Constitutional Law II, Fall 2010
Strict scrutiny (race, nat'l origin) ---> compelling interest, narrowly
tailored means (the classification at issue must fit the alleged compelling interest)
Intermediate scrutiny (gender) --> important gov't interest,
substantially related means
Past discrimination, biological differences (pregnancy, no stereotypes)
Substantial relation: broad deference to state, no need to show evidence of
gender neutral alternatives
Rational basis (everything else) ---> legitimate interest, rationally
related
1) Constitutional Modalities
a)
b)
c)
d)
e)
f)
Textual: What the text means today.
Historical: What the provision meant to cover when it was written.
Doctrinal: What case law has said about the subject.
Structural: What inferences can be drawn from constitutional structure.
Prudential: What effects an interpretation will have in the world.
Ethical: How does the question settle within the American “ethos.”
2) Individual Rights
a) Mcdonald case - handgun case in Chicago, 2nd Amendment does apply to the states,
incorporation through the D.P. Clause and the P&I clause (the slaughterhouse cases); Alito
uses a historical/ethical argument to show that the right to carry a gun was a fundamental right
b) Breyer's dissent: 2nd amendment is not about self-defense, history is not a good way to decide
(only interpreting historical events), look to the nature of the right, whether the right
encourages or furthers other constitutional provisions
c) Scalia: not a fan of substantive due process, but okay with its use in this case
d) Thomas: incorporation is not the mode, should use the P&I clause
3) Equal Protection - 14th Amendment, Justice Holmes - use EP as a
last resort b/c its impossible to treat everyone equally, the law
creates classifications; Use rational basis test - related to a
legitimate state interest, rational way to accomplish the end
a) A Framework for E.P. Analysis; Four Questions
i) What is the classification?
ii) What is the appropriate level of scrutiny?
iii) Does the government action meet the level of scrutiny?
(1) Deferential to congress?
(2) Legitimate purpose? (conceivable, any social or economic purpose)
(3) Rationally related to means?
(4) Too narrow? Too broad?
iv) Fundamental Rights?
b) The Rational Basis Test - deferential standard, typically the statute in
question will stand as the courts are generally tolerant of
over/underinclusiveness
i) Legitimate Purpose
(1) Romer v. Evans
(a) U.S. 1996
(b) Facts: Colorado had passed local ordinances making it illegal to discriminate against
certain groups (based on sexual orientation), there was a social movement to amend the
Colorado constitution that would not allow local/state laws that made sexual orientation a
protected class
(c) Issue: Can Colorado legislature do this?
(d) Holding: No.
(e) Rationale: Homosexual were the targeted class. The Colorado amendment fails the
rational basis test for 2 reasons: 1) law imposes a broad undifferentiated disability on a
single named group; 2) lacks a rational relationship to legitimate state interests. "The law
was borne out of animosity toward the class of persons affected."
(f) Dissent (Scalia): The majority opinion elicits an emotional response, rather than a valid
legal response. There is no right to be "homosexual" in the Constitution, so it is not a
fundamental right. Makes structural argument (leave this to the democratic process)
(2) United States Railroad Retirement Board v. Fritz
(a) U.S., 1980
(b) Facts: Retirement system in place for federal railroad employees; the people with no
connection to the RR and less than 25 years of service are the disadvantaged group
(c) Issue: Is the change in the retirement system constitutional?
(d) Holding: Yes.
(e) Rationale: Only has to be a plausible reason why the law is in place, defers to congress.
Social and economic legislation enacted by Congress will be upheld under the EP Clause if
it is rationally related to a permissible government objective. (congress wanted to eliminate
dual benefits)
ii) Reasonable Relationship
(1) Under inclusiveness
(a) Railway Express Agency, Inc. v. New York
(i) U.S., 1949
(ii) Facts: Advertising statute was in effect in New York which prohibited business
vehicle advertising outside the usual business or regular work of the business vehicle
owner; plaintiff brought suit because it would sell space on the side of its shipping
vehicles; Purpose: safety, traffic control...Relationship: underinclusive (does not
include enough people)
(iii) Issue: Does the NY statute violate the EP Clause?
(iv) Holding: No.
(v) Rationale: The NY legislature has discretion when deciding what kind of harms it
seeks to prevent. EP clause does not require that all evils of the same genus be
eradicated or none at all. Policy interests, particularly public safety, allow for
certain degree of overinclusiveness.
(vi) Concurrence (Jackson): Prohibition or regulation of anything must have a broader
impact.
(2) Over inclusiveness
(a) New York City Transit Authority v. Beazer
(i) U.S., 1979
(ii) Facts: NYCTA refused to employ any persons who use methadone; D. Court found
this unconstitutional under EP clause; Purpose - public safety...Relationship overinclusive, excludes more people/methadone users than it needs to
(iii) A law is overinclusive if it regulates individuals who are not similarly situated; if it
covers more people than it need to in order to accomplish its purpose
(iv) Issue: Is the NYCTA provision unconstitutional under the EP Clause?
(v) Holding: No.
(vi) Rationale: The policy serves the general objective of safety and efficiency; represented
a policy choice not directed at any specific individual.
(vii)
Dissent (White): Could just use standard personnel procedures (drug testing)
to address the problem.
(3) Laws deemed arbitrary and unreasonable
(a) City of Cleburne, TX v. Cleburne Living Center, Inc.
(i) U.S., 1985
(ii) Facts: A city denied a special use permit to build a group home or mentally disabled
people giving the people who were requesting the permit several reasons (other than
the nature of the disabled) why they could not build; Other people did not have to get
the permit i.e. sorority houses, dorms, etc.
(iii) Court established that MRs are a classification, not a quasi-suspect class; reduced
ability to cope and function in everyday life
(iv) Issue: Does the requirement of a special permit for the group home violate the E.P.
Clause?
(v) Holding: Yes.
(vi) Rationale: Mere negative attitudes of fear are not permissible basis for treating the
home differently; The home includes mentally retarded students so furtherance of
public policy re: education is unfounded; No significant issue with the flood plain;
The refusal of the permit was based solely on the type of residents in the home;
Irrational fear cannot be a legitimate government purpose
iii) Ely Article
(1) Analyzes footnote 4 of U.S. v. Carolene Products case
(2) Warren Court considered historically activist
(3) There is protection of discrete and insular minorities
(4) Ely argues that the judges are not inserting their own values of
participation/representation
(5) Court should focus on EP and DP cases
c) Classification Based on Race and National Origin - strict scrutiny,
advances a "compelling government interest" through means "narrowly
tailored" to achieve the intended purpose
i) Dred Scott v. Sandford
(1) U.S., 1856
(2) Facts: Dred had traveled to a free state with his master, his master then died and Dred
brought suit against the estate to establish his freedom
(3) Issue: Can Dred bring suit in federal court being that he was a former slave?
(4) Holding: No.
(5) Rationale: Court determined Dred was not even a citizen of the U.S. Said no one of
African descent was intended to be considered citizens as given per the Constitution.
Not entitled to diversity jurisdiction. Said Congress did not have the authority to
outlaw slavery north of the MO compromise.
ii) "Facial" Classifications - strict scrutiny
(1) Race Specific classifications that disadvantage racial minorities
(a) Korematsu v. U.S.
(i) U.S., 1944
(ii) Facts: Executive order 9066 imposed a curfew for Japanese Americans in west coast
military areas, with the theory of protection against espionage and sabotage
(iii) Issue: Does the executive order violate the EP Clause of the 14th Amendment?
(iv) Holding: No.
(v) Rationale: Pressing public necessity may sometimes justify the existence of such
restrictions; racial antagonism never can. This Exec. Order was within the War
Powers given to Congress and Executive to exclude Jap. Americans from the war
area.
(vi) Dissent (Murphy): There should be definite limits to military discretion. No evidence
that would give legitimate reasoning for the order
(vii)
Dissent (Jackson): The only crime was being Jap. American and this could
not be helped. Similar to a bill of attainder, law based on the status of a person.
(2) Racial Classification that burden both whites and minorities
(a) Loving v. Virginia
(i) U.S., 1967
(ii) Facts: Couple married in DC, moved back to VA and were convicted under a VA law
that forbade whites marrying outside of their race. Plaintiffs moved back to DC and
filed suit; State says both races were punished so law still treated both equally
(iii) Issue: Whether the VA law violates the 14th Amendment?
(iv) Holding: Yes.
(v) Rationale: Mere equal application of a statute containing racial classifications is
enough to remove the classifications from the 14th Amendment. Proscription of
individuos racial discriminations. There was no independent, legitimate purpose other
than discrimination.
(3) Laws Requiring separation of the races
(a) Plessy v. Ferguson
(i) U.S., 1896
(ii) Facts: Plessy was a train passender who was 7/8 white and 1/8 black and decided to
sit in the "white" passenger coach. He was removed rom the coach and arrested in
violation of Louisiana law
(iii) Issue: Does the LA law violate the 14th amendment?
(iv) Holding: No.
(v) Rationale (historical and structural analysis): The 14th amendment did not intend to
abolish distinctions based on color or to enforce social commingling. Social
prejudices cannot be overcome by legislation. Any attempt to force commingling
would increase difficulties between the races.
(vi) Dissent (Harlan): The LA law is inconsistent with maintaining equality of rights which
pertain to citizens and interferes with personal liberty enjoyed by everyone.
Constitution is color-blind and does not allow legislatures to draw lines amongst
classes of citizens.
(b) Brown v. Board of Education
(i) U.S., 1954
(ii) Facts: 4 consolidated cases (KS, SC, VA, DE), school segregation cases
(iii) Issue: Does segregation of children in public schools solely on the basis of race, even
though all facilities are equal, deprive the children of equal educational opportunities?
(iv) Holding: Yes.
(v) Rationale (historical and ethical arguments): There is a right to exemption from
unfriendly legislation and exemption from legal discriminations (at this time only
applicable to public education) The impact of segregation is greater when it has the
sanction of law; still "unamerican" and not within out constitutional notions of the
14th amendment
iii) Facially Neutral Laws with a discriminatory impact or discriminatory
administration (in-effect: disparate treatment (statistical) and discrim, purpose)
4) Must have proof of a discriminatory purpose
(1) Washington v. Davis
(a) U.S., 1976
(b) Facts: 2 Black officers had their applications rejected and alleged the police dept. had
discriminating recruiting practices including a test where a high amount of Blacks failed
(c) Issue: Was the test valid under the 14th amendment?
