CONSTITUTIONAL LAW II – Lupu – Spring 2011:
I.
First Amendment: Congress shall make no law…abridging the freedom of speech…
a. History:
i. Rule against English regime of licensing the press
1. Control who gets to publish, rather than what gets published
a. Religion (core speech)
b. Politics (core speech)
ii. English law of seditious libel: crime at CL to make speech that puts gov’t
or officers of gov’t in disrepute
1. Truth not a defense
a. Zenger trial: argued truth as a defense, acquitted
b. Alien and Sedition Acts: Jefferson pardoned the convicted,
Congress repealed
b. Purposes:
i. Protect core political speech/Dissent as a form of self governance
1. Attempt to replace elected officials by criticizing their performance
2. Converse about public affairs
ii. Create marketplace of ideas/Part of wider society’s search for truth
1. Justifies certain interventions because of “market failure”
a. E.g. can’t shout fire in a crowded theater
i. No time for deliberation, debate, discourse
ii. No value because no fire
iii. Protects rights of privacy, dignity, self-expression, and autonomy
1. Covers art that falls outside of political culture, and is not made in
search for truth, but involves autonomous self expression
a. Speech Regulations
i. Content-Based or Non-Content-Based?
1. If Content-Based:
a. Must meet strict scrutiny OR
i. Compelling gov’t interest?
ii. Narrowly tailored?
1. DO have to use least restrictive means
2. N.B. Burden on gov’t to find alternative
means of regulation, to regulate most
narrowly
b. Must fall into category of unprotected speech
i. Incitement, Fighting words, True threats,
Defamation, Obscenity, Child pornography
2. If Content-Neutral: (Time, Place, Manner: medium/means of
communication)
a. Less demanding standard of review for TPM
restrictions/kind of intermediate scrutiny
i. Content neutral?
ii. Substantial/significant gov’t interest?
iii. Narrowly tailored?
1. DO NOT have to use least restrictive means
iv. Leaves open ample alternative channels of
communication?
1. Alternative channels of communication need
not be equally good as one restricted
2. N.B. Burden on speakers to say things at
other times/in other places/in other ways
3. Content-Based: Republican Party of MN v. White (2002):
announce clause prohibits candidates for judicial election to
announce views on disputed legal and political issues
a. Strict Scrutiny
i. Compelling gov’t interest?
1. Yes/No: impartiality/appearance of
impartiality: Court debates relevant meaning
of impartiality in judicial context
a. No bias against parties to proceeding
i. Not at issue here
b. No preconceived legal viewpoint
i. Judges have views on legal
issues: transparency
c. Willingness to consider opposing
views
i. Underinclusive: can
announce views before
candidacy and after election
ii. Narrowly tailored?
1. Might have to use least restrictive means
a. No: can use motions for recusal to
remove judges that are not impartial,
e.g.
4. Content neutral: Renton v. Playtime Theaters (1986): zoning
ordinance prohibits adult movie theater from locating within 1,000
feet of residential zone, family dwelling, church, park, school
a. NOT content-based because focused on secondary effects
of theaters on community, not on content of films
themselves
i. Primary effects: arouse viewers, entertain
1. City not concerned with effect on viewers of
material
a. Not worried about harassing women,
committing sex crimes, e.g.
i. Distinguishable from Boos v.
Barry (1988): DC regulation
prohibiting negative placards
within 500 feet of embassy
ii. Was concerned with primary
effect of angering/
embarrassing diplomats who
saw signs
iii. N.B. Hybrid: Place: 500 ft.,
Manner: placards, Content:
negative
ii. Secondary effects:
1. City concerned with ambience of
neighborhoods, protecting children from
seeing inappropriate movie names, posters,
etc.
a. See also dispersal zoning of certain
kinds of businesses in Detroit held
constitutional
i. Adult films protected but low
value speech
b. TPM regulation: regulates place of adult movies theaters,
does not ban completely
i. N.B. Renton something of outlier case
1. Zoning case AND
2. Adult film case (protected but low value
speech)
b. Content-Based Restrictions: Categories of Unprotected Speech
i. Incitement: A says to B, “Go do something to C.” Promotive.
1. Brandeis concurrence in Whitney v. California (1927):
a. First defense of freedom of speech for political radicals
b. Marketplace of ideas
i. Remedy for evil counsels is good ones
1. Balancing risks of repression with risks of
speech:
a. Concerns go underground if not
expressed, don’t go away
b. Concerns may be legit, and society
will miss out on hearing them
because expressed in angry/violent
terms
ii. Can only justify suppression of speech in market
failure situation
a. Advocates stricter rule than
Brandenburg:
i. Incitement to imminent
lawless action
ii. Representing serious/grave
harm to state
2. Brandenburg v. Ohio (1969): Leader of KKK convicted under
criminal syndicalism statute for advocating crime/violence as
means of political reform, and for assembling with group to
teach/advocate those doctrines. Local reporter called to attend and
film KKK rally at farm. Cross burning, disparaging remarks about
blacks and Jews.
a. RULE: Gov’t cannot prohibit advocacy of crime/force
unless:
i. Directed toward inciting or producing imminent
lawless action AND
ii. Likely to cause such action
1. Ohio statute unconstitutionally overbroad
because not narrowly limited to speech that
fits within this rule
a. N.B. Because law overbroad, Court
does not look to Brandenburg’s
speech to see if incitement
i. “If things keep going this
way, there might have to be
some revengeance taken” not
imminent:
ii. Spoken on farm, far away
from anyone to harm
iii. Conditional
b. Compare Sipsey Street Irregulars blog post: Break their
windows. Break them now!
i. Directed toward inciting or producing:
1. Imminent
a. No: time for reflection and
counterspeech
2. Lawless Action AND
a. Yes
ii. Likely to cause such action:
1. Questionable: Paradigm incitement case is
the lynchmob: guy on the steps of the jail,
speaking to the mob, with a rope in his
hands
a. Physical proximity
b. Can act immediately
c. Speaker directly in front of crowd
c. N.B. Incitement is about urging others to act.
i. No imminence requirement for charge of conspiracy
to plot acts of terrorism
1. Harm is in pledge to go forward with act
ii. No imminence requirement for charge of aiding and
abetting a crime
1. Harm is in giving material aid to person who
is likely to commit crime e.g. seminar about
how to cheat on taxes
ii. Fighting Words: A says to B something that provokes B to fight A.
Reactive.
