CON LAW II OUTLINE COLBY, SPRING 2014
Standards of Review
 Rational Basis:
o Standard of Review: A law will be upheld if it is rationally related to a legitimate government
interest.
 Legitimate government interest: The state’s goal does not need to be the actual purpose—any
conceivable legitimate purpose is sufficient.
 Rationally related: Means just need to be a reasonable way to accomplish the objective
o To Survive must:
 This test is extreme deferential to the government
 The Challenger has an enormous burden of proof
 Intermediate Scrutiny:
o Standard of Review: A law will be upheld if it substantially related to an important government
interest
 Must be more than just a legitimate goal for the government to pursue: court has to regard the
purpose as important, but less than compelling
 Only has to be a good way to achieve the objective: but not necessarily the best way
o To Survive must: Government has the burden of proof.
 Strict Scrutiny:
o Standard of Review: A law will be upheld if it is narrowly tailored and necessary to achieve a
compelling government interest
 Government interest must be more than legitimate—has to be vital, crucial, compelling
 Make sure you look to the actual purpose
 Narrowly tailored—cannot be overly broad or underinclusive
o To Survive must: Requires proof of the least restrict or least discriminatory alternative
o For equal protection claims of suspect class: Statutory classifications that give distinct
classifications to a group that has historically been the victim of discrimination are subject to strict
scrutiny
o Burden: On gov/
I. THE BILL OF RIGHTS/INTRODUCTION
 From Con law I to Con Law II—The Bill of Rights:
The Bill of Rights (Relevant Provisions):
Amendment I: Religion (Establishment and Free Exercise Clause); Free Speech; Freedom of the Press; Right to
Assembly; Right to Petition
Amendment V: Double jeopardy; self-incrimination; due process; takings
Amendment XIV: Equal protection, Due process incorporated bill of rights against the states
1. Early History:
a. Federalism and adoption of bill of rights:
i. Federalism and separation of powers: the states rights were designed to protect the rights
of the people
1. Government must be limited to protect the rights of the people
2. Divides up power btw federal and state governments, then between branches of
the federal government
ii. The Anti-Federalist/ Federalists debate:
1. Federalists:
a. Believed that the bill of rights was neither a necessary nor a good idea
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b. Thought that creating enumerated right would make it so if something was
not enumerated it would not be a right.
c. Believed that the constitution protected the rights of individuals indirectly
by limiting the powers of the federal government and the addition of a bill
of rights would suggest that the federal governments powers were not
really limited.
d. Flaws in argument: Although the federal government was limited,
congress could enact a bill impairing a personal right.
2. Anti-federalists:
a. Opposed ratification of the Const, were concerned that the fed gov/ would
be too powerful and pose a threat to individual liberties.
b. Condition the acceptance of the constitution on the adoption of the bill of
rights.
iii. The adoption of the bill of rights: The first thing that the first Congress of the U.S. did
was adopt a bill or rights in 1781, these rights were viewed as being extremely important
and so framed in vague terms.
b. Interpreting the Constitution: Originialist vs. Non-originalist:
i. Originalist: Constitution means today what it meant when it was ratified, otherwise
would be interpreted unjustly
1. The constitution is a written contract: Letting judges make up the rule as they
go along would be taking away the meaning b/c it is outside of the contract
2. Same question same answer, unless amendment: Regardless of the date, the
same question must produce the same answer unless there is an amendment.
ii. Non-orignalist: Constitution was intended to be interpreted and to remain valid as times
changes and adapt to problems and crises that did not exit at the time of the drafting
1. Not bound to 18th century morals: The framers did not bind us to the 18th
century norms
2. Constitution was designed to change over time: The constitution was meant to
change over time, and to reflect changing values in a changing world
3. This can be shown by some doctrinal evolutions: E.g., equal protection
(segregation, most clearly in freedom to speech, etc.)
c. Theories behind the law: Natural law vs. Positive law:
i. Natural Law: Universal “law like standards” for right and wrong never change, regardless
of what statutes may say any particular time or place
1. God given rights: We have rights that are given to us by god that would violate
natural law if these rights were taken away
2. Barron: Rejected the natural law argument
ii. Positive law: Limits the power to apply the judgment of authorized law-makers, rather
than making the law themselves.
d. Different arguments you can make about the constitution:
i. Historical argument: Bill of rights was drafted only b/c of concerns of anti-federalists,
meant specifically to address their concerns about the federal government.
ii. Structural argument: BOR is pact btw the people and the federal government they’ve
agreed to create
1. Power of the states is note created or limited in the Const.
iii. Textual Argument: Art. I, Sect. 10, limits on state; but very explicit in limiting specific
acts; what is not explicit restricted is reserved to the states
 At First BoR not incorporated:
1. At first not incorporated b/c of strict constructionism:
a. Barron v. Baltimore(Marshall): The bill of rights was only intended to apply against the actions
of the federal gov’t and had no effect on the actions of the state
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i. Textual argument: If Congress instead the Amendments to be applied against the states
they would have expressly done so in the const.
ii. Leaning towards positive law: American law was leaning heavily towards positive law—
job of judges was to decide if the state action violated the natural rights, but rather if it
violated the text of the bill of rights.
iii. Policy wise this had terrible consequences: Lead to egregious violations of human rights,
such as slavery b/c the states did not have to abide by the BOR.
 Privileges and Immunities:
1. Historical context of the Slaughter House Cases:
a. Emancipation Proclamation(1863): After emancipation proclamation, defeated confederacy
was forced into reintegration w/ union and forced to abolish slavery
b. Radical Republications take power in congress(1866):they are aggressively anti-slavery, pass
a civil bill of rights in 1866 and Johnson vetoes it
c. Congress then passes 14th Amendment: Giving blacks civil rights and making it clear that
congress does have these powers
i. Only TN ratifies the Amendment
d. Republicans strikes back w/ Reconstruction Act of 1867:Placed the South under military rule
i. Escape only permissible for those states which set up new civil governments, granted
voting rights to blacks and took pledge of allegiance to the Union
1. All eventually gave in by 1868, 1870.
2. The Slaugher House Cases (1873)
a. The privileges and immunities clause did not apply to the states: The privileges and
immunities clause protects rights under the federal const, not the privileges of the citizens of the
sates
b. The argument behind the case:
i. Majority:
1. Contextual argument behind the 13th Amendment—it protects more than just
blacks, but racial slavery
2. The 14th Amendment—point of this amendment is to protect citizens of the
federal government not the states, this view repudiated natural law arguments.
ii. The Dissent:
1. Privileges and immunities encompass natural rights: It was indented to give
effect to inalienable rights of declaration of independence (const. just recognizes
these, it does not create them).
c. Effect of this case: This case effectively ended the privileges and immunities litigation.
3. Privileges and immunities in the modern era:
a. Saenz v. Roe (1999): Cannot limit inter state travel
i. Holding/Rule: Privileges and immunities clause protects “the rights of the newly arrived
citizens to the same privileges and immunities enjoyed by other citizens of the same state,
a right is protected not only the the new arrival’s status as a state citizen but also her
status as a citizen of the U.S.
ii. Policy: The purpose of the clause is that a citizen of the US can of his own volition
become a citizen of any state of the union by a bonafide residence there in with the same
rights of other citizens of that state.
 Incorporation:
1. Due process clause protects against state intrusion: The privileges and immunities never ended up doing
this.
Due Process Clause: “Nor shall any state deprive any person of life, liberty, or property without due
process of law”
2. Historical development of incorporation:
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a. Quincy RR Co. (1897) Fifth amendment protections extended: The due process clause
prohibited taking private property for public use w/o just compensation, a form of protection that
is guaranteed by the 5th Amendment.
b. Twining (1908) the first 8 Amendments are held to apply against the states
c. Palko v. Connecticut (1937): The court did not extend the double jeopardy clause of the due
process clause against the states
i. Cardozo’s (majorities) test for which rights are included under the DP clause:
1. Due process only protects those rights that are:
a. (1) Implicit in the concept of ordered liberty
b. (2) Essential to a fair and enlightened system of justice, (AND)
c. (3) So rooted in the traditions and conscience of our people as to be ranked
as fundamental.
ii. Black dissent: argued for total incorporation
1. Total incorporation: All rights in bill of rights are protected by the due process
clause
d. Adamson v. CA (1947)(holding overturned in Griffin): Did not incorporate the privilege
against self-incrimination applicable to the states.
i. Concurrence: (Frankfurt) did not see the due process clause as the adequate way of
extended the bill of rights
ii. Dissent:(Black): The history of the bill of rights show that it was suppose to apply against
the states, and there should be total incorporation.
iii. There is a debate here about total and selective incorporation: the court has taken the
approach of selective incorporation, but nearly all of the Amendments have been
incorporated except the right against grand jury indictment, right of jury in civil case,
quartering troops, and excessive fines
e. McDonald (2010) Jot-for-jot incorporation:
i. Incorporation test: The court must decide whether the right is fundamental to our scheme
of ordered liberty or deeply rooted in this nations history.
ii. If a right is incorporated it is incorporated Jot-for-Jot: Incorporated bill of right
protections against the state under the 14th Amendment according to the same standards
that protect the personal rights against federal encroachment.
II. SUBSTANTIVE DUE PROCESS
 Difference between procedural and substantive due process:
1. Procedural due process: Refers to the government obligation to provide adequate procedural protection
b/f deprive a person of some important interest.
2. Substantive due process: Concerns the extent to which the liberty mentioned in the due process clause is
protected form government deprivation, wholly aside form the fairness of the procedures that the
government provides b/f the deprivation
 Substantive due process and economic liberty:
1. The Lochner Era (Bakery case)(1905):
a. Placed drastic limits on the ability for states to regulate economic activity:
i. The key distinction was reasonable exercise of police power vs. personal liberty:
1. Reasonable use of state police power (ok to regulate if there is a rational basis
for doing so): These are powers broadly stated w/o specific limitation that relate
to the health, morals, and general welfare of the public
2. Interference with the right to contract(not ok and is subject to strict
scrutiny): unreasonable, unnecessary, and arbitrary interference with the right of
the individual to his personal liberty, or to enter into those contracts in relation to
labor which may seem to him appropriate or necessary for the support of himself
and his family.
