there was no simple
solution. Says this decision should not stop schools from working towards racial balance.
a. Offers Alternatives: Considers these are superior to reducing an individual to their race to serve goal
(1) Strategic site selection of new schools; (2) Drawing attendance zones with a general understanding
of demographics; (3) Tracking enrollment and performance by race.
5. Breyer Dissent: Race plan accepted in Grutter was no less race conscious than this one. Constitution
should permit voluntary integration even if it doesn’t require them. Improperly undermines Browns hearing
in the name of EP. Thinks this has made all AA programs fatal in fact.
a. Thinks deference should be given to the school board’s belief that this is necessary.
b. Originalist argument: 14A intended to bring full rights to a demeaned race.
Schuette v. Coalition to Defend Affirmative Action (2014)—Forbidding Affirmative Action is Consistent with EP
1. Rule: A Michigan amendment to its state constitution prohibiting the consideration of race as part of an
affirmative action program is consistent with equal protection. The voters and legislature have the right to
decline to use race as a factor.
2. Breyer: Constitution permits but does not require AA.
3. Scalia Concurrence: Finds case without merit—14A requires equal treatment for races, it cannot forbid
what it requires.
4. Sotomayor Dissent: Leaving to the voters is perspective out of touch with reality—minorities have long
been denied equal access to the political process. Minorities constantly suffer slights which make them feel
as if they do not belong. The solution is speaking candidly and openly about the realities of the inequality.
22
ConLawII Final Outline
Fall 2014
VII. Intermediate Scrutiny for Sex Based Discrimination
Sofia Tarafa
Test
Intermediate Scrutiny: [Announced in Craig v. Boren, Strengthened in Hogan]
 Does the law serve an important government objective?
o This justification must be applied free of fixed notions about the roles and abilities of males and
females. An objective to “protect” or exclude one gender is illegitimate. [Hogan]
 Is it substantially related to achieving the objective?
o Means must be valid through reasoned analysis beyond mechanical application of traditional, often
inaccurate ideas about gender roles.
 Can the defenders of a gender-classifying law carry the burden of showing an exceedingly persuasive
justification for the classification? [Mississippi University for Women v. Hogan]
 Remedy: A remedy must closely fit the constitutional violation. It must be shaped to place persons
unconstitutionally denied an opportunity or advantage in the position they would have occupied in the
absence of discrimination. [United States v. Virginia]
Bradwell v. State (1873)—No 14A Protection for Sex Discrimination [Later Overruled]
1. Rule: Illinois has a right to deny Myra Bradwell a license to study law if they see fit because 14A does not
apply to sex discrimination, even when such discrimination is explicit. 14A was intended to protect former
slaves, not other minorities.
a. Analysis of history: No history in favor of women working, particularly in law, so could not have
been framer’s intent. Also the natural timidity of the sex makes them unfit in many ways. Law of the
creator should keep them in the home.
Minor v. Happersett (1874)—No 14A Right for Women Voters
1. Rule: Federal P&I do not include right of women to vote in state elections. The meaning of the word
“persons” within 14A does extend to them but doesn’t grant them rights to realms reserved for men.
Deference to Laws Maintaining Separate Spheres
Goesaert v. Cleary (1948)—‘Benign,” Protective Laws for Excluding Women Clearly Constitutional
1. Rule: Michigan has the right to make a law forbidding women from obtaining a bartenders license (with an
exception for wife or daughter of a barkeep) based on the rational belief that such a profession would be
hazardous for a woman without familial protection. There is a clear logical reason behind it, and a state is
entitled to draw a sharp line between the sexes where they see fit.
Heightened Scrutiny under Rationality Review
Reed v. Reed (1971)—A Legislative Choice to Prefer One Sex Over Another Fails Rational [Applying Rational Basis
with Teeth]
1. Rule: A mandatory preference for men over women in determining administration of an estate does not
serve a rational relationship to the state’s stated goal of resolving issues without an additional hearing. An
mandatory preference for members of one sex is the exact kind of arbitrary choice forbidden by equal
protection.
2. Test: Claimed to apply rational but said that administrative convenience was a goal with some merit. Also,
because men were more educated at the time, not necessarily an arbitrary choice. Clear they applied the test
23
ConLawII Final Outline
Fall 2014
Sofia Tarafa
with teeth. [Note: Case came up around the time an equal rights amendment for women was being
considered.]
Stanton v. Stanton (1975)—Any Distinction between Sexes for Child Support Purposes Fails Rational Basis
1. Rule: Under any test, a distinction between genders in deciding where to allocate finances in child support
violates equal protection. In the context of parenting, males and females are both children and there should
be no distinction made. Made a note that the days of a woman being destined only for the home had passed.
2. Law: A statute for child support had an older age of majority for males than females at which a parent’s
responsibility to make payments for their child expired. Was based on the antiquated notion that girls
matured earlier and married younger.
The Failure to Adopt Strict Scrutiny
Frontiero v. Richardson (1973)—A Line Between Sexes to Serve Administrative Convenience Always Violates EP
1. Rule: A statutory scheme which draws a sharp line between males and females for the purpose of
administrative convenience violates equal protection. Here there is no legitimate reason to grant an
automatic dependency allowance for wives of male members of the armed forces but to require
servicewoman to prove their husbands dependent
2. Important Notes on Sex Discrimination: Brennan advocated for sex as a suspect class but didn’t receive
majority of votes. Pointed out a long and unfortunate history of sex discrimination.
a. Pointed out that romantic paternalism puts women not on a pedestal but in a cage. Compares laws
with gross stereotypes about women to black codes of the south.
b. Pervasive more subtle discrimination based on an immutable characteristic.
c. Like race, and unlike disability, bears no relationship whatsoever on ability to contribute to society.
Convergence on Intermediate Scrutiny or “Exceedingly Persuasive Justification”
Craig v. Boren (1976)—Gender Line in Alcohol Sales Fails Intermediate Scrutiny **Cite for Sex Discrimination
Subject to Intermediate Scrutiny**
1. Rule: Prohibiting sale of beer to males aged 18-21 but not to females is not narrowly tailored to the state’s
purpose of preventing accidents. The law was based on a larger number of males than females in this age
group being arrested for alcohol-related driving offense, but with only 2% of the male population being
arrested, the fit is far too tenuous to serve the state’s interest.
2. Powell Concurrence: Prohibition is so easily circumvented as to be meaningless, the males could easily
have females purchase for them, and the law prohibits only sale rather than consumption.
3. Stevens Concurrence: Punishing 100% for the sins of 2% is grossly overinclusive. Hard to believe the
statute was intended to cope with highway driving issues when it could have only such minimal effect.
4. Rehnquist Dissent: Heightened scrutiny for gender is inappropriate when there is no means of proving
that this group of males is in any way especially disadvantaged or discriminated against (major 14A purpose).
Finds that a case regarding discrimination against males is the inappropriate one to put forth the standard
when 14A more geared towards discrete and insular minorities. Rational Basis should have been applied and
the law would have passed.
24
ConLawII Final Outline
Fall 2014
Sex Equality after Craig v. Boren
Sofia Tarafa
Mississippi University for Women v. Hogan (1982)—Excluding Male from Nursing Program Violates EP
1. Rule: Policy of excluding males from nursing program does not serve the purpose of compensating for
discrimination against women because women are not disproportionately burdened in the field of nursing
and therefore do not merit the additional benefit over men. Moreover, the program fails to serve the
purpose of providing the benefits of a single gender classroom because males are permitted to audit courses.
a. Program arguable harms females as well as males because by maintaining the field of nursing for
females, it implied that females cannot be doctors.
2. Test: Craig standard heightened here. Benign or compensatory systems rejected. States that discrimination
against males rather than females does not save a program that draws an arbitrary line between genders.
3. Powell Dissent: In no previous case has an EP standard been applied to invalidate expanded opportunities
for women.
United States v. Virginia (1996)—A Separate School for Women is an Inappropriate Remedy for Sex Discrimination
1. Rule: The Virginia Military Institute’s exclusion of women violates equal protection because a state cannot
make an option in educational opportunity available only to members of a single gender. The state’s
proffered solution of opening a parallel institute for women is insufficient to correct the violation because it
is impossible for VWIL to achieve VMI’s history or level of education. In addition, the changes in the
program when applied at VWIL, such as lifting the rigorous training, is a clear example of protective
legislation based on fixed notions which has already been forbidden. In short, the remedy does not match
the violation because it does not give women the same opportunity they were previously denied.
2. Rehnquist Concurrence: Writes to disagree with the majority’s idea that the school had to admit woman
because of VMI’s attached history. Believes a separate school would have been an appropriate remedy if it
was of the same overall caliber.
3. Scalia Dissent: Male only govt funded military schools are “deeply rooted in history and tradition.” Thinks
the majority actually used strict. Also points out that the majority of women would be unable to do the
curriculum.
Geduldig v. Aiello (1974)—A Distinction Only Incidentally Based on Gender (Pregnancy) Does Not Violate EP
1. Rule: The exclusion from California’s disability insurance of disabilities accompanying pregnancy and
childbirth does not constitute invidious discrimination in violation of EP. The insurance policy is acceptable
because there is no true risk from which men are protected and women are not.