1. Chaplinsky v. State of NH (1942): Statute as construed prohibits
words with direct tendency to cause violence by person to whom,
individually, remark is addressed.
a. Objectively defined: what men of common intelligence
would understand as words likely to cause average
addressee to fight
i. Here, “damned racketeer” and “damned Fascist”
b. N.B. MUST be uttered face to face, or with such physical
proximity that chance of market failure/imminent violence
is high
c. N.B. Most likely has to be a personal insult.
i. Other types of speech, like wearing a Bin Laden tshirt to a 9-11 memorial might have a direct
tendency to cause violence but are not addressed to
an individual
1. Protects many valuable general political
statements that make people angry
a. E.g. Marches in Civil Rights
Movement
2. But see Cohen v. California (1971): Disturbing the peace conduct
statute applied to Cohen wearing Fuck the Draft jacket in
courthouse unconstitutional
a. “Fuck” not directed to individual as personal insult
b. Not intended to provoke and did not provoke violence
c. Protecting sensitive hearers does not justify restriction on
speech
i. Not captive audience, no expectation of privacy or
seclusion
1. E.g. soundtrucks blaring outside houses
ii. Burden on hearers to look away if offended, not to
react with violence
d. State cannot regulate choice of words as matter of morality
i. Dual communicative function of words:
1. Ideas AND
2. Emotions
ii. Severe fair warning problem:
1. What words are prohibited and what are
not?
iii. Enforcement problem:
1. Might only enforce against unpopular
messages
a. E.g. Not against Fuck the draft
dodgers
2. People will just get around the prohibited
words
a. E.g. Muck Fizzou
e. N.B. As-applied adjudication: Statute not held facially
overbroad because is conduct statute applied here against
speech acts
3. NOT hate speech generally
a. R.A.V. v. City of St. Paul (1992): Ordinance prohibiting
placing symbol/object/etc. on public property that KoshK
arouses anger/alarm/resentment on basis of
race/color/creed/religion/gender as disorderly conduct
unconstitutional. RAV burned cross made of broken chair
legs in black family’s yard.
i. Distinguishing Virginia v. Black: not charged with
threat (unprotected category)
b. Problems with ordinance:
i. Concurrence: Overbroad: Covers more than just
fighting words
1. E.g. alarm/resentment
2. Proximity problem here: not uttered face to
face
3. Covers speech on matters of public
concern/with 1A value
a. E.g. Hillary Back in the Kitchen,
Repeal the 14th Amendment,
Catholics Hide Pedophile Priests
ii. **Underbroad: Does not prohibit all fighting
words**
1. Content-based:
Race/color/creed/religion/gender
2. Viewpoint-based: Prohibits signs saying
black people suck, but allows signs saying
people who don’t like black people suck.
iii. N.B. Plurality: Even though unprotected category of
speech, gov’t cannot make laws discriminating
based on content and viewpoint within category
1. This line of reasoning has not had generative
power outside of anti-bias laws.
c. But cf. Hate crime sentencing enhancements (non-speech
crimes, victims selected on basis of membership in
protected class): Wisconsin v. Mitchell: Motive for crime
always relevant to criminal law
i. E.g. Malice aforethought sentence enhancer for
homicide
1. Have a 1A right to malice, and to express it
in certain ways, but not to act on it.
a. But, evidence problem: Dawson v.
DE: cannot introduce evidence of
white supremacist literature found at
D’s house without independent
evidence of bias in victim selection
iii. True Threats
1. Virginia v. Black (2003): KKK gathering and cross burning on
private property. Convicted under cross burning statute that made
it illegal to burn a cross with the intent of intimidating any person
or group of persons.
a. H: True threats are unprotected category, but law was
overbroad, because burning cross cannot be treated as
prima facie evidence of intent to intimidate
i. May be done to express hate, group values and not
to intimidate (this would be constitutional).
b. RULE: Speaker means to communicate:
i. Serious expression of Intent* to commit an act of
unlawful violence
ii. to Particular individual or group of individuals
1. Speaker need not actually intend to carry out
threat
a. Forestalls defense of “I didn’t intend
to”
2. No imminence requirement—I will get you
in 2013 is a threat.
3. No face-to-face requirement—Threats can
be anonymous, over phone/mail/email.
c. Distinguishing R.A.V.: State can outlaw threat of violence
to a group but not expressions of hatred about group
i. No content/viewpoint discrimination: burning cross
with intent to intimidate anyone is illegal
1. In practice, probably would not burn cross to
intimidate white person
ii. Harm different: fear of bodily harm itself is harm, is
more disturbing than feeling unwelcome or hurt
1. Victim may restrict freedom of action
2. Victim may expend resources to protect
freedom of action
iii. Greater possibility of violence:
1. Extra-lawful self help: get him before he
gets me
2. Likelihood of following through with
violence greater after threat: must follow
through to keep credibility
iv. No additional speech can cure harm, except credible
withdrawal of threat by threatener
1. Harm still exists in time before withdrawal
iv. Defamation: Libel and Slander
Person?
Concern?
Standard for liability
Public official
Official conduct
Actual malice
Public official
Public concern
e.g. accused of crime
in private life
Private concern
Public concern
Private concern
Public concern
Private concern
e.g. Dunn &
Bradstreet: Company
falsely defamed when
lenders saw false
credit report on
company trying to
borrow $
Actual malice
Public official
Public figure*
Public figure
Private figure
Private figure
?
Actual malice
?
Negligence
Strict Liability
Standards give press guidance about whether to publish/not based on
liability risk
Standards balance public’s right to know with person’s harm/ability to
respond with reparative counterspeech
1. *Must be voluntary public figure
2. New York Times v. Sullivan (1964): Montgomery, AL
Commissioner sued over ad in NYT that described alleged conduct
by Southern officials, alleging libel
a. Court adopts actual malice standard:
i. Burden on P to prove statement was made with
actual malice:
1. Knowledge that statement was false OR
2. Reckless disregard as to truth/falsity of
statement
a. High bar: e.g. information in hand
that makes it highly probable that
statement is false
b. Rationale: Dangers of self-censorship arising from potential
tort liability
i. Err on the side of publishing, not on the side of not
publishing
1. Better to get out false stories than to leave
true stories on cutting room floor
ii. Marketplace of ideas/more speech can cure harm
1. Particularly for public officials/figures, if
they are criticized in press, they will then
have opportunity/attention from press to
respond
c. N.B. Mistrust of juries in this line of cases: To have case
sent to jury:
i. P must prove defamation/injury to reputation
ii. P must prove falsehood
iii. P must prove actual malice by clear and convincing
evidence
1. Appellate review of falsehood and actual
malice is de novo
3. But cf. Intentional Infliction of Emotional Distress
a. Harm/cure different from defamation
i. Defamation: Reputational harm/cured by more
speech, correct information
ii. IIED: Emotional distress/cured by tort damage
award
1. More speech cannot cure the harm in IIED
b. Hustler v. Falwell (1988): Parody ad
i. When P is a public official/figure, D is immune
from suits for IIED
ii. Reasoning: Protecting cartoon/parody/satire
1. People voluntarily opened themselves up to
it by stepping into public sphere
iii. Reasoning: Danger of jury discretion about what is
decent/indecent, what is outrageous
1. Particular problem of local juries protecting
locals from embarrassment by outside press
c. Snyder v. Phelps (2011): WBC protests military funeral,
other places, with signs mixing public and private concern.
