CONSTITUTIONAL LAW II OUTLINE

SCOPE AND INTERPRETATION OF CONSTITUTIONAL RIGHTS

These rights are framed in extremely open-ended and vague terms such as:
due process of law,
privileges and immunities,
cruel and usual punishment,
equal protection of the laws, etc.
Requires a lot of interpretation y the courts and affords a great amount of power to the federal courts comined with the
institution of !udicial review from Marbury v. Madison. "anguage of the #onstitution does not give specific, case-related
answers, rather it raises questions that must e answered y the government, primarily through the courts.
Rights can e read roadly or narrowly.
o Read too roadly, they interfere with the operation of $overnment, its aility to protect the people from
threat or operate in an efficient manner.
o Read too narrowly, infringe on the rights of the people, so cherished the %ramers found fit to include in
the #onstitution.
o &ow to alance these concerns' (orality, safety ) security, privacy, personal lierty.
*nterpretation can turn on one+s theory of statutory,constitutional interpretation -NOTE: *n class we returned to
these modes of analyses TIME AND TIME AGAIN!!.:
o Originalist / "oo0 to the meaning at the time the #onstitution was written or the 1mendment ratified.
"i0e a written contract with a fixed meaning. 2ermit unelected and politically unaccountale !udges to
change the law. 3trong supporters: 3calia ) Thomas.
o Textualist / 1ttempts to interpret solely on the asis of the text. 4sually tied to originalist school of
interpretation, ut not always. The literal text is controlling, it is the final product of the legislature. 5ut it
can ta0e on different meanings as new situations or technologies arise.
o Non-originalist / #onstitution was drafted w, language road enough to e flexile and applicale over
time. *nterpretation permits the living #onstitution to adapt to prolems and crises that did not exist at
the time of the %ramers. 6on+t elieve they are interpreting it differently than originally intended, rather
interpreting the same text and rights in the context of an evolving society.
o Common Law & Precedent / "oo0 to the common law evolution of the law on the matter. *dentify cases
decided on similar matters and analogi7e or distinguish them from the current case. #losely associated
with the non-originalist mode of interpretation.
o Political-process / 5ased on #aroline 2roducts %8 9. :iew that !udiciary+s role is as guardian of the
political process. Requires greater scrutiny for actions that undermine the political process or urden
discrete and insular minorities who are unale to defend themselves via the political process.
PRE-CIVIL WAR INTERPRETATION OF CONSTITUTIONAL RIGHTS
;arly view: 5ill of Rights does not apply to the states.
5arron v. 5altimore -<=>>. / ?wner of a wharf accused the #ity of 5altimore of changing the river flow and
therey and rendering the wharf property virtually worthless. #laimed a ta0ing under the %ifth 1mendment of the
4.3. #onstitution.
o (arshall did not reach the Ta0ings claim, ecause he held that the 5ill of Rights does not apply to state or
municipal action. 1pplicale only to federal government actions.
o #onstitutional arguments for (arshall+s view:
istorical / 5oR was created in a historical context concerns of anti-federalists and fear over
the new federal government, not local government.
!tructural / 2oints to the fact that the #onstitution is a compact etween the people of the 4.3.
and the new federal government they created. *t has nothing to do with citi7ens+ relationships with
the state or local governments.
<
Textual - There is a specific section prohiiting state action in the #onstitution, and this is made
explicitly applicale against the states. Thus the 5oR, which are generally worded, apply only to
the %ederal government.
?dd decision for (arshall, ecause he was usually one to decide cases in a way to enhance the federal
government+s power@ 5ut here at the end of his career, he gutted the aility of the 5oR to apply to the states.
o %ollowing this case, the state governments were free to !ail people for undesireale speech, search w,o
warrants, discriminate ased on religion etc.
(arshall writes that it is a very easy case. 5ut that did not have to e true. ;ven some state courts had held that
the 5oR limits state power.
o Two ways a !udge could come out the other way:
Textual / %irst 1mendment applicale specifically to #ongress -and so not the state
governments.. The rest are written in the passive voice, and could e read as road prohiitions
applicale to any 4.3. governments. 5ut runs up against (arshall+s textual arguments...
Natural Law "#nalienable $ig%ts& ' "oo0 ac0 to the 6eclaration of *ndependence, Ae hold
these truths to e self-evident ... life, lierty, and the pursuit of happiness. 8atural law rights.
5oR is a partial explication of these natural law rights and therefore are applicale to all levels of
government.
o 5ut natural law theory had een re!ected for a more positive approach that had ta0en hold y <=>>. 8o
longer in vogue.