2. Brennan Dissent: This is clear sex discrimination because it treats men and women dissimilarly based on a
characteristic inextricably limited to one sex.
Michael M. v. Superior Court (1981)—Interest in Discouraging Underage Pregnancy Overrides EP for Men
1. Rule: California’s statutory rape law which punishes the male but not the female for underage sex does not
violate equal protection because, in creating a consequence for men in addition to the ever present
consequence for women, the state’s method is substantially related to its interest in preventing underage
pregnancy. Also notes a lesser need for equal rights for men, as they have not suffered the same past
discrimination.
a. May not make overbroad generalizations, but here are treating dissimilar things differently, as the
consequences differ for the genders in reality.
25
ConLawII Final Outline
Fall 2014
Sofia Tarafa
2. Stevens Dissent: Believes there can be no justification for punishing only half of the joint participants in
risk creating conduct. [Me: Is this not another form of protective legislation that puts women in a cage?
Perpetuates the idea that it must have been the male’s idea/fault]
Schlesinger v. Ballard (1974)—A Law Treating Women Differently to Correct an Existing Imbalance OK
1. Rule: The rule allowing women in the Navy 13 years before mandatory discharge for want of promotion, as
opposed to only 9 years for men, is substantially related to the govts interest in giving women an equal
opportunity for advancement. Congress quite rationally understood that, due to women having les
opportunity for deployment and advancement than men, that they deserved a longer time to be promoted
or discharged.
a. The law does not rest on archaic or overbroad generalizations, but the reality that male and female
line officers in the Navy are not similarly situated with respects to opportunities for service.
b. The rule was that if someone was passed over for a promotion twice they would be discharged at
that point.
2. NOTE: Relied not on EP but 5A due process.
VIII. Other Possible Suspect Classifications
Cleburne v. Cleburne Living Center Inc. (1985)—Rational Basis Appropriate for Distinctions Based on Mental Capacity
1. Rule: The denial of a special permit for a group home for the mentally disabled fails rational basis because
(1) There is no reason for believing the home would be disruptive to the neighborhood or those living in the
home; and (2) Seems clear that the decision rests on an irrational prejudice against the mentally
handicapped.
a. Following proffered reasons rejected:
i. Negative attitudes of nearby property owners is permitting stigma. Same for fears of elderly
neighbors.
ii. Protecting members of the home is a legitimate interest, but fears of harassment from
students across the street is pretextual because students of the school are mentally
handicapped.
2. Test: Rational Basis is appropriate for differentiating based on mental capacity because (1) there is an actual
difference between the mentally sound and mentally handicapped that could be relevant to a legitimate state
interest; (2) Because of the wide differences between types of mental disabilities, govt bodies should have
leeway in addressing differences; (3) Hard to say the group is mistreated due to democratic defect when it
has received so much legislative attention; (4) If the class were considered suspect it would be too difficult
to legislate for the variety.
Same Sex Marriage and Equal Protection
Windsor—No Clear Standard for Sexuality under Equal Protection
1. Rule: DOMA violates EP of 5A. No clear standard, but an intent to harm can never be a legitimate govt
inters.
26
ConLawII Final Outline
Fall 2014
FREE EXERCISE
Sofia Tarafa
Test:
Religious Exemptions: Current test announced in Smith [Adding neutral applicability Q to Sherbert v. Verner]
 Is the law neutral on its face and of general applicability? [If yes, stop here.]
 Does the law impose a substantial burden on religious practice?
 Does the state have a compelling interest to justify the burden on religious practice?
 Are there less burdensome alternatives to achieving the state’s objective?
RFRA: RFRA specifies Sherbert v. Verner as the appropriate test for religion. However, Congress does not have the
right to dictate such a test for the states, so that test only applies under a challenge to a federal law.
 Note: RFRA protection extends to burdens on for-profit corporations [Burwell v. Hobby Lobby].
RLUIPA: No govt shall impose a substantial burden on the religious exercise of a person residing in or confined
to an institution unless the burden furthers a compelling govt interest and does so by the least restrictive means
possible.
Free Exercise: Congress shall make no law prohibiting the free exercise of religion.
1. Triggered when the law in some way impedes you from practicing your religion.
2. Right is not absolute—religious beliefs can sometimes interfere with other needs of society.
3. Important considerations: whether you would be favoring religious over secular; whether you would be
favoring one religion over another.
Establishment: Congress shall make no law respecting an establishment of religion.
I. Exemptions
Sabbath Observances
Stansbury v. Marks (1793)—Introducing Many Free Exercise/Establishment Concepts [Pre-Incorporation]
1. Rule: The law is okay because—(1) Exemptions based on individual religious beliefs could lead to anarchy;
(2) Favoring Sunday Sabbath isn’t preference of one religion over another, simply going with the majority—
ease of application; (3) The law is facially neutral and applied evenly; (4) Thinks the govt can’t decide on
religious accommodations without making inappropriate inquiries into religious practices.
2. Facts: Jewish citizen subpoenaed to testify on a Saturday. After refusing because it was his Sabbath, he was
held in contempt and fined ten pounds. He appeals under the a Pennsylvania Constitution statute which
says: (1) All men have a natural and indefeasible right to worship Almighty God according to the dictates of
their own consciences; (2) That no human authority can in any case whatsoever control or interfere with
their rights of conscience; (3) That no preference shall ever be given, by law, to any religious establishment
or modes of worship.
Braunfeld v. Brown (1961)—Conduct/Belief: Belief Will be Free from Restrictions, Religious Conduct May Not.
1. Rule: A statute created in furtherance of secular goals is valid despite an indirect burden on religious
observance unless the state may accomplish its purpose by means which do not impose such a burden
(alternate means analysis).
27
ConLawII Final Outline
Fall 2014
Sofia Tarafa
a. Unlike the freedom to hold religious beliefs and opinions, the freedom to act, even when action is in
accord with religious convictions, is not totally free from legislative restriction. The state may impose
indirect burdens on religion.
b. Big focus on enforcement—inappropriate for the state to be digging into the validity of different
religious beliefs.
c. The state has a legitimate interest in having a day of peace for the whole town.
2. Narrow: The law requiring all business to close on Sundays does not violate the free exercise clause when
applied to orthodox Jews who are, by their religion, required to close their businesses on Saturday as well.
The law does not prevent them from practicing their religious beliefs, merely makes the practice of their
religion more expensive.
3. Dissent: A day of rest for the whole town is no a sufficient state interest to satisfy such a big imposition on
a business based on religious belief. The court has here given administrative convenience a constitutional
power to allow a law to make one’s religious beliefs economically disadvantageous.
Estate of Thornton v. Calder (1985)—Unqualified Right to Sabbath Observance Violates Establishment
1. Rule: the Connecticut statute which grants members of any religion an absolute and unqualified right not to
work on their Sabbath violates the Establishment Clause because it has a primary effect that impermissibly
advances some religions over others (those without a Sabbath) and advances religious over secular (ignores
the needs of employers/other employees who carry burden).
2. O’Connor Concurrence: Finds singling out Sabbath observers for special and allowing them such an
absolute exception regardless of the burden on the employer is an inappropriate promotion of religion.
Offers Title VII requirements as an appropriate alternative—reasonable accommodation of religion
practices. Allows employers to weigh their needs against the religious needs of the employee.
Mormon Cases to Modern Exemptions
Reynolds v. United States (1878)—Extending Belief/Action Distinction to Laws Criminalizing Polygamy
1. Rule: A right to practice your religious beliefs does not extend so far as to pardon a person who knowingly
and overtly violated a criminal law—essentially, a state always has the right to impose sanctions for a positive
act, even if done in the name of religion (different from abstaining based on belief). The govt may regulate
religious action that violates social duty or subverts good order. The Constitution cannot make professed
doctrines of religious beliefs superior to law.
2. History: Decision made with a large focus on history—Thomas Jefferson’s letter to the Danbury Baptists.
State that there has never been a time when polygamy has not been seen as odious and rejected in society,
so it cannot possibly be argued that 1A intended to permit an exemption for such behavior.
Sherbert v. Verner (1963)—Announcing Original Test for Religious Exemptions [Differs Today]
1. Sherbert v. Verner Test:
a. (1) Does the law impose a substantial burden on religious observers?; (2) Does the law serve a
compelling state interest?; (3) Is it narrowly tailored to achieving that interest? [Requires less
burdensome alternatives consideration.]
2. Rule: South Carolina violates the free exercise clause by refusing unemployment benefits for those who
cannot find gainful employment due to their refusal to work on their Sabbath. The rule (1) creates a
substantial burden on her practice of faith because it pressures her to work on her Sabbath; (2) the state’s
interest in protecting the amount of unemployment benefit and administrative convenience are not strong
interests like a day of rest in Braunfeld.
28
ConLawII Final Outline
Fall 2014
Sofia Tarafa
3. Stewart Concurrence: Finds this decision inconsistent with Braunfeld because he believes the burden there
was actually much greater than the one here. Thinks the court shirked its duty to overturn that decision and
resolve once and for all the dilemma between the 2 religious clauses.