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a. (did strict scrutiny even though saying rational basis)
ii. The dissents:
1. Harlan: Const. right contract protected by the DP, but the Court should not
second guess the state legislature on balancing this with public health and safety
a. Judicial activism: In trying to protect Const. rights, courts is trampling the
citiznes rights
2. Holmes:
a. The court is pushing its economic theory Laizee Faire economics on the
people: Economic theories are trendy, come and go and should only be
enacted by legislatures and not read into the constitution.
b. Freedom to contract is not a fundamental liberty b/c: It is an old fad and
progressivism is the trend that is being adopted by the legislatures
b. The next 30 years multiple laws were struck down on under Lochner:
i. Labor laws: struck down laws regarding unions, min. wage and safety standards
ii. Muller v. OR: Court upheld labor standard in factories dominated by woman employees
b/c women were dependent on the gentleman in the legislatures to protect their frail,
weak condition. Unlike men, women were not considered as capable of entering freely
into Ks.
iii. Problem with Lochner:
1. Its dishonest: Says that it would not second guess the legislature, but then does
2. Stands in the way of democracy: it puts the opinions of the un-elected justices
ahead of the opinions of the people that e elected and accountable to the people.
 Modern Economic Regulation:
1. The end of the Lochner basis and adoption of a rational basis standard:
a. Historical note: This all occurring during the new deal and there is tension btw the court and
the executive. FDR has devised a scheme to pack the court, which along with some people
dying at a good time has made way for a new court since the Lochner era.
b. Nebia v. NY (1934)(New deal legislation regulating the price of milk)
i. Rational Basis Review: If the laws passed are seen to have a reasonable relation to a
proper legislative purpose and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied.
c. Lochner overturned by West Coast Hotel (1937): Hotel violates state minn. wage law
i. As long as regulation rests upon a “rational basis” the court will uphold it
1. Court won’t put itself in position to second-guess state laws
2. No longer standing in the way in the name of protecting liberty of K
ii. Justice Roberts switches sides to the majority—“switch in time that saves the nine.”
d. U.S. v. Caroline Products Co. (1938)(test to determine if should be subject to strict scrutiny):
i. Justice Stone’s Famous Footnote 4:Lochner era is over—now presumption of
constitutionality for state law
1. Courts won’t defer to legislature (greater judicial scrutiny) where does
one of the following:
a. (1) Laws violate specific bill of right:
i. The courts to aggressively enforce these rights—they are in the
constitution b/c framers didn’t think the political process
would be enough (democracy is not the end it’s the
means)…framers already made this judgment.
b. (2)Laws are directors at religious, national or racial minorities:
Minorities cannot protect themselves through the political process
because it’s a minority (OR)
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c. (3)Situations where the political process might break down, or where it
won’t protect some people: Where districts are not apportioned well
and political process will not help.
i. Default rule is that the court should not check legislature:
The general rules is that people should rule themselves, but
need to protect those people that can be outvoted
e. The modern approach on economic regulation (Lee Optical Co. 1955):
i. The court will uphold most laws under footnote four if rational basis: Legislation is
presumed to be valid and will be sustained if the regulation is rationally related to the
legitimate state interest
1. Almost any statute upheld: This is highly deferential and leaves it to the
legislature to weight the pros and cons—in practice a court has not struck
down an economic regulation since FDR’s speech (more than 75 years ago).
III. PRIVACY AND CONTRACEPTION: RIVIVAL OF SDP FOR NONECONOMIC LIBERTIES
 Historical development:
1. During Lochner period, court used its reasoning to protect rights that were not fundamental or
noneconomic:
a. Could not restrict teaching foreign languages in school (Meyer v. NB 1923): Liberty
protected by the due process clause included the right for an individual to contract to engage in
any of the common occupations of life, to acquire its useful knowledge, to marry, establish a
home and bring up children, to worship god according to the dictates of his/her own
conscience…
b. Court struck down law requiring children to go to public school (Pierce 1925): Law
forbidding teaching foreign languages to children is stuck down because of Lochner reasoning.
i. Uses Lochner again: parents have fundamental right to dictate the education of their
children, even if not enumerated in bill of rights.
ii. Definition of “liberty:” Freedom to contract, marry, acquire knowledge
c. Today we have kept this precedent, but we rely on foot note four:
 Forced Sterilizations:
1. The court applies strict scrutiny to forced sterilization cases: If you force sterilize one class of people
and not the other it is made as invidious treatment as if you treated one person oppressively. Skinner.
 Contraception and Abortion:
1. Contraception:
a. Griswold (1965): Court strikes down law that criminalized the use of contraception by married
couples.
i. Majority: The law does not survive strict scrutiny b/c the purpose of the statute was to
control or prevent activities that are constitutionally prohibited for the sate to regulated
and may not be achieved by means which sweep unnecessary broadly and thereby invade
the area of protected freedoms.
ii. Griswold brings up a debate re: how to determine if certain rights are fundamental:
1. Douglas(Majority):
a. Can protect rights that are in the penumbras of the bill of rights: Can
read the bill of rights to go beyond their literal meaning to extend them to
things such as privacy.
b. Douglas is rejecting the court’s ideology in Lochner: Douglas believed
that Lochner was realizing substantive due process and refused to accept
the idea that the court can adopt substantive rights that were not in the text
of the bill of rights.
2. Goldberg(concurrence):
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a. Stick to history: Our fundamental rights are those rights which were
given to use at the founding.
i. Problem with this view: If you take history to be your guide you
are going to be stuck with the ideologies that were around at the
drafting and this does not take into account that our values have
changed
3. Harlan:(the winner):
a. Living tradition: History is important, but there is a living tradition that
allows for the court to protect new rights that change as societal values
change
4. Black & Stewart (Dissent):
a. Sticks w/ footnote four.
2. After Griswold:
a. Eisenstadt v. Baird (1972) (invalidated statute that made it illegal to distribute contraceptives to
married couples):
i. Extended Griswold to apply to single couples: Married or single individuals are free from
unwarranted governmental intrusion into matters so fundamentally affecting a persona s
the decision of whether or not to beget a child.
1. This uses Harlan’s methodology: it is common law, i.e., it looks to the past for
the answers but it also allows for the law to move into new areas whether the laws
can be seen to cover unforeseen circumstances.
 Abortion:
1. Roe v. Wade (1973) (Blackmun) (not the law):
a. Splits abortion into 3 stages to determine when the state may have a compelling interest to
protect the fetus until this point it is a strict scrutiny test:
i. (1) Prior to approximately the end of the first trimester: The decision and the abortion
must be left to the medical judgment of the pregnant woman’s attending physician.
ii. (2)Subsequent to the end of the first trimester: State can begin promoting its interest and
begin to regulate abortion procedure in ways that are reasonably related to the maternal
health.
iii. (3) Viability stage, state may regulate abortion: From the stage subsequent to the viability
the state promoting its interest in the potentially human life may if it chooses regulate and
even proscribe abortion except where it is necessary in appropriate medical judgment for
the perseveration for the life or health of the mother.
b. Determining whether the interests in Roe are fundamental:
i. When trying to determine if the state has a compelling interest to regulate court makes
distinction btw actual life and potential life:
1. Actual Life: There is an interest in protecting actual human rights, and
theoretically if life did begin at conception state regulation would survive strict
scrutiny
2. Potential life: This is where it gets dicey, how is protecting potential life any less
than protecting them w/ in the first 3 months than the last 6, which makes this a
moral judgment
2. Planned Parenthood v. Casey (1992): Court adopts the undue burden standard and allows for the state
to put in place measure to ensure the health of the mother as long as it does not put an undue burden on
the mother(in case-informed consent/ 24hr waiting period ok, telling spouse not):
a. Gets rid of trimester framework, adopts under burden test:
i. (1) State may take measures that the women’s choice is informed and a law designed to
advance this interest will not be invalidated as long as their choice to choose childbirth
over abortion.
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1. This law will be unconstitutional if it has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus(viable=not viable outside of the womb).
a. Purpose or effect—Legislative history
ii. (2) As with any medical procedure the state may enact regulation to further the health and
safety of the woman receiving the abortion
1. unnecessary health regulations that have the purpose or effect of presenting a
substantial obstacle to a woman seeking an abortion impose an undue burden on
the right.
iii. (3) A state may not:
1. Prohibit a woman form making the ultimate decision on whether to terminate her
pregnancy b/f viability, but it may put in safety measures that stop an abortion if
it depends on the health of the mother
b. Changes from Roe and stare decisis:
i. Changes from Roe: Got rid of the strict scrutiny test, and refused to overturn Roe
ii. Stare Decisis: The court wants to uphold Roe b/c it believes that overturning it would
undermine the legitimacy of the court, b/c the court did not want it to be seen as
osculating back and forth on the issue when the parties changed.
1. The court also so that it should not change its precedent like it did in west
coast Parish and Brown: because societal and values had not changed and
nothing underpinning the facts in Roe called for a change in the law, however, if
new evidence presented itself re viability then maybe this would have called for a
change.
3. Ban on partial birth abortion upheld (Gonzalez v. Cathart (2007)):
a. Casey does not limit proscriptions that place limits on certain types of abortions where:
i. There is a rational basis to act, and
1. In there furtherance of its legitimate interest in regulating the medical profession
in order to promote respect for life, including the unborn
ii. It does not impose an under burden
b. Health of the mother: There are no health benefits for partial birth abortion
 Marriage and family:
1. May not limit a persons right to marry based off of race(Loving v. VA(1967)):
a. The freedom to marry is guaranteed by the 14th amendment.
2. Family:
a. Adulterous parent does not have the right to be involved in parents life: There is a long
standing legitimacy between married parents. Michael H.
b. Extended family have right to live together: Moore
c. Parents can make decisions re custody: Parents have a fundamental right to make decisions
regarding care, custody, and control of children. Troxel.
 Sexuality:
1. Anti-Sodomy laws:
a. Bowers v. Hardwick (overruled by Lawrence): Found that states could legislate morality, and
made it illegal for gays to have gay sex.
i. Majority: Constitution does not confer upon gays the right to have gay sex. (justices did
not understand homosexuality at all).
b. Lawrence v. Tx, (2003) (struck down law saying 2 men convicted in TX for gay sex):
i. Majority: Probably a rational basis standard
1. State cannot justify intrusion into individual liberty: Cannot regulate on the
grounds of morality—the statute seeks to control personal relationships, whether
or not entitled to formal recognized law is with in the liberty of person to choose
w/o being entitled of persons to choose w/o being punished
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2. Rational basis review
ii. Dissent (Scalia): Believes that they are just taking part in the culture war and thinks that
they are manipulated stare decisis. Can still regulated morality.
iii. Key to the case is it provides when court breaks from precedent: Harlan.