8atural law theory has not disappeared. *t lives on in international human rights law, which
postulates that all people naturally have these inalienale rights, regardless of eing orn into a
society that does not recogni7e them.
3ome commentators still draw upon natural rights themes in supporting the asis of some
lierties and rights.
1uses following -or continuing after. 5arron v. 5altimore
3lavery
#rime to form or !oin a pro-aolitionist party, felony to pulish or distriute aolitionist material.
#riminali7e free lac0s in the 3outh -prevent role models.
14TH AMENDMENT POST-CIVIL WAR
&istorical ac0ground
%orce the 3outh to !oin the 4nion and force them to do away with slavery:
o 3et up puppet governments in the 3outh. 2resident appointed y proclamation the governors of the
southern states. 8orth dictated how they would vote.
o #onventions were convened to ratify the <>th 1mendment, ut only those southerners who supported the
aolition were permitted to attend.
<>th 1mend B constitutionali7ation of the ;mancipation 2roclamation.
Radical Repulicans too0 over #ongress. ;nvisioned a reconstruction that went far eyond what "incoln had in
mind. They sought full citi7enship for 1fro-1mericans.
RR pass a civil rights ill over the veto of 2resident Cohnson, who elieved it went eyond #ongress+ power. %ed
government did not have the authority for civil rights laws. This upsets the RR and they nearly impeach and
remove him from office.
;ven the anti-slavery forces, cherry-pic0 pro-4nion representatives in the 3outh felt the <9th 1mendment and the
#ivil Rights 1ct went far too far. 3o the prospect for ratification y D of the states was loo0ing dim.
RR struc0 ac0 w, a vengeance. Reconstruction 1ct ignores the new governments in the 3outh and put them
under military control and occupation. #onditioned readmission on adopting <9th 1mendment, permitting full
voting rights to lac0 1mericans, etc. 1ll gave in y <=EF.
The first interpretation of the <9th 1mendment strictly construed the language to apply only to issues related to
involuntary servitude and end-runs around the aolition of slavery.
o 2rimary purpose was to enforce the ;mancipation 2roclamation.
o $et around the 5lac0 #odes
G
#onstruction of the <9
th
1mendment+s 2rivileges and *mmunities #lause
The 3laughter-&ouse #ases -<=E>. / "1 utchers challenged a law that granted a monopoly to one corporation to
engage in the usiness of operating a slaughterhouse. ?nly certain utchers are permitted to operate. 3ome
utchers were not permitted to practice their craft in their hometown. #laimed this law infringed on their
fundamental constitutional right to practice their trade.
o *nterpreted oth <>
th
) <9
th
1mendments as designed solely to achieve the goal of emancipating and
protecting former slaves.
o <>th 1mendment argument: *nvoluntary servitude ,c law forces them to sell laor in another manner.
#ourt re!ects on historical grounds <>th amend only aout race-ased slavery. 1dded involuntary
servitude to cover slavery y another name. Tortured reading in any case ,c law does not force the
utchers to wor0 in any particular manner. Throw-away argument y 2s.
o <9th / 2 ) * argument: &eart of 2+s argument. 5ut court distinguished tw state 2 ) * and federal 2 ) *.
&ard to follow ,c argument is nonsense. #oly: %estering garage.
6istinguishes the previous interpretation of 2)* from 1rt. *:, H G as the 2)* of the citi7ens in
the several states, rather than the 2)* of citi7ens of the 4nited 3tates. The state-level 2)* are
the road natural law rights. 5ut the federal 2)* rights are narrow and severely limited.
6oes not specifically enumerate all federal 2 ) *, ut gives some limited examples.
o <9th / ;2 argument: ;xpressed dout that any action of a state not directed at discrimination against the
negroes as a class will ever come w,in the purview of ;2. -?viously mista0en@.
o Ith / Ta0ings: 6ismissed as w,o precedent.
6*33;8T: #laims <9th amend 2 ) * is road and meant to e road. To apply natural rights protected y federal
constitution to the state governments and ensure those states no longer infringe these fundamental, inalienale,
$od-given rights. *n part, this includes the 5oR, ut even more roadly than that@ $ives practical effect to
6eclaration of *ndependence.
o 2ressing argument that did not win the day in 5arron.
o 2oints to 1rt. *:, H G, which also uses the 2 ) * language. Those words mean the same thing in <9th
1mend. Thus the amendment is designed to protect the same rights in citi7ens against infringement y
their own state government, as 1rt. *:, H G does for out-of-state 4.3. citi7ens in a foreign state.
o *nterpretation y ma!ority ma0es <9th 1mend 2 ) * redundant@ 3tates can never interfere with federal
prerogatives or federal rights anyway. The 3upremacy #lause ta0es care of that. 3tate+s could never ta0e
away, for example, the right to
6ifference in interpretation: A&?3; rights are at sta0e' -6issent.. ?r A&1T rights are at sta0e' -(a!ority..
