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American Constitutional Law Summary by Marina Bezrukova
Sheppard Winter 2001
Marbury v. Madison (1803)
(1) establishes the legitimacy of the judicial review in deciding what's constitutional.
(2) represents the strict, text based reading of the Constitution.
╚> judges must assume the role of interpreters and guardians of the Constitution. Americans have a right to an
established Constitution and the Framers contemplated that any law 'repugnant' to the Constitution is Void. It is
the Judiciary's duty to strike down 'unconstitutional' legislative acts by not enforcing legislation when in conflict
w/the Constitution.
╚> Marshall's key justifications for the legitimacy of Judicial review:
1. Constitution as Supreme Law - Based on article 6 that Constitution. takes precedence. Marshall
concludes that if legislatures (Congress) can act repugnant to the Constitution., then what's the
point of having a Constitution?
2. Written Constitution - The power of the legislature is defined and cannot be forgotten b/c it is a
written document (easier for judges to interpret) and is absolutely clear, so there is no
inconsistency. (but in fact, not so clear)
3. Judicial Role - Judges are specifically well placed and it is their role to say what the law is (i.e.
judges have a particular role to place in interpreting and upholding the constitution, and they take
an oath = role of overseers/guardian of the Constitution).
McCullock v. Maryland (1819)
(1) established the tradition of the Expansive Interpretation of the Constitution, which would allow it to endure years,
and to be adapted to the various crises of human affairs;
(2) states that Congressional powers are not limited to the express grants in Art. 1, but includes such power as is
necessary and proper to the effectuation of the express powers.
╚> Judge Marshall is moving away from mechanical interpretation to a more expansive/fluid/purposive/living tree
interpretation of the US constitution
╚> Necessary and proper - does not have a fixed meaning
╚> Implied Powers: Not all of the powers are described in the constitution, powers “not delegated to the United
States, nor prohibited to the States, are reserved to the States or to the people” (10th Amendment). Maryland tried
to argue that these powers belong to the States. Marshall responded: “any means adapted to the end, which tended
directly to the execution of the constitutional powers of the government, were in themselves constitutional” (so
first establish the right per the constitution, then the means flows from it)
╚> the Constitution is just an outline “its nature requires that only the great outlines should be marked, its
important objects designated ...” And the “provisions made in the constitution were intended to endure for ages to
come, and consequently to be adapted to the various crises of human affairs. Thus the constitution is not the same
thing as a common law statute, not all is set out in detail so that there is room to accommodate new circumstances
Dred Scott (1857): In holding that slaves are not citizens and hence can't have rights under the Constitution,
the court (1) claimed that the ethics and law are separate and courts should not decide on justice of law; (2)
engaged in strict, textual interpretation of the Constitution and framers' intent.
Cherokee Nation (1831): in holding that the Court did not have JD to hear Indians' claim against Georgia,
the court again claimed that judges' feeling of sympathy, justice and fairness should not govern their strict
textual interpretation of the Constitution.
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Protection of Liberty with Due Process (14th Am): from Lochner Era to Substantive Equality
Lochner Era
Around 1900s, the US courts began to use due process to challenge state and federal economic regulations.
Demonstrates:
(1) Wrong type of judicial activism, because it was based on juridical abstraction divorced from social and
economic realities of the era. Lead to the issue of formal v. substantive equality.
(2) There might be tension between Freedom v. Equality when an increase of freedom (Freedom of K) decreases
equality (equality of bargaining power).
(3) Lack of judicial deference to the Legislature which lead to the application of strict scrutiny, rather than "minimum
rationality", to the economic regulations.
(4) Expansive definition of "liberty" in the 14th Am which reads in values not explicitly entrenched in the
Constitution -- good for subsequent development of the Modern Substantive Due Process.
Allgeyer v. Louisiana (1897): Interpreted liberty in the 14th Am as "liberty of contract"
╚> " The liberty…means not only the right of the citizen to be free from the mere physical restraints of his person,
as by incarceration, but terms…embraces the right of the citizen to be free in the enjoyment of his facilities, to be
free to use them in a lawful way, to live and work where he will, to each his livelihood, and for that purpose to
enter into all contracts which may be property, necessary and essential to his carrying out" his life.
Lochner v. New York (1905): Example of "judicial abstraction" and judicial activism
╚> The majority strikes down state leg-tion limiting working hours of bakers to 10 hours a day.
╚> while acknowledging that the state has police powers (to protect health, morals), the majority refused to see
any justification for the state's intervention here (1) no labor issue: bakers are autonomous persons with equal
bargaining power; (2) no health concern: factual evidence used by Harlan (dissent) did not meet stricter scrutiny of
the majority.
╚> Criticisms of Majority:
(1)
(2)
(3)
(4)
Institutional criticism: no deference to the legislature (judicial activism); used by Holmes
(dissent)
"Mechanical jurisprudence" and "judicial abstraction": failure to see reality of health and labor
concerns. Court has a mythical image of an autonomous and equal employee.
"Expansive view of "liberty" and "property' to include values not explicitly stated in the
Constitution.
╚> BUT, if we accept this criticism, it is hard to use "liberty" in protections of noneconomic
right like civil liberties, abortions.
"Unjustified stricter scrutiny": the conferral of an especially high value on liberty of K without
adequate justification for stricter scrutiny. Instead, should have accepted a "mere rationality"
standard (simply show a rational connection between the ends and means"). Stricter scrutiny
should be used where the rights are fundamental.)
╚> Note: the retreat of the modern courts from interventionism in the economic area had
taken the form of extremely deferential scrutiny of a " minimum rationality" and not via a
shrinking of meaning of "liberty."
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Muller v. Oregon (1908) Lochner court accepts substantive equality b/c women are "weak"
╚> the court upheld law limiting work hours for females in factories and laundries because there is "difference
between the two sexes", "women's physical structure" puts her at disadvantage.
Adkins v. Children's Hospital (1923) Civil inferiority of women is a "vanishing point"
╚> court strikes down minimum wage for women because it violated due process: "liberty of K could not be subjected
to greater restriction in the case of women than of men."
Demise of the Lochner Era:

Beginning with 1930, courts began to retreat from judicial activism toward extremely deference scrutiny of
"minimum rationality" standard in testing whether alleged infringements of economic liberties were justifiable.

While withdrawing from careful scrutiny in most economic areas, it has increased intervention regarding a
range of non-economic personal interest not explicitly protected by the Constitution.
Nebbia v. New York (1934) Judicial deference is a must provided there is a "reasonable relation"
╚> court upheld minimum price of milk to ensure that production of milk is covered by its cost
╚> Property and K rights are not absolute;
╚> a state is fee to adopt whatever economic policy may reasonable be deemed to promote public welfare..
╚> TEST: The courts are without authority to override it. If the law passed are seen to have a reasonable relation to a
proper legislative purposes, and are neither arbitrary, not discriminatory, the requirements of due process are satisfied.
West Coast Hotel (1937) Judicial deference and substantive equality based on social reality
╚> court upheld a state minimum wage law for women, based on social reality of weak bargaining powers and
necessitous circumstances of women (overruled Adkins and rejected biological justification)
╚> Court uses "minimum rationality" standard to justify state's power: "Legislative response…cannot be regarded as
arbitrary…and that is all we have to decide. There is a compelling consideration which recent economic experience
has brought into light… the exploitation of a class of worker" with unequal bargaining power."
US v. Carolene Products (1938) Presumption of Constitutionality
╚> "even in the absence of evidence, the existence of facts supporting the legislative judgment is to be presumed."
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Federalism in the Context of Commerce Clause
Using the broad interpretive approach to implied powers adopted by McCulloch, it can be said that the commerce
power encompasses federal regulation of local activity when such regulation is reasonably appropriate to the effective
regulation of interstate commerce. Such power however is not absolute.
Regulation of local activity:
(1) is valid under the CC if meets the Lopez/Morrison test:
A. The regulated activity must fall within one of 3 categories of activities. (1) channels of interstate commerce
(IC) (2) instrumentalities of IC (3) activity that has substantial effect on IC.
B. The activity, which in aggregate has substantial effect on IC, must of economic nature. The offensive
conduct must be directed at instrumentalities, channels, or goods involved in IC, as opposed to having an
attenuated indirect effect. No "cost of crime" and "national productivity" arguments when activity is not
economic.
C. While Congress has no obs show factual proof to the connection of the activity to IC, the existence of such
evidence would help the court to establish such connection, where it is not obvious to a naked eye.
(2) is not valid when it invades the province of state sovereignty reserved by the 10th Am by commandeering
States (as opposed to giving incentive) to enact and enforce federal regulatory scheme: NY v. US, Printz v. US.
The court should not loosen judicial review of constitutionality (court's task as per Marbury) simply because
(1) states have ratified Federal law (reject cooperative federalism)
(2) there are "built-in restraints that out system provides through state participation in fed gov action (end run
around Garcia)
(3) cannot be justified on the 14th Am grounds which allows Congress to prohibit only state, as opposed to
private, action: Morrison.
1. Article 1 Limits on CC