1. Legal Landscape:
a. Lawerence: did not fit with precedent.
b. Casey: Did not over turn roe b/c it fit into legal landscape
2. Factual underpinning:
a. Casey, Roe was based on assumption of women’s rights that had not
changed
b. Bowers relied on the notion that historically gay sex had been
criminalized—not true until 1970s
i. In Lawrence, Bower’s factual understandings changed-like
Plessy/Brown:
1. In Bowers court looked to historical criminalization of
homosexual sex, but the court in Lawrence says that the
history is wrong in Bowers.
a. Long legal history of criminalizing all nonprocreative sex, and by the time Lawrence came a
long we had a different understanding of this
2. In Bowers (1986) many justices were very old, and did not
understand homosexuality.
a. By 2003, in Lawrence, the justices have a much
different understanding of what it means to be gay
3. Lack of Reliance:
a. Kennedy did not find a lot of reliance on Bowers.
b. Scalia think there has been reliance, on both Bowers and 500 year of law,
based on notion that its courts job to protect public notions of morality
4. Societal Values:
a. Values (state laws and public perceptions of homosexuality) have changed
since powers, Roe they hadn’t changed by time Casey came along.
b. If SDP changed over time then a prior case grounded at time of different
values may be different
c. Various historical data—census data people were openly gay, corps were
giving rights to gay partners, gay adoption
d. Scalia—rejects this believes that people choose to be gay
2. Sexuality and Fundamental rights:
a. Look for things involving: marriage, child-bearing, child rearing
b. Consensual sex outside of marriage: Likely not fundamental
c. BUT rational for sodomy: interference with DP rights of individuals to control intimate choices
w/ respect to adult sexual relations.
d. Despite slippery slope arguments, somethings will stay unlawful b/c harmful: Adultery,
incest, bigamy can be struck down on harmful grounds, not moral disapproval.
IV. EQUAL PROTECTION:
14th Amendment: No state shall make or enforce any law which shall…deny to any person w/ in its jurisdiction
the equal protection of its laws.
1. Rational basis standard of review:
a. Triggered when: If a statute is not facially raced-based, does not have a discriminatory purpose or
effect then it is subject to a rational basis review. (Box 8). See e.g., Railway Express.
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b. Two step analysis: This test provides a substantial deference to the legislature and the democratic
process.
i. (1) is there a legitimate government interest:
1. virtually any state interest will be legitimate
a. Not a state interest if it is to meant to harm a specific group
ii. (2) Is this law rational related to promoting the governments interest
1. Even though state did not have any evidence and did not say why it was passing the
law court wanted to be very deferential to the state law now, in the post Lochner era.
2. Application of this standard:
a. Railway Express Agency v. New York (1949)—New York ordinance forbidding advertisements on
side of vehicle unless it is the owner was upheld as not violating the equal protection clause
i. Holding: Applied rational basis scrutiny and found the state’s interest in reducing traffic
congestion and accidents is legitimate. It was not the courts job to determine if the law is
goodonly to look to see if the means are adequate to meet the ends.
ii. OK for laws to be:
1. Under-inclusive: has to contribute to the goal trying to be achieved
2. Over-inclusive: i.e. outlawing motorcycles to reduce noise
3. Both: e.g., Beazer (policy against employing herion addicts), which included people
who are not going to relapse and does not ban other addicts.
V. Raced-Based Classifications:
 Historically:
1. Equal Protection: mean people of different races cannot be treated differently
a. Dredd-Scott v. Standford (1856): Only congress could confer citizenship (freedom from slavery),
therefore not entitled to equal protection under due process clause.
b. Strauder v. WV (1879): Overturned law preventing blacks from serving on jury.
i. Only relaxed, rational basis review when there’s discrimination based on other factors.
2. Laws that discriminate against race:
a. Strict-scrutiny: If a statute is facially raced based and facially burdens minorities, then it is
subject to strict scrcrutiny (box 1). See e.g., Strauder; Korematsu.
i. War time interment:
1. Korematsu v. U.S. (1944): detention centers established for Japanese-Americans
during WWII.
a. Holding: Applied strict scrutiny and found that the “real military dangers”
of invasion and the interest in winning the war were a compelling
government interest
b. Reasoning(criticized on fact, but not legal standard)(Black): “All
restrictions which curtail the rights of a single group are immediately
suspect, and must be subjected to strict scrutiny.”
i. The court let it stand on pressing public necessity: May sometimes
justify the existence of such restrictions
c. Dissents:
i. Murphy: Questioning the majority on both the means and ends—
law was passed out racism and racial panic and was over and under
inclusive (passes rational basis test but not strict scrutiny)
1. Over: applies to people who wouldn’t pose a threat to the
U.S.
2. Under: Does not include people who would pose a threat
to US that are not of Japanese dissent (Germans, Italians)
ii. Jackson: Majority is only upholding b/c of the war, cannot distort
the Constituion to approve military action-setting a terrible
precedent.
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1. The majority is getting caught up in the war hype and they
have to be more realistic, .e.g., “But whether or not it’s
necessary, lets not pretend it is constitutional.”
d. Arabs: Concern that this law would be apply to Arabs b/c of 911, but this
would be under a strict scrutiny test, i.e., at airports
i. This should be subject to strict scrutiny: This law would not be
narrowly tailored, over and underinclsuive, even if legitimate state
interest in safety. It would cause stigmatization. Yet precedent
would support it.
1. Would have to argue that the court would break w/
precedent in the modern application of Karematsu:
Think about how these racial issues are considered so
heinous events in our nations history, and how the gov/ has
had to make reparations.
2. Lawrence v. TX. Factual underpinning.
 Segregation:
1. Subject to Strict Scrutiny:
a. If a law is facially raced based, facially burdens minorities, does not facially benefit minorities,
but has a discriminatory purpose or effect then it is subject to strict scrutiny (box 3).
Brown;Loving.
2. Separate, but equal for blacks and whites:
a. Plessy v. Ferguson (1896): Segregation of railway cars, upheld and established the doctrine of
separate, but equal.
i. Holding: The court establishes the should be separate, but equal doctrine. The court does
not discuss a standard for review, but it appears to be rational basis.
1. The court believes that this is not political inequality, but it is social, and it is not
inequality b/c it is equal.
ii. Dissent (Harlan):
1. The color-blind constitution: This will fall just like Dredd Scott b/c the const. is
colorblind
a. Harlan rejects separate but equal—recognizes that this is putting a brand
on a class of people.
b. But Harlan, while no liking Plessy, was not a big fan of Asians and did not
want the children of Asian American immigrants becoming citizens.
3. The lead up to the Brown decision:
a. In 1922 NAACP receives funding: Large grant to try to end segregation, uses the money to
mount a massive campaign in the court
i. Members strategize politically Houston and Marshall bring cases, and chose them
carefully to attack separate but equal
1. Gaines: Law arranging for black students to attend law school out of state is not
separate but equal.
2. Sweat: Invalidated TX law that created a separate law school for blacks only
based on the schools not being equal.
b. Changes to the bench: The court was going to uphold Plessy b/c if they overturned Plessy they
wanted to make sure that the opinion would be unanimous. Justice Vinson was going to uphold
it, but he died, thank god, he was an asshole. Warren a former Gov/ of CA got on the court and
lobbied the justices to get the votes to end segregation.
4. The end of segregation/ separate but equal:
a. Brown v. Board of Education (US 1954): Invalidation of public school segregation.
i. Holding: Segregation violates the equal protection clause
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ii. Reasoning behind decision: The main factors that went into the decision was a focus on
the stigmatizing effect of segregation—the court looked to psychological studies.
iii. This was a political process argument from Caroline Products Fn. 4: Segregation
affected a discrete an insular minority, which could not look to the political process in
order to get relief and the psychological studies provided for a change in facts.( goes back
to Lawrence).
1. There is an argument that Brown was incorrectly decided b/c: there is no text
to support it, to precedent, and it is not originalist.
b. Brown reverse incorporated:
i. Boiling (1952): Segregation abolished in DC schools through due process argument
(equal protection clause of the 14th amendment does not apply to the federal
government)
1. But made a substantial due process argument: 5th amendment includes
implicit requirement for equal protection.
5. After Brown and its Progeny:
a. Don’t give to much credit to Brown: Ultimately district court judges had to give orders under
Brown II to desegregate and risked their lives in doing so
b. MLK, Jr.: The civil rights movements had to be political active during the time
c. The south still hated: Gov Wallace of Alabama—Segregation forever!
d. Civil Rights Act of 1964 pushed through by LBJ: Withheld education funds from states that
did not integrate schools.
e. Bussing: Had to push students to white schools b/c of de facto segregation
f. Still left with de facto segregation: The neighborhoods are shifting back to being segregated on
racial grounds, and there has been white flight and we are now more segregated than we were
b/f, but this type of segregation is not actionable.
g. Widespread desegregation: The court concluded in cases following Brown that segregation in
public facilities—including municipal facilities, buses, and golf courses was unconstitutional as
well.
6. Brown did not provide how desegregation should occur:
a. Brown II: The court ordered the school districts to make a prompt and reasonable start towards
full compliance with brown.
2. Busing Programs are subject to strict scrutiny:
a. Parents Involved in Community Schools (2007): Schools instating busing to make racial make
up at public schools complaint.
i. Held that judicial action was not necessary b/c Seattle’s schools were never segregated
and Kentucky had cured its segregation. Therefore the schools should stop assigning
students based on race.
ii. Strict scrutiny applies: The court struck it down under a strict scrutiny test b/c it was not
a compelling interest and not narrowly tailored
1. Not a compelling interest: Not a compelling interest b/c past discrimination in
these districts have already been remedied.
2. Diversity: Not here, race should only be one consideration among other factors
3. Not narrowly tailored: Can get benefits from less equal ratios.
iii. The plurality’s decision: Four votes endorsed the notion of a colorblind constitution
1. Rejected by Kennedy(dissent)—compelling interest exits in avoiding racial
isolation
a. Wants a middle ground btw the obligation to bring about integration and
classify students solely based on race.
 Racially Discriminatory Purpose and Effect:
1. Subject to Strict Scrutiny:
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a. If a law is facially raced based, facially burdens minorities, does not facially benefit minorities,
but has a discriminatory purpose or effect then it is subject to strict scrutiny (box 3). See e.g.,
Brown; Loving.