Immune from suit for IIED.
i. Reasoning for constitutionality: Protest in public
place, where protestors had a right to be
1. No intrusion on seclusion
2. Not captive audience
ii. Reasoning: Speech on a matter of public concern
1. “Predominant thrust and concern of
message” must be matter of public concern
2. Speech on matter of public concern must not
be pretext for private vilification
iii. Lurking constitutional question: Why do public
place and public concern immunize here?
1. E.g. would be liable for
defamation/incitement/fighting words in a
public place on a matter of public concern
a. Distinguishable because of jury
discretion problem: Content-based
tort with vague standards—driven by
local community norms, won’t be
uniformly applied
b. Harm is different: One person vs.
broader public harm
i. Even in defamation, harm is
to the public discourse in
some ways
v. Obscenity
1. Roth v. United States (1957): Obscenity an unprotected category.
a. Definition from Miller v. California (1973):
i. whether the average person, applying contemporary
community standards would find that the work,
taken as a whole appeals to the prurient interest
ii. whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined
by the applicable state law AND
iii. whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value
b. N.B. Obscenity problems:
i. Serious vagueness/fair warning problem: very little
guidance to publishers and authors as to what juries
will think it prurient
1. Contemporary community standards vary by
locality
a. But Court says standards for what
material has value must be uniform
nationwide.
ii. Problem of harm:
1. 50s arguments: Promotes antisocial conduct
a. Proof problem
b. Must be imminent lawless sexual
conduct
2. Debases the culture of marriage/sex/family
a. State cannot shape the culture
coercively by suppressing alternative
views
3. Threatens the Protestant work ethic
4. Feminist critique: Obscene material shapes
the way culture views women
iii. Obscenity doctrine basically made irrelevant by
advances in technology and changes in culture
vi. Child Pornography
1. New York v. Ferber (1982): Statute: prohibits knowingly
promoting sexual performances by children under the age of 16 by
distributing material depicting such performances.
a. Child porn does not have to meet Miller obscenity
standards to be suppressible. Compelling gov’t interest in
preventing sexual abuse of children:
i. Different theory of harm: Harm to participants in
creation of material being disturbed. Harm
continues because materials exist as record of
exploitation.
ii. Must shut down distribution network in order to
shut down production
1. Distribution network provides economic
motive for production
2. Difficult/impossible to prosecute producers
a. If could successfully prosecute them,
would be no material left to
distribute, and this would be 1A
acceptable
iii. Child porn has de minimis social value
iv. N.B. No legal exception for work with serious value
of some sort
1. But prosecutorial discretion, e.g. for
documentary of sexual coming of age rituals
of 12 year olds in New Guinea
a. Unlike other content-based regs,
ample alternatives relevant here,
because they avoid the sexual assault
on a child
i. Use older actor who looks
younger
ii. Euphemize about conduct
b. NOT Animal Cruelty
i. United States v. Stevens (2010): targets animal
crush videos, but reaches much more broader
content
1. Cannot create new categories of unprotected
speech by balancing value of speech against
harm of speech
a. 1A itself is judgment that value of
speech outweighs harm
i. New law prohibiting crush
videos requires obscenity
finding
ii. New theory of obscenity:
conduct portrayed is not
sexual, but appeals to sexual
fetish
c. NOT Violent Video Games
i. Video Software Dealers Assoc. v. Schwarzenegger
(2009): attempted to apply idea of variable
obscenity to video games
1. Variable obscenity allows suppression of
materials obscene as to minors that would to
not suppressible as obscene as to adults
a. Problem: unlike obscenity, there is
no underlying category of things that
can be suppressed because they are
violent
i. Like obscenity, harm
problem
ii. Gov’t not using least
restrictive alternative
c. Content Neutral Restrictions: Time, Place, and Manner Restrictions (TPM)
1. Ward v. Rock Against Racism (1989): Regulation requires
performers at Central Park bandshell to use sound amplification
equipment and technician provided by city:
a. Content-neutral?
i. Yes: applies to all performances equally
b. Substantial/significant government interest?
i. Yes: protecting homes/public areas from noise,
ensuring adequate amplification
c. Narrowly tailored?
i. Yes: gov’t does not have to use least
intrusive/restrictive means of regulation
1. Just has to be narrowly tailored enough not
to meet gov’t interest without unnecessarily
intruding on speech freedoms
d. Leave open ample alternative channels of communication?
i. Yes: continues to permit expressive activity in
bandshell, has no effect on quantity or content of
expression, only on amplification
2. NOT Cohen v. California: Gov’t cannot regulate speaker’s word
choice as manner: dual expressive function of words
3. NOT Barnes v. Glen Theater: Regulating nude vs. non-nude
dancing is content regulation, not manner regulation
a. Content regs because attempt to change message itself, not
just medium/manner of expression
II.
Conduct Regulations with Incidental Effect on Speech
a. Prohibition on destroying/mutilating draft cards: United States v. O’Brien (1968)
i. TEST: Is regulation within constitutional power of gov’t? (part of test, but
not a 1A question)
1. Is gov’t interest related to suppression of free expression?
a. If yes, analyze as content-based reg:
i. Strict scrutiny OR
ii. Categorical exception
b. If no, continue O’Brien test
2. Does law further an important or substantial gov’t interest?
3. Is incidental effect on speech no greater than essential to
furtherance of interest?*
a. *Court does not sincerely follow this
ii. NOT wearing Fuck the Draft jacket: Cohen v. California: gov’t interest in
enforcing disturbing the peace statute against Cohen was ONLY related to
suppression of free expression
1. Assimilating O’Brien and TPM Restrictions: Clark v. Community
for Creative Non-Violence (1984):
a. Substantial/significant gov’t interest?
b. Narrowly tailored?
i. DO NOT have to use least restrictive means
c. Leaves open ample alternative channels of communication?
i. Burden on speaker to find mode of expression that
does not violate conduct statute
1. Speakers have never won an O’Brien case in
SCOTUS
b. Public indecency and all-nude dancing: Barnes v. Glen Theater (1991):
i. Question of how to measure gov’t interest:
1. Plurality: measure gov’t interest across the board: law furthers
gov’t’s interest in preventing people from appearing nude in public
places among strangers
a. Also: ample alternative channels of communication
because can dance in pasties/g-string
2. Dissent: measure gov’t interest as applied: interest stated by
plurality inapposite to nude dancing because gov’t has no interest
in preventing people who have chosen to come to club from seeing
nudity
a. Treats similar to Cohen because statute as-applied aimed at
suppression of content of erotic message of nude dance
ii. Souter concurrence: statute is aimed at suppression of content, BUT
permissible because gov’t’s concern is with secondary effects, not with
primary effects of dance on viewers
1. Not zoning case like Renton
2. Proof of secondary effects?
a. Question of effects at the margins: secondary effects of
nude dancers significantly worse than secondary effects of
dancers with pasties/g-strings?