Beginning in 1937, the Court has showed great deference to congressional action under the Commerce Power.
Wickard was a heyday of judicial deference; allowed feds to regulate how much grain a farmer can grow; used
"aggregate effect" test to say that if all farmer will overgrow above the limit, this will drive prices of wheat
down. In Lopez and Morrison, the majority indirectly reject this test, by saying that the aggregate effect alone
is not enough to justify legislation.
CC was used by the Feds to justify civil liberties legislation: e.g. Heart Atlanta Hotel, where fed law
prohibiting discrimination of black by hotels, was justified under CC
Lopez v. US (1995): End to Judicial Deference; Setting the Limits on Congressional Commerce Powers
Facts: Congress tries to justify under the CC legislation prohibition possession of guns in school zones.
Held: unconstitutional
1. gun possession at school is not an economic activity and as such has no nexus to IC.
2. No convincing factual findings (only inferences, built upon inferences)
3. "Slippery slope" -- if gov is allowed to regulate such local matter (education), it can regulate virtually
anything.
4. Judges must not forget the written text of the constitution; since 1937 courts have began to expansion of CC
which obliterates any distinction between what is national and what is local.
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Dissent: Congress must only show a rational basis
1. judicial deference and the duty to assess the rationality, not soundness, of concluding that a jurisdictional basis
exists.
2. accuses the majority of categorical formalism in separating economic v. non-economic activities.
3. rejects the slippery slope argument (it can be made in many cases)
4. the principle of stare decisis convinces judges to be deferent. Must learn the lesson of Lochner ear where such
deference and principle were abandoned.
US v. Morrison (2000): Limits on Congress's Commerce Clause (Art 1, s. 8) and 14th (Section 5) Powers
Facts
Violence Against Women Act, which gives civil remedied to victims of gender-hate crimes, is challenged. The fed gov
tries to justify it:
(1) under Commerce Clause (3rd point below): gender based violence has effect on employment in interstate
business, diminishes national productivity and demand for interstate products, increase medical/other costs.
(2) under Congress's power to enforce 14th Am (i.e. person's life, liberty).
Held: Legislation is invalid
Commerce Clause
╚> generally, Congress has been given greater latitude in regulating conduct and transactions under the CC than in
previous cases. However, this regulatory authority is not without effective bounds.
╚> modern CC jurisprudence has “identified three broad categories of activity that Congress may regulate under its
commerce power":
1. Congress may regulate the use of the channels of interstate commerce.
2. Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may come only from intrastate activities.
3. Congress’ commerce authority includes the power to regulate those activities having a substantial relation to
interstate commerce, … i.e., those activities that substantially affect interstate commerce.
╚> Court will sustain federal regulation of intrastate activity based upon the activity’s
substantial effects on interstate commerce if the activity in question has been some sort of
economic endeavor.
╚> The connection b/n interstate trade and the aimed activity should be more than
attenuated. It is not enough to show the aggregate effect on interstate commerce. The
offensive conduct must be directed at the instrumentalities, channels, or goods involved in
the interstate commerce.
╚> The aimed activity need be "an economic activity."
14th
Amendment
╚> The language and purpose of the Fourteenth Amendment place certain limitations on the manner in which
Congress may attack discriminatory conduct. Foremost among these limitations is the time-honored principle that the
Fourteenth Amendment, by its very terms, prohibits only state action. That Amendment erects no shield against
merely private conduct, however discriminatory or wrongful.
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2. 10th Amendment as a Limit on Congressional Commerce Power
History:
National League of Cities v. Usery (1976) and Hodel (1981): Court invalidates congressional law re Labour Standard
because there are some areas which are out of federal reach based on "traditional gov't functions" test. A challenger of
a fed law must meet a 4-part test:
1. must show that the statutes regulates the "states as state"
2. the fed regulation must address matters that are indisputably "attributed of state sovereignty"
3. fed law would impair their ability to structure integral operations in areas of traditional gov. functions.
4. the federal interest is not such that is justified state submission (case of special national importance)
Garcia v. San Antonio Metropolitan Transit Auth. (1985): the Court overrules National League by holding that the
Constitution's federal structure is safeguarded not by court's predetermined notions of sovereign power, but by the
"built-in restraints that our system provides through state participation in fed gov action. The political process ensures
that laws that unduly burden the states will not be promulgated". While acknowledging that there are limits on fed
powers, the majority did not explore them.
The dissent (1) challenged the assertion that there are no workable standard for the state sovereignty limitation and (2)
accused the majority of rejecting the judicial role in protecting the states from federal overreaching, the authority for
which was est. by Marbury.
Today:
New York v. United States (1992) Congress cannot commandeer States what law they must enact
Facts: the Congress, after long consultations with the states, enacted a law which forced the state regulating
radioactive waster according to the direction of Congress or to take title to the waste and assume liability.
Held:

The law is an invalid encroachment on state sovereignty because it "commandeers" state government into the
service of federal regulatory purposes. Congress cannot force states to enact and enforce a fed. regulatory
program, because it raises the issue of accountability: feds who design law are insulated from the electoral
and state official bear their wrath.

Commandeering is different from valid creation of incentives by Congress. E.g. (1) Congress may attach
conditions on the receipt of federal funds, or (2) Congress may offer states the choice of regulating the
federal activity according to fed standards (delegation). This is call "cooperative federalism."

Participation and consent by the States to the fed law cannot ratify the otherwise unconstitutional law.