(d) Holding: Yes.
(e) Rationale: Disparate impact upon minorities alone does not raise the case to the level of
strict scrutiny. Must have discriminatory purpose to be invalid under the 14th amendment.
(2) Ricci v. DeStefano (supplement case)
(a) U.S., 2009
(b) Facts: City fire department throws out a test because of potential liability for CRA Title
VII violations. Whites and Hispanics did pass while other minorities did not. Lost out on
promotions and filed suit
(c) Issue: Was the city's action constitutional?
(d) Holding: No.
(e) Rationale: Cannot throw out the test and discriminate against one group in order to
protect yourself against unintentional discrimination from another group. Take action on
your own to prevent Title VII violations. Can discard if there is a "strong basis of
evidence" of disparate impact.
(f) Title VII of the CRA (1965) only requires a showing of disparate impact to find a violation
5) How is discriminatory purpose proven?
(1) Village of Arlington Heights v. Metropolitan Housing Development Corp.
(a) U.S., 1977
(b) Facts: MHDC wanted to build low-income housing and was denied a zoning request by
the city
(c) Issue: Was the city's action unconstitutional?
(d) Holding: No.
(e) Rationale: There was no history of the city discriminating in housing. The city was only
zoned as single-family housing and had been for some time. The city's action could not be
deemed unconstitutional only because it had a disproportionate impact. Nothing
suspicious about their actions leading up to the denial.
(f) Court will consider actions: (1) motivating factor -->not only reason, clear pattern (2)
departure from normal procedures (3) sequence of events leading up to the decision (4)
substantive departures --> typically looked at today (5) legislative or administrative history
(6) social history
ii) Remedies: School Segregation
(1) Brown II
(a)
(b)
(c)
(d)
U.S., 1955
Follow-up on Brown on how to institute remedies in line with their prior decision
Court says local school authorities have plenary power when administering the remedy
Remanded and permitted authority to district courts in equity (gives flexibility in tailoring
injunctions)
(e) CRA of 1964 limited funding or schools who were segregated
(2) Swann v. Charlotte-Mecklenburg Board of Education
(a) U.S., 1971
(b) Facts: Case regarding the duties of school authorities and scope of the courts to enforce
the mandates
(c) Issue: Can federal dist. courts impose their own desegregation plan on a school districts?
(d) Holding: Yes.
(e) Rationale: Judicial authority enters only when local authority defaults. Quotas are a good
starting point; but should have limited use. Can redistrict the schools but must be racially
neutral. Can bus children to different schools. Goal is for the school district to become
"unitary" achieve racial balance
(3) When should federal desegregation remedies end?
(a) Parents Involved in Comm. Schools v. Seattle School District No. 1 (this is not in
the 2nd edition)
(i) U.S., 2007
(ii) Facts: Two school districts sought to assign students to schools to achieve racial
balance; had no history of racial segregation in schooling
(iii) Issue: Is racial balance between local high schools a compelling government interest
under the EP clause?
(iv) Holding: No.
(v) Rationale: The asserted interest in both school districts reduce nothing more than the
goal of numerical racial balance between each of the schools; there were no other
reasons other than those based on racial classifications. Cannot be strictly racial
diversity, as is case here. Nor are race-conscious assignment schemes
generally narrowly tailored.
(vi) Concurrence (Kennedy): Gov't can use race in its attempts to forward racial equality
in education.
(vii)
Concurrence (Thomas): Racial imbalance and racial segregation are not
synonymous.
iii) Racial Classifications benefiting minorities; strict scrutiny as the test
(1) Richmond v. J.A. Croson Co.
(a) U.S., 1989
(b) Facts: Involved an affirmative action city contracting program in Richmond City; required
that gov't contracts if subcontracted out must be given to businesses that have at least 51%
minority ownership. Plan was considered "remedial" in nature. The Appellee argues that
the city could only institute remedial programs to remedy its own prior discrimination
(c) Issue: Is the Richmond City Council Plan unconstitutional?
(d) Holding: Yes.
(e) Rationale: The Richmond City program denies certain citizens the opportunity to compete
for public contracts based solely on their race. Can remedy past private discrimination
in jurisdiction, but must have “strong basis in evidence” of need for remediation.
(f)
(g)
(h)
(i)
There was no identifiable discrimination in Richmond's construction industry. Richmond
plan was also considered overinclusive.
City was a passive participant in private discrimination in the construction industry
Used strict scrutiny
Law must be narrowly tailored and have strong basis in evidence
Dissent: Richmond did offer evidence of past discrimination. Shouldn't have used strict
scrutiny of race-conscious remedial measures.
(2) Grutter v. Bollinger (college admissions)
(a) U.S., 2003
(b) Facts: Michigan law school affirmative action case; Petitioner was a white female applicant
who was denied admission
(c) Court found that student body diversity is a compelling state interest that justifies the use
of race in admissions policy
(d) Any government action must be narrowly framed to accomplish the purpose of diversity
(e) Dissent (Thomas): University cannot maintain high admission standards yet grant
exemptions to favored races.
(3) Gratz v. Bollinger
(a) U.S., 2003
(b) Facts: Two white high school students applied to U. Michigan liberal arts school and were
(c)
(d)
(e)
(f)
denied admission, brought suit alleging racial discrimination. The U. Michigan process
automatically awarded 20 points to applicants based on minority status.
Issue: Was the school's admission policy unconstitutional?
Holding: Yes.
Rationale: Although diversity is a compelling interest, the means must be narrowly tailored
to achieve that interest. Automatically awarding points based on race does not provide
individualized assessment of the student as cited in Grutter.
Dissent (Ginsburg): Case should be looked at with less than strict scrutiny; if you are trying
to include minorities should be able to uphold policy.
(4) Easley v. Cromartie (drawing election districts to increase minority
representation)
(a) U.S., 2001
(b) Falls under strict scrutiny; must first answer whether race was a motivating factor in
redistricting? (If not facially found in the law)
(c) Holding: No, race was not a predominant factor in drawing district lines. Evidence of
voter registration does not demonstrate voting behavior.
b) Gender Classifications
i) Intermediate Scrutiny
ii) Frontiero v. Richardson
(1) U.S., 1973
(2) Facts: Armed service woman wanted to file for benefits for her husband as a
dependent, had to provide evidence that the woman paid for half of the support of the
husband
(3) Issue: Was the practice unconstitutional?
(4) Holding: Yes.
(5) Rationale: Cannot afford diferential treatment to males/females of the uniformed
services for the sole purpose of administrative convenience.
(6) Factors to look at when finding a suspect class: (1) history of discrimination (2)
immutable characteristic (3) assumption (4) political powerlessness
iii) Craig v. Boren
(1) U.S., 1976
(2) Facts: Males 21 and up could buy 3.2% beer, females 18 and up could buy the beer via
an OK statute
(3) Issue: Was the OK statute discriminatory against males?
(4) Holding: Yes.
(5) Rationale: The OK statute does not serve an important governmental objective
and is not substantially related to the achievement of that goal (which was
enhancing traffic safety). The statistics were not strong enough to compel this type of
legislation.
(6) Dissent (Rehnquist): The EP clause does not include int. scrutiny language, the court is
taking on a legislative role
iv) U.S. v. Virginia
(1) U.S., 1974
(2) Facts: VMI only admitted male students, based upon their educational methods that
alleged women would not be suited to be admitted; Dist. Court ruled the school did
have a discriminatory process of not admitting women and they approved a remedial
plan the established a VWIL at an existing college campus, had lower credentials for
teachers, completely different curriculum
(3) Issue: May VMI exclude women? Is the remedial plan constitutional?
(4) Holding: No/No
(5) Rationale: Not actually advocating diversity by excluding women, Cannot use
same-sex diversity/educational benefit as a justification. The remedial plan (VWLI)
also does not pass constitutional muster because there aren't equal opportunities as
those given by the VMI.
(6) Dissent (Scalia): Court is disregarding precedent and negating the "history of our
people." There are pedagological benefits to single-sex schools. Court is inserting
current social views into the Constitution, the legislature should do this.
v) Gender Classifications benefiting women
(1) Mississippi Univ. for Women v. Hogan
(a) U.S., 1982
(b) Facts: Hogan applied for admission to MUW and was denied based solely on his gender
(c) Issue: Does a state statute that excludes males from enrolling in state-supported
professional nursing school violate the EP clause?
(d) Holding: Yes.
(e) Rationale: The court must use a heightened scrutiny when examining this case. If a statute
has the objective to exclude or protect members of one gender based on "archaic" or
"stereotypical" notions, then the objective is illegitimate
(2) Michael M. v. Superior Court of Sonoma County
(a) U.S., 1981
(b) Facts: CA statute criminalizes statutory rape for only males and not females that commit
the same crime; State interest: prevent unwanted teenage pregnancies
(c) Issue: Is the CA statute unconstitutional?
(d) Holding: No.
(e) Rationale: The criminal statute imposed solely on males "equalizes" the deterrent on the
sexes. The legislature is acting within its authority by punishing the participant who by
nature suffers fewer consequences of his conduct (the male v. female victim who is
impregnated)
(f) Dissent (Brennan): The court did not focus on the question of whether sex-based
discrimination is substantially related to the achievement of their goal.
vi) Gender classifications benefiting women as a remedy for past discrimination
(1) Califano v. Webster
(a) U.S., 1997
(b) Facts: Challenged SSA retirement benefits that placed women's benefits at a higher rate
than male benefits
(c) Issue: Does this law pass intermediate scrutiny and is therefore constitutional?
(d) Holding: Yes.