2. Racial Purity Laws:
a. Loving v. VA. (1967): Struck down law making interracial marriage illegal on equal protection
grounds applying strict scrutiny(according to dicta).
i. Court denies state’s justifications for the law: The purpose of the statute was based on
white supremacy, and notions of racial purity
ii. No discriminatory effect: It is a textually neutral law that harms everyone.
iii. Not an originalist opinion: Loving is not an originalist opinion.
3. Strict scrutiny always applies to racial based classifications:
a. Strict scrutiny always applies:
i. If a law is facially race-based, facially burdens minorities, does not facially benefit
minorities, but does not have a discriminatory purpose or effect then it is subject to strict
scrutiny. See e.g., Loving (dicta); Johnson.
b. Prison segregation to prevent gang violence:
i. Johnson v. CA (2004): CA raced based placements for prisoners for first 60 days for fear
of race based gang violence.
1. Applied strict scrutiny: Strict scrutiny always applies to race based
classifications, even if there is no discriminatory purpose or effect.
2. Governments burden: Under strict scrutiny the government has the burden of
proving that racial classifications are narrowly tailored measures that further
compelling governmental interests.
 Discriminatory Application of Facially Neutral Laws:
1. Subject to strict scrutiny:
a. Laws that are not facially race based, that do have a discriminatory purpose and effect are subject
to strict scrutiny(box 5). See e.g., Yick Woo.
2. Laws with discriminatory purpose and effect:
a. Yick Woo (1886): Law in SF that required permit for chinese to operate laundry facility in
wooden building—all Chinese applicants denied, but only one non-Chinese applicant was denied
i. Holding: Laws that are not facially based on race are struck reviewed under strict
scrutiny if there is a discriminatory effect and purpose.
1. Purpose of law: Through administration of the law it was shown that the effect of
the law was to keep Chinese from running laundry facilities
ii. How to show discriminatory purpose: (1) statistics—flawed?, (2)legislative history, (3)
context.
1. Only have to prove that discrimination was a motivation for the adoption of the
law.
b. Lightfoot (1960): Strikes down AL redrawing of voting boundaries excluded blacks from the
city—racial purpose and effect.
i. Court applies strict scrutiny—Strikes down the law.
 Facially Neutral Laws with no discriminatory purpose or effect:
1. Subject to rational basis review:
a. Laws that are not facially race-based, but have a discriminatory purpose, but not a discriminatory
effect are subject to rational basis review(Box 6). See e.g., Palmer.
2. Closing of swimming pools after desegregation:
a. Palmer v. Thompson (1971): MS law closes all public swimming pools after an order to
desegregate and the court upholds the law.
i. Holding: The court upheld the law under a rational basis standard of review, and the
court found that the law had no discriminatory effect b/c it effected all races equally.
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ii. Counter argument: Probably does have discriminatory effect b/c whites most likely to
have access to private pools. Stigmatizing effect for blacks knowing whites would rather
not swim at all then swim with blacks. Political process may not work b/c racial the my
override the desire to swim. (Carlene Products Fn. 4).
 Facially neutral law, no discriminatory purpose, but discriminatory effect:
1. Subject to rational basis review:
a. Laws that are not facially raced based, but have no discriminatory purpose, but have a
discriminatory effect are subject to a rational basis review (Box 7). See e.g., Davis.
2. Test where more blacks fail than whites:
a. Washington v. Davis (1976): Court upheld requirement to take an exam to be on D.C. police
force. Black applicants who failed the civil service exam brought suit b/c a higher % of blacks
failed than whites.
i. Holding: The kind of disparate impact in the case is actionable, but if there is no
discriminatory purpose the fact that it has a discriminatory effect does not matter, so
rational basis is applied.
1. Court refused to infer a discriminatory purpose from the effect like they did in
Yick Wu b/c the statistics did not persuade them. They would have to be very
compelling to do so.
a. The fact that blacks fail more than whites is not evidence of purposeful
discrimination.
2. Court does not want to apply strict scrutiny every time (the cost would be massive
social interference in all areas of society).
ii. Criticism: Discrimination is hard to show and the government can get away with
discrimination fi they hide their motives.
VI. AFFIRMATIVE ACTION:
 Level of Scrutiny:
1. Strict Scrutiny(-):
a. Laws that are facially raced based, do not facially burden but benefit minorities are subject to
strict scrutiny minus. (Box 2). See Gratz; Grutter.
2. Analysis for affirmative action cases:
a. Standard of Review: A law will be upheld if it is narrowly tailored and necessary to achieve a
compelling government interest
i. Government interest must be legitimate
1. Attainment of a diverse student body(best one to go with): is a constitutionally
permissible goal for an institution of higher educational judgment that such
diversity is essential to its educational judgment is one to which we defer. Fisher.
2. Diverse economic prospective: Helps the educational experience. Bakke.
3. Provides global competitiveness, economic growth.
4. Eases workforce/military tensions: Recruiting from mostly-white campuses
creates white CEOs and Military officers, which creates tensions between those
giving and taking orders
5. Government leadership: more diverse gov/ officals
6. Community leadership: facilitation of racial interaction.
7. Remedying past discrimination: Bakke but in Gratz they said no
ii. Narrowly tailored
1. Does not have to exhaust every alternative: Does not require that the universities
implement every race neutral alterntive. Grutter; Fisher.
2. But requires: A serious, good faith consideration of workable race neutral
alternatives that will achieve the diversity that the university seeks. Grutter;
Fisher.
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3. Narrowly tailored:
a. Considered the applicant as a whole and included multiple factors of
diversity (language skills, abroad experience, work, etc.)
i. No quota system, case by case, evaluation. Grutter
4. This is what makes it (-): It is a lower level of rigor only requiring the sate to
consider ace neutral alternatives does not require the state prove or try
alternatives.
iii. Not narrowly tailored
1. Should not be overbroad and under-inclusive: Do not what to engage in more
discrimination than would be necessary to achieve the states compelling intrest in
diversity. See Gratz.
a. Quota system is not narrowly tailored. Bakke.
b. Giving an automatic point boost to a member of a certain member of
a racial group. Gratz.
2. If a non racial approach would reach the interest then not narrowly tailored: If a
nonracial approach… could promote the substantial interest as well and at
tolerable administrative expense then the university may not consider race.
Fisher.
3. Cases:
a. Bakke v. UC Regents(1978): A University may const. consider race as one factor in its
admission process, but a quota system was unconstitutional.
b. Grutter v. Bolinger (2003): Upholds Univ. of Mich Law School denied white applicants
claiming the schools affirmative action program discriminated against her on the basis of race.
i. Applies strict scrutiny: All racial classifications imposed by the government must be
analyzed under strict scrutiny.
ii. Policy was narrowly tailored: Considered the applicant as a whole and included multiple
factors of diversity (language skills, abroad experience, work, etc.)
1. No quota system, case by case, evaluation.
c. Gratz v. Bollinger: Struck down University of Michigan undergraduate admission policy was
struck down because they gave 20 point boost to a member of a racial group.
i. Applied strict scrutiny and found law was not narrowly tailored: The court held that the
admissions system was not narrowly tailored to achieve the interest in educational
diversity that respondents claim justify their program.
d. Fisher v. Texas (2013): The Univ. of Texas had an admission policy that which took race into
account and admitted anyone who got over a certain threshold number.
i. Holding: Court upheld the policy finding that it was narrowly tailored to achieve a
government interest that has been approved by the court, achieving diversity on campus
that considers a broad array of qualifications and characteristics of which racial origin is
but a single though important element.
ii. Thomas dissent: no academic benefit to this. AA does not help minorities b/c they are
less prepared for academic rigors.
4. Policy behind affirmative action:
a. Costs of affirmative action: Dissent from Grutter.
i. Discrimination against whites, Asian-Americans:
ii. Stigma: Those who succeeded w/o affirmative action suffer b/c assumption is that blacks
are using affirmative action.
iii. Entitlement and dependency: Won’t work as hard, rely on affirmative action
iv. Racial tension: resentment by whites
v. Decreased success: Will do worse in the future if admitted on affirmative action and
scores are lower than average.
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1. Tend to have lower scores/GPAs, are not as prepared as the rest of their
classmates, so tend to get lower grades, end up with fewer opportunities
2. Self-esteem costs.
b. Judicial analyst: Should the court be more lenient to laws that are facially race based but intend
to benefit minorities?
i. Textualism: No
1. The court says that it should be strict scrutiny—a law that gives a benefit to one
race at the expense of another should be subject to higher scrutiny—does not
matter which race.
ii. Originalism: Yes
1. Historical records of reconstruction shows laws passed that provide benefits to
minorities—difference between burdening and benefitting
2. Cuts in favor of low scrutiny
iii. Political Process: no
1. The burden that the majority is imposing on itself is to benefit the minority so
judicial involvement is not necessary
iv. Precedent: maybe
1. In race discrimination case law precedent is not clear
2. Plessy does not say law is color blind, but Brown did adopt Harlan’s dissent from
Plessy.
VII. Gender Discrimination:
 Subjected to intermediate scrutiny
1. Analysis:
a. Standard of Review: A law will be upheld if it substantially related to an important government
interest
i. Must be more than just a legitimate goal for the government to pursue: court has to regard the
purpose as important, but less than compelling.
a. Intermediate Scrutiny (Plus): Requires an exceedingly pervasive justification
for gender discrimination. VMI.
2. Ends: Must be more than legitimate, but does not have to be compelling. Craig.
3. Acceptable:
a. Reflects real biological differences: The court has consistently upheld statutes
where general classifications is not invidious but rather realistically reflects
the fact that the sexes are not similarly situated in certain circumstances.
Michael M.
i. Fact patterns upheld:
1. Statutory rape law for that only punished men b/c woman could
get pregnant. Michael M.
2. Man only military draft. Rostker.
b. Law has effect but not purpose of discriminating by gender:
i. Laws have to have a discriminatory purpose not just an effect, similar
to the case Davis in the civil rights era. Feeney (1969)(hiring
preference to veterens).
4. Not acceptable: preserving adversative method of education was not compelling.
VMI.
a. Drinking age difference: Having men have an older drinking age than woman
was not sufficient on the basis that men got in more accidents. Craig.
b. Separation cannot be justified on stereotypes: The justification has to be
genuine and not a hypothesized or invented post hoc response to litigation and
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must not rely on overbroad generalizations about the different talents,
capacities or preferences of males and females. VMI.
c. Benign justifications provide no defense.
ii. Only has to be a good way to achieve the objective: but not necessarily the best way
1. Means: More than rationally related, but not narrowly tailored. Craig
a. To Survive must: Government has the burden of proof.