4. Harlan Dissent: This holding favors religious over secular. One who cannot find gainful employment
because he cannot work on that day due to another obligation (children) would find no equivalent reprieve.
Requires the state to single out those with behavior motivated by religious for financial benefit. Thinks the
legislature could make such a decision but cannot be forced to favor religion.
Wisconsin v. Yoder (1972)—Allowing the Amish and Exemption from School Attendance Requirements
1. Rule: The Amish are entitled to remove their children from school before the state-mandated age of 16.
Forcing them to send their children to a school where they feel the environment will inappropriately
influence them to have contrary beliefs imposes a substantial burden on their religious practice and way of
life; and although the state does have a compelling interest in universal education, the 2 additional years of
schooling the law requires would do little to advance that interest. Moreover, the Amish have long been
successful using their own methods of education. Therefore, the govt’s interest is diluted.
2. Douglas Dissent: Finds that the Court ignored the rights of Amish children which are being violated.
Offers them no opportunity to break free from tradition if they so choose. Considers the history of success
of the Amish to be irrelevant in that context.
Conscientious Objectors to War and Marriage
Welsh v. United States (1970)—Allowing a Conscientious Objector Exemption under Statutory Law
1. Rule: The Military Service and Training Act exempts from military service all those who, spurred by deeply
held moral, ethical or religious beliefs, would not be at peace if they allowed themselves to be an instrument
of war. Under the Act, Welsh, who has expressly denied his objection was based on religion, is entitled to an
exemption because he has been able to demonstrate his true deep belief that he finds the taking of any life
to be morally wrong. Essentially states that his beliefs are deep enough to deserve classification as
“religious.”
2. Harlan Concurrence: Thinks the Court erred in ignoring the constitutional issues clearly present here.
Welsh’s conviction should have been reversed under the establishment clause unless he is to go without any
remedy.
a. Note: It is a rule of the court to avoid the constitutional question and focus on statutory
interpretation when such an option is viable, but it is clear here that the statute was merely rewritten
so as to avoid the constitutional question.
Gillette v. United States (1970)—No Statutory Exemption Available for Objector to a Particular War
1. Rule: Persons who object solely to participation in a particular war are not within the purview of the
exempting section (6(j)), even though such an objection may have such roots in conscience and personality
so as to be “religious” in character. The statute expressly states the exemption is only for those who object
to war in any form. Such incidental burdens on participants are strictly justified by the substantial govt
interest in national defense.
2. Facts: (1) First petitioner, Gillette, felt that in good conscience he could only participate in wars of national
defense or as a peacekeeping measure and, therefore, his humanist approach to religion stops him from
participating in the unjust Vietnam war. Based on “fundamental principles of conscience and deeply held
views about the purpose and obligation of human existence.” (2) Negre was a devout Catholic who felt that
his religion actually encouraged participation in wars of their nation, but that his religion would find this
29
ConLawII Final Outline
Fall 2014
Sofia Tarafa
particular was unjust. Felt that participation in an “unjust” war would be a violation of thou shalt not kill.
[decided through religious reading after basic training]
3. Douglas Dissent: Agrees that Negre has an obligation under his religion to participate in just wars and not
to participate in unjust wars, and that the Court has no right to impose such a burden on his religious
beliefs. Focuses on history. Each person must make the decision for themselves as Negre did.
Mandatory Exemption
Employment Division v. Smith (1990)—No Exemption for Religious Peyote Use **Cite for Religious Exemption Test*
1. Rule: The religious motivation for peyote use does not place its users beyond the reach of criminal laws
which are not specifically aimed at the religious use of the drug, and which are clearly constitutional as
applied to those who use the drug for other reasons. The burden on religious users here is real, but it is
merely an unavoidable consequence of a democratic govt and must be preferred to a system which permits
individual morality to be a law unto itself.
a. Hybrid’s okay: The 1st amendment has only provided exemptions to facially neutral laws when the
1A challenge is in conjunction with another constitutional right.
b. Centrality OK: Make a point of saying that is should not be the place of the court to inquire how
central a certain practice is to a religion. Too close to entanglement.
2. Test: (1) Is the being challenged generally applicable and religion neutral? If the answer is yes, the law is not
vulnerable to a free exercise challenge. If the answer is no, apply Sherbert v. Verner: (2) Does the law impose a
substantial burden on religious observers?; (3) Does the law serve a compelling state interest?; (4) Is it
narrowly tailored to achieving that interest?
a. Note: Combined with Lukumi, the test is essentially Washington v. Davis, a law which is neutral on its
face must have both a burdensome intent and effect to trigger strict scrutiny.
3. O’Connor Concurrence: The exemption would have been impermissible under the past test. There is no
reason to add the extra layer, which makes the test less protective of religion. A law of neutral applicability
which forbids the practice of a religious act still burdens religion, and should still be justified under the same
test regardless.
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)—Law Made with Discriminatory Motivation is not Neutral
1. Rule: When the purpose of a particular law is to infringe on the practices of a particular religion, the law is
not neutral and is therefore invalid unless it can be justified under strict scrutiny. Here, it is clear that the law
makers had an animosity towards the religion and their purpose was to suppress it.
a. Narrow: The law fails under strict scrutiny. Although the state has (1) A legitimate interest in
preventing cruelty to animals, but (2) It could have been addressed by restrictions falling far short of
a flat prohibition on the exact practices of Santeros.
b. Equal protection as guidance—the court must offer extra protection to politically unpopular groups.
2. Facts: The ordinances were made during meetings at which clear animosity towards the religious practices
of Santeria was expressed. The laws against animal slaughter created were created so narrowly as to exclude
only the slaughtering done as a part of religious practice.
3. Scalia Concurrence: Thinks looking into motive is inappropriate because the determination of an entire
body of lawmakers is usually near impossible to determine and the court should not make such a
determination their goal. The first amendment does not as for consideration of motive, only effect.
30
ConLawII Final Outline
Fall 2014
Burwell v. Hobby Lobby (2014)—For Profit Corporations Protected by RFRA
Sofia Tarafa
1. Rule: For-profit corporations entitled to the same protection. This is not seen as having a risk to opening
the door to a large number of free exercise challenges, because most companies are publicly traded and it is
therefore too difficult to determine the sincerity of their religious beliefs. The companies here [Hobby
Lobby and Conestoga Wood Specialties] are very small and closely held single family corporations which
have religion as part of their central mission plan.
a. Substantial Burden: A substantial burden is imposed by the ability of objecting parties to conduct
business in accordance with their religious beliefs.
b. Chose not to consider compelling government interest because they found there was nevertheless
less restrictive means available.
c. Least restrictive means: The least restrictive means would have been for the government to assume
the cost of providing the 4 contraceptives at issue to any women unable to obtain it due to their
employer’s religious objections. Find that the cost would be minimal compared to the overall cost of
ACA. [Note cost is an important factor in least restrictive means analysis, but not such an important
one as to say that the government can never be required to spend more than it would otherwise.
2. Ginsburg Dissent: Argued that the majority’s decision was precluded by the Court’s decision in Smith in
which the Court held that there is no violation of the freedom of religion when an infringement on that
right is merely an incidental consequence of an otherwise valid statute. Additionally, judicial precedent states
that religious beliefs or observances must not impinge on the rights of third parties, as the sought-after
exemption would do to women seeking contraception in this case. Justice Ginsburg also wrote that the
majority opinion misconstrued the RFRA as a bold legislative statement with sweeping consequences.
Because for-profit corporations cannot be considered religious entities, the burden the respondents claim is
not substantial, and the government has shown a sufficiently compelling interest, Justice Ginsburg argued
that the contraception mandate does not violate the RFRA.
31
ConLawII Final Outline


Fall 2014
ESTABLISHMENT
Sofia Tarafa
Test
3 types of Establishment Clause claims:
o Claims that govt has impermissibly provided aid to religion.
o Claims that the govt has impermissibly allowed religion to intrude into public schools.
o Claims that the govt has impermissibly sponsored religious doctrines or symbols.
Benefits of the Establishment Clause:
o Protects the secular state.
o Protects minority religions.
o Protects favored religion.

Lemon Test:
o (1) Does the law have a predominantly secular legislative purpose?
o (2) Does the challenged action have a predominantly secular effect?
o (3) Does the law foster excessive govt entanglement with religion? [This prong is no longer used.]

Corbin Test for Whether an Accommodation Violates Establishment [Satisfying Play in the Joints]: These
are the factors to consider. An inappropriate use will not lead to an immediate violation.
o Is there a substantial burden on religion for the plaintiff? [Yes]
-No burden to begin with points to a violation.
o Does the exemption favor one or some religion over another? [No]
o Does the exemption favor religion over secular counterpart? [No]
o Does the exemption burden others? [No]

Endorsement Test [Use for Religious Displays]: Would a reasonable person aware of the history and
context of the challenged action thin the govt was enforcing religion?
Coercion Test: Necessary but not sufficient to finding EC violation. No clear test, but have considered
factors such as (1) Age of audience—children more likely to be coerced; (2) Whether attendance is strictly
(or in a real sense) mandatory; (3) The position of those leading prayer/imposing practice.