(e) Rationale: Reduction of the disparity between female/male wage earners is an important
governmental objective.
vii) Classifications benefiting women because of biological differences between men
and women
(1) Nguyen v. INS
(a) U.S., 2001
(b) Naturalization case, woman does not have to prove citizenship of child, but the father
would have to go through numerous obstacles to prove citizenship of child by clear and
convincing evidence
(c) Govt interest: assuring that a biological parent-child relationship exists
(d) Result: Held as constitutional, Intermediate scrutiny w/out “exceedingly
persuasive justification”, Biological differences between mother and father
justify purposes.
c) Alienage Classifications
i) Strict Scrutiny
ii) Graham v. Richardson
(1) U.S., 1971
(2) Limitation of welfare benefits to only AZ residents and US citizens
(3) AZ law held unconstitutional, resident aliens still protected under EP clause, strict
scrutiny applies
6) Alienage Classifications related to self-government and the democratic process
(1) Foley v. Connelie
(a)
(b)
(c)
(d)
(e)
U.S., 1978
NY law prohibits non-citizens from serving as state troopers
Issue: Is the NY law unconstitutional under the EP clause?
Holding: No.
Rationale: To use SS would obliterate all distinction between citizens and aliens and thus
depreciate the historic values of citizenship. The state need only justify its classification by
a showing of some rational relationship between the interest sought to be protected and
the limiting classification. Discretionary exercise of important policy responsibilities
affects the lives of citizens.
(f) Dissent (Marshall): Elective or nonelective(important) positions that involve broad policy
making responsibilities are the only state jobs from which aliens as a group may be
constitutionally excluded.
(2) Ambach v. Norwick
(a) U.S., 1979
(b) Facts: 2 NY resident aliens seek public school teacher certificates and are denied on the
basis that they refused to naturalize as US citizens
(c) Issue: Is the NY law discriminatory on the basis of alienage and unconstitutional under the
EP clause?
(d) Holding: Yes/No.
(e) Rationale: A state may take account of a teacher's function as an example for students.
Public school teachers fall within the government function principle. The Appellees have
chosen to classify themselves and the state has an interest (legitimate) to forward
principles of duty and loyalty. Critical democratic function “goes to the heart of
representative government” and “fulfills a most fundamental obligation of
government to its constituency.”
ii) ANYTHING DONE BY CONGRESS OR PRESIDENT WILL RECEIVE RB
SCRUTINY; STATE AND LOCAL GOVT WILL RECEIVE STRICT
SCRUTINY; JUDICIARY WILL DEFER TO THE LEGISLATURE ON
ISSUES OF IMMIGRATION AND ALIENAGE
iii) Undocumented Aliens and E.P (children of aliens case)
(1) Plyler v. Doe
(a) U.S., 1982
(b) Facts: TX had denied state funds to schools where undocumented alien children attended
in effect denying public education to them; State interest: preservation of the state's
limited resources, mitigate economic consequences, impose special burdens on the state,
not an equal education
(c) Issue: Is the TX law unconstitutional under the EP clause?
(d) Holding: Yes.
(e) Rationale: The children can't affect their parent's conduct nor their own status. The TX
law imposes a lifetime hardship on a discrete class of children not accountable for their
disabling status.
(f) Dissent (Burger): Leave it to the legislature! Once the court concludes there is no suspect
class, and no fund. right at issue, then RB test should be used.
7) Fundamental Rights Under the Due Process Clause and E.P.
Clause
a) "Reverse Incorporation"
i) Can get equal protection through the 5th amendment (due process clause) to apply against
the federal government Bowling v. Sharp
b) Substantive Due Process (definition)
i) The government must justify an infringement by showing that its action is sufficiently
related to an adequate justification
c) Procedural Due Process (definition)
i) When the government takes away a person's life, liberty, or property, it must provide
adequate procedures
d) Ninth Amendment
i) List of Bill of Rights is incomplete, not a repository of rights; justification for the Court to
safeguard unenumerated liberties
e) Fund. Rights Outline
i) Is there a fundamental right at issue/at stake? "rooted in tradition and
conscience?" "essential to a scheme of ordered liberty?"
ii) Has the government infringed the right?
iii) Is there sufficient justification for the government infringement of the right?
iv) Is the means sufficiently related to the purpose?
f) Constitutional Protection for Family Autonomy
i) The Right to Marry
(1) Loving v. Virginia
(a) U.S., 1967
(b) Interracial marriage case
(c) The Court analyzes this case using the 14th amendment and DP clause; the court says that
the freedom to marry has long been recognized as a vital personal right. Cannot be
restricted on the basis of invidious racial discrimination.
(2) Zablocki v. Redhail
(a) U.S., 1978
(b) Facts: Plaintiff sought to obtain a marriage licenses in WI, but WI had a statute where if
there were unpaid child support obligations the person owing would need a court order to
allow them to get married
(c) State interest: Offer counseling, and child welfare (due to unpaid support)
(d) Issue: Can WI discriminate against a certain class of citizens by restricting access to the
right to marriage?
(e) Holding: No.
(f) Rationale: Right to marry and right to privacy have been long recognized as fundamental
rights. The WI statute significantly interferes with a citizens's right to marry. The two
reasons given by the state are legitimate and substantial; however, the state has not used
the least restrictive means in infringing that right. The state has other methods to enforce
compliance with support obligations. Marriage is fundamental right; thus no
infringement unless “supported by sufficiently important state interests and …
closely tailored to effectuate only those interests.”
(g) Concurrence (Stewart): EP clause does not deal with substantive rights and there is no
right to marry. Should be "right to be let alone."
(h) Dissent (Rehnquist): State need only pass RB test and right to marry is not a fundamental
right. The state has power to regulate family life and the WI law is a permissible exercise of
state power.
ii) The Right to Custody of One's Children
(1) Stanley v. IL
(a) U.S., 1972
(b) Facts; Children of an unwed mother (even if father is present) who dies become wards of
the state under IL statute.
(c) Issue: Does the IL statue deny due process to the father?
(d) Holding: Yes.
(e) Rationale: The IL statute overlooks any kind of determination of unfitness of the father or
competence and care; and does not account for the best interests of the parents and child.
(2) Michael H. v. Gerald D.
(a) U.S., 1989
(b) Facts: Carole conceives Victoria while married to Gerald, but Carole believes Victoria's
father is Michael with whom she had an affair. Carole has a blood test done and it shows
that Michael is the father. M & C break up and Michael seeks to continue his custody and
(c)
(d)
(e)
(f)
relationship with the biological daughter. CA law says that any child born during the
marriage is presumed as a child of the marriage and legitimacy can only be challenged by
the husband or wife. Michael brings suit challenging this statute as a denial of due process.
Issue: Is the CA statute unconstitutional?
Holding: No.
Rationale: The state may create an "irrebutable presumption" that a child born into a
family unit is the product of the husband. Fundamental rights must be viewed as
something "traditional" "rooted in our traditions and conscience". There is a right to a
"unitary family" (Tradition has protected the marital family).
Dissent (Brennan): The court is limiting fundamental rights to those set forth as traditional
liberties. To use "tradition" as the basis of the court's decision is too specific of a
classification. Fundamental rights should be those things we deem to be essential now.
(3) Irrebutable presumption - a rule of law, inferred from the existence of a
particular set of facts, that is not subject to dispute
iii) The Right to Keep the Family Together
(1) Moore v. City of East Cleveland, Ohio
(a) U.S., 1977
(b) Facts: Plaintiff had taken in her grandchildren as a result of a death in the family. E.
Cleveland municipal code limits dwellings to a few categories of related family members,
otherwise criminal charges/fines are brought against the offender.
(c) Issue: Is the E. Cleveland law unconstitutional under the DP clause of the 14th
Amendment?
(d) Holding: Yes.
(e) Rationale: A zoning ordinance may not restrict traditional family units from residing
together. Serves no useful or proper governmental purpose; it is arbitrary and capricious;
and it destroys historically protected rights. Substantive DP protects these rights.
iv) The Right of Parents to Control the Upbringing of Their Children
(1) Meyer v. Nebraska
(a) U.S., 1923
(b) Nebraska had a law that restricted teaching a foreign language in any type of school or
teacher could be held criminally liable
(c) Issue: Can the state issue this kind of law?
(d) Holding: No.
(e) Rationale: This law violates the DP clause of the 14th Amendment by taking away the
economic right to acquire useful knowledge, to marry, establish a home, etc. The goal of
having a homogenous people prepared to understand discussions of civic matters is
legitimate, but the means are overbroad and violate the liberty rights of the teacher.
(2) Troxel v. Granville
(a) U.S., 2000
(b) Facts: Grandparents of deceased father want extensive visitation rights contrary to the
mother's wishes. WA law allows "any person" to petition for visitation rights if the
visitation may serve the best interest of the child.
(c) Issue: Is the WA statute unconstitutional?
(d) Holding: Yes.
(e) Rationale: The WA statute places the best interest determination solely in the hands of the
judge. The WA law infringes on a fundamental parental right (in allowing any person to
petition for visitation).
g) Constitutional Protection for Reproductive Autonomy
i) The Right to Procreate
(1) Skinner v. Oklahoma
(a)
(b)
(c)
(d)
(e)
U.S., 1942
OK statute allowed for habitual offenders to be sterilized for crimes of moral turpitude
Issue: Is the OK statute unconstitutional?
Holding: Yes.
Rationale: Only unconstitutional because it is underinclusive. Right to procreate will be
considered not per se as strict scrutiny but there has to be a rational basis at least in
discerning who can or cannot be sterilized. While a state may treat classes unequally based
on experience, it may not arbitrarily seek to add or exclude a particular group from
treatment.
ii) The Right to Purchase and Use Contraceptives
(1) Griswold v. Connecticut
(a) U.S., 1965
(b) Facts: Contraception to married couples in CT, there is a law that forbids its usage and
helping others to use the contraceptives (can be held criminally liable)
(c) Issue: Is there a right to privacy that would strike down the CT statute against usage of
contraceptives by married couples?
(d) Holding: Yes.
(e) Rationale: The CT law seeks to achieve its goals by means having a maximum destructive
impact upon a relationship that lies within the zone of privacy. Rt to privacy implied by
other constitutional guarantees.