 Development
2. Development and case law:
a. Early cases used rational basis review:
i. Bradwell v. State (1873): Upheld law forbidding woman from practicing law in Illinois.
1. Held: that woman are inferior and that 14th Amendment privileges only apply to men
and the court stated “paramount destiny and mission of woman re to fulfill the noble
and benign offices of wife and mother. This is the law of the creator.
b. Application of intermediate scrutiny:
i. Frontiero v. Richardson (1973): Law gave the presumption to male members that heir wives
were economically reliant and because of this gave them benefits. Female members were not
entitled to the presumption and had to prove that there husbands were financially dependent.
1. Holding: The court struck the law down on a rational basis review, but in reality was
much less deferential b/c under a rational basis review it would have passed.
ii. Craig v. Boren (1976): Struck down a law allowed women to buy 3.2% beer at 18, while
men could not buy until 21 based on causal evidence that men got into more car accidents
while driving. It was notable also that men were allowed to drink it, just not buy it.
1. Court adopted intermediate scrutiny review: Classifications by gender must serve
important government objectives and must be substantially related to these objectives.
a. Ends: Must be more than legitimate, but does not have to be compelling
b. Means: More than rationally related, but not narrowly tailored.
2. The court decided not to adopt strict scrutiny: b/c gender is not a suspect class and
that sometimes differences btw the sexes is warranted.
iii. U.S. v. VA (1996) (VMI): Striking down a policy at VMI, a public all male military
academy, that denied admission to woman.
1. Court struck down the law under an intermediate scrutiny (PLUS) analysis:
a. Intermediate scrutiny plus: Require an exceedingly persuasive justification
for gender discrimination
i. State interest: (1) diversity in educational opportunities, (2) preserve
adversative method of education.
ii. The creation of VWIL is not equal: Do not get intangible benefits,
like alumni, prestige, tradition, cooperative method w/ emphasis on
self-esteem is not enough.
b. Scalia dissent: Not employing intermediate scrutiny, should decide the other
way and leave it to the political process.
i. But: Woman are under-represented.
c. This is Ginsberg’s best opinion: It chips away at governments ability to
promulgate stereotypes about men and woman, even where these stereotypes
hold true. Huge advance for woman’s rights.
iv. Michael M (1981): The court upheld a law that made statutory rape a felony for men, but not
woman.
1. Applied intermediate scrutiny: from Craig, not VMI)
a. Statute had an important government interest: Discouraging teen
pregnancy.
i. This was based on real biological difference btw men and woman.
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2. This holding is not consistent w/ post-VMI law: Court will look into the state’s true
justification and will not allows based on gender generalization.
v. Rostker v. Goldberg—Court upholds male only draft.
1. Physical difference acceptable, but stereotypes about delicacy not.
vi. Personnel Administrator MA v. Feeney (1978)—Mass law giving hiring preference to
honorable discharge veterans upheld
1. Holding: Even if a neural law has a disproportionately adverse effect upon a female
or male it is unconstitutional under the equal protection clause only if that impact can
be traced to a discriminatory purpose.
VIII. TO WHICH CATAGORIES SHOULD STRICT SCRUTINY APPLY TO:
 The current break down:
Strict Scrutiny
Intermediate Scrutiny
Rational Basis
 Race
 Sex
 Age
 Alienage
 Legitimacy
 Wealth
 Natural Origin
 Moustache
 Determining to what categories strict scrutiny should apply:
1. Originalism: Framers thought that only racial discrimination should be subjected to strict scrutiny.
2. Court won’t take this position so looks at:
a. History of discrimination against a particular group:
i. History is a proxy for what we really care about: Likelihood that a particular law was
passed out of animus prejudice
ii. This is why gender may fall in the middle: There is a long history of misogyny in this
country and many laws are passed on basis of outdated stereotypes, but there are
legitimate reason for passing these.
b. Political Process: How can the particular group protect itself in the political process?
i. Discrimination against discrete and insular minorities calls for heightened review.
1. This would include just about everyone (jugglers, plumbers, etc.)—this is justice
Jackson’s viewpoint.
2. Discrete—separate, distinct, insular, detached, isolated
3. Woman are severely underrepresented
4. These groups have systematically been on the loosing end of the political debate
and cannot look to the legislature to fix their problems.
c. Immutable characteristics: Persons discriminated against based on a characteristics that they
cannot do anything about is of special concern.
i. Burden imposed by law should have some relationship to your choices
ii. Particular concern w/ things that cannot be changed==race, alienage, natural origin
d. This is not a checklist: These are things that the court looks at holistically in each case.
IX. DISABILITY DISCRIMINATORY
 Apply Rational basis analysis:
1. This analysis:
a. Applying rational basis PLUS:
i. To not be struck down as violating the equal protection clause the legislation that
distinguishes between the mentally retarded and others must be rationally related to a
government purpose. Cleburne.
1. Rational basis, with a bite: A bit stricter than rational basis
a. Court is less trustful of political purpose
b. Concerned about more prejudice against the mentally retarded
2. Government purposes are allowed to help the mentally retarded:
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a. Measures that are not necessarily the product of animus and stereotype:
States have a legitimate interest in giving special treatment to the mentally
retarded (this is why we do not have heighted scrutiny). Cleburne.
3. Government purposes that were found not to be acceptable in Cleburne:
a. Fear of negative views of residents in the area: The court said negative
attitude, unsubstantiated fears cannot be basis.
b. Fear of harassment of them by nearby high school: Court said no
justification, mentally handicapped people go to the school.
c. Land where home is going to built is located on a flood plane: Court said
this excuse would be relevant to any kind of residence, but they had hospitals
and other houses there.
d. Afraid of legal responsibility that would come from this home: Fraternity
house would pose same legal obligations..
e. Though the size of the home was not appropriate for the neighborhood:
But again, hospital etc would be ok in this instance.
2. Precedent:
a. Cleburne v. Cleburne Living Center (1985): Throwing out on equal protection grounds a city
ordinance required that a group home for the mentally retarded to get a permit to operate in areas
where other groups would not need the permit.
i. Court Applied rational basis PLUS: The court found heightened scrutiny is not necessary, b/c
special treatment sometimes ha to be given to the mentally retarded.
ii. Reasoning: The majority decided to not give this analysis strict scrutiny:
1. Immutable characteristics: Yes, this leans towards heightened scrutiny
2. Political process: Most cannot do this, but society rallies on their behalf
3. History of discrimination: Huge history of shameful discrimination in this country,
and this goes towards heightened scrutiny.
4. BUT, in light of all the legislation these laws aren’t passed out of malice: Treating
them the same, in schools etc., would be more malicious.
a. This is just realizing the reality of the situation.
IX. SEXUAL ORIENTATION DISCRIMINATION
 Analysis:
1. Rational Basis review:
a. Rational Basis Review: If a law classifies a person, the court holds that the law must bear a
rational legislative purpose to a legislative end. Romer (struck down laws stripping gays of being
able to sue for certain discrimination in CO).
i. A law will be upheld if it is rationally related to a legitimate government interest.
1. Legitimate government interest: The state’s goal does not need to be the actual
purpose—any conceivable legitimate purpose is sufficient.
a. Possible government interest proffered against gay marriage:
i. Preserving the traditional institute of marriage:
1. Alito’s dissent in Windsor: Marriage should be btw a man
and a woman b/c it solemnizes a relationship that is
important to producing new life.
ii. Protecting children from being raised in non-traditional or
ideal household environments:
1. Protecting children who are born in the traditional house
holds
iii. Encouraging Procreation: Want them to have children and bring
them into the world
iv. Provide uniformity under state laws: Defining marriage under
DOMA provided uniformity in state laws. Windsor.
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b. Laws strips gays of specific legal protections are illegitimate:
i. Conserving resources to fight against other groups being
discriminated: Cannot say that this analysis is inline with RB
review b/c the court has never cared if a law is over or under
inclusive for RB. Romer.
ii. Puts gays on equal protection as other people: Court says this is
just discrimination. Romer.
iii. Respect of freedom of association, i.e., don’t like gays so can
discriminate against them: Court rejects this as just
discriminatory. Romer.
c. Arguments why these interest are illegitimate:
i. State’s interest is illegitimate: protect illegal sex, oppress gays
and lesbians, codify moral disapproval, protect children based off
of prejudice.
d. These should be compared in to the interracial marriage cases b/c some of
the proffered interests are the same.
i. Loving: It is a fundamental right to sex and intimacy, there is a
fundamental right to marry whoever you want.
2. Rationally related: Means just need to be a reasonable way to accomplish the
objective
3. Do “should this be strict scrutiny?” analysis. Caroline Products.
a. Discrete and insular?: No
b. Protect themselves in the political process: They can protect themselves
and have become a very powerful interest group.
c. History of discrimination: Yes
d. Immutible: debatable, but most likely Yes.
ii. Cannot disadvantage a group:
1. By requiring that the classification bear a rational relationship to an independent
and legitimate end, we ensure that classifications are not draw from the purpose of
disadvantaging the group burdened by the laws.
 Development of Sexual Orientation Discrimination Doctrine:
1. Laws that do not let any branch’s actions protecting gays and lesbian are unconstitutional:
a. Romers v. Evans (1996): the court strikes down a statute that CO adopted that explicitly
prohibited executive, legislative, or judicial protection of gays.
i. Court struck down law under rational basis review: The court says that there is no
legitimate interest being served, means were not rationally interest of putting gays and
lesbians on the same level as everyone else.
ii. Court views it as a per se violation of the equal protection clause: Cannot apply standard
doctrinal analysis b/c taking a group and denying them rights categorically and precludes
them form seeking protection from legislature and the courts. (Per Se Violation of Equal
Protection).
iii. Dissent (Scalia): Court is choosing gay rights side of the political debate and this is
political activism.
b. United States v. Windsor (2013): Struck down DOMA which defines gay marriage as only as a
heterosexual union in all federal statutes.
i. Court strikes it down: Kennedy discounts government interest and says that this is a bare
desire to harm a politically unpopular group and express moral disapproval of
homosexuals. Does not address level of scrutiny.
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X. FREEDOM OF EXPRESSION
 Introduction:
1. The 1st Amendment: Congress shall make no law abridging the freedom of speech, or of the press.
a. Protects speech, but not all speech is protected: Political speech is protected, yet perjury and
bribery are not and certain categories that are listed below.