Effect Prong for Funding for Religious Institutions:
o If the funding is given directly to a religious institution:
- (1) Is the govt aid made available on a neutral basis?
- (2) Is it used for religious purposes?
o If the funding is granted indirectly [Vouchers]:
- (1) Is it made available on a neutral basis?
- (2) Is the funding to religious institutions the genuine and independent choice on the part of the
voucher recipient?
History:
History has played an important role in the modern understanding of the religion clauses. Two competing
narratives have emerged:
1. Volunteerism and separatism is arguable still the dominant view. Under this view, the advancement of the
church should come only from the voluntary support of its followers and not the support of the state
[Volunteerism]. Proponents of this view also believe the functions of both religion and govt are better
served by remaining independent from one another [Separatism]
32
ConLawII Final Outline
Fall 2014
Sofia Tarafa
2. “Revisionism” or “Nonpreferentialism”: Asserts that the framers established a Christian nation and sought
only to restrict the national govt from preferring one sect of Christianity over another. [More on this on
page 96 of Combined Notes—Also Jefferson and Madison on Page 97]
Lemon v. Kurtzman (1971)—Announcing Establishment Clause Test While Striking Down Financial Aid to Schools
1. Test: A statute must meet 3 criteria to survive an Establishment Clause attack:
a. (1) The law must have a secular legislative purpose;
b. (2) The law must have a principle or primary effect that neither advances nor inhibits religion;
c. (3) The law must not foster excessive govt entanglement with religion [not commonly used today
because it is found to be inconsistent with the other 2 prongs.]
Everson v. Board of Education (1947)—Incidental Benefit to Religious Schools by Equal Bus Funding OK
1. Rule: New Jersey does not violate the establishment clause by spending taxpayer funds on the bus fares of
students of religious schools because it is only part of a larger program where the state pays bus fares for all
students. The benefit to religious education is therefore only the incidental cost of treating all school
children as equal.
a. Note that bus fares are quite separate from the religious function of the school. Also note that to
only deny this funding to religious students would be a disincentive for parents to provide their
children with religious education.
2. Establishment Clause Interpretation: Must mean, at minimum, that (1) No govt can set up a church; (2)
No govt can pass a law aiding or preferring one religion over another; (3) No govt can force someone to
avoid one church to participate in another; (4) No tax can be levied to support religious institutions; (5) No
one can be punished for their religious belief or church attendance; (6) No govt can openly or secretly
participate in religion, and no religion can participate in govt.
3. Jackson Dissent: Disagrees with the majority’s view that this decision is within the purview of the state.
Believes that the majority statement that “the wall between church and state must be high and impregnable”
actually serves his argument that the spheres must stay separate and the comingling here is impermissible.
4. Rutledge Dissent: This is a clear violation of Madison and Jefferson’s ideas that taxes may never be used
for religious education. Separation of spheres must be absolute. (Dissents argue for full separation while
majority is okay with support to religion that applies equally to the secular counterpart).
33
ConLawII Final Outline
Fall 2014
I. Permissive Exemptions (Play in the Joints)
Sofia Tarafa
Play in the Joints: Even if an exception or accommodation of religion is provided under the free exercise clause,
that exemption doesn’t necessarily create an establishment clause violation—there is plenty of room in the joints
between them.
Does Accommodation Violate Establishment Clause?
Substantial burden
on religion for
plaintiff?
Exemption favor
one or some
religion over
another?
Exemption favor
religion over
secular
counterpart?
Exemption burden
others?
Violates
Establishment
Clause?
Thornton
Texas Monthly
Cutter
Amos
Yes—Caldor
required to switch to
a different position
in order to avoid
working on Sundays
(his Sabbath).
Yes—Favors
Sabbath observers.
No—Paying a tax
would not burden
practice of religion.
Yes-The religious
practices of
imprisoned persons.
Yes—employer
burdened by not
being able to hire
members of their
religion.
No—applies equally
to publications of all
religions.
No—All religions
treated equally under
RLUIPA.
No—All religious
employers entitled to
the same exemption.
Yes—Favors
religious
practitioners over
secular employees.
Yes—grants an
exemption only for
religious
publications.
Yes—No parallel
statute to
accommodate any
secular practice.
Yes—Burdens
employer who needs
employees to work
Sundays.
Yes
Maybe—possibly
taxpayers.
No—Requires only
that accommodation
be reasonable.
Maybe—Other
organizations may
have a strong interest
in hiring employees
who share their
beliefs.
Yes (Here on
Amos—lost his job).
Yes
No
No
Larkin v. Grendel’s Den Inc. (1982)—Power May Never be delegated to a Religious Organization
1. Rule: A MA law granting veto power over liquor licenses to churches and schools within 50 feet of the
proposed establishment is an improper delegation of civic power inconsistent with the establishment clause.
Although there is a valid state interest in insulating schools from these establishments, this has (1) the effect
of establishing religion under Lemon—in part because the apparent joint exercise between religion and the
states creates a serious symbolic benefit to religion in the minds of some; (2) also point out that the law
overly enmeshes churches in the exercise of substantial govt powers (entanglement prong),
2. Rehnquist Dissent: Because the state could constitutionally pass a law which bans all liquor licenses in
such a radius, the same constitution should not forbid them from enacting less drastic means.
34
ConLawII Final Outline
Fall 2014
Estate of Thornton v. Calder (1985)—Unqualified Right to Sabbath Observance Violates Establishment
Sofia Tarafa
1. Rule: Mandatory, absolute deference to Sabbath observers constitutes an impermissible establishment of
religion because it has the effect of advancing a particular religious practice that is not common of all
religions, Sabbath observance.
2. O’Connor Concurrence: Points to a crucial distinctions between the law here and the Title VII Provision
which requires reasonable accommodation of Sabbath observance by employers: Title VII not only pointed
to religion, provides for accommodations for important secular needs as well; (2) Title VII calls only for
reasonable rather than mandatory accommodation; (3) Extends such reasonable accommodation to all
religious belief, doesn’t stop at Sabbath observance; (4) Title VII is more clearly antidiscrimination than
endorsement of any religion.
Corporation of Presiding Bishop v. Amos (1987)—Religious Employers May Discriminate With Regard to Religion
1. Rule: The exception for religious employers in the antidiscrimination statute does not violate the
establishment clause. There is a valid reason for a religious employer to want to employ members of their
religion. There is also plenty of play in the joints between the two clauses—calling all laws which give
consideration to religion per say invalid is contrary to that idea.
2. Facts: Amos worked in gym at LDS church for many years when policy of employer was changed to
require a temple recommend to maintain employment. Was given 6 months to receive such a recommend.
His employer argued that under 42 USC 702, a religious employer is allowed to discriminate in hiring
practices with respect to religion because of the importance of religion to the work done by the corporation.
3. Brennan Concurrence: Religious organization have a strong interest in autonomy which should permit the
accommodation. They should be free to discriminate whether the position is religious or nonreligious,
because to have the court decide is excessive entanglement.
Texas Monthly v. Bullock (1989)—Tax Exemptions Must be Made Available on a Neutral Basis
1. Rule: A tax exemption for publishers or distributors of religious periodicals violates the Establishment
Clause because it is not available to similarly situated secular publishers and distributor. They paying of a
sales tax would not violate any religious tenant, and so they are not entitled to preferential treatment
(employers in Amos stood to lose more by being forced to hire nonreligious employees).
2. Scalia Dissent: Although it is not always easy to determine where accommodation slides into favoritism
but doesn’t even consider this a close case.
Cutter v. Wilkinson (2005)—RLUIPA is a Permissible Accommodation of Religion
1. Rule: The narrow exemption provided by RLUIPA is a permissible accommodation of religion not barred
by establishment because (1) It alleviates substantial govt created burdens on private religious practice; (2)
the statute requires analysis of the burden on others for individual accommodations; (3) Will be
administered neutrally among practitioners of different faiths; (4) Very narrow—protects only
institutionalized persons with minimal ability to attend to their religious needs without this accommodation;
(5) by its language does not put accommodation of religion over the needs of an institution—leaves room
for judgment by prison administrators.
2. RLUIPA: No govt shall impose a substantial burden on the religious exercise of a person residing in or
confined to an institution unless the burden furthers a compelling govt interest and does so by the least
restrictive means possible.
35
ConLawII Final Outline
Fall 2014
Locke v. Davey (2004)—A State May Decide Not to Grant Scholarship Money to the Study of Religion
Sofia Tarafa
1. Rule: Washington’s refusal to allow student recipients of the Promise Scholarship to use the money towards
a degree in devotional theology does not violate free exercise. Although the state could choose to grant money
to this practice without violating the establishment clause, it does not mean they are required to under free
exercise.
a. Motive Considered: Unlike Lukumi, this is not punishment and not intended to disfavor religion.
b. State’s Interest in not funding pursuit of devotional degrees is substantial and the exclusion of such
funding places a relatively minor burden on its scholars. History also supports the state’s desire to be
careful about funding for religious education.
c. Tailoring: The law is not overbroad. It allows scholars to take some religious classes and attend an
accredited religious institution.