Dissent: Accused the majority of end run around Garcia: the political process itself, rather than a doctrine of
state autonomy, protected the states. Here, the states were deeply engaged in constructing the fed legislation:
an e.g. of cooperative federalism. Dissent, unlike the majority, looks at the substance and not the form of
federalism.
Printz v. US (1997)
Facts: Congress enacted a gun control legislation which required everyone buying a gun to submit a form with
personal information. The state police officials were required to verify the information.
Held: Invalid. Congress cannot implement its policies by commandeering state officials to carry out fed law.
Congress expands the ambit of the state official duties.
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Division of Powers
Rationale:
i.
ii.
Efficiency: e.g. concentration of executive power in the President who can act with dispatch.
-- however, some argue that this is the reason for inefficiency: difficult for fed go to accomplish
anything. Process reduces to a series of deadlock.
Prevention of tyranny. Makes laws apply to lawmakers. Protects private property against gov
action. Guards against corruption.
Examples:
Control of Executive Branch:
i.
judicial appointments must be approved by the President
ii.
impeachment process: both HP and Senate must vote
iii.
treaty ratification by the Senate
iv.
judicial review of executive action
v.
max 8 years: no one has too much power for too long
Control of Legislative Branch:
i.
Congress declares the war, but President is the chief commander
ii.
President can veto any law, but Congress can still enact it with 2/3 majority in HP and Senate
iii.
Judicial review of legislative action
iv.
Control of Judicial Power:
i.
courts' jurisdiction is delineated by legislature
INS v. Chadha (1983) Leg. Power can be exercised only according to a single Constitutional Procedure.
Facts: INS (executive branch) made decision to suspend deportation of Chadha. The House of Representatives, under
the Act at issue, vetoed the suspension.
Held: Legislative Veto device is unconstitutional
Reasoning:
Suspending Chadha's deportation is tantamount to altering legal rights, duties, and relations of person. Therefore, the
Veto provision is an exercise of the legislative power requiring the Presentment (Art. 1, Sec. 7, cl. 3) and
Bicameralism (Art. 1, Sec 1 and 7). Legislative power must "be exercise in accord with a single, finely wrought and
exhaustively considered procedure." Congress can't legislative while avoiding installed checks (like Presidential veto).
These procedures are intended to ensure that legislation should not be enacted unless it ahs been carefully and fully
considered by the Nation's elected officials.
Clinton v. Jones (1999) President is not immune to civil suits, but can have temporary immunity if facts warrant
Facts: Clinton requested temporary immunity because the suit interfered with his carrying on duties as a President.
Held: Temporary immunity is warranted only the suit really interferes with presidency.
Reasoning:
President is not above the law.
Framers intent does not seem to allow for suspension of a suite.
Facts don't show that Clinton's functions are really impaired.
Marina Bezrukova
Equal Protection
Plessy v. Forguson (1896) Classic Example of Formal Equality
Court held that the law requiring "equal but separate" railway accommodation for white and blacks.
Reasoning:
i.
Judicial Deference: low level of scrutiny. Louisiana is reasonable in enacting the law, because its
discretions is justifies by its knowledge of local customs and traditions.
ii.
The Act does not create a badge of inferiority.
Dissent:
i.
"Our Constitution is colorblind". Legislation should not make any distinction based on race. (Today,
some use this to argue again affirmative action).
ii.
Legal Realism: court must look at the social reality of breeding inferiority among blacks. (The concept of
"separate" is not always bad; must consider
Having failed challenging the "separate" component, black successfully challenged the "equal" component in many
subsequent cases. E.g. McKay, where black complained that white railcar had sleeping compartment and restaurant.
Brown v. Board of Education (1954) Rise of Formal Equality
The court held that "separate educational facilities are inherently unequal and that laws requiring or permitting racial
segregation of schools violate equal protection". While the court in Brown I emphasized the harm to children from
educational segregation, the rejection of state sanctioned racial segregation was summarily extended to other public
facilities.
Brown II "took away the teeth" of Brown I by allowing schools to carry out desegregation "with all deliberate speed,"
in good faith, according to equitable (unspecified) principles.
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Constitutional Analysis of Inequality
1st Step:
Is there discrimination (different treatment) in government law or policy?
→
Tussman & Ten Brook "The Equal Protection of the Laws":
Reasonable Classification Test: Equal Protection Clause does not prohibit different treatment
provided it is a reasonable classification. All who similarly situated with respect to the purpose
of the law should be treated the same.
2nd Step:
What is the nature of the gov's classification?
3rd Step:
What is the purpose/objective of the law?
4th Step:
Is the inequality justified in the light of due scrutiny? I.e. is there a reasonable connection b/n
purpose and classification?
→ Is the law (1) under inclusive (2) over inclusive (3) perfect fit (4) total lack of fit.
→ What level of scrutiny?
Strict
i.
ii.
iii.
requires the gov's purpose to be compelling state interest, i.e. requires scrutiny of means and ends
means must be carefully tailored to achieve that purpose
Required where there is (1) a suspect classification, like race-based or (2) inequality with respect
to a fundamental right (Skinner = right to procreate; Homer = right to seek special legal
protection).
Skinner v. Oklahoma -- strict scrutiny applied to a law depriving convicts of a fundamental right
to procreate.
Korematsu v. US (597) -- "All legal restrictions which curtail the civil rights of a single racial
group are immediate suspect." The court nevertheless justified the gov's decision to put Japanese
into curfew because "hardships are part of war."
Loving v. Virginia (635) -- Virginia law prohibited racial intermarriage. Race-specific
classification that is facial neutral. Court (1) upholds Korematsu's suspect concept (2) rejects
formal equality argument. Held there is no purpose to the law which would override this invidious
racial discrimination.
Washington v. Davis (610) -- Blacks challenge law requiring police applicants to take verbal,
reading ability tests which failed more blacks. Non-race specific classification that has a resulting
disadvantage to racial minorities.
Court: there is no evidence the totality of which would point toward an intent to discriminate. Law
serves neutral ends. While de facto discrimination is important (recognized in Brown v. Board of
Educ), disproportionate impact on racial minorities cannot, standing along, trigger strict scrutiny;
must apply rational basis scrutiny.
Reasons for Strict Scrutiny in Race-Classification cases:
1. Framer's intent to protect Blacks through the 14th Am from States' unfriendly actions
2. Race is rarely, if ever, relevant.
3. Prohibition against racial classification reflects a fundamental moral norm.
4. Racial classifications are likely to be based on "hostility" and inaccurate stereotypes.
5. the Equal Protection clause prohibits the subordinations of any group
6. Discrete and Insular minorities
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Intermediate
i.
ii.
iii.
e.g. applied when gender classification
requires the purpose to be important
there should be substantial relationship b/n purpose and means
US v. Virginia Military Institute: Intermediary Scrutiny applied in case of gender discrimination.
Facts: VMI accepted only male students because it was believed that most women would not want and would be able
to withstand physical challenges of this sort. VMI also claimed that it offered educational diversity: i.e. men could
choose to go to mix schools or male only schools.
Held: unconstitutional
Analysis:
i.
Intermediate Scrutiny level: gender discrimination get bumped down to intermediary level because
unlike race, gender can legitimately justify different treatment (e.g. washrooms for men and women). We
accept difference between men and women.
ii.
Connection of Ends and Means:
a. court rejected the argument that most women would not survive the conditions. Must look at
individual rights of each person. Even if some women want to go to VMI, that should be allowed
b. court rejects the diversity arguments: if you genuinely want to create diversity than why only sons and
no daughters of the State benefit from it.
c. Court also rejected as valid an argument that letting women in would require major institutional
changes. Never a valid argument.
d. Court also rejected the female version of VMI because it did not offer the same prestige, training, etc.
Scalia Dissent:
iii.
the majority written by Ginsburg (a big female rights judge) actually applies strict scrutiny test because
she demands the defendant to demonstrate "an exceedingly persuasive justification". Must show important
gov objectives and that discriminatory means employed are substantially related to the achievement of
those objectives.
iv.
Being cynic about the fact that the court's whimsy, not the law, decides in each case what test to apply.
v.
Grounds his dissent on: (1) strong tradition of male military schools, (2) the need for democratic process
to create changes; (3) the duty of the court is to preserve values, not to revise them and prescribe a higher
degree of progressivity on people (4) nothing in the text of the Constitution to support majority (5)
women are not discrete and insular minority; (6) holds that the intermediate scrutiny test is met here.
Minimal/Rational Basis test
i.
ii.
iii.
requires legitimate purpose (almost presumed; see Clover Leaf stating "But States are not
required to convince the courts of the correctness of their legislative judgments.")
the connection b/n the purpose and means need have rational relationship.
e.g. applied in cases of economic classifications:
Railway Express Agency law prohibiting advertising vehicles on all but business delivery vehicles
upheld;
Williamson v. Lee Optical (law prohibiting unlicensed optometrists (but not sellers of ready-towear glasses) from fitting lenses to a face upheld;
Minnesota v. Clover Leaf Creamery law banning retail sale of mil in plastic containers;
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City of Cleburne v. Cleburne Living Center: (1985) Discrimination of Disabled = Rational Basis Review (but
indeed engage heightened scrutiny).
Facts: zoning law prohibiting building houses for mental patients, but allowing hospitals and senior citizens houses
was challenges.
Held: legislation is unconstitutional
i. Nature of Classification: sane v. insane persons
ii. Scrutiny = Rational Basis "with Teeth": the majority claimed that the rational basis of
scrutiny is sufficient. Reasons: (1) the group is too amorphous; different degrees of disability
(2) they are indeed different and thus a different treatment might be justified (3) States already
have taken collective response to their needs; so they can't be called politically powerless and
discreet insular minority (Sheppard is not convinced) (4) judiciary is ill-informed to deal with
this large and diverse group (5) floodgates arguments. A recent case in Univ. of Alabama v.
Garret upheld the R/basis scrutiny in case of disability.
But, as observed by a decision dissenting in part, the majority in fact applied the intermediary
level because it "sifted through the record to determine whether policy decision are squarely
supported by firm factual foundation." It also placed the burden on the State to convince the
court that the lines were drawn sensibly. The concurring judges insist that only heightened
scrutiny can invalidate this law.
iii. Analysis of Ends & Means: the court looked at all State's justifications (neighboring school,
possibility of a flood, protest of neighbors) are rejected as invalid. Neighboring school
already had mental kids; possibility of a flood is not a genuine reason since the law allowed
for hospitals. Thus no honest reasons, but only irrational prejudice against the group.
Romer v. Evans (1996)
1. Break Through for Gay Rights!!!
2. Sex orientation is subject to R/basis scrutiny in words but in fact to heightened scrutiny.
Facts: Colorado passed the law which banned gay discrimination based housing, employment, education, etc. laws. It
forbids them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of
public and private transactions.
Held: unconstitutional
Majority:
i.
the lower court applied high scrutiny b/c gays and lesbians were deprived of fundamental rights to
mobilize and lobby legislature to pass sex orientation based protections laws.
ii.
SC of US did no even consider the high scrutiny because even on the R/basis level, the law has no
legitimate purpose.
iii.
Rejected Freedom of Association Argument: the court did not believe that the purpose of the legislation
was to address the interest of employers and landlords in having the right of association which for some
because of their religious beliefs means homosexuality is a crime. The court did not see anything but
ANYMOSITY standing behind this legislation.
iv.
Sheppard: this case is another e.g. of a R/basis test applied with some "bite" to strike down legislation.
Dissent (Scalia, Thomas, Rehnquist):
1. Despite the precedent in Bowers v. Hardwisk (1986), the majority stands behind the proposition that
opposition to homosexuality is as reprehensible as racial or religious bias.
2. This issue should be left to the solution through a democratic process.
3. Homosexuality is a crime in many states, and may therefore be disfavored by the legislators.
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Affirmative Action
Definition:
i.
traditional: preferential treatment program which uses group-based classification to give advantage to one
group over everyone else. Usually based on quotas.
ii.
Sheppard adds: proactive program to redress systemic discrimination. The institution itself decides to
consider and remove systemic barriers (it does not wait for a complaint to come through before acting).
Judicial Attitudes:
i.
Scalia, Thomas, and Renquest believe that AA is invalid. Quote Harlan's words that Constitution is
colorblind. "Can't solve the problem of past race based discrimination by using it in the present."
ii.
Other judges like Powell agree that AA is an exception to equal treatment but justified it in some cases
where there is a legitimate purpose.
iii.
On the other end of the spectrum, SC judges in earlier cases (e.g. Marshal) argued that AA is designed to
redress historical legacy of invidious racial discrimination.
Univ. of California v. Bekke (1978) Minority = first recognition that AA is constitutional when redresses prior
discrimination.
Facts: Univ. of California had two tracks system for white and colored applicants.
Held: Unconstitutional
Majority (Stewart, Berger, Thomas, and Rehnquist): Any race based discrimination is unconstitutional.
Concurring in result (Powell): It is not constitutional to use two track system, but ok to consider race as a
"plus" in a particular applicant's life. Would apply strict scrutiny.
Dissent: remedying prior discrimination is legitimate and sufficiently important to satisfy intermediary
scrutiny test.
City of Richmond AA must be subject to Strict Scrutiny.
Facts: City government required that city projects give 30% of subcontracting work to racial minorities like blacks,
Hispanic, Eskimos, etc.
Held: Unconstitutional violation of the 14th Amendment by the State.
Reasoning: Strict Scrutiny Test must be applied.
The majority found that the City could not show the link between discrimination and low percent of minority
subcontractors. Namely, should have showed how many there were eligible contractors and how many actually got
subcontracts. Moreover, the fact that races like Eskimos were included in the AA, while no Eskimos live in that city,
undermines the City's goal to protect those who are truly disadvantaged. Thus, over inclusiveness problem.
Reasons for the principle of the SYMMETRICAL APPROACH. (Adarand and City of Richmond arg):
ii.
Constitution should be color blind: all people should be equal in the eyes of the Gov. All are Americans.
iii.
Equal protection is about right of an individual, not a group!!!
iv.
Equal protection must mean the same thing regardless of race
v.
It is too hard to distinguish invidious race-based discrimination and a benign one (Sheppard is skeptic
about this argument)
vi.
Legislative assurances of good intention cannot suffice.
vii.
AA programs create a badge of inferiority in minorities; develops dependencies, and reinforced the way of
thinking that produced race slavery.
viii.
Can't make up for past discrimination with new discrimination today.
Dissent:
i.
ii.
Different levels of scrutiny are justified b/c there is moral and constitutional difference b/n majority
imposing a special burden on a minority and the majority's decision to provide benefit to certain minority
members
Distinguishing benign and invidious discr. is easy as distinguishing b/n oppression and assistance.
13
Marina Bezrukova
iii.
iv.
Majority's insistence on consistency of the test in both cases is undermined by the fact that different levels
of scrutiny are applied to other types (e.g. gender) discriminations. Does it mean that AA for women is
subject to intermediate scrutiny, and AA for blacks to strict scrutiny?
Social Reality shows that discrimination continues in the works place, markets and neighborhoods.
Colored people received different deal than Whites. Given this history and practical consequences,
Congress can held realize the "equal protection of the laws" promised since 1868.
Adarand Constructors v. Pena (1995)
Facts: Federal Gov created an AA for "socially and economically disadvantaged individuals" by giving contracts to
those constructors who would hire subcontractors firms controlled by person fitting this category.
Held: The lower court must have applied strict scrutiny.
Majority (Scalia, Thomas, O'Connor, Kennedy)