III.
Symbolic Conduct
a. Flag burning
i. Texas v. Johnson (1989): desecration of venerated objects:
intentionally/knowingly desecrates…state or national flag…def: deface,
damage, physically mistreat in way actor knows will seriously offend one
or more persons likely to observe or discover action.
1. TEST for whether conduct has sufficient communicative elements:
a. Intent to convey a particularized message? AND
b. Likelihood great that message would be understood by
viewers?
2. To qualify for O’Brien scrutiny: Gov’t interest related to
suppression of free expression? Here, related. SS/Categorical
Exclusions?:
a. Here, interest in preventing breaches of peace not sufficient
i. Not “fighting words per se”: Like Cohen, burden on
hearers not to react with violence
b. Here, interest in preserving flag as symbol of nationhood
and unity not sufficient
i. Can promote respect for flag, but cannot compel it
1. N.B. From Brandeisian POV, pro-flag
counterspeech can cure harm to nat’l unity
a. BUT cf. public monuments, places or
worship or burial: Interest in
preserving property value as well as
symbolic value
i. Unlike flag, content neutral
because offensive to write
positive/negative/or neutral
things
IV.
Second Amendment: A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be infringed.
a. Individual right to bear arms as against federal gov’t: DC v. Heller (2008):
Unlawful to possess unregistered firearm, cannot register handgun.
i. Majority: 2A protects individual’s right to possess handgun in the home
for self defense
1. Construes operative clause first, then determines whether there are
ambiguities that prefatory clause must resolve
a. Intertextual move: other portions of Bill of Rights
referencing “the right of the people” as individually held
b. Originalist move
ii. Stevens Dissent: 2A only protects right of states to collective self defense
1. Intertextual move: other portions of the Constitution referencing
the militia
2. Originalist move
iii. Breyer Dissent: Should adopt interest-balancing standard of review for 2A
cases:
1. DC would win because: Regulation does not impermissibly burden
right to bear arms in course of advancing important public safety
concern
a. DC’s law is least restrictive alternative because any less
restrictive law would not serve purpose of reducing # of
handguns
b. McDonald v. City of Chicago (2010): H: 2A is incorporated against the states
through the DPC of the 14th Amendment
i. When determining whether right is incorporated into “liberty” of DPC,
will ask:
1. Is right fundamental to our scheme of ordered liberty?
a. Aka: Is right deeply rooted in Nation’s history and
tradition?
ii. H: States and cities must respect individual’s right to possess handgun in
home for self defense
1. N.B. Important because if Heller only applied to federal gov’t, it
would have very little effect
a. Congress unlikely to enact major gun control regime, but
states and cities have
i. Still to be decided: What is the standard of review
of gun control regulations?
V.
Fourteenth Amendment: Section 1. Citizens of the United States.
a. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside.
b. No State shall make or enforce any law
i. which shall abridge the privileges or immunities of citizens of the United
States;
ii. nor shall any State deprive any person of life, liberty, or property, without
due process of law;
iii. nor deny to any person within its jurisdiction the equal protection of the
laws
i. Section (a) supersedes Dred Scott v. Sandford (1857): No SMJ over case
1. No DJ because Scott not a citizen of a different state than Sandford
a. Blacks not citizens of the US, not entitled to constitutional
rights and privileges of citizens
i. Blacks can be citizens of states that choose to grant
citizenship, but this does not make them citizens of
US
c. Privileges or Immunities Clause
i. Slaughterhouse Cases (1873): Stripped 14A’s Privileges or Immunities
Clause of most substantive content. Clause does not protect any rights
that are not already protected under the Constitution
1. Comparison with Art. IV, Sect. 2, Cl.1: “The citizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the
several states.”
a. Protects “wanderers’ rights”: e.g. VA can’t exclude MD
people from jobs it gives to VA people
i. Protects only fundamental rights:
1. “rights which belong to citizens of all free
governments”
a. Largely focused on economic and
property rights: CL rights related to
economic wellbeing protected when
come into a state
b. H: Art. IV P and I come from person’s relationship with
state: Either you are citizen of state and get the rights, or
you’re not a citizen of the state and the P and I Clause gives
them to you when you’re in the state
2. 14A: No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States….”
a. H: 14A PoI come from person’s relationship with United
States: These are the rights of citizens that are already
stated or implied in the constitution
i. All that 14A PoI confers is power to Congress to
enforce these rights against a state if a state tries to
infringe them
ii. Saenz v. Roe (1999): Statute that limits welfare benefits available to
residents who have lived in CA for less than 1 year to what previous state
of residence was paying unconstitutional under 14A PoI Clause.
1. H: “Resettlers’ rights”: Right to resettle in new state and become a
citizen of new state is right of U.S. citizenship
a. Right to become citizen of new state through residence* is
protected by first sentence of 14A
i. *physical presence, intent to remain
b. Right to become citizen of new state is protected from
infringement by state by 14A PoI Clause
i. New citizens must be treated as full and equal
citizens as compared with citizens who have resided
in state for longer
2. N.B. Not Art. IV case because not about wanderers’ rights
d. Due Process Clause
e. Incorporation/Defining Liberty Protected by DPC:
i. Barron v. Baltimore (1833): F: City as instrumentality of state destroyed
value of wharf. Barron claimed this constituted a taking under 5A.
1. Q: Does 5A apply as against the states?
2. H: No. Bill of Rights is protection against federal gov’t
encroaching on rights, not against state/local gov’t encroaching on
rights
ii. Palko v. Connecticut (1937): Palko charged in state court with murder;
acquitted of 1st degree, convicted of 2nd degree. State wins appeal that
trial court gave incorrect jury instructions. Palko retried and sentenced to
death.
1. Substantive DP liberty argument
a. Look to Bill of Rights to see what is fair
b. DPC picks up part of Bill of Rights as “liberty interests”
i. E.g. liberty interest in freedom of speech/political
dissent
2. H: Cardozo: Bill of Rights help us understand what liberty might
mean, but the Bill of Rights do not automatically apply to the
states
a. Bill of Rights provisions have core and periphery
i. Values protected by substantive DP are those
implicit in concept of ordered liberty
iii. Adamson v. California (1947): Prosecutor commented on D’s 5A right not
to take the stand. D argued that this fell below standards of fundamental
decency and fairness in trials guaranteed by the DPC. H: Does not violate
DPC
1. Justice Reed (majority): selective incorporation
2. Justice Frankfurter (concurring): no incorporation
3. Justice Black (dissenting): full incorporation
4. Justice Murphy (dissenting): full incorporation plus X (X=things
that violate due process even though they do not violate Bill of
Rights)
iv. Historical footnote: Court proceeds with selective incorporation. The
majority of the Bill of Rights is incorporated against the states by the late
1960s.