2. Scalia Dissent: Should have been invalidated as facial discrimination—Inconsistent with Lukumi. If a
benefit is made generally available it becomes the baseline for rights. Therefore, withholding it on the basis
of religion is equivalent to imposing a special tax for practicing religion.
3. Thomas Dissent: Believes study of theology doesn’t necessarily implicate religious devotion or faith.
II. Prayer in Public Schools
Engel v. Vitale (1962)—A Required State Prayer Violates Establishment
1. Rule: The recitation of a nondenominational prayer written by the NY Board of Regents on a daily basis in
public schools is wholly inconsistent with the Establishment Clause. The practice is clearly religious and the
fact that the prayer is written and imposed by the state makes it the precise kind of thing the establishment
clause was drafted to avoid. Neither being nondenominational nor voluntary saves the practice from the
establishment clause.
2. Coercion: A necessary but not sufficient requirement to finding an establishment clause violation in school
prayer. Here, the coercive pressure on minority religions to conform is clear.
3. Stewart Dissent: The practice serves only to recognize the “deeply entrenched” spiritual traditions of our
nation and it is wholly innocent.
Abington School District v. Schempp (1963)—Bible Reading in School Violates Establishment:
1. Rule: The PA law requiring the reading of 10 bible verses to be read at the start of each school day violates
the establishment clause. The possibility for being excused with parental permission does not save it.
Although this might be a “relatively minor” encroachment of the effect prong of the lemon test, the result is
the same.
2. Stewart Dissent: Religion and govt must necessarily interact, no reason to draw such a harsh line. Simply
reading of the passages without comment cannot possibly constitute coercion. (he essentially argues that
coercion is the one and true test necessary from proving a violation)
Wallace v. Jaffree (1985)—No Secular Motivation to Silent Prayer Violates Establishment [Endorsement]
1. Rule: The AL law authorizing schools to set aside one minute at the start of every day for “meditation and
silent prayer” violates EC. It violates 1st prong of Lemon because the term “prayer” was later added, and that
addition has no clear secular purpose. Students were free to pray during the meditation before, but the
addition of the term is a clear endorsement of religion which is inconsistent with the requirement of govt
neutrality.
36
ConLawII Final Outline
Fall 2014
Sofia Tarafa
2. O’Connor Concurrence: Doesn’t think all moments of silence as constitutional—would require a finding
of endorsement of religion. Here however, the purpose and likely effect was to communicate to students
that the moment should be used for prayer.
School Prayer and Coercion
Lee v. Weisman (1992)—Nonsectarian Prayer at Public School Graduation Violates EC
1. Rule: The providence policy of prayers at graduation ceremonies violates establishment clause. Find the
prayer to be an impermissible endorsement of religion. Also find that graduation is, in a fair and real sense,
obligatory, and those who object to not have a true option not to attend. The state may neither stifle prayer,
nor as they did here, put it forth themselves.
a. Coercive pressure is greater in elementary and secondary school, and carries a subtle risk of indirect
coercion that is as real to young students as compulsion.
b. A dissenter could also reasonably believe that their participation communicates to others that they
are of the same belief as the group.
c. State action because rabbi was invited by the school and instructed to give a nondenominational
prayer.
2. Blackmun Concurrence: Even subtle pressures diminishes the rights of each individual to choose
voluntarily what to believe.
3. Scalia Dissent: Finds the court has laid waste to an important tradition and harmed a large number of
families who require such prayers at moments of significance in life. Also believe the discussion on
psychology goes beyond the expertise of the court. Finds no coercion—no fine, no punishment, listener
may do as he pleases. Doesn’t see how a one-time ceremony can have the same effect as daily prayer.
Santa Fe Independent School District v. Doe (2000)—Student-Led Prayer at Football Games Violates EC [Endorsement]
1. Rule: Here, the school has empowered the student body to vote on whether or not to have a student
speaker preceding football games who would deliver a brief invocation or message to solemnize the event.
The practice clearly violates the establishment clause because attendance is in a real sense required and the
purpose of the practice could be only be to invite and encourage religious messages.
a. Would be perceived as a public expression of the views of the majority of the student body.
Legislative Prayer
Marsh v. Chambers (1983)—Legislative Prayer Consistent with Establishment [No Lemon Analysis]
1. Rule: Looking to specific features of the challenged practice in light of the long history of acceptance of
legislative and other official prayers, the allegedly vulnerable factors of the practice do not lean towards
invalidation. The opening of legislative sessions with prayer is deeply embedded in history and tradition of
this country. (Not stated but legislators clearly les manipulable than children in schools).
2. Brennan Dissent: Completely at odds with principles of neutrality and separation. Fails Lemon bc purpose
and effect clearly religious. Also (1) forces legislators in basic disagreement to participate; (2) forces all
residents of a state to support a practice they may disagree with; (3) requires the state to commit itself to
fundamental theological issues; (4) Injects religion into political sphere.
3. Stevens Dissent: Finds historical analysis flawed—many founding fathers disagreed with legislative prayer
even then. Also, points out that a member of a single religion has done the prayer for 16 years. Also favors
one religion over others.
37
ConLawII Final Outline
Fall 2014
III. Public Religious Displays
Sofia Tarafa
Lynch v. Donnelly (1984)—Crèche as Part of a Larger Holiday Display OK.
1. Rule: Pawtucket, RI’s Christmas display’s crèche, when viewed in the larger context of their holiday display,
cannot be viewed as advancing religion, and is therefore not a violation of the establishment clause. Because
it is part of the larger display, there is no finding that the govt was making any kind of subtle effort towards
endorsing religion. To forbid use of one passive symbol would be stilted and contrary to the history of the
nation. The idea of the crèche causing any danger of coercion is farfetched. History supports the role of
religion in American life.
2. O’Connor Concurrence: Finds endorsement of religion a very real violation bc it makes non-practitioners
feel like outsiders. Must consider (1) What the city intended to communicate; and (2) what it actually
communicated. Here the purpose was celebration of a public holiday and the larger display communicates to
outsiders that the intent was not to endorse religion.
3. Brennan Dissent: The crèche demonstrates sectarian exclusivity. The primary effect of its inclusion is to
communicate approval of religion. Tells minority religions they are not as worthy of support. Thinks the
majority focused on context just to save it. Sees it as a coercive step towards establishing a sectarian
preference and communicating to others that they are not included.
IV. School Vouchers
Zelman v. Simmons-Harris (2003)—A Voucher Program May Fund Religious Schools Through True Private Choice
**Cite for indirect funding test**
1. Rule: A voucher program which provides vouchers to families on a neutral basis does not offend the
establishment clause even if most of that money ends up in religious schools. The program is acceptable as
(1) it has a valid secular purpose; (2) it is entirely neutral with respect to religion; (3) it provides benefits
directly to a wide spectrum of individuals defined only by financial need and residence in a particular school
district; (4) and it permits such individuals to exercise genuine choice among options.
a. Note: Any person with the history and context of the Ohio program would reasonably view it as
only one aspect of a broader undertaking to assist poor kids in failed schools.
b. Cannot punish the children/city because by coincidence most private schools in the city were
religious.
2. Program Summary: Due to Cleveland public schools being among the worst performing schools in the
nation, the Pilot Project Scholarship Program was created. The program provided tuition aid through
vouchers for k-8 to attend a participating school of the parent’s choosing.
a. Limitations: To participate, private schools had to agree not to discriminate on the basis of race,
religion, ethnic background, or to advocate unlawful behavior or teach hatred of any person or
group on the basis of race, ethnicity, national origin, or religion.
b. Stats: 82% if participating schools were religious/96% of students who went to private school
through the program went to religious schools.
3. Thomas Concurrence: The program was in response to an academic emergency and the voucher program,
though indirectly funding religious schools, provides for a good education—the only true means to
individual freedom. Improper to turn the constitution into forbidding urban children their freedom.
4. Souter Dissent: If there were ever a reason to undercut the meaning of the establishment clause, this would
be it. However there should never be a reason. Allowing taxpayers to fund religious education is
inappropriate. Here the majority of the money will go to religious education. There is no genuine choice bc
religious school is the only real alternative to public school.
38
ConLawII Final Outline
Fall 2014
Sofia Tarafa
Freedom from Religion Foundations, Inc. v. McCallum (7th Circuit)—Funding Religious Halfway House for Parole
Violators Does Not Offend Establishment
1. Rule: The funding of “Faith Works” as a halfway house for parole violators does not violate EC. Although
Faith Works is often recommended by parole officers, it is recommended with the explanation that the
recommendation is nonbinding and that the rehabilitation would have a Christian element. Any officer
recommending faith works is required to recommend a secular home as well. They would never recommend
a conversion to Christianity. The choice is therefore entirely private, and faith works is a popular
recommendation only because it is one of the few longer programs.
2. Comparison to Zelman: All but one of its contracts are with secular houses. The only evidence of
favoritism, the bid waiver, is unpersuasive; it was granted because Faith Works’ program has such attractive
features from a purely secular standpoint, such as the length of the program, that the state was eager to have
it on its menu of halfway-house choices. That most of the halfway houses with which the state has contracts
are secular makes this an easier case than the school voucher case.