5th Am (Feds) and 14th Am (States) = equal protection clauses should be interpreted in the same way by
applying the same strict scrutiny test when it comes to race.

Even though the law is facially race neutral, it result in racially disproportionate impact and hence really
concerns the classifications based explicitly on race (compare this to Washington v. Davis; should it be
relevant?).

Strict Scrutiny should apply to both benign and invidious discrimination.
Dissent (Stevens, Ginsburg, Breyer Souter):
i.
Fed Gov deserved more deference because it represents the will of out entire Nation's elected
representatives. See other reasons above.
Updates: Just on March 27, 2001, the U.S. District Judge Bernard Friedman held that University of Michigan Law School admission policy
which takes into consideration race is Unconstitutional. However, in an earlier decision in December, the 9th U.S. Circuit Court of Appeals,
based in San Francisco, ruled that the University of Washington Law School acted legally when it considered race in its now-abandoned
admissions policy. Both cases are headed to U.S.S.C.
Test
City of Richmond (1989) and Adarand Constructors v. Pena (1995):
Both Federal (5th Am) and State (14th Am) governments have legitimate reasons for taking action to rectify the effects
of identified discrimination, provided the following conditions are met:
Gov's purpose (must be compelling) and means (carefully tailored) must sustain the strict level of scrutiny, because
benign and invidious race-based classifications are both suspect.







 Compelling purpose (must be contextualized and very specific):
Remedying specific past discrimination, which has continuous effect.
Diversity = yes in Bekke (Powel J); yes in Metro Broadcasting, but not clear if acceptable today after
Adarand overruled Metro on the issue of applicable scrutiny level.
 Means are narrowly tailored
free from over/under inclusiveness problem (e.g. Richmond = over inclusive with Eskimos; in Bekke =
under inclusive, because targeted only race);
when there is a numeric quote, there must be a rational connection b/n the number and the purpose (Quota
are generally not legal, but ok to say that race is a "plus" like Powel did in Bekke.)
The gov must have solid evidentiary proof that those it tries to select for special treatment are indeed
subject to discrimination and suffer continuous consequences (O'Connor).
The AA should be limited in time, i.e. should be reviewed from time to time: agreed by both dissent and
majority.
The gov should first try employ race-neutral devices to increase the accessibility to racial minorities to
education, industry, etc. (e.g. in Richmond, the City could have giving financial support to small businesses
Marina Bezrukova
14
Modern Substantive Due Process: Fundamental Personal Rights




14th Amendment: no State shall deprive any person of life, liberty, or property without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
Used in the Lochner era by business to argue against economic regulation and for the liberty of contract
Today, the 14th Am is used as a tool whereby various fundamental guarantees of the Bill of Rights are made
applicable to the states.
Strict Scrutiny is applied if the right is Fundamental. But what is a "fundamental right"?
o enumerated rights in the Bill of Rights: speech, assembly, security of property
o non-enumerated rights: privacy, abortion, right to use contraceptives. The modern debate what is
fundamental is framed in terms of interpretivism v. non-interpretivism. Interpretivist (e.g. Douglas
J. in Griswold) agrees that Constitutions is the source of values and principles, that new rights should
have close relationship to the existing express rights. Noninterpretivism (like Goldburg and Harlan JJ.
in Griswold) accepts that const. Principles and norms can be found outside of the Constitutional
documents. But they disagree among each other as to what outside sources should be used: history,
tradition, custom (e.g. Goldburg J.) v. a dynamic approach of id'ing those valued that are implicit in
the concept of ordered liberty (e.g. "living tree" Harlan J.).
Right to Privacy
Griswold v. Connecticut (1965) p. 940
Facts: CT law prohibited giving information by doctors to married persons about means of contraception.
Held: Unconstitutional interference with the right to privacy under the 14th Am.
Reasoning:
Debate: how to justify the right to privacy in the context of contraceptives.
Majority: Concept of Liberty protects personal right that are fundamental and is not confined to the specific
terms of the Bill of Rights.

Douglas J. argues: It is in the zone of privacy created by several fundamental constitutional guarantees.
The right sought to be protected should be confined to specific terms of the Bill of Rights (first 8
Amendments) or at least to find a parallel between the sought right and those specifically protected. Thus, he
held that Constitution protects right to privacy in respect of search and seizure, freedom of association and
therefore it recognizes a general and complete right of privacy.

Goldberg J. argues: Right to Privacy is part of the Liberty. Rights need not be specifically mentioned in the
Bill of Rights. It is enough that a right is a fundamental one. In deciding what is "fundamental" the court
should look to the "traditions and collective conscience of our people" to determine whether a principle is "so
rooted there as to be ranked as fundamental."

Harlan J. argues: The issue should be whether the CT law infringed the Due Process Clause of the 14th Am
because the enactment violated basic values "implicit in the concept of ordered liberty." But right to
privacy is not absolute: thus a private home can't be a sanctuary for crime.