1. No core/periphery distinction from Palko: Federal judicial
interpretation of Bill of Rights applies with equal force to states
2. N.B. Due process clause ALSO protects certain liberties in
addition to Bill of Rights
a. E.g. In re: Winship: cannot have criminal proof standard
lower than beyond a reasonable doubt
b. E.g. Griswold v. Connecticut: right of privacy
v. McDonald v. City of Chicago: 2A is incorporated against the states
through the DPC of the 14th Amendment
1. When determining whether right is incorporated into “liberty” of
DPC, will ask:
a. Is right fundamental to our scheme of ordered liberty?
i. Aka Is right deeply rooted in Nation’s history and
tradition?
f. Economic Liberty:
i. Right of property: Dred Scott v. Sandford: “The birth of substantive due
process”:
1. Cannot deprive citizen of US of his property merely because he
came/brought property into a particular territory
a. Missouri Compromise unconstitutional
ii. Freedom of Contract: Lochner v. New York (1905): NY enacted maximum
hour law for bakers.
iii. H: Violates DPC because infringes on employer and employee’s freedom
of contract.
1. Freedom of contract: right of adult individuals to reach own
bargains over terms and conditions of labor without interference
from state to remedy an inequality in bargaining power
a. State said law permissible regulation of health of workers
b. Court suspicious, thinks impermissible labor regulation
i. Shifts burden of persuasion to state to prove that
law necessary to ensure health of bakers
2. Holmes Dissent: Nothing in constitution dictates laissez faire as
opposed to a competing theory of regulating economic affairs
a. Debate about best way to regulate market should take place
in political arena. Court should not second guess.
iv. Retreat from rigid adherence to freedom of contract: Nebbia v. New York
(1934): NY Milk Control board allowed to fix min/max retail prices for
milk
1. Law allowed to interfere with freedom of K: Law not
unreasonable, means selected have real and substantial relation to
gov’t objective
a. Objective: If price kept falling, farmers might not produce
milk. Farms might close, hurt NY dairy industry. Farmers
might stop pasteurizing milk because expensive,
contaminated milk would enter market.
i. Court begins to express deference to legislature
regarding economic regulation legislation
v. West Coast Hotel Co. v. Parrish (1937): WA law requiring payment of
minimum wages to women and minors is constitutional
1. End to Lochner’s premise that remedying inequities in bargaining
power is impermissible end
2. Deference to legislatures regulating matters of economic affairs
a. Burden of subsistence must be met; taxpayers should not
have to bear the burden created by unscrupulous employers
b. Dignity of paid labor vs. comparative indignity of
dependence
c. Preventing exploitation of women workers in sweatshops
vi. Williamson v. Lee Optical Co.: OK law prohibiting anyone not licensed as
optometrist or ophthalmologist from fitting/duplicating/replacing lenses
without prescription constitutional
1. Likelihood of winning case on due process economic liberty
argument approaches zero
a. Economic freedom is still protected on DPC “liberty,” but
protected so weakly that claims under it do not prevail
2. Rational Basis Review: Highly deferential to legislature
a. Law need not be logically consistent if legis. might have
thought law was rational way to correct problem.
i. Enough that law rationally related to legit state
interest
1. Court willing to attribute purposes of
regulation, THEN
2. Will ask if means chosen are reasonably
related to interest
a. State will always win on second step,
because Court has inferred ends from
means chosen
vii. The Carolene Products Footnote (1938): Congress outlawed interstate
shipment of filled milk:
1. Will give greater scrutiny/less deference to the legislature/less
presumption of constitutionality to laws that appear on their face to
be “within a specific prohibition of the constitution.”
a. e.g. Laws that appear on face to violate Bill of Rights
i. Hints at idea of incorporation
2. May give greater scrutiny to legislation that restricts political
processes that can bring about repeal of legislation
a. E.g. Restrictions on right to vote, on dissemination of
information, on political organizations, on peaceable
assembly
i. Input to political processes restricted, less deference
to political outcomes because process that produced
them was not fair and open
3. May give greater scrutiny to legislation directed at “discrete and
insular minorities”
a. E.g. Laws directed at religious, national, or racial
minorities
i. Rationale: Ordinarily, political factions form
shifting majorities to create outcomes. Win on one
basis, lose on another. Rolling results, fair
outcomes
1. BUT, when laws reflect general social
animosity against discrete and insular
minorities, these people may not be able to
form same kind of coalitions to shape
political process
a. Will be constantly in the political
minority
i. Political processes tainted by
discrimination, less deference
to political outcomes
g. Right of Privacy: Behavioral autonomy/right to make certain behavioral choices
free from gov’t interference
i. “Liberty of Parents and Guardians to Direct Upbringing and Education of
Children”
1. Pierce v. Society of the Sisters (1925): Law requiring parents to
send children to public school unconstitutional
ii. “Right to Have Offspring”/ “Marriage and Procreation”
1. Skinner v. Oklahoma (1942): Marriage and procreation are “one of
the basic civil rights of man”
a. N.B. NOT DECIDED AS A SubDP CASE!