39
ConLawII Final Outline
Fall 2014
FREE SPEECH
Sofia Tarafa
Theory
1st Amendment: Congress shall make no law abridging freedom of speech or of the press. [Unqualified as
written, broad consensus that not all speech is protected.
Serves 3 Principle Values:
 Advancing knowledge and truth in the marketplace of ideas.
o Important consideration is whether a law banning a particular kind of expression will have a chilling
effect on free speech.
 Facilitating representative democracy and self-government.
o Idea that speech on public issues affecting self-govt must be wholly immune from regulation, and
private speech less so.
o Some argue that 1A protection should not extend beyond political speech.
 Promoting individual autonomy, self-expression, and self-fulfillment.
o Intrinsic worth of speech to individuals—value in development of rational human capacities.
 Addtl: Negative theory of govt—importance of questioning the competence and incentives of govt officials
to regulate the flow of ideas among citizens. [Ties back to marketplace]
o Emphasis on mistrust of the ability of govt to make the necessary distinctions and to determine truth
or falsity.
Test
(1) Does this Action Trigger Free Speech Clause?
 If conduct—does it have an expressive component? [Skip analysis if clear-cut speech]
o Is the person intending to express something?
o Is what they are trying to express likely to be understood by the audience? [Spence]
(2) Unprotected Category of Speech?
 Incitement to Imminent Lawless Action [Brandenburg v. Ohio]
o Advocacy of use of force/lawless action.
o Meant to incite imminent lawless action.
o Likely to incite imminent lawless action.
 True Threat [Use Planned Parenthood—Not a SC Case]
o Threat of harm directed at someone.
o Reasonable person would regard this statement as threatening.
o Threatener subjectively intended to intimidate [a question before SC this term].
 Fighting Words [Chaplinsky v. New Hampshire]
o Personally insulting epithet.
o Said face-to-face.
o Likely to provoke someone to retaliate.
 Defamation [Not Necessarily Unprotected—Do Public/Private Figure Analysis]
o Is the statement actually defamatory?
o False declaration of fact.
o Made with actual malice.
o Public/Private: No hard and fast rules. Consider things like (i) whether or not they have thrust
themselves into public spotlight; (ii) whether they have access to the media to counter any
statements. [Public Figure Very Narrowly Construed—Butts and Walker] [Private—Gertz]
40
ConLawII Final Outline
Fall 2014
Sofia Tarafa
- One having general fame and notoriety in community is a public figure for all purposes.
- Those who voluntarily thrust themselves into the spotlight are public figures (with regard to issue
or issues they have injected themselves regarding).
- Involuntary public figures—narrowly construed.
o Note: Lies alone are protected [US v. Alvarez]
 Intentional Infliction of Emotional Distress [Hustler v. Falwell/Snyder v. Phelps]
o If public figure—(i) False declaration of fact; (ii) Made with actual malice.
o Is speech on a matter of public interest? If so, claim will fail.
(3) Content-Based or Content-Neutral?
 For Content-Neutral, can be regulated without regard to what it says. [O’Brien] Govt regulation justified…
o Is the regulation really content-neutral? Can it be regulated w/o regard to what is being said?
o Does the regulation further a significant govt interest? [Interest must be unrelated to free expression]
o Is the regulation sufficiently tailored to the interest? [Essentially intermediate—sometimes looks like
strict but closer to intermediate as applied.]
o Does the speaker subject to the regulation have ample alternative channels of communication?
 For Content-Based, does it fall in an unprotected category of speech? [Simon v. Crime Victim Board]
o If it does not, apply strict.
- Serve compelling govt interest?
- Narrowly tailored to achieving that interest?
o Note: Removing a single subject of speech or a single viewpoint is generally impermissible.
Symbolic Conduct: Flag Desecration [Texas v. Johnson]
 1st determine whether the burning constitutes expressive conduct which would permit a 1A defense
o Does the conduct possess a sufficient communicative element?
o Was the likelihood great that the message would be understood by those who viewed it?
 If expressive, was the state’s regulation related to suppressing free expression? [Borrowed from O’Brien]
o If it is, subject to heightened scrutiny.
Cohen v. California (1971)—Profane Speech Not Unprotected Category
1. Rule: Defendant’s conviction for disturbing the peace for wearing a “fuck the draft” jacket is overturned.
The jacket is not erotic and therefore does not fall into the unprotected category of obscenity. The audience
was capable of averting their eyes and therefore the presence of woman and children is irrelevant. Elevated
protection because the matter was one of political speech and the core of 1A is to limit govt restraint on
public speech. The fact of individuals being offended is irrelevant—matters of taste are left to the individual,
not to the govt.
41
ConLawII Final Outline
Fall 2014
I. Unprotected Categories of Speech
Sofia Tarafa
Incitement
Brandenburg v. Ohio (1969)—Advocacy of Violence Alone is Protected/Incitement to Imminent Lawless Action Not
1. Rule: Ohio’s criminal syndicalism statute which punished for advocacy of violence alone is inconsistent
with the first amendment. The govt cannot punish abstract advocacy of force and violence as it did here,
because that is not the same as preparing a group for violent action and steeling it to such an action.
2. Facts: KKK leader at a rally was put on Cincinnati television and called for the white man to join in
revenge on congress if the continued offering protection to other races.
Hess v. Indiana (1973)—Brandenburg Applied. “Tendency to Lead to Violence” Insufficient for Punishing Speech
1. Rule: A campus antiwar demonstrator’s statement “We’ll take the fucking street later” cannot be punished
consistent with 1A. The statement amounted to little more than advocacy of illegal action at some indefinite
future time and was not intended to or likely to produce imminent disorder so it cannot be punished by the
state.
NAACP v. Claiborne Hardware Co. (1982)—If No Violence Follows Speech, Likely No Incitement Will be Found
1. Rule: A speaker must be left free to stimulate an audience. Hess’ impassioned plea to for black citizens to
unify, to support and respect each other, and to realize the political and economic power available to them,
was not followed by violence. Had it been, there might be a real consideration of whether he could have
been held responsible for the speech. However, most violent acts occurred in the weeks or months that
followed. When an advocates appeals do not incite lawless action, they must be regarded as protected
speech.
Threat
Rice v. Paladin (4 Cir. 1997)—Book with Hit Man Instruction and Publisher Stipulation that Intended for that Use
Unprotected
1. Rule: A book instructing the reader on how to be a hit man, under the circumstances does not receive 1A
protection of no civil liability. The court referred to the circumstances as “unique in the law,” due to the
publishers astonishing stipulation that the book should be read by would-be murderers for hire, coupled
with the extraordinary comprehensiveness, detail, and clarity of instruction for criminal activity and murder
in particular. Also point to the boldness of the excited attitude taken towards murder and the absence of any
of the kind of ideas 1A is intended to protect, including the lack of any arguably legitimate purpose.
Planned Parenthood v. American Coalition of Life Activists (9 Cir. 2002)—A Specified Threat Different From Generalized
Advocacy of Violence
1. Rule: While advocating violence is protected, threatening a person with violence is not. Differentiates from
Claiborne on the basis that the speech there and references to breaking necks were given without context.
Here, posting pictures of specific abortion doctors and drawing a line through the name of those who had
been killed or wounded amounts to a specific threat that is not protected by 1A. Note that there is a
difference when a specific individual is targeted.
2. Dissent: Although the pictures may be interpreted as intended to coerce the doctors into ceasing activity,
the SC stated in Claiborne that speech does not lose protected character by embarrassing or coercing others
into action. Thinks this is actually a weaker case than Claiborne.
42
ConLawII Final Outline
Fall 2014
Fighting Words
Sofia Tarafa
Cantwell v. Connecticut (1940)—Speech is Not Unprotected Because it is Offensive to the Speaker
1. Rule: Cantwell, a Jehovah’s Witness, was improperly arrested for breach of the peace because his
statements, though likely offensive to passers-by, was made upon a public street where he has a 1A right to
impart his views to others. Although listeners has good reason to be highly offended, as they were, there
was no assault or threatening of bodily harm, no intentional discourtesy and no personal abuse. He was
sharing only his true belief without any individualized threat or harm.
Chaplinsky v. New Hampshire (1942)—Words Likely to Provoke the Average Person to Retaliate Are Unprotected
1. Rule: Chaplinsky was lawfully punished under the statute because he used words likely to provoke the
average person to retaliate. Such speech is of such little free speech value and of such a high level of
potential harm that there is no purpose in allowing it 1st amendment protection.
2. Facts: Chaplinsky, a Jehovah’s Witness, was convicted under a state law which states that no person shall
address any offensive, derisive or annoying word to any other person who is lawfully in a street or public
place or call him by an offensive or derisive name. He was making a disturbance on the street and when the
police came, called the City Marshall a god damned racketeer and fascist.
3. Fighting Words Defined here as words which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. Also, speech which is not an essential part of any exposition of ideas and is
of such slight social value as a step to truth that any benefit that may be derived from it is clearly outweighed
by social interest in morality and order.