Dissenters argue: Constitution is silent on the right to privacy. Almost literal reading of Constitution. See
danger in letting judging read-in their norms and values under the excuse of "natural justice". Threatens
tranquility and stability of the Nation.
A key step toward the judicial recognition of an expanded right of sexual privacy came in Eidenstadt v. Baird, holding
a statute prohibiting distribution of contraceptives to non-married couples as unconstitutional.
Marina Bezrukova
15
Abortion
Roe v. Wade (1973) p. 955 Right to Abortion flows from the Woman's Right to Privacy, to Choice, to Autonomy
Facts: Texas prohibited abortions unless medical emergency
Held: Unconstitutional violation of the rights to liberty under the 14th Am.
Reasoning:
The court is building upon the right to privacy established in Griswold. Right to privacy includes woman's right to
exercise her choice. Autonomous control over the development and expression of one's intellect, interest, tastes and
personality. Also, includes freedom of bodily integrity.
Maher v. Roe (1977) p. 971 No positive obligation on the gov to make the right effective if the woman is indigent.
Facts: Gov granted Medicaid benefits for childbirth. Under the Equal Protection Clause, the petitioner argued that this
denied financial aid to women who wanted abortion; that gov made childbirth more attractive and hence interfered
with women's freedom to choose.
Held: Law is constitutional.
Reasoning:
Majority: Roe v. Wade established that the gov cannot unduly burdensome interference with woman's freedom to
decided on abortion. However, it implied no limitation on the authority of a State to make a value judgment favoring
childbirth over abortion and to implement that judgment through the allocation of public funds. The state might have
made one choice more attractive than the other, but it did not restrict access to abortions that was already there.
Indigenous, as a barrier to abortion, is not gov's problem. No positive duty to remove economic barriers to the exercise
of a right.
Dissent by Blackmun and Marshall: The right to privacy is impinged by bringing financial pressures on indigent
women that force them to bear children. Indigence makes the exercise of the right impossible. This in effect leaves no
choice. The disparity of funding operates to coerce poor women to bear children. Dissent sees this laws as an indirect
way to overturn Roe v. Wade.
Harris v. McRae (1980) p. 973 No Gov Duty to remove obstacles which it has not placed.
Facts: Law prohibited Medicaid funds to be used for performance of abortions.
Held: Constitutional
Reasoning. It does not follow from Roe v. Wade that a woman's freedom of choice carries with it a constitutional
entitlement to the financial resources to avail herself of the full range of protected choices. While the gov cannot put in
place any obstacles, it has no duty to remove them where the gov did not place them. Just because a parent has a right
to send a kid to a private school, the gov is not obliged to sponsor that choice. I think that the majority is right. The
gov constantly expresses its values through use of public funds. This is not a proper case for judging the law based on
its effect on people.
Dissent: Blackmun and Marshall = same as above. Stevens changes sides this time and argues that "having decided to
alleviate some of the hardship of poverty thru Medicaid, the gov must use neutral criteria in distributing benefits.
Planned Parenthood v. Casey (1992) p. 990
Roe v. Wade upheld; the Undue Burden Test
Facts: The Law required (1) to be informed of various choice -- delay by 24 hours (2) require woman to give notice to
the husband (3) to have teenage girls to obtain parents' or judicial consent.
Held: all provisions, except notifying the husband are constitutional
Reasoning:
Majority
Reaffirms Roe v. Wade (1) woman has right to choose abortion before viability and to obtain it without undue
interference from the State; (2) State has the power to restrict abortion after viability if the law contains exceptions for
pregnancies which endanger a woman's life or health.
Thus the gov can require that the woman's choice is informed, but cannot create unnecessary health regulations that
have the purpose of presenting a substantial obstacle to women seeking an abortion. Notifying the husband
requirement is too burdensome given that there is family violence (uses statistics).
Marina Bezrukova
16
Dissent: = Rehnquist, White, Scalia, Thomas: (1) stare decisis principle dictates that Roe v. Wade was wrongly
decided and so it the majority decision here (2) historical traditions do not make this right "fundamental"
Sex Orientation: the court refused to extend the privacy right protecting contraceptive and abortion choices to sexual
privacy or matters of personal autonomy generally. But See Romer v. Evans where the majority held that opposition to
homosexuality is as reprehensible as racial or religious bias!!!
Bowers v. Hardwick (1986) p. 1030 Homosexuality within one's home -- has no Constitutional protection, no roots.
Facts: The plaintiff was caught engaging in gay sex at his home. The sodomy is a criminal act.
Held: Law is constitutional
Reasoning:
Majority: Nation's history, traditions, ancient roots, Judeo-Christian moral and ethical standards -- all speak
against homosexuality. The right to engage in gay sex has not cognizable roots in the language or design of the
Constitution. Judges should not change that, because that would be legislating without property authority. Just
because something is happening within one's home does not make it legitimate - e.g. possession of drugs, illicit
weapons, etc. This case is different from reading obscene materials within one's home: Stanley case.
Strong Dissent (Brennan, Stevens, Marshall, Bluckman): This case is about "the most comprehensive of right and the
right most valued by civilized men - the right to be let alone." We protect privacy of families and individuals not
because family has a direct contribution the general welfare, but because it forms so central a part of an individual's
rights. The majority refuses to recognize the fundamental interest of all individuals to have control in the nature of
their intimate associations with others. Sexuality, like many other things, reflects, sustains, and nourishes the
personality and may well be used as a means of expressing one attitude and lifestyle. The State has no right to
impose their judgments on the entire citizenry unless it has legitimate justifications that go beyond mere religious
arguments. It is inconsistent to let married couples do whatever they want in their beds and deny the same to gays.
Dissent goes deeper, and looks for the prime rationale for privacy rights.
Right to Die
Cruzan v. Missourti Department of Health (1990) p. 1038 State has right to be concerned. Proper Test: wouldbe-wishes of the patient.
Facts: A woman is in a vegetative state after a car accident. Family wants the life support to be disconnected. State
law requires clear and convincing evidence of an incompetent patient's wishes concerning the withdrawal of life
sustaining treatment.
Held:
i.
No medical intervention without informed consent. Free to refuse.
ii.
A person's liberty under the 14th Am includes a right to life and to death. This is based on the concept of
bodily integrity/right to make informed choices about one's life.
iii.
When dealing with incompetent adults (like Cruzan), the State has the duty to protect human life. The test
therefore is a clear evidence that the person would have wished to die has she been competent.
Concurring
i.
No constitutional right to be assisted in suicide. Looks back at the history, ethical norms, medical ethics.
ii.
Due Process Clause protects right to marry, have children, bodily integrity, abortion. However, the court
should be reluctant to expand this scope of protection to include assistance with suicide. Substantive Due
Process must be interpreted narrowly.
iii.
Conclusion: State's policy does not violate any fundamental right here. No need for strict scrutiny.
Enough that the State has shown the existence of a rational connection b/n means and ends (fundamental
importance of human life + protection of medical ethics = sufficient to justify State's ends).
iv.
The debate is not over once the right facts present themselves. Consider: interest in dying with dignity;
right to decide how you want to be remembered.
Marina Bezrukova
v.
17
Arguments For Euthanasia: (1) argue that the right is fundamental. What unites us in our history and
tradition is the belief in the sanctity of life. However, there is no uniform feeling as to what exactly it
means. As Ronald Dworkin wrote to some it might mean living till the last breath and to some the sanctity
ends once the person is riddled with pain and unconsciousness, or dementia. (2) argue that liberty includes
the right to choose how and when to die.
Washington v. Glucksberg (1997) web Liberty under DP Clause in 14th Am doesn't extend to the right to be
assisted in dying
Facts: Doctors, several ill patients challenge Washington's law making it a felony to assist knowingly in a suicide.
Held: Law is constitutional
Reasoning:
Test for Reviewing Rights asserted as being part of Liberty under the DP Clause in the 14th Am:
i.
General: DP Clause provides heightened protection against gov interference with certain fundamental
rights and liberty interests. In a long line of cases, the court held that, in addition to the specific freedoms
protected by the Bill of Rights, the "liberty" specifically protected by the DP Clause includes the right to
marry (Loving v. Virginia); to have children (Skinner v. Oklahoma); to marital privacy and use of
contraceptives (Griswold v. CT); abortion (Casey); right to refuse unwanted medical treatment (Cruzan).
ii.
The Method for SDP analysis has two primary features:
a. First, the court will protect those fundamental right and liberties that are, objectively, deeply rooted
in this Nation's history, legal traditions and practices.
b. Second, the Court requires a "careful description" of the asserted fundamental right.
c. Third, if the right is fundamental, apply strict scrutiny. If not, apply rational test: does the gov
action rationally related to legitimate gov interest.
Applying to the facts, held that American history and legal tradition has always disapproved of assisting suicide. This
right has no root in the Nation's moral norms. Distinguish the petitioner's description of the right (to commit suicide +
assistance) from Cruzan situation where life takes its natural turn. Finally, held that under the rational test, the gov has
legitimate interest of preventing serious public health problems, maintaining medical ethics, protecting poor and
elderly, etc.
Vacco v. Quill (1997) web
Right to be Assisted in Suicide is different from Refusing med treatment - No Grounds for Challenge under the Equal Protection Clause of the 14th Am.
Facts: Again, doctors and a non-profit org challenge gov's differentiation of a right to refuse med treatment and a right
to be assisted with suicide as "arbitrary" and "irrational."
Held: The distinction is valid. Law is constitutional.
Reasoning:
i.
General: EP Clause does not create any substantive rights. It only commands that no State shall deny any
person equal protection of the laws. Those who are similarly situated must be treated alike. If a
legislative classification or distinction neither burdens a fundamental right nor targets a suspect
class, the law is entitled to a strong presumption of validity and the court will uphold it so long as it
bears a rational relation to some legitimate end: Romer v. Evans.
ii.
On the facts, the Court made a distinction b/n right to refuse treatment and right to ask for lethal
injection/pill. Different principles of causation -- in the 1st case, the underlying decease causes death, in
the 2nd case, the lethal drug. The law neither infringes fundamental right nor involves a suspect
classification. The Rational test is met here on the same terms as in the case above.
Marina Bezrukova
18
1st Amendment -- Freedom of Speech & Assembly