i. Stone concurrence: Should decide as SubDP case
1. Lochner just repudiated, no extrinsic liberty
component to DPC outside text of
constitution
b. Decided as EPC case: strict scrutiny because of importance
of interest, possibility of invidious discrimination in
eugenics
i. No justification for forced sterilization for some
crimes, not for others
iii. Contraception and Abortion
1. Griswold v. Connecticut (1965): Law prohibiting use of
contraception unconstitutional. First case to link right of privacy
to behavioral autonomy
a. Specific guarantees in Bill of Rights have penumbras,
created by emanations from guarantees that ensure that
fundamental right is not encroached on (no longer subDP
approach)
i. Marital privacy in zone of constitutional privacy
created by penumbras of other rights in Bill of
Rights that protect some version of privacy (no
longer subDP approach)
b. Takeaway: privacy interest in intimate relation of husband
and wife, privacy interest in physician’s role in one aspect
of that relation
c. **Harlan concurrence**: DPC “stands on its own bottom”;
protects certain fundamental liberty rights without
reference to Bill of Rights
i. Traditional, widely-held/widely-respected rights
2. Eisenstadt v. Baird (1971): Providing contraception to married
couples but not to single people violates the EPC
a. Constitution protects individuals in decision whether to
bear or beget a child
i. Expands right of privacy from marital privacy to
individual procreative choice
3. Roe v. Wade (1973): 14A DPC right of privacy encompasses
woman’s decision whether or not to terminate her pregnancy:
a. State has important and legitimate interest in protecting
health of mother
b. State has important and legitimate interest in protecting
potential human life
i. Each of these interests grows over course of
pregnancy and eventually becomes compelling
1. The “compelling” point leads to the
trimester framework:
a. STILL GOOD LAW: up until
viability, state’s interest in fetal life
is not compelling
b. BUT when fetus is viable with or
without artificial life support, state
may prohibit abortions, except when
necessary to save a woman’s
life/protect her health
2. Physician’s right to administer treatment as
he sees fit up to point where state interest
becomes compelling
4. Planned Parenthood v. Casey (1992): Troika opinion
(O’Connor/Kenndy/Souter): Reaffirms “the core” of Roe: State
may not prohibit women from choosing to have pre-viability
abortions
a. Abandons trimester framework
i. State regulation may not impose “undue burden” on
women’s decision to terminate pregnancy
1. Regulation must not have purpose or effect
of placing substantial obstacle in path of
woman seeking abortion
a. Abandons SS requirement of
compelling interest/narrow tailoring
b. Shifts burden from state justifying
law to entity challenging law
b. Stare decisis: Includes reliance argument: women have
come to rely on freedom to terminate pregnancy guaranteed
by Roe
i. Broader than formal reliance interests of women
who were pregnant at time of decision
ii. Includes social and cultural reliance: overruling Roe
would unsettle women’s understanding of their
sexual and reproductive autonomy
c. Here: Law at issue
i. 24-hour waiting period constitutional
1. Ensures informed choice, not undue burden
ii. Spousal consent requirement not constitutional
1. Women do not lose constitutionally
protected liberty through marriage
a. And undue burden, esp. in cases of
abuse
iii. Parental consent for minors constitutional, with
adequate judicial bypass procedure
1. Precedent supporting this, not undue burden
iv. Reporting requirement constitutional
1. Not undue burden
5. Gonzales v. Carhart (2007): Partial-Birth abortion ban
constitutional: Covers intact D and E procedure sometimes used in
second term abortions, still pre-viability
a. Government interests: protecting the reputation of the
medical community
b. Promoting respect for life, including life of the unborn
i. Ensuring woman is informed about method of
abortion, preventing regret
c. Question of undue burden: Dissent: no exception for
women’s health, not about informed consent because forces
them into what may be less safe procedure, rather than
informing them about risks/benefits of all procedures
i. Majority: Adjudicate health/safety questions as
applied
iv. Marriage and Family
1. Loving v. Virginia (1967): Freedom to marry has is recognized as
“one of the vital personal rights essential to the orderly pursuit of
happiness by free men”
a. EPC does primary work of invalidating law in Loving
2. Moore (1977)/ Zablocki (1978)/ Troxel (2000): Court strikes down
non-traditional restrictions on marriage/family/childrearing
3. Michael H. (1989): Court upholds traditional, widely-held
presumption that child born to intact marriage is biological child of
people in marriage
v. Sexuality/Sexual Orientation
1. Bowers v. Hardwick (1986): GA statute criminalizing sodomy as
applied to respondent’s homosexual conduct constitutional under
RBR
a. Historic prohibitions on sodomy, comparative prevalence
of anti-sodomy laws in states (~25)
i. No fundamental right to engage in homosexual
sodomy
1. Dissent accepts framing as fundamental
right of privacy in intimate associations
b. State’s legitimate interest in advancing morality
2. Lawrence v. Texas (2003): TX statute criminalizing homosexual
sodomy unconstitutional
a. Fundamental right of privacy in intimate associations
i. Sexuality most private human conduct
ii. Home most private of places
b. Recent provenance of laws singling out homosexual
sodomy, few states only prohibiting homosexual sodomy
(9)
c. Majority cannot use power of state to enforce its moral
views on everyone through the criminal law
i. N.B. Case does not map onto existing standards of
review: about Interest-Balancing:
1. State interests are weak or zero
2. Individual privacy interests are strong
enough that state interests don’t trump them
h. Equal Protection Clause
i. Standard of Review Framework for EPC Cases:
1. Non-suspicious classification/RBR:
a. Ends/Interest: Legitimate
i. Can be attributed post hoc
b. Means: Rationally/Rxably related to ends
i. Deference to legislature on empirical rationality
c. Alternatives: No concern about alternative classifications or
about fairer/less unequal ways to do things
2. Quasi-suspicious classification/IS: (Much closer to SS than RBR)
a. Ends/Interest: Important
i. Cannot be attributed post hoc
b. Means: Substantially related
c. Alternatives: Must examine rxable neutral alternatives and
use if they exist
3. Suspicious classification/SS:
a. Ends/Interest: Compelling
i. Cannot be attributed post hoc
b. Means: Narrowly tailored
c. Alternatives: Must examine rxable neutral alternatives and
use if they exist
ii. Equal Protection Ideal in 5th Amendment Due Process Clause: Equal
protection binding on federal government as well as states
1. Bolling v. Sharpe (1954): Decided on same day as Brown:
a. EP and DP both derive from American ideal of fairness
i. EP more explicit safeguard of unfairness than DP
BUT
ii. Discrimination may be so unjustifiable as to violate
DP
iii. Rational Basis Review: When gov’t classifies on bases that are not
suspicious:
1. Is challenged classification rationally related to legitimate state
interest?
a. Willing to attribute purposes of classification
b. Railway Express Agency v. People of State of NY (1949):
Constitutional: NY prohibited advertising vehicles but
allowed advertising on business delivery vehicles
i. Interest: avoiding distraction to drivers/pedestrians,
improving safety
ii. Rationally related: Yes: Gov’t may have concluded
that advertising trucks create greater
distraction/safety hazard
1. Allowed to create separate classes: Do not
have to eliminate all advertising/allow all
advertising
c. NYC Transit Authority v. Beazer (1979): Constitutional:
Policy not to hire users of narcotics, including people who
are methadone maintained
i. Interest: Safety
ii. Rationally related: Yes: Efficient and reliable way
of administering safety rule
iv. Strict Scrutiny (Race and National Origin): 13A, 14A, and 15A made
to complete project of instilling rights in freedmen. EPC centrally about
completing the project of emancipation: For SS: Is challenged
classification narrowly tailored to compelling state interest?
