Constitutional Law II Outline
State Action
14th Amendment History
14th Privileges and Immunities
14th Amendment EP & 5th Amendment DPC
-Levels of scrutiny
-Classifications including race, gender, alienage, sexual orientation
-Infringement of fundamental rights such right to travel, vote, etc.)
First Amendment: Religion
-Free exercise
-Establishment clause
First Amendment: Speech
-Categories
-Methodology
-Campaign financing
Fourteenth Amendment History
14th Amendment supersedes Dred Scott decision: “All persons born or naturalized in the US, and subject to the
jurisdiction thereof, are citizens of the US and of the state wherein they reside.” Attempt to invalidate states’ Black
Codes: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US.”
Slaughterhouse Cases eviscerated by limiting to federal privileges and immunities.
Privileges or Immunities
-Right to travel, which includes the right of newly arrived citizens to enjoy the same privileges and immunities enjoyed
by other citizens of the state. Saenz v. Roe newly arrived citizens shall enjoy the same welfare benefits as CA citizens.
-Right of access to the seat of Government and the courts of the several states.
-Right to use the navigable waters of the US and demand protection of the federal gov on the high seas or abroad.
-Right of assembly, rights secured by treaty, the privilege of habeas corpus.
Early Interpretation
Strauder v. West Virginia: Spirit of amendment forbids discrimination on the basis of national origin, not just race.
Plessy v. Ferguson: Equal protection satisfied by separate but equal facilities, programs. Interpretation permitted laws
requiring segregated schools, transportation and public facilities.
State Action
Constitutional protections of individual rights restrict only actions by gov/employees: federal, state, local, public schools.
In very limited cases (Shelley v. Kraemer) judicial enforcement of injunctions of judgments can be state action.
Other exceptions: 13th amendment applies to everyone, private entities performing functions traditionally
reserved to the state (like public forums), significant state involvement in private action (“entanglement”).
Private Actor Entanglement/Entwinement
The conduct of a private entity can be attributable to the government, even though it’s technically not the government.
-Private creditor’s “attachment” of debtor’s property under ex-parte statutory procedure violated due process
-Peremptory challenges in civil proceeding
-Lessees in city owned and operated building “mutual benefit” (lease revenue necessary to operation of facility)
Private interscholastic association (public and private high school rule-making and enforcement.) Majority of the schools
were public. Distinguish NCAA colleges and universities where no state action was found, larger % of private schools.
Equal Protection: Means/Ends Analysis
Means/ends analysis examines purpose (ends) of the law, and the means chosen to achieve that purpose.
E.g., Rational basis: Is there a legit gov. purpose? (ends) / Is the method chosen to achieve it rational? (means)
Levels of Scrutiny
Strict scrutiny: Necessary (essential, no less restrictive means) to achieve a compelling government interest.
Intermediate Scrutiny: Substantially related to achieving an important government interest.
Rationality review: Rational relationship to legitimate government ends.
Recent Iterations
Exceedingly persuasive justification: Stricter than intermediate.
Rational basis with bite: Court finds there is no actual legitimate reason for law (based on animus, prejudice, or
unsubstantiated fears). Lawmakers may not rely on a classification that is so unrelated to an asserted goal as to render
the distinction arbitrary and irrational.
Rational Basis
Used for “economic or social legislation” that doesn’t regulate suspect/quasi-suspect classification or fundamental right.
Most deferential formulation: Satisfied if any set of facts reasonably can be conceived that can sustain the classification.
Violations of Equal Protection Clause (EPC)
Determine if a law is facially discriminatory, discriminatory as applied, or enacted with a discriminatory intent.
Brown v. Board: Required school segregation was facially discriminatory.
Yick Wo: Permits for wooden laundry buildings discriminatory as applied.
Gomillion, Griffin: Redistricting, closing public schools were decisions made with discriminatory intent.)
Facial Racial Discrimination: Strict Scrutiny
Classifications based on race are constitutionally suspect, subject to the most rigorous scrutiny.
Classification is, in most circumstances, irrelevant to any constitutionally acceptable legislative purpose.
To pass constitutional muster, racial classification must be justified by a compelling governmental interest and must be
necessary to the accomplishment of its legislative purpose.
Korematsu: Pressing public necessity may sometimes justify existence of racial restrictions; racial antagonism never can.
Facially Neutral: Discriminatory Purpose/Intent
Arlington Heights holds that to establish a prima facie case of an equal protection violation, the person alleging
discrimination must first show that discrimination was a motivating factor in the decision. Then the burden shifts to the
defendant to show that the same decision would have resulted even if the discriminatory motive was not present.
Arlington Heights factors that prove discriminatory purpose/intent:
(1) Historical background
(2) Events leading to the decision
(3) Departures from usual procedure
(4) Substantive departures
(5) Legislative record
Affirmative Action
Employment: Current approach to governmental racial classifications—skepticism, consistency, congruence.
Education: In graduate school, diversity has been found to be a compelling state interest, but must be elusive.
Gender Discrimination History
Bradwell v. State: Not a federal privileges or immunities violation to deny women admission to a state bar.
“The natural, proper timidity and delicacy of the female sex evidently unfits it for many of the occupations of civil life.”
Gossaert v. Cleary: Bartender’s license eligibility: Michigan statute required women to be married to, or the daughter of
the owner of a licensed liquor establishment.