6issent seems to e a more natural reading. The ma!ority is twisted.
Ahy the warped reading'
o 2reserve the institution of federalism. #oncern that the <9th 1mendment will ring aout a sea change in
#onstitutional law.
o ;rr on the side of conservatism. %ederal power would e radically enhanced. -1s it is today.. 4nless the
language was crystal clear that the %ramers wished such a massive change in the structure of the 4.3.
government, court would avoid reading the language in that way.
o 6on+t want to ta0e responsiility for all the civil rights of the people, which up until that time, was the
province of the state governments.
o 6id not elieve the framers of the amendment had such a sea change in mind. The history was recent and
unoscured y time, and -allegedly. reflected a narrower intention of extending asic rights to afro-
1mericans.
3ort of originalist argument, only done almost contemporaneously, rather than y dusting off the
arguments of centuries ago as is common today.
*ntention of the sponsors
o 5oth &ouse and 3enate sponsors specifically referenced protection against state government intrusion on
natural law fundamental rights and the first = amendments@@ Restrain the powers of the 3tates and force
them to recogni7e at all times these fundamental guarantees.
o Thus significant evidence that, even accepting an originalist methodology, the ma!ority still got it wrong,
as it would seem the framers did desire to effect a sea change in the alance of powers in our federal
>
system. 2aid for these changes in lood. 5ut then 3laugher-&ouse case read the federal 2)* right out of
the <9th 1mend.
o 54T the intention of the sponsors is not necessarily the intention of all of Congress.
MODERN 14TH AMENDMENT PRIVILEGES & IMMUNITIES
The decision in the 3laughter-&ouse #ases has essentially gutted the 2rivileges and *mmunities of the <9th 1mendment,
limiting them to a few narrow incidents of 4.3. federal citi7enship.
3ome have argued for a revitali7ed <9th 1mend 2 ) * clause as the locus of sustantive federal civil rights.
-Rather than dividing due process into sustantive and procedural'.
Right to travel etween states and out of the country has not een grounded well in any particular constitutional
doctrine and may fit in the <9th 1mend 2 ) * clause. ;dwards v, #alifornia -<J9<. -anti-um entry to #1 law..
5ut in the same case it was argued that it should e grounded in the #ommerce #lause instead.
o 5ut durational requirements for welfare have erratically een grounded in the ;qual 2rotection #lause@
3hapiro v. Thomson -<JKJ. -stri0ing one-year residence requirement efore welfare enefits distriuted.L
6unn v. 5lumstein -<JEG. -stri0ing one for voting.L 3tarns v. (al0erson -<JE<. -upholding for in-state
tuition.L (emorial &ospital v. (aricopa #ounty -<JE9. -stri0ing for free medical care.L 3osna v. *owa
-<JEI. -upholding for ringing divorce proceedings against a nonresident..
Revival of the <9th 1mend 2 ) * #lause'
3aen7 v. Roe -<JJJ. / 3#?T43 struc0 down a #1 law that estalished a lower welfare enefit for recent arrivals
than to those who had resided in the state for more than < year.
o :iolates federal 2)* clause to pay less welfare enefits to new residents than to residents meeting a
durational requirement.
o 6istinguished welfare enefits from the type of portale enefits that may encourage outsiders to enter
the state on !ust long enough to gain them and then return to their own state: in-state tuition and divorce.
5ut what aout free medical care' That too could e portale@
#aused a lot of excitement in the legal community. 5ut since then the hysteria has died down completely.
Reali7ed it was a very narrow decision.
o The right to travel tw the states is one of those rights that did not exist efore the federal government,
did not exist prior to the 4nion.
o Thus it falls within the 3laughter-&ouse rule. Too0 a rare opportunity to enforce the limited federal 2)*
that were distinguished from the general, plenary power over 2)* vested in the states.
C. Thomas+ dissent far more interesting: 3uggests a willingness to accept the theory of the dissent in 3laughter-
&ouse. ?pen to reevaluating...
> components of the right to travel
Right to leave and enter another state. -;dwards.
Right to e treated as a welcome visitor, not an unfriendly alien. -4.3. #onst. art *:, H G.
%or travelers who elect to ecome permanent residents, the right to e treated li0e other citi7ens of that state.
-3aen7.
DUE PROCESS AND THE INCORPORATION CONTROVERSY
?ver time, the asic lierty guarantees of the 5oR were made applicale to the states, ut through an unli0ely legal asis:
the due process clause of the <9th 1mendment.