v. Facial Discrimination Against Racial Minorities:
1. Strauder v. West Virginia (1879): Law that excluded blacks from
jury service unconstitutional
a. Laws cannot discriminate on basis of race because
discrimination in an area of the law affects racial equality
in civil society
i. Expressive harm to blacks by communicating that
they are not up to responsibility of jury duty
ii. Material harm to black Ds not tried by jury of peers
b. Dicta: Process by which differences are imposed on people
who are different from legislators is an EP concern
i. So, white legislature preventing blacks from serving
on jury is as problematic as black legislature
preventing whites from serving on jury
2. Korematsu v. United States (1944):
a. Retreat from Strauder: Race discrimination can be justified
by very important gov’t interests
b. Establishes that “all legal restrictions which curtail the civil
rights of a single racial group are immediately suspect”
i. Extremely compelling concern of preventing
espionage/sabotage justified exclusion order
1. Deference to judgment of military
authorities
2. Outlier: gov’t wins under purported strict
scrutiny
a. Burden not shirted to gov’t to show
law tailored to gov’t interest
i. Overinclusive: all people of
Japanese descent, regardless
of citizenship/oath of
allegiance interned
ii. Underinclusive: Germans and
Italians not interned
vi. Racially Discriminatory Application of Facially Neutral Laws
1. Yick Wo v. Hopkins (1886): Law says wood laundromats must
have permits. Permits given to all non-Chinese people and denied
to all Chinese people
a. P bears burden of proof to show that law is being
administered in a racially discriminatory way
i. Here, regardless of law’s intent, it is administered
by public authority so exclusively against a
particular class that only reason must be racial
discrimination
1. N.B. Issues of proof in similar cases
b. NOT A STRICT SCRUTINY CASE
i. Because city hid its true motive for the law, not
allowed to justify why discriminated on basis of
race
vii. Racially Discriminatory Effect of Facially Neutral Laws vs. Racially
Discriminatory Purpose of Facially Neutral Laws
1. Washington v. Davis (1976): Verbal/reading qualifying test for
Metro PD excluded a disproportionately high number of blacks.
Constitutional.
a. Law does not trigger strict scrutiny solely because of
racially disproportionate impact
i. P must prove racially discriminatory purpose
1. Racially discriminatory purpose may be
inferred from totality of facts
b. Court applies RBR: ensuring communication skills of
employees is legit gov’t interest, test is reasonably related
2. Cf. Palmer v. Thompson (1971): Jackson, MS closed public pools
after integration order. Constitutional
a. Laws made with racially discriminatory purpose but with
racially equal effect do not trigger strict scrutiny
viii. Race-Specific but Facially Symmetrical Laws
1. Loving v. Virginia (1967): Law prohibiting marriage between
white person and black person unconstitutional
a. VA argued: Facially symmetrical because black and white
participants in marriage punished equally
i. Ct notes: people of color can marry one another,
regardless of race
b. State has no purpose for law other than invidious racial
discrimination
i. State has no interest in racial integrity, because that
is built on underlying idea of white supremacy;
interest incompatible with EPC
2. Palmore v. Sidoti (1984): Unconstitutional for state court to deny
custody of child to mother who was in interracial relationship:
a. Court reasoned that child would be stigmatized for living in
racially mixed household
b. *Law cannot give private biases legal effect
ix. Racial Segregation
1. Plessy v. Ferguson (1896): LA law providing for separate railway
carriages on basis of race constitutional
a. 14A directed at political, not social equality
i. Constitution cannot mandate social equality
between the races through enforced commingling
b. Enforced separation does not automatically equate with
black inferiority
i. Direct opposite of Strauder’s approach
2. Brown v. Board of Education (1954): Laws requiring/permitting
segregation on basis of race unconstitutional
a. Separate education facilities are inherently unequal
i. Effect of segregation on public education
1. Part of system of segregation that is meant
to enforce system of racial exclusion, and
racial hierarchy
2. System inflicts psychological damage on
black children
a. Carolene Products connection:
i. Segregation
politically/socially/economic
ally entrenched because of
widespread
disenfranchisement of blacks
ii. Segregation politically
entrenched because those on
whom harm inflicted part of
minority without access to
political channels of reform
b. N.B. Brown not framed in terms of
standard of review
x. Affirmative Action
xi. Affirmative Action in Contracting: STRICT SCRUTINY:
1. First affirmative action case with a majority: Richmond v. Croson
(1989): Prime contractors for city required to subcontract at least
30% of dollar amount of contract to minority-owned businesses.
Unconstitutional.
a. No direct evidence of past race discrimination in awarding
contracts, or in subcontracting
b. So, no compelling interest in racial quota system
i. Problem with remedial interest: Immeasurable
claims of past wrongs from various disadvantaged
groups
c. Not narrowly tailored to remedy some prior discrimination
i. No attempt to use race-neutral means
1. E.g. City financing for small firms to
encourage minority startups
ii. Quota not narrowly tailored to ANY goal except
racial balancing
2. Adarand v. Pena (1995): DOT contracting bonus program
unconstitutional
a. Strict scrutiny of affirmative action policies
b. Color-blindness principle: Same standard of review
regardless of who/what race is burdened or benefitted
i. Rejecting Carolene Products approach/IS for
minority advantaging/diversity promoting decisions
c. Consistency: Rules about AA in contracting are same for
state and federal gov’t
xii. Affirmative Action in Education:
1. Regents of UC v. Bakke (1978): UC-David Med set aside 16 of 100
seats for minority applicants. Unconstitutional.
a. Aesthetic interest in racial balancing not a legitimate state
interest
i. Cannot try to achieve racial balance just for sake of
achieving proportional representation
b. Interest in training doctors who will serve minority
communities, but not narrowly tailored
i. Some white doctors will serve black communities,
some black doctors won’t
1. Race a poor proxy, must use another means
to identify these students
c. Remediation: Interest in remedying a past constitutional
wrong
i. Remedy must be narrowly tailored to wrong
1. Must have finding of wrong
2. Must have finding of perpetrator/victim
3. Must tailor remedy to extent and duration of
wrong
a. Difficult to justify ANY policy on
this interest
b. Here, set-aside not connected to any
past wrongs, no justification for #, no
limit in duration
d. Diversity: Interest in enhancing educational experience by
seating diverse class
i. Here, set-aside not narrowly tailored to interest in
diversity
2. Grutter v. Bollinger (2003): Use of race as a factor in law school
admissions is constitutional
a. Compelling interest in diverse law student body because of
educational benefits of diversity
i. Cross-racial understanding
ii. Better preparation for workforce
iii. Path to leadership open to people of all races
b. Narrowly tailored because of flexible assessment of
potential to contribute to “diversity”
i. Some attention to numbers, not a quota system
ii. Types of diversity contributions not delimited
iii. Holistic review of application
1. Need not exhaust ALL race-neutral
alternatives to be narrowly tailored
a. E.g. need not relax admissions
requirements
3. Gratz v. Bollinger (2003): Use of race in point based selection
index for undergrad admissions is not constitutional
a. Compelling interest in diversity
b. NOT narrowly tailored
i. Does not provide individualized consideration
ii. Race decisive for almost all minimally qualified
applicants
4. Parents Involved v. Seattle (2007): School districts voluntarily
adopted student assignment plans that relied on race to determine
which public schools children may attend. Unconstitutional.