Use 1st Am to challenge Federal regs; and the 14th Am Due Process Clause to challenge States' regs of F/S.
Reasons for protecting F/S:
o Marketplace of Ideas (pursuit of truth, esp political truth)
o Self-governance rationale (the town meeting idea)
o Self-fulfillment, self-determination, and autonomy
o Checking value (to check the abuse of power by public officials)
o Safety valve (rather than suppressing, better promote discussion for greater cohesion in society)
o Tolerant society (tolerance become a symbolic act indicating an awareness of the risks and dangers of
intolerance and a commitment of developing a certain attitude toward the idea of others. Safer than
cultivating political inertness).
▬►Content based Restrictions:
o High Value Speech: restrictions are prohibited unless speech is (1) express advocacy of law violation
(2) the advocacy must call for immediate law violation (3) the immediate law violation must be likely
to occur: Brandenburg v. Ohio
o
Low Value Speech
1. Chaplinsky and consequent cases held that Hate Speech/Obscene/fighting/lewd words fall in the
category of Low Value Speech, and as such can be prohibited, where the words are uttered in a face-to
face encounter and would invite physical reprisal or otherwise likely to produce disorder.
2. RAV severely limited Chaplinsky, by holding that the prohibition cannot be viewpoint-based, i.e.
restricting only a subset of proscribable speech (as per Scalia in RAV). Also as per concurring
judgment in RAV , the speech must provoke more than just anger; they cause breach of peace,
because that would be supported by the compelling government interest in "ensuring the basic human
rights of groups that have been historically discriminated". Hence, the test for low value speech has
come close to the modern "clear and present danger" test, thereby erasing the bright line b/n protected
and low value speech.
▬►Content Neutral: Intermediate level of Scrutiny
I. Is it a content-based speech? I.e. does the regulation focus on the direct impact of speech on its audience? Can it be
administered without a reference to the content of speech; Is the triggering of the restriction is connected to the content
of the message.
II. Does it interfere with FS (directly or incidentally)?
III. Does the restriction pass "intermediary scrutiny test?"
i.
the test is balancing of the competing interests to determine is the c/n reg is reasonable: e.g. Schneider v.
State, Martin v. City of Struthers. Ask:
ii.
Does the gov have an importance gov interest and reasonable means which outweigh the importance of
protecting F/S?
iii.
Gov should use means least intrusive on activity protected by the 1st Am: Kovacs (dissent)
iv.
Concern for the "poorly financed causes of little people": found in Martin, Kovacs (dissent), City of Ladeu
v. Gilleo.
v.
Especially heightened scrutiny if attempts to reg use of private property like homes: City of Ladeu.
vi.
Even if ends are legitimate (e.g. aesthetics of the city), the means shouldn't be too broad. E.g. in Metro
Media v. San Diego, gov could not justify the use of "no-bill boards" prohibition in commercial and
industrial areas.
19
Marina Bezrukova
vii.
Gov concern with secondary effects of the speech cannot transform an otherwise content-based speech into
a content neutral: Boos v. Barry; Discovery Network. (p. 1332-3).
▬►Symbolic Speech: Can be Strict or Intermediate level of Scrutiny
3. Symbolic speech enjoys "comprehensive protection under the 1st Am": Tinker.
I. Does the conduct constitute a symbolic speech?
In the given circumstance and context, a reasonable person would perceive this conduct as symbolic of an expression,
would he perceive it as communication of a message (e.g. burning draft cards = O'Brian, wearing black armband =
Tinker, flag burning = Eichman, nude dancing = Barnes).
II. Second, what is the Gov's intent?
 If the Gov law aims at the content, one must apply strict scrutiny like in Eichman.
 If the law is content neutral and burdens the speech only incidentally, one must apply the intermediary
scrutiny test of O'Brian.
i. Does the regulation further an important or substantial gov interest?
ii. and if the incidental restriction of the alleged 1st Am freedoms is no greater than is essential to
the furtherance of that interest (i.e. proper means).
Dissenters in Clark v. Community for Creative Non-Violence (court upheld prohibition against camping in
parks) stated that the majority purposely characterizes the law as content-neutral so as to lower the level of
scrutiny. E.g. in O'Brian, the court could have found that the prohibition of card burning was a clear
restriction on expression of anti-war sentiments, but instead the court found that the law served a contentneutral, important objective of promoting the effecting operation of the Recruitment service. These critics
question whether the Court is not diluting the standards of 1st Am review b/c the expression takes the form of
conduct rather than pure oral speech.
Examples
i.
O'Brian v. US (1968): the court upheld the gov regulation prohibiting draft card burning,
because the gov has a compelling administrative interest in organizing the Vietnam War
effort. Intermediate Scrutiny applied.
ii. Tinker v. Des Moines (1969): the court protected the right of wearing black armbands by
public high school students to protest the Vietnam War because this conduct was closely akin
to "pure speech." School's expulsion of students was a direct suppression of expression -strict scrutiny applied. The schools actions were unconstitutional absent a showing that the
exercise of the right would "materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school." Strict Scrutiny applied
iii. US v. Eichman (1990): the court held that the prosecutions for flag burning could not stand
consistent with the 1st Am. "If there is a bedrock principle underlying the 1st Am, it is that the
Gov may not prohibit the expression of an idea simply because society find the idea offensive
or disagreeable." Strict Scrutiny applied.
iv. Barnes v. Glen Theater (1991): the court held that non-obscene nude dancing was
"expressive conduct within the out perimeters of the 1st Am, though only marginally so."
Applied O'Brien test and found that state interest in "order and morality" met the test. Here
the State law was directed at public nudity, not at any erotic message communicated by the
dancing.
20
Marina Bezrukova
Brandenburg v. Ohio (1969) p. 1124
Modern Test on the Limits of Protected Speech
Facts: KKK meeting was held where derogatory words against Black and Jews were spoken. Accused was not armed.
Did not call for immediate violence. Only said that if the Congress continues to suppress the white race, it is possible
that there might have to be some revenge taken. Convicted under the Ohio Criminal Syndicalism statute prohibiting
"any advocating of unlawful methods of terrorism, voluntary assembling with any group to teach doctrines of criminal
syndicalism.
Held: The Ohio statute is unconstitutional.
Reasoning:
High Scrutiny Test: Constitutional guarantees of free speech do not permit a State to forbid advocacy of the use of
force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is
likely to entice or produce such action. One must distinguish b/n mere advocacy of violence and preparing a group for
violent actions.
 The court rejected Whitney & Dennis test of "clear and present danger" doctrine.
 Criticism of the test: it permits official to cut speech off as soon as it shows signs of being effective
 Subsequent cases considered TIME element in deciding whether the speech caused or was likely to cause
violence. E.g. in NAACP v. Claiborne Hardware (p. 1128), violence took place weeks or months after the
speech
Chaplinsky v. New Hampshire (1942) p. 1147 Categorical Approach. Low Value Speech accorded low level of
protection. --- This case has been significantly qualified in R.A.V.
Facts: A New Hampshire statute prohibited person to address any offensive, derisive or annoying words to any other
person. The petitioner was charged for calling City Hall officials "Fascists" and "damn racketeers".
Held: Conviction affirmed. The statute is valid.
Reasoning:
Low Level of Scrutiny Test: The right of free speech is not absolute. Such classes of speech as lewd,
obscene, insulting, fighting words -- have no social value and the need to limit them in the interest of order and
morality outweighs the value of free speech.
Fighting Words can be prohibited if (1) a reasonable person would likely want to fight back and (2) as per
post-Chaplinsky cases, the use of insulting and provocative epithets must describe a particular individual and should be
address specifically to that individual in a face-to-face encounter to warrant gov's limitations.
Here, the Act was narrowly tailored and limited only speech that was likely to cause a breach of the peace.
Sheppard: It is not always clear what speech is of high/low value. The better approach is to decide what
objective does the gov has (maintenance of peace v. limiting expression of ideas) and then decided what level of
scrutiny to apply.
R.A.V. v. City of St. Paul (1992) p. 1305 No types of expression is invisible to the 1st Am. Gov can id "distinctly
proscribable content" but can't do it on viewpoint basis because then -- strict scrutiny -- invalid.
Facts: Minnesota had a law prohibiting the display of burning cross, swastika or other symbol that one know arouses
anger, alarm in others on the basis of race, color, creed, religion, gender. A teen caught burning a flag on a Black
family's law and charged under this law successfully challenged it.
Held: the Statute is unconstitutional
Reasoning:
Scalia
i.
Content-based regulations are presumptively invalid.
ii.
However, the government may proscribe certain low-value content based on its lewdness, obscenity, etc
but it cannot pick a type of obscene or fighting words and prohibit only them. Thus, the ordinance
Marina Bezrukova
21
prohibited only race, gender and religious intolerance speech. This is too narrow. Must include other
groups that have been historically disadvantaged.
White J. + 3 Concurring:
- rejects that the gov may ban proscribe an entire category of speech because the content of that speech
is evil, but it may not treat a subset of that category differently without violating the 1st Am.
Sheppard agrees with this
- holds that "helping to ensure the basic human rights of members of groups that have historically been
subjected to discrimination" is a compelling gov interest to regulate low value speech.
- Concludes that the law cannot prohibit content that simply hurts and provokes anger. This is not
enough. This is too broad.
American Booksellers Ass. v. Hudnut (1985) p. 1320 Pornography is a protected form of speech
The court declared unconstitutional the Statute that prohibited pornography where women were depicted as whores,
were dehumanized, tied up, cut, etc. It is not enough that the pornography subordinates status of women and leads in
turn to lower wages, abuse at home and rape on streets. Racial and anti-Semitic speech, violence on TV does the same
thing and influences our culture, and YET all is protected speech, however insidious. The court is concerned that if we
start limiting speech here, the gov can easily step by step begin to control more and dictate over institutions of culture.
*** The Canadian SCC has unanimously upheld a similar statute in Butler v. R.
Content Neutral Restrictions