(f) Pneumbra - a doctrine whereby authority of the fed. govt is implied pursuant to the
necessary and proper clause (10th amend); one implied power may be inferred from the
conferring of another implied power
(2) Bartrum essay (supplement, need to re-read)
(a) All these "anti-canonical" cases are metonyms
(b) Lochner is a metonym; stands for a philosophy rather than just one case; stood for
overreaching
(c) Privacy cases bring Lochner back to the forefront (doing the same thing that Lochner did
with contract with privacy cases)
iii) The Right to Abortion
(1) Roe v. Wade
(a) U.S., 1973
(b) Facts: TX statute made it a crime to obtain an abortion besides to save the life of the
mother; Roe was a single pregnant woman wanting to terminate her pregnancy
(c) Issue: Is the TX law unconstitutional?
(d) Holding: Yes.
(e) Rationale: Court balances right to privacy against state interest in protecting health and
potential life (which grows substantially as the woman gets further along in her
pregnancy). Sets forth three tier system where a state can or cannot regulate abortions;
state may regulate the abortion process(licensing of phsyicians, facilities) after the first
trimester. Blackmun says there is a right to privacy that includes abortion but it is not all
inclusive. Must be a compelling state interest and be narrowly tailored. Also deemed the
TX statute as overly broad.
(f) Doctrinal Approach: Balancing - a fundamental right can be balanced against other
interests; Categorical - a fundamental right will trump in all categories
(2) Planned Parenthood v. Casey
(a) U.S., 1992
(b) Facts: PA statutes required a waiting period, informed consent, consent of the father if
married in order to obtain an abortion. Five clinics brought a challenge saying the law was
unconstitutional on its face.
(c) Issue: Is the PA statute unconstitutional because it causes an undue burden upon the right
to privacy (through the DP clause of the 14th amendment)?
(d) Holding: Yes.
(e) Rationale: Want to maintain stare decisis. The court recognizes the right of the woman to
choose to have an abortion before viability. The state's interest is not strong enough
before that time. Will only use an undue burden analysis (not trimester framework) to
determine if a law is invalid. Before viability state cannot proscribe abortion or create an
undue burden upon the woman. After viability, the state can prohibit abortion...
(f) Dissent (Rehnquist): Cannot deny that woman is not isolated in her pregnancy. Still not
the kind of privacy we should protect.
(g) Dissent (Scalia): Not a liberty protected by the Constitution.
iv) Government Regulation of Abortions
(1) Gonzales v. Carhart
(a) Prefaced by Stenberg, which was a partial birth abortion ban case, challenged a NE statute,
statute was thrown out because there was no medical exception, was overly broad
(b) U.S., 2007
(c) Challenged federal partial birth abortion statute, statute defined PB abortion, D&E, D&X
(d) Issue: Did the federal statute create an undue burden upon those wishing to obtain a
late-term abortion?
(e) Holding: No.
(f) Rationale: The Act simply respects human life. Does not prohibit the standard form of PB
abortion that was detailed in Stenberg. Achieving a legitimate objective by making sure
women are informed about different methods of abortion. Used RB test
(g) Dissent (Ginsburg): The Act does not do what it is intended, but only criminalizes a
method of abortion; not abortion itself. Decision acts to undermine an "established" right
to privacy; does not save any fetal lives.
v) Government Restrictions on Funding and Facilities that perform abortions
(1) Maher v. Roe
(a) U.S., 1977
(b) Facts: CT statute limited state aid for 1st trimester abortions to those that were medically
necessary
(c) Issue: Whether the Constitution requires the state to pay for nontherapeutic abortions
when it pays for the childbirth?
(d) Holding: No.
(e) Rationale: The CT statute places no obstacles in the pregnant woman's path to abortion.
There is no restriction on access. A state can encourage a preferred course of action see
Meyer v. Nebraska
vi) Spousal Consent/Notice Requirements
(1) Planned Parenthood v. Casey
(a)
(b)
(c)
(d)
(e)
(f)
2nd part of case
U.S., 1992
Challenged spousal notice provision of PA statute
Issue: Did this provision violate the DP and EP clauses?
Holding: Yes.
Rationale: The spousal notification requirements is likely to prevent a significant amount
of women from obtaining abortions. There are issues where the threat of abuse may limit
consent of the spouse. Need to focus on this affected group, not those to whom the
exception would not apply. Woman's right to privacy outweighs state's/husband's
interests before birth.
(g) Dissent (Rehnquist): There is a state interest in protecting the life of the fetus and the state
is reasonably advancing that interest.
vii) Parental Notice and Consent Requirements
(1) Bellotti v. Baird
(a) U.S., 1979
(b) MA law required parental consent or a court order and appointed guardian for an
unmarried minor to obtain an abortion
(c) Result: Judicial bypass provision was an unconstitutional infringement of minor's rights
because it could be denied to a minor who was mature and competent enough to make the
decision. Statute also required parental notification in every instance, even if it were not in
the best interest of the minor.
h) Constitutional Protection for Sexual Orientation and Sexual Activity
i) Bowers v. Hardwick
(1) No fundamental right to engage in homosexual sodomy.
(2) Blackmun dissent: Not about right to sodomy, is really about the right of
privacy-right to be “let alone”
ii) Lawrence v. Texas
(1) U.S., 2003
(2) Overruled Bowers
(3) Appeal from a conviction of sodomy (homosexual acts); police responded to a call and
saw Lawrence engaged in sexual acts with another male
(4) Issue: Can TX criminalize homosexual conduct?
(5) Holding: No.
(6) Rationale: this case only involved private conduct. State cannot demean their existence
or control their destiny by making that conduct a crime. TX has no legitimate state
interest in regulating this conduct.
(7) Dissent (Scalia): Homosecual sodomy is not a fundamental right. Should defer to the
legislature about this.
iii) Varnum v. Brien
(1) Iowa gay marriage case
(2) IA law prohibited gay marriage "one man, one woman"
(3) State interest: maintain traditional marriage, limited resources, promote procreation,
foster good environment for raising children, promote heterosexual marriage
(4) Iowa supreme court decided that sexual orientation was a protected class:
quasi-suspect, intermediate scrutiny, used Carolene Products, immutable characteristic
(5) Says the IA law is underinclusive (does not limit marriage for sexual predators) also
overinclusive because not all gay married couples want children
i) The Right to Vote
i) Restrictions on the Ability to Vote
(1) Harper v. VA State Board of Elections (poll taxes)
(a)
(b)
(c)
(d)
U.S., 1966
Poll tax case
VA imposed $1.50 annual fee upon every resident of the state
Result: Court concludes that the state violates the 14th amendment whenever it makes the
affluence of the voter or payment of any fee or electoral standard. The poll tax was a case
of invidious discrimination. Court used strict scrutiny
(2) Kramer v. Union Free School District (property ownership requirements)
(a) U.S., 1969
(b) Property ownership as a requirement of being able to vote case
(c) Facts: The appellant wanted to vote in her local school district election but did not own or
lease any taxable property or have any children in the school district; the law also restricted
senior citizens, clergy, military personnel, or those who lived on tax-exempt property from
voting
(d) State interest: Limit the franchise to members of the community of interest
(e) Rationale: The classifications in the law permit inclusion of many persons who at best
have a remote and indirect interest in school affairs and others who have a genuine
interest; the law is unconstitutional using a strict scrutiny analysis; law was not narrowly
tailored
(f) Dissent (Stewart): Use RB test, there is a legitimate interest in having an informed and
interested electorate; no racial classification or constitutionally protected right is involved
(3) Ball v. James
(a) U.S., 1981
(b) A water reclamation district had an election for its board and required only landowners to
be able to vote; also, gave a more significant vote to those with more land; the people with
little to no land brought an EP challenge
(c) Issue: Is the voting scheme unconstitutional under the EP Clause?
(d) Holding: No.
(e) Rationale: This water district board does not have equivalent governmental power.
Cannot impose property or sales tax or direct their conduct so no need for one person-one
vote scheme. The voting scheme only disproportionately affects those eligible to vote.
ii) Dilution on the Right to Vote
(1) Reynolds v. Sims
(a) U.S., 1964
(b) Alabama legislature apportionment case
(c) Facts: The last apportionment was based on the 1900 federal census despite requirements
that it be done every 10 years; there were several counties who claimed serious
discrimination in apportionment of votes
(d) Issue: Does the EP clause require that the state legislature be apportioned on a population
basis?
(e) Holding: Yes.
(f) Rationale: Legislators represent people, not trees or acres. It is unconstitutional for the
state legislature to dilute votes. The Constitution forbids "sophisticated as well as
simpleminded modes of discrimination". The EP Clause guarantees the opportunity of
equal participation by all voters in the election of state legislators.
(g) Dissent (Harlan): The court oversteps its bounds. State legislative apportionment is not
subject to constitutional constraints. Invasion of state sovereignty, prudential argument
iii) Counting "Uncounted" Votes: Bush v. Gore
(1) U.S., 2000
(2) Facts: Gore and FL Supreme Court say there should be a manual recount of votes,
Bush asks for certification to stay the recount on the basis of lack of standards in the
recount procedures; Art. 2, Section 1 violation (state appoints electors)
(3) Issue: Is a manual recount of undervotes that has no set standard a violation of the EP
Clause?
(4) Holding: Yes.
(5) Rationale: The absence of standards (set by the FL Sup. Ct.) would create an arbitrary
recount process which would contradict "one person, one vote"
j) Constitutional Protection for Access to Courts
i) Boddie v. Connecticut (Filing Fees)
(1) U.S., 1971
(2) Facts: Indigent couple seeks to file a dissolution of marriage, could not afforg 460
court fee; file claim citing limitation on their due process rights
(3) Issue: Is it unconstitutional for a state to require indigent plaintiffs to pay court fees
before bringing a divorce petition?
(4) Holding: Yes.
(5) Rationale: The state has a monopoly on the enterprise of marriage. State court would
be the only avenue for the plaintiffs to seek relief and the state is prohibited from
denying access solely based on an inability to pay. This is a "state-created matter."
(6) Dissent (Black): textualist, The constitution does not place civil cases on the same level
as criminal cases. These are state issues, no central body of federal marriage law.