Theories for incorporation under <9th 1mend. 62:
o &as its own force and does not require any incorporation of the 5oR or other constitutional amendments.
-CC. %ran0furter ) &arlan.
o *ncorporates fundamental rights, some of which are listed in the 5oR. ?nly those that are fundamental
will e incorporated and enforceale against the states. -C. #ardo7o.
o Totally incorporates the 5oR -C. 5lac0.
3poradic incorporation
o Ta0ings clause / #hicago, 5urlington ) Muincy RR -<=JE..
9
o Recognition of possiility of incorporation of 5oR via 62 #lause / Twining -<JF=..
o <
st
1mend. free speech clause / $itlow v. 8ew Nor0 -<JGI..
2artial incorporation view O2al0o-1damson 6octrineP
2al0o v. #onnecticut -<J>E. / #hallenge to state criminal law permitting the state prosecution to ta0e appeal and
su!ect a criminal defendant to doule !eopardy.
o ?nly fundamental rights, essential to ordered lierty are incorporated into the 62 clause of <9th
amend. %ound that the K
th
1mendment was fundamental in capital cases and essentially incorporated it
against the states.
o 1dvocates a fact-ased approach. 3tart from the facts of the case, determine whether the actions violate a
fundamental right, then that finding will guide decision to incorporate the corresponding 5oR provision
into the <9th 1mend. 62.
o #ardo7o finds that action that is intended to correct an error in the !udicial process, not to harass a
criminal defendant, and so the rule against doule !eopardy is not a fundamental one. #an imagine fair
and free societies -;urope. that have no such protection.
1damson v. #alifornia -<J9E. / #riminal defendant challenged conviction where prosecutor commented on his
refusal to ta0e the stand.
o C. Reed that <9th 1mend 62 guarantees only a fair trial and that does not extend to the right against
self-incrimination that is en!oyed at the federal level.
;volutionary view of 62. *ndependent potency of 62 #lause. 1 twist on the selective incorporation view.
o C. %ran0furter+s concurrence in ''''
3hould encompass new rights that are appreciated in our society. #ardo7o wanted only to apply to
traditional natural law rights. Today there may e others that should e recogni7ed.
3upported y open-end language of the #onstitution. "iving #onstitution view.
o 2rolem is that if too flexile, grants no predictaility to the law Q !udicial activism
Total incorporation view
C. 5lac0+s dissent in 1damson
o 5elieve in a total incorporation of the 5oR y the 62 clause of <9th 1mend. 1ll of the 5oR are
enforceale against the states.
o Ot%er rights not codified in the #onstitution are not protected y 62. Textualist and originalist approach.
Re!ects the natural law approach.
;ffect of total incorporation
o ;xpands protections of lierties
4nconcerned aout tying the hands of the states y enforcing these rights. Aritten words of the
#onstitution trump.
o Restricts !udicial activism
8atural rights view permits !udges to legislate their own constitutional rights and gives them a
free hand to legislate ased on own mores,opinions.
* further contend that the natural law formula which the #ourt uses to reach its conclusion in this
case should e aandoned as an incongruous excrescence in our #onstitution.
(ore predictale for state legislators and executive authorities.
%ederalism argument
$raphs
<. G. >. 9. I. K.
I
Rey to graphs aove. (odels for incorporation of 5oR and scope of <9th 1mendment 62
o 5ill of Rights
o #overage of <9th 1mendment 6ue 2rocess #lause
:iews of various !ustices and schools of thought concerning <9th 1mendment
o $<: #ardo7o view, partial incorporation ased on natural rights theory. 3ome 5oR are fundamental ) are
protected y 62 #lause, ut some aren+t. *n addition, there are some fundamental rights that are not
enumerated in 5oR ut still protected y 62.
o $<: 5lac0 view - Total incorporation. #o-extensive and no more.
5ut if 62 was shorthand for all of the 5oR, than why is there a 62 clause in the Ith 1mendment'
*t would seem that the Ith is all you need@
o $>: %%,&arlan / *ndependent potency, evolving theory of rights. 3ome overlap, ut large ody of rights
outside the 5oR and these rights are not only the historically recogni7ed ones. 1lso, some contradictions
of a right in 5oR may on the facts n
6idn+t view it as incorporation, ut as overlap on the asis that oth happen to protect a specific
fundamental right.
o $9: (urphy: ;verything in 5oR is fundamental, otherwise they would not have een incorporated into
the 5oR. 5ut the 62 covers other unenumerated rights. Total incorporation and then some.
o G5: Brennan: 62 #lause incorporates virtually all of the 5oR w, minor exceptions and has a sustantive
component that protects a vast array of other lierty interests. Rights, if incorporated, must e
incorporated in full. *f clause is incorporated against the states, it is done so wholesale.