2. Deciding what the 1st Amend Means:
a. Textualism:
i. Congress shall make no law: but have applied to other political branches and officers and
has been incorporated against the states.
ii. Freedom of Speech: But also applies to signs, letters, etc.
iii. So textualism does not play a part: there is no strict textualism in the analysis.
b. Originalism:
i. Abridge sets a historical baseline: Congress cannot pass a law which seems to take away
that which we understand to be freedom of speech
1. Framers had extremely narrow view of speech Would only apply to prior
restraints and punish after fact
c. Precedent: Evolving case law show where the line btw excluded and included speech has been
developing—the precedent mostly shows that it has been liberalizing.
 Incitement:
1. Analysis for Incitement:
a. Test: Speech must be directed to inciting imminent or lawless action AND have the effect of
being able to do so:
i. Requires:
1. Direct: Ahs to expressly on its face call for people to commit lawless acts
(intention)
2. Imminent: Action is going to take place soon
3. Likely: Harm will occur unless state does something to prevent the speech.
Brandenburg v. Ohio.
2. Has changed over different stages of history:
a. Incitement during WWI:
i. Espionage Act: Prohibited the giving of speeches or circulating pamphlets opposing
WWI, showing criticism of the draft or encouraging people to violate the draft
ii. The bad tendency test:
1. Schenk v. U.S. (1919)(Holmes): Court upheld conviction of person circulating
leaflet representing views of socialist party claiming that the draft is
unconstitutional and encouraging people to assert their rights and oppose the
draft.
a. The clear and present danger test adopted: The question in every case is
whether ht words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about
the substantive evils that congress has a right to prevent.
i. Under this test Congress could prevent insubordination during war
time.
b. Court really used a bad tendency test:
i. As long as it has the tendency to cause harm, speech can be
suppressed
ii. Pamphlet is not like yelling fire in a crowded theater later
includes immediate reaction, former only gives the option to react
(not immediate).
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2. Frohwerk v. U.S. (1919) (Holmes): Prison sentence for author of several
newspaper articles that condemn U.S. participation in war and praise Germans.
a. Incitement message does not have to meet anyone: It is not necessary that
it reaches anyone, but it is enough that it kindled a flame and that the fact
was known and relied upon by those who sent out the papers
3. Debs v. U.S. (1919) (Holmes): Upheld conviction. Government threw commie
party leader Debs into jail for speech that was critical of the government. But
never criticized the draft.
a. The court upholds the conviction: Debs by saying that he opposed all war,
provided speech designed to bring about opposition to the draft.
b. Test: Does the speech have a natural tendency to bring about harm
i. Court does not use the clear and present danger test
iii. Clear and present danger test:
1. Abrams v. US (1919): Court found it to be a clear and present danger where
Russian immigrants handing out fliers that supported the Russian commie
revolution. Wanted the U.S. to encourage workers form stopping the use of
ammunitions against the revolutionary
a. Holmes: Applying the clear and present danger test should produce a
different result b/c the test should focus on immediacy
i. Holmes thinks that his test b/f was too restrictive.
b. The market place of ideas: The best way to remedy bad speech is good
speech, not censorship
i. Critiques of this point of view:
1. Internal contradiction: Theory’s goal is truth yet posits
we can never know truth so we must keep looking
2. Market failure: No equal access to the market of ideas.
The “market place” of ideas is distorted by the economic
reality that dissenting or minority viewpoints do not have a
fair chance (media conglomerates).
3. Self-fulfilling: The dominant idea is the truthful one (b/c
won).
a. This assumes that people are rational and can
eliminate untruthful speech
iv. Learned Hand’s Test:
1. Masses Publishing Co. v. Patten (D. Ny 1917): Conviction overturned.
Prosecuted for publishing political cartoons critical of the war in Europe in a
magazine that praised conscious objectors.
a. Test: Do words urge others that its their duty or in their interest to take a
certain action?
i. Dissent can incite, but in a free country it is necessary for the
exchange of ideas.
b. Incitement During Red Scare:
i. Gitlow v. NY (1925): Upheld conviction for publishing of the left wing manifesto.
1. Abandons the clear and present danger test: Under police power, state may
validity forbid speech and public if they have a tendency toe result in action
danger to public security even though utterances presents no clear and present
danger
a. Theory is that it is a legislative judgment that this kind of speech is a clear
and present danger: Confident that this kind of speech that presents a
danger b/c the legislature has said it does and therefore falls outside the
scope of protected speech.
22
i. This deferential treatment is RB review—gives the government
unfettered authority to suppress individual freedom.
2. Holmes Dissenting: Reiterates the market place of ideas, but goes back to the
clear and present danger test and states that the conviction should not be upheld.
ii. Whitney v. CA (1927): Organizer of a radical communist party was convicted under a
criminal syndicalism statute, even though violent and unlawful tactics were not intended
1. Upholds convictions: The court sees a clear and present danger here and defers
to the legislature.
2. Brandeis concurrence/dissent: There has to be a reasonable believe that the
gander is imminent and the danger must be serious
a. Court should not be deferring to the legislative judgment need criticism
of government
b. Concurred b/c D had not raised the appropriate constitutional claims.
c. Incitement after WWII:
i. Dennis v. U.S. (1951 Plurality): Upholds conviction involved arrest and prosecution of all
leaders of U.S. Communist party who violated Smith Act.
1. Modified version of the clear and present danger test: Whether the gravity of
the evil, discounter by its improbability, justifies such invasion of free speech as
is necessary to avoid the danger.
a. No longer require danger be clear or present: Suppress speech when
benefits outweigh the costs
b. Evil is so great that even a small, non-imminent chance of success
justified conviction: This is a balancing test.
2. Concurrence, Frankfurter: Court should defer to the legislature
3. Douglas dissent: adopts market place of ideas rhetoric.
d. Modern Test:
i. Brandenburg v. Ohio: KKK leader violated statute making it a crime to use violence to
get political reform: He gathered a bunch of white people on his farm, burned a cross and
gave a speech about how they might have to take revenge.
1. Test: Speech must be directed to inciting imminent or lawless action AND
have the effect of being able to do so:
a. Requires:
i. Direct: has to expressly on its face call for people to commit
lawless acts (intention)
ii. Imminent: Action is going to take place soon
iii. Likely: Harm will occur unless state does something to prevent the
speech
2. Policy:
a. Pros: Extremely protective of speech, better test for times of crisis where
danger is often overestimated, allowing more speech is better.
b. Cons: Still allows for punishment of political speech, does not include a
serious requirement, people need to be allowed to advocate for a new
system of government.
c. Internet concerns: Can reach more people, easily turn radically thought
into action creates a greater threat.
Schenck
Holmes/Brandies Hand: Masses
Dennis/ Yates
Brandenburg
Directed(speaker No
No
Yes
Yes
Yes
intent)
Harm Imminent No
Yes
No
No
Yes
Harm Likely
No
Sort of clear and No
No
Yes
23
present danger
Yes
Harm Serious
No
no
Yes
Does not say
 Fighting words and Profanity:
1. Analysis:
a. Test:
i. What is a fighting word or a hostile Audience:
1. Fighting Word:
a. Speech that is directed at another and is likely to provoke a violent
response
2. Hostile Audience:
a. Speech punishable because of the reaction of the audience
ii. Test:
1. 1. Where it is likely to cause a violent response against the speaker(Chip), AND
a. Has to be directed towards 1 person(Cohen)
2. 2. Where it is an insult likely to inflict immediate emotional harm.(Chip)
b. Fighting words defined: “Fighting words” those personally abusive epithets which, when
addressed personally abusive epithets which when addressed to the ordinary citizen, are, as a
matter of common, knowledge, inherently likely to provoke violent reaction. Cohen.
c. Has to be directed towards someone: Must be directed towards a certain person. Cohen.
i. More so if person cannot avert their eyes: If the person cannot escape the speech, it is
more likely that it will be considered to be fighting words. Cohen.
d. But cannot be punished for the content of speech: Can be prosecuted if you speak or make a
disturbance in a certain place, but cannot be prosecuted for the content of your speech—the court
is concerned about chilling free speech. Cohen.
e. The idea is that this speech has no value: It has been well observed that such utterances are not
essential part of any exposition of ideas, and are of such slight social value as a step to truth that
any benefit that may be derived from them is clearly outweighed by the social interest in order
and morality. Chaplinsky.
f. Note that conviction has not been upheld since Chaplinsky: So on the exam, speech may be
considered to be fighting words, yet unlikely to be prosecuted.
2. Background:
a. Chiplinsky v. NH (1942): Jehovah’s witness distributes literature for his religion on the street
corner and gave a speech denouncing other religions as a “racket, ” called the a cop a racketeer
and a fascist.
i. Court found that these types of fighting words were not protected: These types of fighting
words were outside the protection of the first amendment.
1. Came up with balancing tests that becomes the main policy for the
subsequent areas of speech that fall outside of freedom of speech: Speech that
does not contribute to the market place of ideas:
a. Balancing test:
i. Takes a category of speech as a whole and conducts a cost/benefits
analysis.
ii. If the speech causes great harm and has very little value it can be
suppressed.
b. Still valid law today, but court has not upheld fighting words since
conviction
b. Cohen v. CA(1917)(Profanity/Fighting words): Jacket says “fuck the draft” worn in
courthouse—convicted under statute that “prohibits maliciously and willfully disturbing the
peace or quiet of any neighborhood or person by offensive conduct:
i. Overturns conviction:
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1. The Government cannot ban speech just b/c it’s offense—has to be likely to
incite lawlessness and violence.
ii. Reasoning:
1. Not fighting words b/c not directors at anyone in particular: Only
individualized insults can be classified as fighting words.
2. Broadcasting a message: Contributing to the marketplace of ideas:
a. There is an emotive value to words—PROFANITY can contribute to
society, not outside the 1st amendment protection
3. Difference between public forum and privacy in the home: Further
bombardment can be avoided by averting the eyes or walking away.
a. Cannot let the prude censor the rest of society
4. Everyone has a different definition of what is vulgar: since it is a hard line to
draw the court does not draw the line.
a. One mans vulgarity is another mans lyric
5. Concerned w/ prosecuting the messenger behind profanity: Do not want to be
a gov/ censor…if said fuck communism he probably would not be arrested.