(structural argument)
ii) United States v. Kras
(1) U.S., 1973
(2) Bankruptcy case
(3) Facts: Kras is filing for bankruptcy, but could not pay the $50 fee for instituting the
(4)
(5)
(6)
(7)
bankruptcy proceedings
Issue: Does the 5th Amendment due process clause guarantee the right to waived
court fees for indigent plaintiffs?
Holding: No.
Rationale: Boddie is distinguished because the marital relationship was at issue, and
there is no fundamental right to be protected against bankruptcy. The courts are not
the "only avenue" for the debtor to adjust his debts (could speak directly to creditors to
adjust debts).
Dissent (Stewart): Both debtors and married persons entered into contracts voluntarily
and the legal system is the only way to get around imposed government obligations.
iii) M.L.B. v. S.L.J.
(1) U.S., 1996
(2) Termination of parental rights case
(3) Facts: Woman who is appealing parental termination rights case cannot afford
record-preparation fees to get appeal to higher courts
(4) Issue: Was it unconstitutional for the state to dismiss the case where appelle is indigent
and unable to pay record preparation fees?
(5) Holding: Yes.
(6) Rationale: Fee requirements are examined on their rationality. Because the case
involves the fundamental right to raise your children, the court may decide based upon
a higher level of scrutiny. State may not "bolt the door to equal justice."
(7) Dissent (Thomas): The DP clause does not guarantee any rights beyond the initial
hearing.
iv) *Prisoner's Right to Access to the Courts
(1) Bounds v. Smith
(a) U.S., 1977
(b) Facts: Plaintiffs are incarcerated inmates in North Carolina
(c) Issue: Whether states must protect the right of prisoners to access to the courts by
providing them with law libraries or alternate sources of legal knowledge?
(d) Holding: Yes.
(e) Rationale: It is essential for pro se litigants/inmates to have access to legal documents in
order to have adequate access to the courts. Without a library, a pro se inmate will not be
able to defend his case.
(2) Lewis v. Casey
(a) U.S., 1996
(b) Facts: Class action suit with Arizona inmates as Plaintiffs; argued that they had inadequate
legal facilities and thus were denied access to the courts
(c) Issue: Is this a case of deprivation of access to the courts?
(d) Holding: No.
(e) Rationale: There is no standing in this case as Plaintiffs have not shown actual injury. Must
show that they would have won their case had there been "meaningful" access to legal
information. Bounds did not create a fundamental right of law libraries or legal assistance.
Must show an actual injury, not just that legal claim was frustrated. Only have right to legal
materials relevant to your case.
k) Constitutional Protection for a Right to Education
i) San Antonio I.S.D. v. Rodriguez
(1) U.S., 1973
(2) Case dealing with unequal distribution of federal, state, and local property taxes in
school funding in an affluent district v. poor area
(3) Facts: Court analyzes whether a right to equal distribution of taxes for school funding
is explicitly or implicitly guaranteed by the constitution; Plaintiff argued that the right
to education is a fundamental right and is essential to the exercise of other rights
(4) Issue: Does the school district's allocation of taxes a violation of the EP Clause?
(5) Holding: No.
(6) Rationale: There is no suspect class. Suggest states alter their current system of
taxation, but there is a legitimate state interest in directing state fiscal policy. No
fundamental (explicit/implicit) right at issue, use RB test.
(7) Dissent (Brennan): A right is fundamental if it is necessary to further other guaranteed
rights.
(8) Dissent (Marshall, Douglas): Abrupt departure from mainstream decisions; there is a
right to every American to an equal start in life. There is a connection between the 1st
Amendment and this right to quality access to education.
l) Procedural Due Process
i) Outline
(1) Has there been a deprivation, if so what is it?
(2) Deprivation of "life, liberty, or property?"
(3) What procedures are required? What is "due" process?
ii) DeShaney v. Winnebago County Dept. of Social Services
(1) U.S., 1989
(2) Child abuse case and government duty to protect individuals from privately inflicted
harms
(3) Facts: Child and wife were beaten by the husband, social services never acted to
remove child from custody but gave oral and written recommendations; Plaintiff
argued there was a special relationship between the child and social services
(4) Issue: Is there a violation of the DP Clause if a state does not act to prevent harm from
private actors?
(5) Holding: No.
(6) Rationale: There is no affirmative right to government aid. The state had not taken the
child into custody and held him against his will so there was no special relationship.
Does not become a guarantor of Plaintif's safety by having once offered shelter.
iii) Mathews v. Eldridge
(1) U.S., 1976
(2) Facts: Plaintiff had his SS benefits terminated, was afforded to the opportunity of a
written appeal
(3) Issue:Whether the DP Clause of the 5th Amendment requires that prior to termination
of SSD benefits the recipient be afforded an opportunity for an evidentiary hearing.
(4) Holding: No.
(5) Eldridge factors: (1) the significance of the private interest of the individual/private
interest affected by the governmental action; (2) the danger of mistakenly depriving the
individual of his property and the value of any additional procedural safeguards; (3) the
government or public interest (burden imposed on government by demanding more
procedural requirements)
8) First Amendment: Freedom of Expression
a) Intro
i) Justification in protecting free speech: Self-government (keep voters informed),
discovering truth (marketplace of ideas, Justice Holmes), advance autonomy
(essential aspect of personhood, must be able to dialogue freely in order to convey
your thoughts), promote tolerance (protect unpopular speech)
b) Content-Based laws vs. Content-neutral laws
i) Content-based (don't like the message) Content-neutral (not about the message)
ii) Content-based can include: entire topic (subject matter regulation) OR viewpoint
iii) Content-neutral can include: secondary effects OR time,place, and manner
restrictions
iv) TBS v. FCC
(1) U.S., 1994
(2) Facts: There was a federal law in place that would force cable providers to make room
for local broadcast stations
(3) Content-based = strict scrutiny, Content-neutral = intermediate scrutiny
(4) Result: Kennedy found the FCC statute to be content-neutral; law will be upheld if it
advances an important governmental interest unrelated to the suppression of free
speech and does not burden substantially more speech than necessary
v) Boos v. Barry
(1) U.S., 1988
(2) Facts: D.C. code prohibited picketing outside of a country's embassy against their
foreign policies
(3) Result: Court finds that the display clause of the D.C. Code to be content-based
regulation which requires use of strict scrutiny; code found to be unconstitutional
(4) Subject matter-neutral means that the government cannot regulate speech based on
the topic of the speech
vi) Rep. Party of MN v. White
(1) U.S., 2002
(2) Facts: Case about judges who state their political affiliations prior to election and
deciding cases
(3) Government interest: Want impartial judges and appearance of impartiality of the
courts
(4) Result: court finds that the MN announce clause is unconstitutional because it is not
narrowly tailored to serve impartiality (only restricts speech on particular issues)
(5) Concurrence (Kennedy): Any limitation on "pure political speech" should be per se
unconstitutional, skip balancing of a strict scrutiny analysis
vii) City of Renton v. Playtime Theaters, Inc.
(1) U.S., 1986
(2) Secondary effects doctrine
(3) Facts: Involved a local zoning ordinance that restricted the location of adult movie
theaters within 1000 feet of several areas; did not leave much open area for those type
of businesses
(4) Issue: Is the ordinance unconstitutional?
(5) Holding: No.
(6) Rationale: The city's interest in attempting to preserve the quality of urban life is one
that must be accorded high respect. The city is aiming the ordinance at the "secondary
effects" of the location of the adult theaters.
viii) National Endowment of the Arts v. Finley
(1) U.S., 1998
(2) Involves government sponsored speech
(3) Facial challenges - much harder to win; respondents must demonstrate a substantial
risk of suppressed speech because of the provision in question
(4) Facts: Challenged an enabling statute that allowed the chairperson to take into
consideration "general standards of decency and respect" when awarding grants
(5) There is no as-applied challenge, but only a facial challenge (4 artists applied for grants,
but were denied funding)
(6) Issue: Is the enabling statute unconstitutional?
(7) Holding: No.
(8) Rationale: The government may allocate competitive funding according to criteria and
advance activities that it feels to be in the public interest. Government does not have to
be viewpoint neutral because there are limited funds; just cannot limit it to one
viewpoint.
ix) U.S. v. American Library Assn., Inc.
(1) U.S., 2003
(2) Facts: Challenge to federal program that required libraries to install porn-blocking
software otherwise they could not receive federal funding; Dist. Court found CIPA
unconstitutional, said it was facially invalid
(3) Issue: Is the CIPA unconstitutional?
(4) Holding: No.
(5) Rationale: Libraries can exclude certain categories of content without making
individualized judgments re: quality. Does not create an undue burden on libraries or
patrons to have filters. CIPA does not induce libraries to violate patron's 1st
amendment rights.
c) Vagueness and Overbreadth
i) Vagueness - a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and
what is permitted; "void for vagueness"; there is a requirement that a legislature establish minimal guidelines
to govern law enforcement; delegates basic policy matters to policemen, judges, and juries for resolution on ad
hoc and subjective basis, with the dangers of arbitrary and discriminatory application; grounded in the DP
clause
ii) Coates v. City of Cincinnati
iii) Overbreadth - a law is overbroad if it regulates substantially more speech than the Constitution allows to be
regulated and a person to whom the law constitutionally can be applied can argue that it would be
unconstitutional as applied to; must be substantial
iv) Schad v. Borough of Mount Ephraim
v) Plaintiffs can bring constitutional challenges via: 1) facial challenge (a suit which alleged that a law is facially
unconstitutional and should be struck down in its entirety) OR 2) as applied (alleges that the law is invalid
as applied to the facts of a particular case)
d) Prior Restraints
i) What is a Prior Restraint?
(1) Administrative and judicial orders forbidding certain communications when
issued in advance of the time that such communication are to occur
(2) Prevents speech from ever occurring
(3) Censorship
(4) Might not be as bad because it does provide the parameters of speech
ii) Emerson Article
(1) Why prior restraints are bad...