This view has A?8 ?4T. ?nly a couple of rights in the 5oR has een incorporated against the
states, and done so in full.
1ll doctrine accompanying the incorporated right are 1"3? rought in against states
2revents the dilution prolem that worried 5lac0.
?ther rights outside the 5oR have also een found to e fundamental and protected y the <9th
1mend 62 #lause itself.
o $K: 4ltra-conservative view: 62 clause does not incorporate 5oR except for those that deal with
2R?#;33.
Three primary issues of deate etween total and selective incorporationists:
&istory and drafters+ intent
%ederalism
1ppropriate role of the !udiciary
Rectifying past mista0es'
3trongest rationale for road incorporation of 5oR and other fundamental rights through the <9th 1mend 62
#lause: %ollowing the emasculation of the 2)* #lause in 3laughter-&ouse, the #ourt used another clause,
textually inappropriate, to effectuate the original understanding and purpose of the <9th 1mend. Thus the
incorporation through 62 is really !ust a compensation mechanism for the loss of the 2)* #lause
o C. Thomas suggested it may e time to stop reading 62 to mean what it doesn+t mean, and revive the 2)*
and employ it to cover much -all' more' much less'. of the rights now covered y 62.
?n the other hand, perhaps most of the legislators may not have understood that their vote for the <9th
1mendment would e construed as roadly as it is applied today.
o ;xample: Eth 1mend right to !ury in civil controversy with 1*# over SGF@
*ncorporation today is ta0en for granted.
o *t is hard to imagine a nation in which the 3tates are free to infringe on a person+s freedom of speech,
religion, or criminal procedural protections. Revo0ing the incorporation of the 5oR would e
unacceptale to virtually any 3upreme #ourt !ustice.
o The attle today is over the scope of the unenumerated rights. The incorporation of the 5oR is safe from
attac0.
#ontent of *ncorporated Rights
*s the provision of the 5oR as incorporated against the states identical to the federal version' 3#?T43 has not
een clear on this issue.
K
o %irst 1mendment applicale to the same extent. 8o watered down, su!ective version.
o 54T a couple of exceptions: 3#?T43 has upheld the constitutionality of K-person !uries -rather than <G.
and nonunanimous !ury verdicts in criminal cases.
LEVELS OF SCRUTINY
6efinition and purpose
*nstructions for alancing. *nforms courts as to how to arrange the weights on the constitutional scale in
evaluating particular laws.
The choice of level of scrutiny is often outcome-determinative.
o 1rea involving great suspicion of the government or a fundamental right at sta0e B high urden.
o 1rea of general deference to the legislature B minimal urden on the government.
Caroline Products Foo!o" 4
1rticulated the idea that different constitutional claims would e su!ected to varying levels of review. 1lso gave
rise to the political process theory for distinguishing which claims should e su!ect to those higher levels of
scrutiny. ;xtremely influential.
There may e narrower scope for operation of the presumption of constitutionality when legislation appears on
its face to e within a specific prohiition of the #onstitution, such as those of the first ten amendments. . . . *t is
unnecessary to consider now whether legislation which restricts those political processes which can ordinarily e
expected to ring aout repeal of undesirale legislation, is to e su!ected to more exacting !udicial scrutiny
under the general prohiitions of the %ourteenth 1mendment. . . . 8or need we enquire . . . whether pre!udice
against discrete and insular minorities may e a special condition, which tends seriously to curtail the operation of
those political processes ordinarily to e relied upon to protect minorities, and which may call for a
correspondingly more searching !udicial inquiry.
Thus, three situations giving rise to heightened inquiry:
o :iolates or implicates one of the protections set forth in the 5ill of Rights.
o 4ndermines or restrictis the political process
o 1ffects a discrete and insular minority
"evels of 3crutiny 6efined
Rational asis test
o "aw will e upheld if it is rationally related to a legitimate government purpose.
o The purpose of the law need e the actual goal / any conceivale legitimate purpose will do.
o (eans chosen needs only e a reasonale way of achieving that purpose.
o 5urden on plaintiff to show that the law fails this very deferential test.
*ntermediate scrutiny
o "aw will e upheld if it is substantially related to an important government interest.
o 5oth the government+s o!ective -important. and the means -sustantially related. must meet a higher ar.
o $overnment has the urden of proving the action,law meets intermediate scrutiny.
3trict scrutiny
o "aw will e upheld if it is necessary to achieve a compelling government purpose.
o $overnment interest must e vital / compelling.
o (eans must e show to e the least restrictive or least discriminatory alternative.
o $overnment has the urden of proof under this intensive review.