Content neutral = regulation does not focus on the direct impact of speech on its audience, it can be
administered without a reference to the content of speech; the triggering of the restriction is not connected to
the content of the message.
In some cases (O'Brian, Renton (p. 1332)) the court lowered the level of scrutiny by characterizing the
content-based restriction as content-neutral.
Just because the gov is concerned with the secondary effect of the speech, the law will still be characterized
as content-based, because it is the content of the messages that triggers the restriction (e.g. in Boos v. Barry,
concern= US international law obs to shield diplomats from speech that offends their dignity; or in City of
Cincinnati v. Discovery Network, concern= city's esthetics prohibited racks with commercial publication)
Schneider v. State (1939) p. 1326 The law prohibiting distributing leaflets in any street or way -- held invalid.
So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart
information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the
streets. Essentially, the exercise of weighing the circumstances and appraising substantiality of the reasons advanced
in support of the regulation.
Martin v. City of Struthers (1943) "No door-to-door distributions" invalid. Necessity of weighing the conflicting
interests.
Law prohibiting door-to-door distribution of literature prohibited. Plaintiff charged for distributing Jehovah Witnesses'
literature. Held: Door-to-door distribution of circulars is essential to the poorly financed causes of little people. This
may be useful to members of society. A good compromise would be to prohibit distribution if the owner of the house
clearly indicated that he does not want any solicitations/distributions. A concurring judge also noted that the law
penalizes only door-to-door literature distribution, and not goods distribution (sale of pots and pans). This gives the
court more grounds for finding an infringement of free speech.
Kovacs v. Cooper (1949) "No loud and raucous noises" by trucks or other instruments on the public streets -valid.
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The law protects citizens' comfort and convenience, safety on the road at all hours. This concern outweighs here "the
opportunity to win public's attention". There are other means of distribution ideas: press, human voice.
Dissent: this law gives an overpowering influence to views of owners of legally favored instruments of
communication. There are people who don't have enough money to own publishing plants, newspapers, radios (Again
concern for little people!!!!). A compromise must be found between absolutely denying and absolutely allowing any
noise. Always try to find means less intrusive on activity protected by the 1st Am.
MetroMedia v. San Diego (1981)
"No Bill Boards" invalid content-based restriction.
The city banned virtually all outdoor advertising display sign. Held unconstitutional content-based restriction. The
court also considered this law from a content-neutral side and concluded that the law must be less instructive on
activity protected by the First Am. The city has failed to show the evidence demonstrating that billboards actually
impair traffic safety or that the ban is justified in commercial and industrial area where aesthetics standards are
different.
Dissent: Burger J. "it borders on the frivolous to suggest that the Sang Diego ordinance infringes on freedom of
expression, given the wide range of alternative means [of communication/advertising] available"
City of Ladue v. Gilleo (1994)
Prohibition of signs on the property of homeowners -- invalid.
Unanimously the court held that such prohibition is an unreasonable balancing of "desire to minimize "visual cluster '
and people's ability to provide information about their identity, to have cheap and convenient form of communication
on their property. This is especially useful for people of "modest means" or limited mobility (Again, concern for little
people!!!)
Skokie Village
Requirement of Insurance for Demonstrations -- invalid
The local law required that all demonstrators have to buy insurance before organizing the march. Court held
unconditional because it put a price on the freedom of speech.
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Freedom of Association