(2) Breadth - government scrutiny would apply to a wider range of expression
(3) Timing and delay - speech would lose importance going through courts
(4) Propensity toward an adverse decision - suppression by a stroke of the pen is
more likely to be applied than suppression through a criminal process
(5) Procedural - no attention to safeguards of the criminal process; no other
constitutional protections
(6) Dumb censors or power hungry - bad people with bad intentions, less
opportunity for public appraisal and criticism
(7) Better to have excessive speech rather than too much censorship
iii) Near v. State of MN ex rel. Olson
(1) U.S., 1931
(2) Facts: MN statute limited publication of materials that were deemed "malicious,
obscene, lewd, lacivious, scandalous, or defamatory" of government officials;
punishable by fines and jail time
(3) County attorney brought suit against The Saturday Press under this statute to enjoin
publication of paper that involved Jewish gangster conspiracy theories; trial court
enjoined the publication and The Saturday Press appealed
(4) Issue: Is the MN statute unconstitutional under the 14th amendment?
(5) Holding: Yes.
(6) Rationale: Liberty of the press is essential to the nature of a free state.
iv) New York Times Co. v. U.S.
(1) U.S., 1971
(2) "Pentagon Papers" case
(3) Facts: Former military analyst sends info to NY Times, was published in installments
before government filed for injunctions
(4) Result: Court determined that the government did not meet the "heavy burden" of
showing justification to have a prior restraint
e) Types of Unprotected and Less Protected Speech
i) Incitement of Illegal Activity (The "Clear and Present Danger" test)
(1) Schneck v. U.S.
(a)
(b)
(c)
(d)
U.S., 1919
Indictment against Schneck in violation of Espionage Act during WWI
Facts: Schneck was distributing materials against the draft, "assert your rights..."
Issue: Does the right to freedom of speech depend upon the circumstances in which the
speech is spoken?
(e) Holding: Yes.
(f) Rationale: "Can't shout fire in a theater..." The question/test is whether the words are used
in such circumstances and are of such nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent.
(2) Debs v. U.S.
(a) U.S., 1919
(b) Facts: Debs was indicted under the Espionage Act for delivering a speech encouraging
obstruction of the draft
(c) Result: Did satisfy the clear and present danger test, did encourage obstruction of military
recruitment.
(3) Abrams v. U.S.
(a) U.S., 1919
(b) Facts: Abrams (Russian immigrant) circulated material advocating a strike of ammunition
plants to hinder US efforts in Russia
(c) Issue: Can the government properly restrict this speech?
(d) Holding: Yes.
(e) Rationale: When speech is intended to incite riots and rebellion (during war time), it
cannot be given its normal protection.
(f) Dissent (Holmes): It is only the present danger of immediate evil or an intent to bring it
about that warrants congress's setting a limit to expression of opinion. Leave to
marketplace of ideas.
ii) The Reasonableness Approach
(1) Gitlow v. N.Y.
(a) U.S., 1925
(b) Facts: Gitlow was a member of a socialist party in NY and was responsible for printing the
party's official papers/manifesto; advocated class mobilization and militant revolution;
against NY criminal anarchy act
(c) Issue: Is the NY statute unconstitutional?
(d) Holding: No.
(e) Rationale: Deference to the legislature; Gitlow's papers implied advocacy of action,
included language of direct incitement. Falls under the state's police power.
iii) The Risk Formula Approach
(1) Dennis v. U.S.
(a) U.S., 1951
(b) Facts: The Smith Act is challenged; made teaching or advocation of overthrow of the
government a crime; Defendant was convicted under the Smith Act
(c) Issue: Does the Smith Act violate the 1st Amendment?
(d) Holding: No.
(e) Rationale: Government does not have to wait until the plan is executed; can counter those
who are indoctrinating others
(f) Test: Whether the gravity of the evil, discounted by its improbability justifies such an
invasion of free speech as is necessary to avoid the danger.
(g) Concurrence (Frankfurter): Don't leave the reasonableness approach
(h) Dissent (Black): 1st Amendment should have preferred position in society
iv) The Brandenburg Test
(1) Brandenburg v. Ohio
(a) U.S., 1969
(b) Facts: Leader of KKK group was convicted under Ohio criminal syndicalism statue for
advocating unlawful methods of terrorism
(c) Result: Conviction overturned
(d) Rule: A conviction for incitement under Brandenburg is constitutional only if several
requirements are met: imminent harm, a likelihood of producing illegal action, and an
intent to cause imminent illegality
(e) CLEAR AND PRESENT DANGER TEST NO LONGER VALID!
v) Fighting Words
(1) Those words by which their very utterance inflict injury or tend to incite an
immediate breach of the peace
(2) Chaplinsky v. New Hampshire
(a) U.S., 1942
(b) Facts: Defendant was distributing paperwork and making statements that other religions
are facist and that the Rochester city government is facist all against public laws of NH
(c) Issue: Was the conviction based upon an unconstitutional state law? (NH law v. 1st
Amendment protection)
(d) Holding: No, conviction upheld.
(e) Rationale: There are categories of speech that are unprotected; speech that is likely to
cause a violent response against the speaker and where it is an insult likely to inflict
immediate emotional harm. These categories being fulfilled constitute "fighting words."
(3) R.A.V. v. City of St. Paul, MN
(a) U.S., 1992
(b) Facts: Several teenagers were convicted under a city ordinance prohibiting particular hate
speech
(c) Statute that prohibits “fighting words” cannot itself be content-based-must
prohibit all fighting words or none?
vi) Racist Speech
(1) Generally protected speech under the 1st Amendment; most statutes contain content or viewpoint
discrimination; and the court has rejected the view that government may regulate speech based on hostility
or favoritism toward the underlying message
(2) Beauharnais v. IL
(a) U.S., 1952
(b) Facts: IL statute prohibited speech that was libelous against a group based on color, creed,
or religion; Defendant was distributing leaflets inciting whites to unite against Blacks
"encroaching on their property"
(c) Result: The DP clause does not prevent a state from punishing a criminal libel directed at
designated collective groups, and flagrantly disseminated. It is okay to prohibit racist
speech as “group libel”-but holding in doubt today.
(3) Virginia v. Black
(a) U.S., 2003
(b) Facts: Defendant was charged under a VA cross burning statute that prohibited it on the
basis of intimidation of other groups; VA jurisprudence and trial court took the actual act
as prima facie evidence of the defendant's intent
(c) Issue: Is the VA statute unconstitutional?
(d) Holding: Yes.
(e) Rationale: Cannot have a statute that prevents all types of cross-burning; only that that
intends to intimidate.
vii) Sexually Oriented Speech
(1) Obscenity; don't protect because lack of social value and tendency for harm
(a) Roth v. U.S.
(i) U.S., 1957
(ii) Facts: Challenge if a federal statute that prohibited mailing of explicit/lewd/filthy
materials
(iii) Issue: Is the federal statute unconstitutional?
(iv) Holding: No.
(v) Rationale: The 1st Amendment implicitly rejects protection of obscenity (as history
shows). Obscene material which deals with sex in a manner appealing to prurient
interest. Has no redeeming social importance; requires consideration of the work as a
"whole" and has to be considered obscene by contemporary community standards.
(vi) Dissent (Douglas): By the standards set forth in this case, punishment is inflicted for
thoughts provoked, not for overt acts nor antisocial conduct.
(b) Miller v. CA
(i) U.S., 1973
(ii) Facts: Miller was distributing catalogs selling "adult material", violated the CA penal
code
(iii) State interest: Prohibit dissemination or exhibition of obscene material
(iv) Rationale: A state law must also be limited to works which taken as a whole: 1) appeal
to the prurient interest in sex 2) which portray sexual conduct in a patently offensive
way and 3) which taken as a whole do not have serious literary, artistic, political, or
scientific value
(v) Must also depict sex or sexual activity
(vi) Jury or trier of fact also will determine whether the average person applying
community standards would find the work appeals to prurient interest
(2) Child Porngraphy
(a) NY v. Ferber
(i) U.S., 1982
(ii) Facts: NY statute prohibited persons from knowingly promoting sexual
performances by children under the age of 16 by distributing it
(iii) State interest: Safeguard the physical and psychological well-being of minors
(iv) Issue: Is the NY statute constitutional?
(v) Holding: Yes.
(vi) Rationale: Child pornography will have no protection under the 1st Amendment
modifies test given in Miller; the conduct to be prohibited must be adequately defined
by the applicable state law, as written or authoritatively construed.
(b) Ashcroft v. Free Speech Coalition
(i) U.S., 2002
(ii) Facts: Challenged federal law (CPPA) which prohibited child porn in sexually explicit
images, or images that appear to depict minors but not produced with real children
(iii) Issue: Whether the CPPA is constitutional where it proscribes a significant universe of
speech that is neither obscene under Miller not child porn under Ferber?
(iv) Holding: No.
(v) Rationale: The fed statute is overbroad; government cannot ban speech fit for adults
simply because it may fall into the hands of children. Protected speech does not
become unprotected merely because it resembles the latter (unlawful speech).
(3) Protected but low-value sexual speech
(a) Young v. American Mini Theaters, Inc.
(i) U.S., 1976
(ii) Facts: Challenged Detroit zoning ordinance
(iii) Result: Court upheld local ordinance because it found that a state may legitimately use
the content of these (adult theaters) as the basis for placing them in a different
classification from other kinds of movies.
viii) Commercial Speech
(1) Commercial speech - expression related solely to the economic interests of the speaker and its
audience
(2) VA State Bd. of Pharmacy v. VA Citizens Consumer Council
(a) U.S., 1976
(b) Facts: VA law prohibited pharmacists from giving the prices of prescription drugs to
consumers; consumer group says this stifles the free-market and violates the 1st
Amendment
(c) Issue: Does the VA law violate the 1st Amendment as being an unconstitutional form of
commercial speech?
(d) Holding: Yes.
(e) Rationale: Society has a general interest in the free flow of commercial information. State
interests of professionalism not compelling because there are other bodies that regulate
pharmacist's actions. Can still regulate illegal, false, deceptive, or misleading commercial
speech.
(3) Bolger v. Youngs Drug Products Corp.