II. Defamation and Lies
United States v. Alvarez (2012)—Lies about Military Honors Protected Under 1A
1. Rule: Alvarez was incorrectly convicted under a law which made it a crime to falsely claim receipt of
military honors with enhanced penalty for the Congressional Medal of Honor. Even if such speech is
contemptible, it is protected under 1A. While the state does have an interest in preserving the integrity and
purpose of the medal, the interest is not one that survives the exacting scrutiny granted to 1A rights.
Tailoring: The government failed to prove why counter-speech, which the govt has comfortable access to,
was insufficient to achieving its interest in protecting award integrity—true speech should be sufficient to
correct false speech.
a. Marketplace: Some false statements are inevitable in a free marketplace of ideas which permits open
and vigorous expression of the views in public and private conversations. Such a limitless ban on
false statements has a chilling effect on speech.
2. Alito Dissent: Finds that the statute is appropriately limited in the following ways: (1) It is a very narrow
category of things that can’t be lied about; (2) Concerns facts squarely within speaker knowledge—no risk of
accidental lying; (3) Requires proof beyond a reasonable doubt that he knew it was wrong; (4) Reasonably
interpreted as communicating actual fact; (5) The act is viewpoint neutral. Also thinks that there is a
substantial risk of harm such as people claiming they received an award to get a job or financing of some
kind. Also said that the means are narrowly tailored because alternative methods too difficult—no definite
recording of all medal recipients. Also finds no risk that nay valuable speech will be suppressed.
43
ConLawII Final Outline
Fall 2014
New York Times Co. v. Sullivan (1964)—Libel against Public Official Requires Actual Malice
Sofia Tarafa
1. Rule: The New York Times cannot be punished for the publishing of some factual inaccuracies in a full
page ad criticizing the police force on Montgomery, Alabama. To disallow false statement against public
figures on a public matter would actually chill all speech on the matter for fear of prosecution. 1A cannot
accept any rule which dampens the variety and vigor of public debate. Also, no clear support that the
statement was actually made of and concerning the police commissioner, who was never named.
2. Standard: 1A requires a rule which bars a public official from recovering damages for defamatory false
statements unless he can prove that such a statement was made with actual malice, which requires either
knowledge that the statement was false or made with a reckless disregard to the falsity of the statement.
a. Here the Times showed at most negligence and therefore cannot be punished without risking a
chilling effect on speech.
3. Facts: A paid full page ad in the NY Times described violence taken against blacks in the South. The police
commissioner of Montgomery, Al (who was not specifically mentioned) sued the paper and those who had
signed the ad. He did not participate in the actions listed and took them to implicate him in the arrests of
Dr. King. (Incorrectly listed that MLK was arrested 7 times when he was arrested only 4).
4. Black Concurrence: Dislikes malice standard. Believes there should be an absolute unconditional right to
publish criticisms of govt agencies and officials.
5. Goldberg Concurrence: Wrote to point out that statements about the private conduct of a public official
should be protected.
Curtis Publishing Co. v. Butts (1967) and AP v. Walker (1967)—Extending NYT Rule from Public Officials to Public
Figures
1. Rule: Because citizens have a legitimate and substantial interest in the conduct of public figures, the
freedom of the press to engage in uninhibited debate about their involvement in public issues is as crucial as
with public officials. Therefore there will be no distinction in 1A analysis between public officials and public
figures.
2. Facts: (1) In Butts, a Saturday Evening Post article claimed at an UGA athletic director had fixed a football
game; (2) In Walker, a retired general was claimed to have led a violent crowd in opposition of a
desegregation decree at University of Mississippi.
3. Defining Public Figures: [Page 985 of Textbook] (1) A well-known lawyer in the community found to be
private figure because no fame or notoriety, no pervasive involvement in community affairs; (2) wealthy
divorcee not public figure because had not assumed any role of influence beyond palm beach high society;
(3) scientist whose govt funded studies were criticized by senators not public figure bc he had not thrust
himself into public controversy or tried to influence others; (4) A man convicted of failure to appear before
a grand jury on charges of being a soviet agent is not a public figure because he did not thrust himself into
public eye.
Rosenbloom v. Connecticut (1940)—Focus should be on Public/Private Subject Matter, Not Status of Plaintiff
[Overruled in Gertz]
1. Rule: Actual malice rule appropriate to use even when regarding a private figure if the speech is on a matter
of public interest. Intended to honor robust debate on public issues by extending protection to all
discussion and communication involving matters of public and general concern without regard to whether
the persons involved are famous or anonymous.
44
ConLawII Final Outline
Fall 2014
Sofia Tarafa
Gertz v. Robert Welch, Inc. (1974)—Current Standard for Private Figures Offers Some Protection **Cite for Private
Figure**
1. Rule: Because public officials and figures enjoy significantly greater access to channels of effective
communication that grant them a more realistic opportunity to counteract false statements than a private
individuals would have, private individuals are more vulnerable to injury from false speech. The protection
for private individuals must, therefore, be correspondingly greater.
a. Legitimate state interest: Compensation of individuals for the harm inflicted on them by defamatory
falsehood. Must be balanced with the need to avoid self-censorship by news media.
2. Standard: States may decide for themselves the appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood injurious to a private individual. This offers a better balance between
the competing concerns of a free marketplace of ideas and protecting an individual from unfair damage to
their reputation.
a. Limitation: The state may decide, however, the court requires that remedies don’t go beyond actual
injury, although this is not limited to out-of-pocket harm. Can include impairment of reputation,
standing in community, personal humiliation, and mental anguish and suffering.
III. Injury to Sensibility and Hate Speech
Group Libel
Beauharnais v. Illinois (1952)—State May Punish Libel Against a Group as They See Fit to Maintain Peace and Order
1. Broad Rule: Illinois has a right to pass a law punishing libel aimed at a designated collective and fragrantly
disseminated because the speech is of little free speech value and has a high probability of causing harm.
Considering the excessive racial tension in Illinois and the likelihood of a strong emotional impact, the state
was within its police rights in creating the statute and punishing the leader for it.
2. Narrow Rule: Illinois did not violate 1A by punishing the president of the White Circle League of Illinois
for his leaflet calling on whites to unite against the mongrelizing of the negro (including threats of what
would happen if no change occurred) under a statute banning libel towards an entire group (exposes citizens
of any race, color, creed, or religion to contempt, derision, or obloquy).
Intentional Infliction of Emotional Distress
Hustler Magazine v. Falwell (1988)—IIED Not Available to Public Figures/Officials
1. Rule: A public figure may not recover for IIED unless they can show (1) That the publication contains false
statements of fact; and (2) that the false statements were made with actual malice. The robust political
debate encouraged by 1A is bound to produce speech critical of public figures, and it is unreasonable to
expect such criticism to be reasoned or moderate. Note that even bad motives are protected by 1A and
motive analysis is therefore inconsistent with 1A.
2. Facts: Parody comic about evangelist Jerry Falwell published in Hustler. Said he lost his virginity to his
mother in an outhouse. Stated in small print that it was a parody.
Snyder v. Phelps (2011)—No IIED Available to Private Figures Caused Anguish by Content of Public Interest
1. Rule: Westboro must be shielded from tort liability because the content of their speech was clearly a public
debate relating to broad public issues and not specifically to the family. Restricting speech on purely private
matters does not have the same constitutional concerns, but here the subject matter gives Westboro a
constitutional right to protest. The Court also cannot grant Snyder’s IIED based on the context of the
45
ConLawII Final Outline
Fall 2014
Sofia Tarafa
protest at their son’s funeral. The fact that the signs were there cannot, itself, change the character of the
speech as speech on a matter of public concern.
a. Agree that the speech is despicable and that it caused extreme emotional anguish to the family, but
1A forbids punishing peaceful protest on a public street on a matter of public interest. Such speech
is subject only to reasonable time place and manner restrictions.
b. Risk—in a free marketplace of ideas we must tolerate insulting and outrageous speech to give
breathing room to 1A protections.
2. Facts: Westboro protests to relate their perspective that they feel God kills American soldiers as
punishment for America’s tolerance for homosexuals. Often picket military funerals. In 2006 picketed
Snyder’s funeral. Picketing was peaceful, 1,000 ft. from funeral and included very offensive signs.
IV. Content-Based v. Content-Neutral
Content-Based
Police Department of Chicago v. Mosely (1972)—Permitting Only 1 Subject in a Particular Place Unconstitutional [Based
on EP but with Clear 1A Message]
1. Rule: The Chicago ordinance forbidding picketing within 150 yards of a school except for peaceful
picketing relating to a school involved in a labor dispute is unconstitutional because it is selective exclusion
of speech from a public place. A law may not describe permissible picketing in terms of subject matter—1A
prohibits the restriction of messages based on their content. 1A also forbids granting of a forum only to
views it finds acceptable—all viewpoints must be afforded an equal opportunity to be heard.
a. Note: Time place and manner restrictions still okay—this clear subject matter is unacceptable.
Particularly because peaceful non-labor picketing is no more disruptive than peaceful labor
picketing.