Reed v. Reed court of seven justices found that the preference for one gender over the other did not bear a rational
relationship to the legitimate state objective of reducing the work load in state probate courts “the very kind of arbitrary
legislative choice forbidden by equal protection.”
Craig v. Boren “To withstand constitutional challenge, previous cases establish that classifications by gender must serve
important governmental objectives and must be substantially related to achievement of those objectives."
Gender Discrimination: Current Analysis
Exceedingly Persuasive Justification (EPJ): The burden is demanding and entirely upon the state. VMI.
Even if stereotypes are true for the vast majority of people, there are people who don’t fit the mold. Those
people should be able to make choices, live their lives, without being pigeonholed.
Michael v. Superior Court: Pregnancy’s impact on women; disincentive for victims to report statutory rape.
First Amendment: Principles of Interpretation
Voluntarism: No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever.
Separatism: Maintain a ‘‘wall of separation’’ between church and state.
Non-preferentialism: Requiring government to maintain a posture of neutrality both among various religions and
between religion and nonreligion.
Free Exercise Clause
Sherbert test: State must advance a compelling state interest to justify the substantial infringement of appellant’s free
exercise rights. No longer applies to state laws, but used for federal laws (Religious Freedom Restoration Act).
Smith test: Superseded Sherbert. Law of general applicability—prohibiting or burdening the exercise of religion is not
the object of the law but merely the incidental effect of the generally applicable and otherwise valid provision.
Locke v. Davey: Most recent statements on free exercise clause. “There are some state actions permitted by the
Establishment Clause but not required by the Free Exercise Clause. There is no doubt that the State could, consistent
with the Establishment Clause, permit Promise Scholars to pursue a degree in devotional theology.”
Denial of scholarships was permissible because no animosity toward religion—Neither history nor text of WA
Constitution or Scholarship Program suggest religious hostility. The State imposes neither criminal nor civil
sanctions on any type of religious service or rite. It just denied a benefit. (Many states say no taxes for religion.)
Establishment Clause
Lemon Test program to supplement the salaries of teachers of secular subjects in religiously-based, private schools:
(1) The legislative purpose of statute/program must be secular.
(2) Its principal or primary effect must be one that neither advances nor inhibits religion.
(3) The statute must not foster "an excessive government entanglement with religion."
Allowed: voucher funding schemes when parents get vouchers (no direct payment by state), extracurricular afterschool
program that included worship and prayer allowed to use school facilities like secular groups.
Not allowed: Nondenominational prayer at middle school graduation, direct payment of teacher salaries at religious
schools, moment of silence “for meditation or prayer” at beginning of the day.
Incitement
Speech can be prohibited if it is (1) directed at inciting or producing imminent lawless action; and (2) it is likely to incite
or produce such action. (Speech advising people to immediately do something political is entitled to greater protection.)
Fighting Words and Hostile Audiences
Skokie/R.A.V.: Prior restraints and content-based regulations (based on audience reaction) are subject to strict scrutiny.
Conduct restrictions upheld: Enhancement for hate crimes; prohibiting cross burning with intent to intimidate.
Defamation
A public official in a defamation action relating to official conduct must prove falsity with convincing clarity and must
prove that the defendant published the defamatory falsehood with malice, i.e., actual knowledge of falsehood or with
reckless disregard to its truth or falsity. Plaintiff must show the defendant in fact “entertained serious doubts” about
the truth of a statement or that there were “obvious reasons to doubt the veracity” of the source or its accuracy.
Curtis Publishing v. Butts extents NYT v. Sullivan to “public figures.” Media receives more protection.
Intentional Infliction of Emotional Distress (IIED)
Even though bad motivation can impose liability in other areas of the law, the First Amendment protects the speech in
public debate about public figures.
Obscenity
Miller Test: (a) whether "the average person, applying contemporary community standards" would find that the work,
taken as a whole, appeals to the prurient interest (community standard); (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable state law (community standard); and (c)
whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (national standard).
Secondary Effects
Ordinances that do not ban adult theaters altogether but restrict location were described as “time, place, or manner”
regulations, even though the ordinance applied to private properties. American Mini-Theaters, Renton. Such ordinances
were deemed “content neutral” even though they treated theaters that showed adult films differently from those that
did not because the ordinances were aimed at the secondary effects of such theaters on the surrounding community
and were thus “justified without reference to the content of the regulated speech.”
Standard for Secondary Effects: The ordinance must be designed to serve a substantial governmental interest and allow
for reasonable alternative avenues of communication.
Profanity/Broadcast Media
FCC v. Pacifica: “Vulgar, offensive, and shocking” content is not entitled to absolute constitutional protection under all
circumstances. Broadcasting has received the most limited First Amendment protection because in the privacy of the
home, the individual’s right to be let alone plainly outweighs the First Amendment rights of an intruder.
First Amendment: Methodology
A content-based regulation must pass strict scrutiny.
When it is not content-based, then you have to look at a number of different factors under the O’Brien test:
(1) Does the govt. have the power to regulate the field?
(2) Does the regulation advance an important or substantial interest?
(3) Is the interest unrelated to the suppression of speech?
(4) Is the incidental burden no greater than necessary to achieve the interest?
Time, Place, Manner Regulations
(1) Content and viewpoint neutral
(2) Serves legitimate state interests
(3) Ample alternative means of communication