Scrutiny spectrum:
8o scrutiny ----,---Rational asis ---,--- *ntermediate ---,--- 3trict ----,--- Total scrutiny
$ovt can do 8eed not achieve "ater' 3tate must have 8othing can !ustify
anything ) governmental interest compelling govt state infringement
no rights will ut have some rational interest and e
e protected !ustification and serve some strictly tailored to serve
E
legitimate purpose -##. that govt interest -6##.
SU#STANTIVE DUE PROCESS
&istorical precedents
8atural law tradition viewed a written constitution, not as the initial source, ut as a reaffirmation of a social
compact preserving preexisting fundamental rights. There rights were entitled to protection whether they were
explicitly listed in the #onstitution or not.
o #alder v. 5ull -<EJ=. / %or: C. #hase opinion, pg 9=E. 1gainst: C. *redell, pg. 9==
6uring the (arshall #ourt era, the natural law view declined and asing !udicial !udgment on general principle,
on the reason and nature of things went out of vogue. -&ence 5arron..
3laugher-&ouse+s reading out of the 2)* clause from the <9th 1mendment loc0ed the most ovious avenue to
challenge the sustance of state laws infringing on fundamental, ut unenumerated, rights. This delayed
protection against state infringement in federal courts for many years.
#ontinuation on deate concerning the interpretation of 62 #lause to cover sustantive rights, rather than !ust the
process afforded efore rights are ta0en away y the state.
o #onservative view: #overs only the process required.
3ustantive process is an oxymoron. 5etter internal logic.
&owever, seems unacceptale to permit the states to roam free w,o sustantive
o "ieral view: #overs also sustantive rights
8o legal process in the world can authori7e the state to ta0e away a fundamental lierty right,
such as the freedom of speech. #annot say that states can aridge the fundamental
62 #lause incorporates these fundamental rights against the state, ecause it would necessarily e
a violation of process to enact legislation that violates a fundamental natural human right. -'.
?nly reason we have 362 is ,c of the 3laughter &ouse cases. They read the 2)* cases out of the
<9th 1mendment altogether. %orced to cram these rights into 62 #lause where textually they do
not fit in. 5ac0door method to achieve the original purpose of the <9th 1mendment.
6espite the clearer logic of the conservative view, the current !urisprudence recogni7es 362. The real question
involves the scope of 362 protections.
&istorically though, it is not that easy. 3ome courts had interpreted 62 to have a sustantive element long efore
the <9th 1mendment@@
o %amous examples of courts deciding on the asis of 362 even efore the "ochner ;ra:
Aein... / 8N #ourt interprets 8N #onstitution 62 #lause, reads it far roader than to cover only
legal process. This would e throwing entire restraint away. 1 ill that ta0es away a fundamental
freedom should not e considered a law at all.
:ery high profile case, all 0new aout it.
6red 3cott / 3#?T43 invalidates a fed law that made any slave transported into a free states
ecomes free. 3tri0es down the law as a violation of Ith 1mendment 62. 3laves are the property
of slaveowners. %ed govt cannot ta0e that away, no matter how much process of law is afforded
them. %undamental right to ownership.
6on+t forget this case. 3tri0ing example of the evils of 362. 6angers of the doctrine.
o The sharp distinction tw procedure and sustance was not so clear in that time. Aas not consider
illogical. ?nly with the advent of the %R#2 and the ;rie 6octrine did this mindset arise. Thus, it is not
unreasonale to thin0 that the framers of <9th understood 362 and intended it to have that effect.
o 3till it is only after 3laughter &ouse did the 62 #lause+s sustantive aspects really grow.
LOCHNER ERA: $UDICIAL INTERVENTION AND ECONOMIC REGULATION
&ints of economic lierty efore "ochner
;conomic lierties generally refer to constitutional rights concerning the aility to enter into and enforce
contractsL to pursue a trade or professionL and to acquire, possess, and convey property.
=
"eading up to the "ochner decision, the 3upreme #ourt made increasing references to the limits of state action
under the 62 clause. Though the #ourt upheld all those laws, the threat of the use of a sustantive economic
rights protection ased in 62 ecame clearer.
o %irst articulation of 362 right of lierty of contract. 1llgeyer -<=JE..
;stalishing a 362 right to contract.