 Defamation:
1. Analysis:
a. Defamation:
i. Public official(includes actors, politicians, etc.)/public concern: voluntary public
employee where the public has an interest in the way in which he is doing is job-NYTimes
1. Must show actual malice: Had the knowledge that it was false, or w/ reckless
disregard tow ether or not it was false.
a. Plaintiffs burden: Must establish w/ clear and convincing evidence both
falsity and malice.
ii. Public official/private concern: This category does not really exist
1. Same as above
iii. Private individual/public concern:
1. Negligence standard: Burden of proof is on the plaintiff to show falsity and
negligence but no actual malice requirement. Gertz v. Weclh.
iv. Private individual/private concern: 1st amend does not apply
1. Common law rules: states can choose rules w/o impediment to free speech.
b. Rules apply to IIED:
i. Have to show that the publication acted with actual malice: that it contains a false
statement of fact published either with knowledge that the statement was false or with
reckless disregard as to whether it was true. Falwell.
ii. Satire and parody are allowed: They are protected.
iii. Should look at the form, content, and context of speech to determine whether or not
its protected: Phelps.
2. Policy:
a. Marketplace of ideas: errors happen in reporting and political discourse, and there must be
some breathing room for free speech to cover things that may be false
b. Strike balance between: (1) public official’s interest in reputation, and (2) freedom of speech
c. Idea is famous people can better protect themselves: than normal people so higher standard
 Obscenity:
1. Analysis:
a. Three part Miller test:
i. (1) Whether an average person apply contemporary community standards would find that
the work take as a whole, appeals to prurient interest (sex) (Roth)
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ii. (2) Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law (and)
1. (a)based on individual community standards
2. (b) has to turn you on and turn you off at the same time.
iii. (3) Whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific value.
1. Based on a national/objective standard
b. See if meets the Brandenburg test.
c. Internet porn: Government cannot prosecute you for watching porn, but can prosecute you for
watching internet porn
2. Development:
a. Roth v. U.S.(no longer good law): Publisher and mail order company convicted under federal
and state statutes for mailing obscenity, lewdly keeping indecent books, and publishing obscene
ad.
i. Upheld conviction: Obscenity is categorically outside the protections of free speech
1. Reasons:(1) utterly w/o redeeming social importance, (2) does not contribute to
fundamental values, (3) do not contribute to the market place of ideas.
ii. Alleged interests being protected by the government:
1. Thought control: do not think lustful thoughts
2. Protect people from being offended: Problematic after Cohen—can look away
3. Protect children from being harmed: allowing child standard to dictate what is
appropriate in adult society—treat sex differently than other harmful things
4. Protect society’s morals: primary reason
a. SDP cases said morality is not a justification or regulation (Lawrence
b. Government cannot ban a novel advocating anti-marriage lifestyle, but can
ban porn
i. Difference between intellectual argument about eroding morality
and something that erodes morality more subtly.
1. Pornography deserves less protection
b. American Booksellers Ass’n v. Hudnut (7th Cir. 1985) (Easterbrook): Porn shop charged with
selling porn that was demeaning to woman.
i. Holding: A state may not declare one perspective (proper role of women) right and
silence the prospective of another (violent porn)
1. Goes back to the market place of ideas:
ii. Cannot be suppressed no matter how deplorable unless it meets the Brandenburg test.
c. Miller v. California: Mail distributor of unsolicited material prosecuted by main prosecuted
under anti-obscenity laws
i. Test above
ii. Brennan’s dissent: Obscene materials are outside the scope of the 1st amendment, but
impossible for the court to articulate a fair test of what’s obscene—therefore the court
shouldn’t be involved
iii. Policy:
1. Arguments for:
a. When trying to protect moral values, test has be non-centralized
b. Standards vary widely, and no national standard exists
2. Arguments against:
a. No notice
b. Different standards mean more speech in some areas and less speech in
other areas
c. Problem w/ the internet era—which community’s standards apply?
d. Lack serious value—what is objectively good and what is objectively bad
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 Child Pornography
1. Analysis
a. All categories of child pornography is outside of the protection of the first amendment:
i. The nature of the harm to be combated requires that the state offense be limited to
limited to works that visually depicts sexual conduct by children below a specified
age. Ferber.
b. Differs form miller test:
i. (1) Do not need to show by a trier of fact that it appeals to the prurient interest
ii. (2) Nor does it need to be an offensive matter
iii. (3) Nor does it need to be considered at a whole.
c. Does not include simulated pornography: Cannot ban child porn unless it actually involves
children—adults acting as children and computer generated material is acceptable b/c
children are not being harmed. Free Speech Coalition.
2. Precedent:
a. New York v. Ferber (1982): Upheld ban on distribution of materials showing children
engaging in sexual conduct even though materially was not legally obscene.
i. Statute constitutional: All child porn is outside of the first amendment protection
1. Defined more broadly than just obscene materials, does not have to lack
serious value or be offensive and possession is a crime.
ii. Rationale: (1) harm to children in making child porn (mental and physical) greatly
outweighs the minor social value—Chaplinsky analysis (2) different from adult porn
where consenting adults are involved, and (3) allowing selling and purchasing
encourages production.
b. Ashcroft v. Free Speech Coalition (1988): Overturned Child Pornography Prevention Act
that prohibited virtual depictions of child pornography.
i. Cannot ban child porn unless it actually involves child porn: adults acting as children
and computer generated material is acceptable b/c children are not being harmed.
ii. Brandenburg: Tendency that speech will lead people to go out and cause him harm to
children is not enough.
 Content-Based Restriction:
1. Analysis:
a. Defining content based restrictions: Prohibiting speech based on the content of the speech.
i. This would not be triggered where: Speech is regulated due to the place, volume, or
where the speech is made, so can still can regulate noise and location
b. Content based restrictions to speech are subject to strict scrutiny: The government may
enforce content based restriction in a public forum only if the regulation is necessary to serve
a compelling state interest and the regulation is narrowly tailored to meet that end. Stevens.
i. Government interest
1. Compelling interest:
a. The main issue is whether the speech is being regulated based on
content or based on how it is being delivered.
b. There is a legitimate interest in protecting citizens from unwelcome
noise.Ward.
c. There is a legitimate interest in trying to protect the privacy of ones
home. Ward.
2. Not compelling:
a. Could not regulate depictions of cruelty against animals. Stevens.
ii. Narrowly tailored
1. If regulate based on noise/how delivered: Must leave ample alternative
channels for communication of information.
27
2. Precedent/development:
a. U.S. v. Stevens (2009):Holds unconstitutional prohibition against selling video of illegal dog
fighting videos under statute prohibiting the selling of crush videos
i. This is protected speech: Depictions of animal cruelty aren’t categorically
unprotected by first amendment.
b. Ward v. Rock Against Racism (1988): Upheld ordinance in NYC mandated use of city
provided sound system for concerned in Central park b/c of noise complaints.
i. Provided deference to city government: deferred to governments interest in
maintaining order.
ii. Found that the provision was narrowly tailored: As long as the means chosen are not
substantially broader than necessary to achieve the governments interest a regulation
will not be invalidated b/c a court concludes that the governments interest could be
adequately served by some less speech-restrictive alternative.
 Symbolic Speech:
1. Analysis:
a. Symbolic speech: Two part test to determine whether speech is symbolic:
i. (1) you engaged in conduct to display a particular message
ii. (2) Have to have the people that watched the conduct under stand that you conveyed
the message.
b. When does the law apply: When the speech that the government is suppressing has a
viewpoint and is not viewpoint neutral. Johnson.
i. OK if it is a time, place, and manner restriction.
c. O’Brien test applies to statutes that seek to inhibit expression (intermediate scrutiny). It
is justified where:
i. (1) It is within the constitutional power of the government
1. This is not really a prong
ii. (2) If it furthers an important or substantial government interest
1. Acceptable:
a. When the government interest in unrelated to the suppression of free
expression, i.e., the content then it is not constitutional
2. Not acceptable:
a. Ideas, such as flag burning where the speech is political in purpose
b. Cannot say how people should feel about the flag
iii. (3)Governmental interest is unrelated to the suppression of free expression (AND)
1. The law must be content neutral, and the purpose cannot be to suppress speech
2. Do not look at legislative history or actual reason—only look at stated reason.
iv. (4)Incidental restriction of 1st Amendment freedoms no greater than essential to the
furtherance of that interest
1. Means—is the language closely tailored to the government interest
2. This is the language of strict scrutiny but the court is not applying it.
2. Development:
a. United States v. O’Brien (1968): Upheld conviction of person draft card during Vietnam,
under a statute that made it illegal to destroy/mutilate a draft card.
i. Develops the O’Bien test
b. TX v. Johnson (1989): Protestor burns American flag and is arrested during the protect, and
is convicted under the Texas law and court applies the O’Brien test and upholds it.
 Hate Speech
1. Analysis:
a. Standard of review: strict scrutiny
28
b. RAV v. City of St Paul (1992): Government can only engage in content-based discrimination
in areas outside of protection when the basis for the content-discrimination consists entirely
of the reasons that the entire class of speech is banned (obscene material, dangerous threats).
c. Cannot discriminate against subclasses of speech: Hate speech cannot be suppressed as
fighting words, at least under as statute that carves out only certain subsets of fighting words.
i. (1) Most hate speech isn’t even fighting words so if made a broad fighting words
statute probably would not cover a lot of hate speech
ii. (2) Some speech can be regulated as threats
iii. (3) Can you ban hate speech itself
1. Some universities have this in its code, but is it constitutional
a. Chaplinsky—hate speech has no value and any benefit outweighed by
costs
i. Problem is that the court does not want to create any new
categories
d. Hate speech in a form of a threat is not protected: VA v. Black.
e. Takeaway: If hate speech does not fall with in threats, incitement, or fighting words, then it
falls with in the first amendment protections.
i. Government not creating new categories of restricted speech.
2. Development and policy:
a. RAV v. City of St. Paul (1992): Overturned teenager’s conviction under a bias-motivated
crime law of burning a cross on the lawn of a black family’s home to send a message, statute
banned race, color, creed, religion or gender (banned bias speech).
i. Court found law not narrowly tailored: Only targeted a subset of speech, and not an
entire category of speech.
ii. Criticism:
1. How can a law be struck down by the first amendment if its outside its
scope: All speech is speech, but the farter you go the more the gov can
regulate.
iii. Chaplinsky: This reinterprets Chiplinsky as an in and out exceptions type test.
XI. THE RELIGIOUS CLAUSE
 Free Exercise Clause Overview:
1. “Congress shall make no law respecting or prohibiting the free exercise of religion”
a. Text: Makes it appear as if it is aimed at speech, which just has a discriminatory effect
b. History: Can look at legislative history to see if it has a discriminatory purpose
c. Strict Scrutiny: If a law is intended to discriminate against a specific religion it is subject to
strict scrutiny.