(a) U.S., 1983
(b) Facts: Company sent mass mailings re: contraceptives in violation of a federal statute
(c) Set out certain characteristics of commercial speech: Ads(paid-for), Particular product,
Economic motivation *
(d) Result: Advertising that links a product to a current public debate is not entitled to full 1st
Amendment protection
(4) Central Hudson Gas & Electric Corp. v. Public Service Commn of New York
(a) U.S., 1980
(b) Facts: NY law imposed a ban on advertising promotion of usage of electricity (due to an
energy crisis)
(c) Four part analysis of commercial speech: 1) must concern lawful activity and not be
misleading 2) asserted government interest is substantial? ---> if both yes, then 3) does the
regulation directly advance asserted government interest? 4) whether it is not more
extensive than is necessary?
(d) Result: State law was not justified under 4th prong.
(e) A form of intermediate scrutiny...substantial interest? technique in proportion? If yes to
both, then go on to the other factors...
ix) Defamation
(1) New York Times Co. v. Sullivan (PUBLIC OFFICIALS as Plaintiffs)
(a) U.S., 1964
(b) Facts: NYT printed an article that depicted certain acts of an Alabama official (as being
vicious toward peaceful demonstrations by blacks) article also alleged certain acts that
were not necessarily true; won at the trial court level 500k in damages
(c) Issue: What must be proven by the Plaintiff in a defamation suit that will satisfy 1st
Amendment concerns?
(d) Holding: Clear and convincing evidence of the falsity of the statements and actual malice
(e) Issue 2: Does the 1st Amendment limit the state's ability to award damages in a
defamation suit against a public official?
(f) Holding 2: Yes.
(g) Rationale: Criticism of the public official's conduct does not lose its constitutional
protection merely because it is effective criticism and hence diminishes their official
reputations. "Erroneous statement is inevitable in free debate." "Must have breathing
space..."
(h) TEST (all conditions must be met): Plaintiff must be a public official or running for
public office; plaintiff must prove his case with clear and convincing evidence; plaintiff
must prove falsity of the statement/false statement of fact; and plaintiff must prove actual
malice (reckless disregard for truth)
(2) Gertz v. Welch (PUBLIC FIGURES as Plaintiffs)
(a) U.S., 1974
(b) Facts: Involved a magazine publisher who made statements about a criminal Gertz
implying and alleging Nuccio was a Lenist/communist and part of several communist
organizations/attacks; Nuccio brought suit alleging defamation
(c) Public figure = when a person occupies a position of such pervasive power and influence
that they are deemed public figures for all purposes, they have thrust themselves to the
forefront of particular public controversies
(d) Issue: Can a newspaper or broadcaster that publishes defamatory falsehoods who is
neither a public official nor a public figure claim a constitutional privilege against liability
for damages?
(e) Holding: No.
(f) Rationale: The individual's right to protection of his own good name reflects the basic
concept of the essential dignity and worth of every human being -- "at the root of any
decent system of ordered liberty" Private individuals are more vulnerable to injury, and the
state interest in protecting them is correspondingly greater. Private individuals do not
invite public attention to themselves, have not voluntarily exposed themselves to a
higher risk of reputational harm, and do not command access to the media and
posses an ability to undo or mitigate reputational injury.
(g) Compensatory damages - must show negligence
(h) Punitive damages - only awarded when actual malice is shown; and only when it is a private
individual and matter of public concern
(3) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (PRIVATE
INDIVIDUALS and matters of PRIVATE CONCERN)
(a) U.S., 1985
(b) Minimal first amendment protection
(c) Result: Permitting recovery of presumed and punitive damages in defamation cases absent
a showing of actual malice does not violate the 1st amendment when defamatory
statements do not involve matters of public concern.
(d) Need only show negligence/preponderance of the evidence & false statement - when
private individual/private matter of concern
x) Conduct that Communicates (Symbolic Speech)
(1) Two Factors in concluding that the conduct was communicative...1) an intent to convey a particular
message 2) surrounding circumstances made the likelihood great that the message would be understood
by those who viewed it "substantial likelihood" --->Spence test
(2) U.S. v. O'Brien - The O'Brien Test
(a) U.S., 1968
(b) Facts: O'Brien and 3 other men were charged under a federal statute of burning their
selective service cards (during vietnam war protests), O'Brien argued that the burning of
the cards was symbolic speech; O'Brien challenges the constitutionality of this statute and
the 195 amendment
(c) Issue: Is the 1965 federal amendment unconstitutional under the 1st amendment?
(d) Holding: No.
(e) Rationale: If "speech" and "nonspeech" elements are combined in the same course of
conduct; a sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on 1st amendment freedoms
(f) TEST: Government regulation (against communicative conduct) justified if:(1) It is within
constitutional power of the government; (2) it furthers an important or substantial
government interest; (3) the government interest is unrelated to the suppression of free
expression; (4) the incidental restriction on alleged 1st amendment freedom is no greater
than is essential to the furtherance of that interest
(3) If the government has targeted the symbolic speech because of its content, and assuming that the speech
is not low value (i.e. obscenity), the O'Brien Test won't apply (because the 3rd prong is not satisfied) and
the court will apply strict scrutiny
(4) Flag Desecration
(a) Texas v. Johnson
(i) U.S., 1989
(ii) Facts: Johnson was apart of a protest against Reagen's policies decided to burn a flag
at city hall in Dallas; was arrested and convicted under a TX statute prohibiting flag
burning
(iii) State interest: prevent breaches of the peace, preserve the flag as a symbol of
nationhood and national unity
(iv) Issue: Was Johnson's burning of the flag expressive conduct protected by the 1st
Amendment?
(v) Holding: Yes.
(vi) Rationale: The TX law is not aimed at protecting the physical integrity of the flag in all
circumstances, only when it is threatened with conduct that would be deemed as
seriously offensive to others. The law only takes effect when a person's treatment of
the flag communicates a message.
(vii)
Dissent (Rehnquist): Flag burning is meant to antagonize others (similar to
hate speech)
(5) Spending Money as Political Speech
(a) Buckely v. Valeo
(i) U.S., 1976
(ii) Contribution and expenditures in political campaigns, needed documentation of any
contribution over $10
(iii) Issue: Does the strong governmental interest in preventing election corruption justify
imposition of substantial restrictions on the effective ability of any individual to
engage in free speech?
(iv) Holding: No.
(v) Rationale: The money spent/given is speech and not just expressive conduct.
Spending the money is the speech. Contribution limits meet strict scrutiny
(government interest prevent corruption) Expenditures limits does not pass strict
scrutiny (reduces the quantity of expression by restricting the number of issues
discussed, depth of their exploration, and site of audience)
(b) Citizens United v. FEC
(i) U.S., 2010
(ii) Political group made a 90 min documentary about Hilary Clinton to be aired on video
on demand available to consumers 30 days prior to the election
(iii) Court rejects the notion that political speech of corporations should be treated
differently than other "natural persons"
(iv) Government says there is an antidistortion rationale put forth in Austin;
anticorruption interest, shareholder protection interest
(v) Court overrules part of Austin, says that this is the nature of politics
(vi) Said Austin interfered with open marketplace of ideas; allows groups to spend money
together, take on other rich people (place them on same footing)
f) What Places are Available for Speech?
i) Government Properties and Speech
(1) Hague v. Commitee for Industrial Organization
(a) U.S., 1939
(b) New Jersey law refused to allow demonstrators to protest and give out leaflets
(c) Result: The privilege of a citizen of the U.S. to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; must
exercise regulation in order to promote peace and good order
(2) Schneider v. New Jersey
(a) U.S., 1939
(b) Don't punish the speaker, punish the litterer!
(c) Rationale: May enact regulations in the interest of public safety, health, welfare or
convenience, but may not abridge the individual liberties secured by the Constitution
(3) Perry Educators Assn v. Perry Local Education Assn
(a) U.S., 1983
(b) Local school district allowed one teacher labor union to use its mailing system and
teachers mailboxes to distribute leaflets; did not allow PLEA to distribute mailings
(c) The school's policy was upheld as constitutional
ii) Public Forums (sidewalks, streets, and parks)
(1) Content-based restriction? -->strict scrutiny
(2) Time, place, and manner restriction -->is there an important interest?
adequate alternative channels?
(3) Police Dept. of the City of Chicago v. Mosley
(a) U.S., 1972
(b) City prohibited peaceful picketing on anything other than labor related disputes; Petitioner
was picketing at high school in re: black discrimination for 7 months prior to arrest
(c) Issue: Was the city code unconstitutional deprivation of free speech?
(d) Holding: Yes.
(e) Rationale: The essence of this forbidden censorship is content control. Once a forum is
opened up to assembly or speaking by some groups, government may not prohibit others
from assembling or speaking on the basis of what they intend to say.
(4) Hill v. Colorado
(a) U.S., 2000
(b) CO statute prohibited solicitation within 100 ft of health care facility (cannot knowingly
hand out leaflets without consent within 8ft of facility)
(c) Issue: Were the petitioners free speech rights impeded by the CO statute?
(d) Holding: No.
(e) Rationale: There is a "right to be let alone." There is a legitimate state interest to protect
citizens from unwanted communication.
(f) TEST (to pass content neutrality): (1) must not be a regulation of speech; (2) must not be
used to voice disagreement with the message it conveys; (3) must be unrelated to the
content of the demonstrator's speech
(g) Only establishes a minor place restriction on an extremely broad category of
communications with unwilling listeners, it is a narrowly tailored provision
(h) Dissent (Scalia): A restriction that operates only on speech that communicates a message
of protest, education, or counseling presents a risk of impeding speech.
(5) Licensing and Permit systems
(a) Form of prior restraint; will be upheld if (1) important state police power interest (2) clear
criteria (no officials discretion) (3) must have procedural safeguards
(6) Ward v. Rock Against Racism
(a) U.S., 1989
(b) NY municipal code limited performances in the bandshell to certain volume constraints
and required a city sound technician to be brought in to control the sound
(c) Issue: Is the NY code an unconstitutional limitation on freedom of expression?
(d) Holding: No.
(e) Rationale: Furthers a legitimate state interest in protecting citizens from unwelcome noise.
A regulation need only be narrowly tailored to serve the governmental interest; does not
have to be the least restrictive/least intrusive means of doing so.
iii) Non Public Forums
(1) Reasonable? Content-neutral restriction?