a. Remediation interest not sufficient
i. Louisville schools achieved unitary status, Seattle
schools were never de jure segregated
b. Supposed diversity interest not sufficient
i. Limited to race alone, race defined as either
black/other(L) or white/non-white(S)
c. Not narrowly tailored; plans aimed at racial balancing
alone, not at achieving diversity benefits
d. Kennedy concurrence: Cannot make race-based school
assignments, but can be mindful of race in designing school
system because of legit interest in avoiding racial isolation
in public schools
i. E.g. Drawing district lines, selecting school sites
e. Debate about the legacy of Brown:
i. Majority: Colorblindness was the goal of Brown
ii. Dissent: Ending segregation was the goal of Brown
xiii. Race and Redistricting
1. Shaw v. Reno (1993): Race-based redistricting plans subject to
strict scrutiny
a. Plaintiff challenging redistricting states an EPC claim by
alleging that plan cannot rationally be understood as
anything other than effort to redistrict based on race
i. Race can be a factor in redistricting (e.g. for VRA
preclearance)
1. Redistricting cannot leave minorities worse
off
ii. BUT, race cannot be the predominant factor in
redistricting
i. Intermediate Scrutiny (Gender)
i. Facial Discrimination Based on Gender: Benefits and burdens distributed
on basis of immutable traits not relevant to character or ability =
heightened scrutiny
1. Reed v. Reed (1971): Court used RBR to invalidate a statute that
required courts to prefer men to women when appointing
administrators of estates
2. Frontiero v. Richardson (1973): Four justices favored SS for
gender cases; law permitting men in armed forces to automatically
claim women as dependents but requiring women to prove men
dependent on them for support unconstitutional
3. Craig v. Boren (1976): Court applied IS to invalidate law allowing
women to buy 3.2 beer at 18 and men only at 21.
4. United States v. Virginia (1996): VMI cannot refuse to admit
women
a. IS: Is challenged classification substantially related to
important state interest?
i. Interest justification must be exceedingly persuasive
ii. Justification must not invented post hoc
1. VA: option of single sex education
contributes to diversity of educational
approaches
a. VMI not established or maintained
for this purpose
2. VA: admitting women would destroy VMI’s
training program
a. Court does not accept
b. Rehnquist concurrence: violation of EPC is not in refusing
to admit women, but in not providing single-sex institution
of same caliber for women
ii. Defining Gender Discrimination: Gender stereotypes vs. real physical
differences
1. Geduldig v. Aiello (1974): Refusal to pay disability for disabilities
attributable to pregnancy not invidious gender discrimination
a. When women and men are treated differently on basis of
real physical differences, they are not similarly situated for
purposes of the law
2. Michael M. v. Superior Court of Sonoma County (1981):
Constitutional to have different criminal penalties for statutory
rape depending on gender of minor
a. State’s interest in preventing illegitimate teen pregnancy
justifies harsher penalties for statutory rape of girls
b. Dissent: Justification is pretext to cover historical gender
stereotype valuing women’s chastity over men’s
iii. Gender Discriminatory Effect of Facially Neutral Laws vs. Gender
Discriminatory Purpose of Facially Neutral Laws
1. Personnel Administrator of MA v. Feeney (1979): Veterans
preference statute for civil service positions not unconstitutional
merely because disproportionately benefits men over women
a. No discriminatory purpose
j. Other Classifications
i. Alienage: Strict Scrutiny
1. Graham v. Richardson (1971): Lawful resident aliens denied
public benefits.
a. SS because discrete and insular minority
i. Politically powerless because cannot vote
b. State’s interest in preserving limited welfare benefits for
citizens not sufficient to justify classification
i. State has interest in limiting spending, but cannot
do it by invidious classification
ii. Parents’ Marital Status/Illegitimacy of Children: Intermediate Scrutiny
1. Clark v. Jeter (1988): State’s interest in preventing stale or
fraudulent paternity suits cannot justify having 6-year SOL on
claims by illegitimate children and no SOL on claims by legitimate
children
iii. Age: Rational Basis Review
1. Ma. Board of Retirement v. Murgia (1976): Law mandating
retirement for state police officers at age 50 constitutional under
RBR
a. The aged are not a suspicious class
i. Not same history of purposeful unequal treatment as
with race or gender
ii. Like gender, not a discrete and insular minority
b. Legitimate purpose of protecting public by assuring
physical ability of police rationally related to law
i. Age is an acceptable proxy for physical ability
iv. Mental Disability: “Rational Basis Review With Bite”/RBR as applied
1. Cleburne v. Cleburne Living Center (1985): City denied permit for
operation of group home for the mentally retarded pursuant to a
zoning ordinance. Unconstitutional.
a. RBR as applied: Rule requiring permit must not be applied
invidious discriminatory way
b. The mentally retarded are not a suspicious class
i. Retardation is immutable trait, but it IS relevant to
ability
1. Real physical differences
ii. Not politically powerless because receive attention
from legislature
iii. Differential treatment often not due to
antipathy/prejudice but rather due to benign concern
for welfare
c. No rational basis for believing group home poses threat to
city’s legitimate interests
i. Cannot justify with concerns about property values,
neighbors’ fears, desire to protect residents from
harassment by schoolchildren
1. Board cannot give legal effect to
community’s prejudice
d. Outlier case: Court will sometimes look to particular facts
of case to find invidious discrimination rather than finding
invidious discrimination against a class as a whole
v. Sexual Orientation: ?????
1. Romer v. Evans (1996): Amendment to state constitution enacted
by referendum prohibits legislative/executive/judicial action at any
level of state or local government to protect homosexuals.
Unconstitutional.
a. No discussion of whether homosexuals are a suspicious
class
b. Amendment has no rational basis to proffered justifications
i. Rejects assertion that amendment protects freedom
of association for landlords who don’t want to rent
to gays
c. Can only be explained by animus toward homosexuals,
desire to make them unequal to other citizens
i. Overbroad: forbids all anti-discrimination laws, not
ones tailored to particular interest
ii. Overdeep: constitutional amendment. Would have
to amend constitution again to provide protection
d. N.B. Distinguishing Bowers/Lawrence: DP right of privacy
protects conduct. EPC protects from invidious
discriminatory classification based on status.
e. Outlier: government loses under what must be assumed to
be rational basis review (because no other standard is
announced)