Carey v. Brown (1980)—Cannot Afford Preference to 1 Subject over Another
1. Rule: The law barring picketing outside of residences with an exemption for peaceful picketing of a place of
employment involved in a labor dispute unconstitutionally grants preferential treatment to the expression of
views on one particular subject. [Constitutionally indistinguishable from Mosley]
2. Rehnquist Dissent: Disagrees that giving preference based on content. Sees as preference based on
character of residence—actually a time/place/manner restriction.
Simon & Schuster, Inc. v. Members of New York State Crime Victim’s Board (1991)—Cannot Create Financial Disincentive
for Speech on One Subject
1. Rule: The Son of Sam law enacted to prevent serial murders from profiting at the expense of their victims
by requiring proceeds from any book by a person accused, convicted, or admitting to murder about that
crime to go to crime victim’s board is unconstitutional. The govt may not create a financial disincentive to
participate in speech only on a particular subject.
2. Strict Scrutiny: Law is not narrowly tailored to the state’s compelling interest in ensuring criminals don’t
profit off their crimes. It is significantly overinclusive and could draw in such works as the biography on
Malcolm X.
46
ConLawII Final Outline
Fall 2014
Burson v. Freeman (1992)—Voting Right Can Make the Regulation of One Subject OK
Sofia Tarafa
1. Rule: State law forbidding the solicitation of voters and display of political posters or signs or campaign
materials within 100 feet of a polling place does not violate the 1st amendment because, considering the
conflict between voting rights and speech rights, the requirement is not an unconstitutional compromise.
a. KND Concurrence: Narrow area where 1A can yield to the extent necessary to accommodate other
constitutional rights.
2. Strict Scrutiny: The state has a compelling interest in protecting citizens’ right to vote freely in an election
conducted with integrity and reliability. The law is also necessary to protection of those interests—history
and common sense show that a restricted zone is necessary to protect fundamental voting rights.
3. Scalia Concurrence: All that should be required in vicinity of polling place is viewpoint neutrality.
4. Stevens Dissent: This is political speech and therefore receives supreme 1A protection. Grassroots
candidates rely on this forum and so the law is really favoring the well-funded candidates.
Content Neutral
Schneider v. State (1939)—Interest in Preventing Littering Cannot Override Free Speech Rights
1. Rule: New Jersey community laws forbidding the distribution of all pamphlets on the street to prevent
littering cannot stand. The purpose of keeping the streets clean cannot justify an ordinance prohibiting the
right to disseminate pamphlets on a public street. The law is content neutral, but the street is a historically
recognized public forum and rights there receive more protection. Any additional cost of littering must be
borne to protect speech.
Martin v. Struthers (1943)—Cannot Constitutionally Prohibit Door-to-Door Dissemination of Information
1. Rule: Ordinance prohibiting the distribution of handbills to residences by ringing doorbells or otherwise
summoning residents to the door violate the 1st amendment. Door to door distribution may be a nuisance
or blind for criminals, but they may be useful members of society employing well-known means of reaching
individuals. Door to door people are typically underfunded. Leaving up to the individual whether or not to
open the door is sufficient.
Kovacs v. Cooper (1949)—Prohibition on Speakers Emanating “Loud and Raucous Noises” OK
1. Rule: The Trenton, NJ ordinance regulating loud speakers is constitutionally sound. A flat ban on loud
speakers may not be, but here the application only to “loud and raucous” speakers is a permissible exercise
in avoiding traffic issues and irritating homes and businesses.
2. Jackson Concurrence: Actually sees this as a flat ban on loud speakers but an acceptable one because is it
justified based on its conflict with quiet enjoyment of the home. Also ok because it does not discriminate
based on content.
3. Black Dissent: 1A ensures to the public all instruments of communication and favoring some channels
over another necessarily grants preference to those with access to the approved of channels.
City of Ladue v. Gilleo (1994)—Banning Signs (With 10 Exceptions) Bans “Too Much Speech”
1. Rule: Ordinance banning the posting of most signs to minimize visual clutter, with 10 exceptions, is
unconstitutional because it bans far too much speech. Residential signs are understood to play an important
role in political elections and communicate to others your view with a weight few other mediums can. The
court sees no adequate substitute for such signage. Long history of respect for liberty to express view within
the home.
47
ConLawII Final Outline
Fall 2014
V. Symbolic Conduct
Sofia Tarafa
United States v. O’Brien (1968)—Canonical Test for Content-Neutral Laws Announced [Draft Card]
1. Rule: The law forbidding the knowing destruction, forgery, altering or mutilation of a draft card is
constitutional as written and as applied. Although it is clear that O’Brien meant to communicate and gain
support for his anti-war beliefs with the symbolic burning, the Court will not accept the view that apparently
limitless conduct can be labeled as speech because of the intention to communicate an idea. Motive inquiry
inappropriate.
2. Test: Put forth for content neutral regulations—A govt regulation is clearly justified if (1) It is within the
constitutional powers of the govt to regulate; (2) If it furthers an important or substantial govt interest; (3) If
that govt interest is unrelated to free expression; (4) If the incidental restriction is no greater than essential
to furtherance of that interest. [Important to note that this was changed to closely tailored—least restrictive
not required]
3. Applied: (1) Draft card regulation a vital part of gathering manpower for military service; (2) The law is well
tailored to achieving interest in assuring continuing availability of draft cards; (3) the law condemns the
noncommunicative aspect of expression—does not single out war protestors; (4) the frustration of govt
interest here justifies the conviction.
Flag Desecration
Street v. New York (1969)—Cannot Punish Defiant and Contemptuous Words About the Flag
1. Rule: The law criminalizing the mutilating, defacing, trampling or casting contempt on the flag by word or
act was unconstitutionally applied to convict Street’s burning of a flag on a corner in response to the murder
of civil rights leader James Meredith by a sniper. It seems he was punished for his public burning and telling
the crowd that he didn’t need such a symbol for a country that shouldn’t let such a thing happen. 1A
protects freedom to publicly express opinion about the flag, including contemptuous opinions.
2. Warren Dissent: Although he did give his opinion accompanying the burning, he was convicted for the act
which the state has the right to do.
Smith v. Goguen (1974)—Law Forbidding “Contemptuous” Treatment of the Flag Void for Vagueness
1. Rule: A Mass law making it a crime to mutilate trample upon deface or treat contemptuously a US flag is
void for vagueness—it restricts too broad a category of conduct and therefore does not provide fair notice
to the public about what is being forbidden. Clearly unconstitutional as applied to a man who wore the flag
sewn on the seat of his pants. Current Climate taken into consideration—flag now treated more casually and
would grant prosecutors too much leeway to punish with their personal conscience.
2. White concurrence: Thinks the law is per say invalid under 1A because he reads it specifically as banning
any ideas about the flag which the controlling majority would disagree with. Particularly odious because 1A
enacted to protect minority opinions from being silences.
3. Rehnquist Dissent: Strong state interest in protecting the integrity of our national symbol.
48
ConLawII Final Outline
Fall 2014
Sofia Tarafa
Spence v. Washington (1974)—Clearly Expressive and Peaceful Behavior Receives Full 1A Protection **Cite for Test
for Triggering 1A Protection**
1. Narrow Rule: The Washington statute prohibiting improper use of the flag, including attaching something
to a flag on display, was unconstitutional as applied to the display of a US flag with a large peace sign taped
on both sides to protest the invasion of Cambodia and killings at Kent state university. The states interest in
preserving a flag as a symbol is valid, although it is directly related to expression. Still unconstitutional as
applied here because he was peacefully protesting the fact that the govt didn’t share his viewpoint, so there
was no true risk of misleading viewers into believing it was the govts view on display.
2. Broad Rule: Something is speech within the meaning of 1A if (1) The intent to display a particularized
message is present; and (2) In light of the surrounding circumstances, the likelihood was great that the
message would be understood.
Texas v. Johnson (1989)—Interest in Flag Protection Does Not Justify Criminal Sanctions**Cite for Flag
Desecration**
1. Rule: The 1st amendment is clearly implicated by the burning of a flag at a protest—no denying the
expressive nature of the action. The state’s interest in protecting against breaches of the peace was not
seriously implicated, and their interest in preserving the flag as a symbol is itself an interest in suppressing
expression which triggers strict. In particular, the law applies only to symbolic disruption so it is a law
regulating expression. While their interest in protecting the flag is legitimate, it does not extend to criminal
sanctions.
a. Note: Makes an emotional point about how permitting freedom of expression here actually protects
the true meaning of the flag as a symbol.
2. Facts: During republican national convention, Johnson was part of a group called “republican war chest
tour” who were protesting Reagan administration by marching through streets. Some of their behavior was
disruptive to community (graffiti, etc.) but none was done by Johnson himself. He set a flag on fire while
protestors chanted anti American sentiments. No one was injured or threatened with injury, though some
testified to being seriously offended.
3. Rehnquist Dissent: The flag is unique as a symbol and therefore deserves heightened protection. There
were alternate means available to relate the message with the same forcefulness, so this is unjustified.
Deprived only a single form of protest offensive to many. It was his choice of symbol for which he was
punished, not the speech itself.
49