 Facially Neutral, but with a Discriminatory Purpose:
1. Analysis:
a. Strict scrutiny: Government action that affects religion will be subjected to rigorous scrutiny
unless the government act is both (1) neutral and (2) of general applicability
i. (1) Not Neutral: If the law is enacted for the purpose of disfavoring a particular religious
practice (look at legislative history, circumstances, intent of law)
1. Example: In Lukumi, the city council in meetings expressed that they wanted to
keep the Santeria religion practices out b/c they were sinners.
ii. (2) Not generally applicable: Under inclusive, only targets one religion
1. Example: In Lukumi, it only targeted ritualistic sacrifices.
2. Precedent:
a. Church of the Lukumi Babulu Aye v. City of Hialeah (1993): The court struck down as a
violation of the establishment clause city ordinances that would have made it difficult for
members of the church to conduct ritualistic sacrifices.
29
i. Holding: The court applied strict scrutiny striking down the law and looked at the
legislative history finding out that it had a discriminatory purpose.
 Neutral Laws Adversely Affecting Religion
1. Analysis:
a. If a generally applicable law has the incidental effect of burdening the free exercise of
religion the law is NOT in violation of the first Amendment: Smith.
i. The strict scrutiny test does not apply
1. Strict scrutiny only Applies in isolated circumstances:
a. Unemployment benefits hinging on forgoing a religious holiday. Sherbert
v. Verner.
b. Amish family not wanting to send child to public school b/c against their
faith. Yoder.
b. Law has to discriminate intentionally or facially against religion in order to be violation of
the free exercise clause. Smith.
i. Only certain classes are still subject to strict scrutiny.
2. Precedent:
a. Old Rule: When law is facially neutral but ends up having a discriminatory effect on a religions
group, the failure to provide an exception to religious adherents is subject to strict scrutiny.
b. Sherbert v. Verner (1963): Forced benefits to be provided to Sherbert was a 7th day Adventist
who could not find work b/c she could not work on Sat., was denied unemployment benefits b/c
they would not offer it to people who refused to work.
i. Applied: Strict scrutiny—compelling state interest/narrowly tailored
1. State has a compelling interest in giving out unemployment benefits and avoid
fraud, but not narrowly tailored b/c do not provide exceptions.
c. WI v. Yoder (1972): Overturned conviction of Amish family that did not want to send their
children to public b/c of their Amish religious beliefs.
i. Reasoning: Does not survive strict scrutiny, infringes on the rights of parents to bring up
their children and violates free exercises clause.
d. New Rule:
i. Employment Division v. Smith (1990) (Scalia, J.): Upheld denial of unemployment
benefits to Smith who was fired for using Peyote as part of his religious beliefs.
1. See rule above in analysis section
2. Justifications:
a. Not precedent, textual or historical:
i. Not an originalist opinion (rare for Scalia)
b. Need rules, not standards: Rejects balancing test, gives too much power
c. Political process: Judiciary does not need to intervene, Americans cherish
religious freedom.
i. Dissent rejects this: Concern w/ protecting minorities (Carolene
FN 4), reason the dissent rejects lower scrutiny.
d. Anarchy justification: If we had to give exemptions to everyone who said
their religion precluded them from following a law, there would be chaos.
IX. THE ESTABLISHMENT CLAUSE
 Overview:
1. Not a clear doctrine developed: Least successful area of court to establish a clear doctrine of
establishment jurisprudence.
2. Establishment clause: Congress shall make no law respecting an establishment of religion
30
3.
Competing theories:
a. Strict Separation:
i. Government and religion should be separated to the greatest extent possible
ii. Necessary to protect religious liberty: Keep political hands and $ out of religion
iii. Problems: Complete prohibition of gov/ assistance to religion would threaten free
exercise of religion, traditional role for religion in gov/
b. Neutrality theory:
i. Government must be neutral toward religion
c. Accommodation/Equality:
i. The court should interpret the Establishment Clause to recognize the importance of
religion in society and accommodate its presence in government.
ii. Violates Establishment Clause only if it literally established a church, coerces religions
participation, or favors one religion over another.
iii. Best reflects importance of religion in society but little will violate the clause.
d. Lemon Test: If the law is not discriminatory, then the court applies a 3-part test
i. Test:
1. The statute must have a secular, legislative purpose
2. Its principal or primary effect must be one that neither advances nor inhibits
religion
3. Statute must not foster an excessive government entanglement w/ religion
 Religious Prayer and Instruction in Public School
1. Analysis:
a. Court mainly uses the COERCION test and ENDORSEMENT test:
i. Coercion test:
1. Violation of the students are coerced to pray,
2. Legal coercion even if not forced to attend graduation
3. Peer pressure by government to attend religious ceremony. Lee.
a. Application:
i. Graduation
ii. Football games
ii. Endorsement Test:
1. Endorsement of religion and god. Lee. O’Connor’s approach.
2. Precedent:
a. Engel v. Vitale (1961): NY voluntarily nondenominational prayer—approved religion and
wrote the prayer—struck down.
b. Wallace v. Jaffree (1984): AL teachers led prayers—secular purpose test” endorsed religion,
struck down.
c. Zorach v. Clauson (1952): Sending students out for religious instruction
i. Upheld
ii. Justifications: Accommodating religion, not using government funds or resources/
iii. Factors: Force, coercion, use of facilities, use of resources, neutrality, engaging in
religion, endorsement.
d. Lee v. Weisman (1992): Public schools invited outside clergy member to give prayer at
graduation to solemnize the event.
i. Prayer uncosnt. b/c of coercion.
ii. Scalia Dissent: Framers endorsed religion
 Prohibiting Teaching Evolution in Public Schools
1. Analysis:
a. Cannot prohibit teaching evolution in public schools: Epperson
b. Lemon Test: If the law is not discriminatory, then the court applies a 3-part test
31
i. Test:
1. The statute must have a secular, legislative purpose
a. Evolution fails this prong: b/c it is prohibiting teaching of evolution is
meant to have the students hear a religious view and discredit evoltuion.
Aguillard.
2. Its principal or primary effect must be one that neither advances nor inhibits
religion
3. Statute must not foster an excessive government entanglement w/ religion
2. Precedent:
a. Edwards v. Aguillard (1987): Overturned the Creationism act that said if you teach evolution
have to also teach rationalism.
i. This failed the first prong of the lemon test as stated above.
ii. Scalia Dissent: abandon purpose prong of the test, never look at legislative purpose.
 Religious Symbols in Public Areas:
1. Analysis:
a. Grandfathering exception: This is an originalist argument that if it existed at the beginning
(first Congress with Framers), it does not violate the constitution. Marsh.
i. Been applied to: Opening legislatives day with prayer, religious symbols in Supreme
Court building. Marsh.
b. Lemon test will sometimes apply. Lynch.
c. Two Plastic Reindeer Next to Jesus Rule: Must endorse tolerance and not religion—nativity
scene alone conveys symbolic endorsement of Christianity—but when it is accompanied with
other secular symbols it is ok. Allegheny.
i. Been applied to: Cretes in public places and upheld
d. Endorsement test:
i. Test:
1. Did the government intend to endorse religion?
2. Does the statute have the effect of endorsing religion?
ii. Look at the display as a whole and ask:
1. Whether a reasonable person would find that it was violate—more about
perception than reality. Lynch.
a. Reasonable person:
i. Never tells you what a reasonable person is
iii. Applied to: Upheld Crete’s in public places, but probably not the pledge of allegiance
e. “One nation under god” and “in god we trust:”
i. Court has ducked the issue, claiming lack of standing
ii. Probably fails the lemon test-non secular purpose
iii. Probably fails Weisman coercion test—mandatory in school setting
iv. Grandfathering—cannot apply b/c it was added in 1950s
v. 9th Circuit—rejected the pledge
vi. Ceremonial deism—the court will uphold and treat as const. b/c it is mundane
background of society that no longer conveys religious endorsement.
 Ten Commandment Cases:
1. Analysis:
a. The does it offend the sensibilities of Justice Stephen Breyer test: If something was erected a
long time ago for a secular purpose and is not challenged until recently, it can stay up
i. However: If it is erected recently in a climate of divisiveness, then it must come down.
Van Orden.
b. Make note that this test will not last and comment: What will happen when Breyer leaves?
2. Precedent:
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a. McCreary County v. ACLU (2005): Forced the taking down of ten commandments in the court
house when the defendant added other items to it.
i. Struck down as religions:
1. It had a blatant religious purpose and this was confirmed by legislative history
ii. Scalia: Symbolism cases are stupid—yes the gov endorses, but that’s fine.
b. Van Orden (2005): Ten commandments monument on the ground of Texas capital w/ giant letter
w/ full text is ok.
i. The plurality upheld it: on grounds that it was part of the traditions and acknowledging
the role of religion in TX.
 Use of Public Money to Fund Religion( school Vouchers):
1. Analysis(Vouchers):
a. Neutrality test: Have to be neutral
b. Under the Lemon test usually ok as long as the money is given to the individual and not
directly the institution
i. The Lemon test:
1. The statute must have a secular, legislative purpose—secular in a genuine
effort to try and solve the education problem
2. Its principal or primary effect must be one that neither advances nor inhibits
religion—No interaction btw state and religious institution.
3. Statute must not foster an excessive government entanglement w/ religion
a. Money does not go directly to the choice b/c of a intervening choice of a
3rd party
b. So any advancement of religion is not made by the gov. Zelman.
c. Would also survive endorsement test: b/c no reasonable person would think that a voucher
program is an endorsement of religion.
2. Analysis (Scholarship that prohibits attending religious institution):
a. The state has an interest in avoiding excessive entanglement:
i. Just b/c establishment clause does not forbid a state from including religious instruction
w/ in the scope of generally applicable state funding programs, it does not preclude states
from making a different choice. Locke.(was against state’s const. to give funding to
religious institution).
b. States can choose btw separation and neutrality:
i. Act to the preference that is more important to them
ii. States has a compelling interest in preserving this separation
iii. Here treating religion and non-religion differently but not sanctioning one over another or
harming one, just not extending benefits.
3. Precedent:
a. Zelman (2002): Upheld school vouchers when money is given to the students
b. Locke (2004): Upheld scholarship that prohibited student from being able to attend a religious
intuition.
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