"ochner v. 8ew Nor0 -<JFI. / 8N law prohiited the employment of a0ers for more than <F hours a day or KF
days a wee0. 8N !ustified the law on the asis of pulic health: health a0ers ma0e etter read. 5a0er challenge
the law as infringement of economic freedom.
o &;"6: C. 2ec0ham opinion struc0 down the law ased on 362 ecause the statute interferes with the
right to contract tw ;; and ;R. ;ffectively expanded the protection for lierty of contract outside the
scope of the #ontracts #lause, which protects against impairment of existing contracts, to prohiit
extensive government regulation even of contracts not yet made@
o 5ut still recogni7ed that the state has legitimate police powers to enact legislation to ensure the health,
mores, security etc. of the population. (a!ority simply claimed that this power was outweighed y the
;;-;R lierty to contract for laor.
"aor: 6iselieved that a0ers had no argaining power and needed laor law protection.
*nter!ected their own su!ective view of a0ers+ argaining power. ?r elieve that even if true,
were ideologically against interference in the mar0et.
2ulic &ealth: 6id not elieve that the profession of a0er was so harmful as to require
protection. The common understanding is that a0ing is not dangerous. ?nce again, w,o
citation. *nter!ected own opinion on the matter.
3afety ) 3anitary 2ractices: 8o reasonale asis to elieve that reduced hours would somehow
improve the food quality, ecause the state has the authority to do sanitary chec0s and control the
use of equipment etc.
o %ound the real goal was to regulate the 5a0er-;R relation, not protecting the pulic from unsafe food. To
alter economic and mar0et forces, not ensure safe read or healthy a0ers. #oncerned that anyody+s
hours could e regulated: lawyers, physicians, and any other profession.
o 1pplied a heightened -strict'. scrutiny to the infringement of this right. The language at the start of the
opinion has a ring of rational asis review -fair, reasonale, etc... 5ut in reality the court was second
guessing the legislature in the face of a determination aout which reasonale persons could differ.
Requires proof that the infringement on the right to contract e compelling -such as in the coal mine
context in which they upheld a similar law..
o *nspired y a philosophy of strong commitment to laisse7-faire economy and protecting usiness from
government regulation.
C. &arlan 6*33;8T: 1greed that there is a right to contract protected y the <9th 1mend. &owever, the court
should do what it claimed it was doing, review only for irrationality. #ourt should defer to legislature+s !udgment
so long as reasonale men can differ as to whether a law achieves valid police power goals. -Rational asis
review.. Ahy'
o "egislature etter situated to gather evidence and ma0e and informed decision on the topic.
o 3trict !udicial review suverts democracy.
C. &olmes 6*33;8T: -Classic most famous opinion.. Cudges should not inter!ect their own political or
economic theories into their interpretation of the #onstitution. This right of freedom to contract for one+s laor is
not a fundamental right w,in the #onstitution, ut a conclusion ased on the !udges+ private elief in the laisse7
faire theory. There can e other fundamental rights esides those enumerated in the #onstitution, ut only when
they are grounded in tradition and consensus.
> themes from "ochner
o %reedom of contract is a right protected y 62 clause of I
th
) <9
th
amendments
o $ovt can interfere w, this right only to sever a valid police purpose: protecting pulic health, safety,
morals.
o #ourt will carefully scrutini7e legislation to ensure it truly served such a purpose.
1ftermath of "ochner
J
"ochner in effect prohiited the states from passing health regulation for wor0ers except in those rare cases in
which the profession is widely considered dangerous. (any laor and safety laws were struc0 down
o (inimum wage, anti-union contracts -yellow dog., maximum hours, restraints on usiness entry
o 5ut the prolem is that a law stood or fell ased upon the !udges+ opinion aout the matter. 3o in some
cases the 3upreme #ourt upheld laws within the aove categories
o 5itterly contested: (any of the decisions of the "ochner ;ra were I-9.
#ourt was constitutionali7ing the old order, even while the vast ma!ority of the people sought a new solution in
progressivism.
3truc0 down state laws such as the a0er+s maximum hour law on 362, and scores of federal laws as eyond the
authority granted y the #ommerce #lause, claiming that these matters were for the states@ Thus oth federal and
state progressive laws were under attac0 from the #ourt@ Thus ## and 362 comined to prohiit
o %ederal laws stuc0 down as unauthori7ed under #ommerce #lause
3checter 2oultry -<J>I.
#oal (ines -<J>K.
o 8ew 6eal legislation that was struc0 down y the court under 362 freedom to contract:
(inimum wage regulations for women -1d0ins., laws protecting unioni7ing, consumer
protection legislation, laws regulating usiness entry.
5ut there were exceptions:
o (uller v. ?regon -<JF=. / 4pheld the constitutionality of safety statute regulating the laor conditions for
women. #ourt found that they were sufficiently frail and helpless and required state protection.
?rigin of the 5randeis rief / practice of sumitting detailed factual riefs in support of a
particular -or against. a regulation.