(2) Non-Public Forum: Public property, but neither of above: can do time-place-manner
if reasonable and not aimed at suppressing disfavored speech.
(3) Adderley v. Florida
(a) U.S., 1966
(b) FAMU students wanted to protest at a jail re: racial segregation of prisoners
(c) Result:
(4) Lehman v. City of Shaker HS
(a)
(b)
(c)
(d)
U.S., 1974
Bus advertising case
City did not want to sell ad space to political campaigns
Government interest: Minimize the chances of abuse, the appearance of favoritism, the
risk of imposing upon a captive audience
(e) Rationale: This is a legitimate state interest; may not be arbitrary, capricious, or invidious.
(5) U.S. v. Kokinda
(a) U.S., 1990
(b) Group wanted to hand out political propaganda near a post office
(c) Rationale: The government ownership of property does not automatically open that
property to the public. Mere physical characteristics of the property cannot dictate forum
analysis.
9) First Amendment: Freedom of Religion
a) What is Religion?
i) U.S. v. Seeger
(1) U.S., 1965
(2) Conscientious objector (to war) case
(3) Facts: Seeger was convicted in violation of U.S. military training and service act
because he did not state a specific religious belief on his exemption form; argued that
just because he didn't designate that he believed in a supreme being, he still held a high
moral belief in no war
(4) Issue: What is the meaning of religious training and belief as used in the USMTSA?
(5) Result: Must have a given belief that is sincere and meaningful occupies a place in the
life of its possessor parallel to that filled by those who clearly believe in a supreme
being (i.e. christians, islam)
ii) U.S. v. Ballard
(1) U.S., 1944
(2) Defendants were convicted under a mail fraud statute that prohibited distribution of
false and fraudulent representations, pretenses, and promises; were proclaimed faith
healers
(3) Issue: Are misrepresentations via mail of religious experience or beliefs prosecutable?
(4) Holding: No.
(5) Rationale: The religious views espoused by the defendants might seem incredible; but
if those doctrines are subject to trial before a jury charged with finding their
truth/falsity, that is forbidden domain.
b) The Free Exercise Clause
i) Sherbert v. Verner
(1) U.S., 1963
(2) Sabbath day employment case
(3) Facts: Plaintiff is fired from her job because she could not work on Saturdays; applied
for unemployment benefits and was disqualified because she couldn't be available for
work on Saturdays
(4) Direct v. incidental burden on religion
(5) Issue: Is the disqualification an infringement upon Plaintiff's free exercise of religion?
(6) Holding: Yes.
(7) Rationale: There must be a compelling state interest in the regulation of the subject.
Government actions that substantially burden a religious practice must be justified by a
compelling gov't interest. The government action forced petitioner to choose between
her religious beliefs and receiving government benefits.
(8) Strict scrutiny
ii) Employment Division, DHS v. Smith
(1) U.S., 1990
(2) Unemployment benefits case
(3) Facts: Two employees were disallowed filing for unemployment because they were
fired for using peyote (during a religious sacrament)
(4) Issue: Is the OR criminal statute unconstitutional impediment on the free exercise
clause?
(5) Holding: No.
(6) Rationale: Facially neutral and generally applicable to the public use RB test; the Free
Exercise Clause does not require the state to create exemptions from “generally
applicable and otherwise valid” laws that have the “incidental” effect of burdening
religion
iii) Church of the Lukumi Babalu v. City of Hialeah
(1) U.S., 1993
(2) Involved a city ordinance that was against the practice of religious animal sacrifice; the
church had leased land from the city and would have been bound by the ordinance; did
not allow slaughtering outside of specifically zoned areas
(3) Issue: Is the city ordinance unconstitutional?
(4) Holding: Yes.
(5) Rationale: Facial neutrality is not determinative (the ordinance defined everything in
secular terms). Official action that targets religious conduct for distinctive treatment
cannot be shielded by mere compliance with the requirement of facial neutrality.
iv) Cutler v. Wilkinson
(1) Prison inmates alleged that they were not given accomodation to practice their religion
(2) Result: The federal act re: accommodation of prisoner's religions does not discriminate
between mainstream and non-mainstream religions. The law was the effort to alleviate
a government created burden, on religious exercise that prisoners face.
(3) Rational relationship review: A law would be unconstitutional unless there were a
"valid, rational connection" between the prison regulation and a legitimate
government interest or the prisoners had an alternate means of exercise
v) Locke v. Davey
(1) U.S., 2004
(2) State awarded scholarships for students to attend public or private school but no
theology programs; Davey received the scholarship and wanted to attend a college for
BA and pastoral studies; scholarship was then denied
(3) Issue: Is the state program denying Davey's right to freely exercise his religion?
(4) Holding: No.
(5) Rationale: WA constitution unequivocally disallowed any state support for religious
funding. The program does a lot to include religion in its benefit; and does not limit the
students in taking theology courses. The WA constitution and the state program did
not show animus toward religion. This program and the exclusion set forth has a
minor burden on applicants; substantial state interest trumps
(6) Dissent (Scalia): Says Davey is only seeking equal treatment amongst other Promise
Scholars. There are other alternative that the state could have taken.
c) The Establishment Clause
i) Strict Separation - secular state
ii) Neutrality Theory - no endorsement or disapproval
iii) Accommodation - recognize importance of religion and accommodate its
presence
iv) Must also consider whether a "reasonable observer/person" would believe that
the government was endorsing religion (even if the government didn't intend to do
so)
v) County of Allegheny v. ACLU
(1) U.S., 1989
(2) Nativity scene was on the steps of the courthouse; xmas tree and menorah was placed
outside of the city-county building
(3) Issue: Does the placement of the creche violate the Establishment Clause?
(4) Holding: Yes.
(5) Rationale: Government is precluded from conveying or attempting to convey a
message that religion or a particular religious belief is favored or preferred. Court
applied exclusivist endorsement test as was established in Lynch. The effect of the
government's use of religious symbolism depends upon its context. The creche is
inherently religious and its placement suggests to a reasonable observer that the
courthouse embraces christianity.
(6) Concurrence (O'Connor): The message of pluralism conveyed by the city's combined
holiday display is not a message that endorses religion over nonreligion.
(7) Concurrence (Scalia): Shows unjustified hostility toward religion (inclusivist view)
inconsistent with history or precedents; use coercion test: 1) government may not
coerce anyone to support or participate in any religion or its exercise AND 2)
government may not in the guise of avoiding hostility or callous indifference, give
direct benefits to religion in such a degree that establishes a state religion
vi) Larson v. Valente
(1) U.S., 1982
(2) Charities would be exempt from registering with securities commissioner if could
show that donations were from over 50% non-members; religious organizations did
not have to prior to the law change
(3) State interest: Protect citizens from abusive solicitation of funds for charity
(4) Issue: Whether a MN statute imposing the registration requirements discriminates
against religious organizations in violation of the establishment clause?
(5) Holding: Yes, it does.
(6) Rationale: No state can pass laws which aid one religion or prefer one religion over
another. The 50% rule grants denominational preferences and is justified by a
compelling government interest; however, it was not narrowly tailored. Strict scrutiny
vii) Lemon v. Kurtzman
(1) U.S., 1971
(2) School funding case, gave $$ to nonpublic schools (were religiously affiliated) for
secular activities
(3) LEMON TEST: 1) statute must have secular legislative purpose 2) principal or
primary effect must be one that neither advances nor inhibits religion 3) the statute
must not foster an excessive entanglement with religion
(4) Must also consider whether a reasonable, informed observer is likely to perceive a
religious message
(5) Result: Although the statute had a secular purpose of improving education; there is a
cumulative impact of the entire relationship that prompts excessive entanglement
(supervision and accounting of what teachers and classes are secular)
viii) Santa Fe Independent School District v. Doe
(1) U.S., 2000
(2) Prayer over PA system led by nominated student, termed as an "invocation" before
football games; the prayer was led by a student who was elected by the student body;
prayer would still have to be approved by administration; School says it is "private
speech" on the part of the student
(3) Result: Court says still unconstitutional. The invocations are authorized by a
government policy and take place on government property at a government sponsored
school-related event. Such a majoritarian policy (i.e. student body voting) does not
lessen the offense or isolation to the objectors. At best, it narrows their number, at
worst increases their sense of isolation and affront. Says the pregame prayer has the
improper effect of coercing those present to participate in an act of religious worship.
ix) Monetary aid cases
(1) Rosenberger
(a) UVA refused to provide printing costs for a student organization that published
magazines that involved Christian viewpoints; state policy was to not provide funding for
religious activity
(b) Issue: Constitutional?
(c) Holding: Yes.
(d) Rationale: State school policy allows viewpoint discrimination. No establishment clause
issue because the policy is content-neutral, inclusive
(2) Engel v. Vitale
(a) U.S., 1962
(b) State created prayer by NY Board of Regents
(c) Result: Completely unconstitutional, even if it were a nondenominational prayer,
government should stay out of the business of writing or sanctioning school prayer
(3) Lee v. Weisman
(a) U.S., 1992
(b) Eight grade graduation with prayer by clergy person
(c) Result: Was deemed unconstitutional; not necessarily a voluntary event so the prayer is
coercive in nature (singles out the minority)
(4) Mitchell v. Helms
(a) U.S., 2000
(b) Parochial aid to schools in Lousiana; challenged federal education funding act, Lousiana
schools doles out over 30% monies to private, religion affiliated schools; Schools were
only allowed materials/aid that was "secular, neutral, and non-ideological"; Aid was also
primarily given based upon student enrollment
(c) Result: Established newer test to determine whether public aid may be given. Court finds
federal program constitutional, examined the effect of the federal program. Problems may
arise under the "private choice principle." Disarmed by the argument that if government
offers assistance to recipients who provide a broad range of indoctrination, the
government itself is not thought responsible for any particular indoctrination.
(d) TEST: The statute must not 1) result in government indoctrination, 2) define a recipient
by reference to religion, 3) create an excessive entanglement
(5) Zelman v. Simmons-Harris
(a) U.S., 2002
(b) State of Ohio took over public schools in Cleveland, and started a "voucher" program;
gave tuition and tutorial aid
(c) Result: Action was deemed constitutional