not expressly protected by the 1st Am. This Freedom is implied into the 1st Am: if one can engage in free
speech, this means that one can do this within a group. Protection of free speech is extended to protection of
expressive association/activity/grouping.
Boy Scouts of America v. Dale (2000) Freedom of Association allows a group to deny membership to a person
based on his sexual orientation.
Facts: A gay scoutmaster was deprived of membership when his sex orientation became known. The state law
prohibits discrimination on the basis of sex orientation in places of public accommodations.
Held: The Statute violates the Freedom of Association protected by the 1st Am.
Reasoning:
i.
ii.
iii.
Test:
Does the group engage in "expressive activity", i.e. does it try to develop some ethics, rules of conducts,
transmit values/ideas?
Does the forced inclusion of Dale significantly effect the Boy Scouts ability to advocate public or private
viewpoints? This requires examining what Scouts' views are and whether given these views the presence
of Dale would significantly burden the expression of those viewpoints.
Does the State law run afoul the Scout's freedom of expressive association? This basically reserves the
State's power to interfere with F/A where the law services compelling state interest (e.g. a given group is
the target of discrimination), unrelated to the suppression of ideas, that cannot be achieved through means
significantly less restrictive of associational freedoms: Strict Scrutiny Test.
Dissent: BS do not expressly prohibit gay membership. Being gay does not interfere with the goals of boy scouts.
Sheppard criticizes the dissent's reasoning because this means that the more open and expressive of its prejudices the
group is, the more likely that the court will uphold its right to discriminate against certain groups.
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Marina Bezrukova
First Amendment: Freedom of Religion
Various Approaches to the Issue of State v. Religion:
i.
Strict Separation: there should be an absolute barrier to formal interdependence of religion and the state
ii.
Strict Neutrality: Religion may not be used as a basis for classification for purposes of gov action, where
that action is the conferring of rights or privileges or the imposition of duties.
iii.
Noncoercion: The establishment clause prohibits "only aid which has its motive or substantial effect the
imposition of religious belied or practice": e.g. Lee v. Wiesman
iv.
Nonpreferentialism: Gov may not favor one religion over another, nor may it disfavor one over the other,
but may support religion in general: e.g. dissent in Lee & Allegheny v. American Civil Liberties.
TEST
I.
Is this form of belief a "religion"?
Initially, defined as individual belied in relation to a Supreme Being involving duties superior to
those arising from any human relation, but not any essentially political, sociological, or philosophical views or a
merely personal code:
Recent expansion, an individual's belief in and devotion to goodness and virtue for their own
sakes, and a religious faith in a purely ethical creed without belief in God, except in the remotest sense was found to be
a "religion" in US v. Seeger (1965).
a. need not prove belief in a Supreme Being (Seeger), but be more than mere personal or philosophical
convictions (Yoder).
 Harlan J. in Welsh v. US: having decided to allow exemption, the gov cannot draw the line b/n
theistic or non-theistic religious beliefs on the one hand and secular beliefs on the other.
b. the belief must be sincere and meaningful and occupy the objector's life in the same way as the
orthodox belief in God does in others.
c. Need relate to daily living: Wisconsin v. Yoder, as opposed to being simply in relation to a particular
conflict (e.g. war). I.e. no "selective" objectors: Gillette v. US.
II.
Lemon Test modified in Lynch: Gov can run afoul Establishment Clause by
(1)
being excessively entanglement with religion; give institutions access to gov or gov powers not fully shared
by non- adherents of the religion, and foster the creation of political constituencies defined along religious lines, or
(2)
by approval or disapproval of religion  consider both the gov's purpose (has intent or not) and effect
(does the gov action convey the message of dis/approval)?
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
III.
The Free Exercise of F/R: Required Accommodations
Where the Law is neutral/of general application, court must apply rational basis test of balancing F/R and
gov interest: Smith, reinforced in City of Boerne. (Note that Scalia would not apply 1st Am analysis at all
upon finding that the law is neutral).
Where the State has in place a system of individual exemptions, it may not refuse to extend that system to
cases of religious hardship without compelling reason: Sherbert v. Vener .
Gov reg can burden F/R indirectly and can make exercise of one's religion more expensive: Braunfeld;
Floodgate arguments are valid: e.g. in military cases like Goldman v. Weignberger, and taxation cases;
Irrelevant whether the law burdens F/R intentionally or incidentally: Sherbert.
Problem of testing sincerity is valid, but is not a compelling reason to deny exemption: Sherbert.
If a religious minority claims rights which seems to deviate from the State norms (e.g. high school
education), the court will consider factually whether the lifestyle and ethics of that group is adequate and
fits overall with State's interest: Yoder.
When gov criminalizes an activity, which interferes with F/R, it cannot thereby hide from strict scrutiny.
Gov. must show that the interest is overriding and means are essential and narrowly tailored to achieve
that interest: Smith.
There are gov interests like army discipline, taxation (state financial viability) that can justify override of
R/F: United State v. Lee.
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Dissenters:
i. argue that "non-coercion" (as opposed to "non-endorsement") is the test: anything short of
coercion is constitutional because the gov has some latitude in recognizing and
accommodating the central role religion plays in our society: see in Lee and Allegheny.
ii. The history and tradition of prayers at official ceremonies MATTERS.
Lee v. Weisman (1992) p. 1548 A graduation nondenominational prayer violates the Religion Clause
Facts: A public school invited a rabbi to give a denomination-neutral prayer. Students had choice of standing or not
standing up.
Held: Unconstitutional
Reasoning:
i.
Public School bears the imprint of the State.
ii.
Constitution guarantees that go may not coerce anyone to support or participate in religion. Preservation
and Transmission of religious beliefs and worship is a choice committed to the private sphere (Strict
Separation approach).
iii.
Attending the graduation placed a public pressure to get up during the prayer. Though subtle and indirect,
this can be as real compulsion as any over compulsion. Peer pressure to conform among young.
Dissent: Simply standing up, out of respect for real believer, is not tantamount to participating in the religion. Relies
on the fact that the speech did no promote any denomination of any religion. Talks about history and tradition of
prayers are official ceremonies.
Lynch v. Donnelly (1984) p. 1559 The City sponsored Christmas-theme crèche = legitimate secular purpose of
depicting the origins of the holiday. Majority= looser test. Dissent = scrupulous neutrality.
Facts: The City placed in the downtown park a Christmas crèche.
Held: This does not constitute City's alignment with the Christian faith.
Reasoning:
i.
there should not be an absolutist approach in matters of state and religion. Must consider whether in
reality, the gov action established a religion or tends to do so.
ii.
Modified Lemon v. Kurtzman test: the gov can breach the Establishment clause either by (1) being
excessively entanglement with religion; give institutions access to gov or gov powers not fully shared by
non- adherents of the religion, and foster the creation of political constituencies defined along religious
lines, or (2) by direct approval or disapproval of religion.
iii.
The test must be applied in the factual context. For e.g. putting a Christian symbols during public holidays
neutralizes the act, just like putting a religious painting in a museum neutralizes its religious message.
iv.
Applying the test to the fact: (1) the gov action did not intend to convert any message of endorsement of
Christianity; (2) but was a celebration of the public holiday through its traditional symbols.
Dissent:
ii.
It is wrong to say that putting Christian symbols during public holiday neutralizes their meaning. These
symbols are a dramatics reminder to non-Christians of their differences with Christian faith. A holiday
that has transcendent its religious meaning is Thanksgiving.
iii.
Gov should remain scrupulously neutral in matters of religious conscience.
Allegheny v. American Civil Liberties (1989): the majority upheld as constitutional the Municipal Gov's decision to
place Menorah next to a Christmas tree, because the overall display sends a message of pluralism and freedom to
choose one's own beliefs. Majority justified it in pluralism terms while holding that "no endorsement" approach is the
law. Dissent (Rehnquist, White, Kennedy): "non endorsement" approach reflects an unjustified hostility toward
religion. Held: the establishment clause "permits gov some latitude in recognizing and accommodating the central role
religion plays in our society." See dissenters in Lee.
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Braunfeld v. Brown (1961) p. 1591 Gov's Sunday-Closing laws are Constitutional even if it makes one's exercise
of religion more expensive.
Facts: Pennsylvania's law required all businesses to be closed on Sunday because this eliminates the atmosphere of
commercial noise and activity. Orthodox Jews challenged this because they were subject to a competitive
disadvantage (they closed on Saturdays).
Held: Law is constitutional
Reasoning: The law does not make criminal the holding of any religious belief, nor does it force anyone to embrace a
religious belied. It simply makes the practices of religion more expensive for some. The burden is only INDIRECT.
Given the myriad of religious beliefs, the gov cannot reasonably legislate without every indirectly hurting someone's
economical interest.
Dissent: the law forces an Orthodox Jew to choose between his religious faith and his economic survival.
Sherbert v. Vener (1963) p. 1592 Law denying UE to a person b/c he declined a job as a result of not being able to
work on Saturday is Unconstitutional. Strict scrutiny Test (restricted to employment case as per City of
Boerne).
Facts: A Seventh Day Adventist could not find employment that would accommodate her need to have Saturday off.
The state law denied UE to her because her cause was not a "good cause" for turning down job offers.
Held: the law is unconstitutional
Reasoning:
i.
The denial of UE imposes a burden of F/R. The law pressures her to forego the religious practice. Gov's
imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine
imposed against appellant for her Saturday worship.
ii.
The State's interest in preventing of filing for UE on the fraudulent basis is not compelling because there
are other alternatives to address this concern besides an absolute denial of UE.
Wisconsin v. Yoder (1972) p. 1593 State Law requiring all children to go to high school is unconstitutional as it
denies the F/R to those groups that believed in a different type of "high school education."
Facts: The Amish religious groups allowed their kids to study till eighth grade only. They desire to live in a "church
community separate and apart form the world.: They believed in informal learning through-doing and wisdom, rather
than technical knowledge, community welfare rather than competition. They did not mind primary and secondary
education because it helped their kids to learn how to read Bible, to be good farmers and citizens.
Held: Law is Unconstitutional.
Reasoning:
i.
The F/R and state's interest in universal education requires balancing to assure that there is a state interest
of sufficient magnitude to override the free exercise interest. Only those interest of the highest order can
outweigh the F/R right.
ii.
The court also examined the issue of whether the Amish claim was "rooted in religious beliefs" as
opposed to mere philosophical and personal convictions like those of Thoreau in Walden.
iii.
The court also carefully considered that the Amish were hardworking, successful, self-relying, believed in
vocational education. I.e. that they did not foster laziness, indigence, illiteracy. In other words, their
modes of life were adequate and fit with the overall interest that the State advances.
Dissent: focused on the potential conflict of interest between Amish parents and their children some of who might
which to attend high school in order to be in a position to choose to break from the Amish tradition.
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Taxation: generally courts rejected any claims that paying taxes is incompatible with one's religious beliefs: e.g.
United State v. Lee (1982).
Unemployment: provided one can prove sincerity of one's beliefs (e.g. being a member of a church), one can claim
F/R protection if unemployment law indirectly burdens it: Frazee v. Illinois Department of Employment Security.
Army: courts upheld army regulations that interfered with F/R (e.g. law that no headwear indoors conflicted with a
Jewish officer's need to wear a yarmulke). Reason: Amy fosters instinctive obedience, unity, commitment, and
discipline: Goldman v. Weinberger (1986).
Department of HR v. Smith (1990) p. 1599 F/R which is limited by a criminal sanction calls for a balancing of
interests.
Facts: A native American challenged the criminal prohibition to use peyote, a "controlled substance" under Oregon
law. Use of this substance, it was argued, is part of the religious ritual. The appellant lost his job because he used
peyote at work. And was denied UE because he lost his job as a result of "disobedience."
Held: Law is constitutional
Reasoning:
Scalia: individual religious beliefs doe not excuse one from compliance with an otherwise valid law. This is not a
proper case for engaging in the balancing exercise and making exceptions like the court did in Sherbert. Sherbert test
is only to be used in employment situations.
Concurring Judgment (I prefer): Gov cannot hide from strict scrutiny simply by making an activity criminal in
nature. In all cases where F/R is burdened, the gov should demonstrate that the regulation is essential to accomplish
an overriding gov interest or represents the least restrictive means of achieving some compelling state interest. Each
case should be considered on an individual basis, and not from the perspective of categories like civil and criminal
prohibitions. Given the range of conduct that a state might legitimately make criminal, court cannot say that simply
because the activity has been criminalize there can be no exception under the First Amendment. A law that makes
criminal such an activity therefore triggers constitutional concern and heightened judicial scrutiny.
On the facts, the court held that Oregon's law satisfied compelling gov interest in controlling drug use. Selective
exemption for religious believers would seriously impairs the state's interest.
City of Boerne v. Flores, Archbishop (1997) web
Facts: Defendant wanted to expand the church for more seats. The city law required permission from Commission on
historic landmarks. Commission denied permit and Defendant sued relying in part on the Religious Freedom
Restoration Act of 1993 enacted in response to Smith case. RFRE imposes a strict test (compelling interest and least
restrictive means) on State gov every time their law directly or indirectly burdens freedom of religion.
Held: RFRA is unconstitutional.
Reasoning:
i.
The strict test imposes a heavy litigation burden on the States and curtails their traditional general
regulatory power.
ii.
Para. 5 of the 14th Am permits Congress to prevent States from depriving the person of life, liberty, etc.
However, this power is only preventive or remedial. Congress decided to alter the meaning of the F/E
clause.
iii.
Congress lacks record of examples of any instances of generally applicable laws passed because of
religious bigotry in the past 40 years. The Act is out of proportion to a supplied remedial or preventive
object.