The original 5randeis rief was <<> pages long and detailed the harmful effects of long hours at
nondomestic wor0 on the reproductive health of women.
5ecame apparent to the Ahite &ouse that 3#?T43 would stri0e down all 8ew 6eal legislation, whether
implemented at the federal or state level.
o %ireside #hat -<J>E. / %amous radio address to the nation. #ritici7ed the 3upreme #ourt as acting as a
superlegislature, reading in words that are not in the #onstitution, and eing a third legislature. Aant a
government of laws, not of men. 2roposed the court pac0ing plan.
o 1merican people were initially s0eptical of this plan, ut no so against it as one might thin0. There was a
significant chance that the people would come around to sanctioning the other two ranches to gut the
power of the 3upreme #ourt.
1 few wee0s after the radio address, 3#?T43 decided Aest #oast &otel -<J>E. / which expressly reversed the
1d0ins decision and permitted minimum wage regulations for women.
Today "ochner is one of the handful of despised, hated, and disparaged decisions in 3upreme #ourt precedent.
Ahy is "ochner so despised' Ahat was so wrong'
o 6ishonesty / claimed it was engaging in rational asis review when in fact it was applying a much higher
standard.
o 2oster child for excessive !udicial interventionalism
o (a!ority inappropriately in!ected their own economic and political theories into their interpretation of the
#onstitution.
o :ery inconsistent in the application of these rights.
Aays to critici7e "ochner
o 8o such thing as 362
o There is 362, ut covers only those rights enumerated in the #onstitution
o There is 362, and rights eyond the 5oR, ut not this one. 8eed more consensus.
o There is 362, and this is a right protected, ut still afford only rational asis.
DECLINE OF SU#STANTIVE DUE PROCESS FOR ECONOMIC RIGHTS
Reduced !udicial scrutiny of economic regulations
<F
8eia v. 8ew Nor0 -<J>9. / #hallenged a regulation setting the minimum price for mil0. 8eia owned a small
grocery store and was prosecuted. 6eferred to the state legislature.
o ;conomic scholars point out that the statute really made little sense. *f you have an over-supply prolem,
the last thing you want to do is artificially raise the prices.
o 5ut 8eia stands for the proposition that it is the legislature+s !o to figure out the est way to deal with
the prolem. #ourts should not stri0e it down !ust ecause it was unwise. 3till economic 362 was not
dead yet. The #ourt came ac0 and struc0 down other 8ew 6eal legislation for G more years.
3witch in time that saved the nine
Aest #oast &otel -<J>E. / 1nother challenge to minimum wage laws for women. This time Custice ?wen Roerts
switched sides, ma0ing a I-9 ma!ority for aandoning the "ochner doctrine. 6ramatic shift. (a!ority opinion
went so far as to say, Ahat is this freedom of contract' The #onstitution does not spea0 Oof thisP.
True rational asis review
#arolene 2roducts -<J>=. / #ourt upheld a federal law that prohiited the interstate sale of filled mil0 on the
asis that it was less nutritious and adulterated. 3ome question as to the actual detrimental effects of this
processed mil0.
o 4pheld the law under a very deferential review. 6ismissed the evidence that the law might e unwise or
ased on insufficient evidence.
o ;conomic regulations should e upheld if there is any conceivale rational asis, even if cannot e proved
that it was the legislature+s actual intent.
%amous %8 9. -Custice 3tone.
o (ost famous footnote in constitutional law history. $ave rise to 2olitical 2rocess %ailure Theory:
6istinguishing the situations in which the deferential review of #arolene 2roducts would not e
appropriate. These include laws that interfere with:
$eneral prohiitions of 5oR and <9th 1mend.
2er se rea0down / #onstitution is the supreme law of the land so a law enact that
contradicts a specific rights in the 5oR, which is not permitted, is already a rea0down.
1ctual textual support infers that they are fundamental. #ourt must aggressively enforce
rights the framers elieve would not e adequately protected y the political process.
1ttac0s on the political process itself
Right to vote
6issemination of information
1ctivities of political organi7ations
2articular religious groups or discrete or insular
"aws directed at discrete and insular minorities.
o 1ll these rights are unprotected y the political process ecause the laws either affect minorities, free
speech, or attac0 the democratic process itself. 3ituations in which the political process may rea0 down.
o Role of the courts is to protect the political process. *f it can e shown that the case deals with the 0ind of
minority that cannot protect itself in the political process, then the court may more closely scrutini7e the
law in question.
;x. 5a0er v. #arr / %ailure to redraw districts despite grossly unproportional representation.
;x. (c#ulloc0 v. (aryland / #annot tax the federal an0. Aould rea0 down the political
process as it would result in taxation w,o representation y taxing the money of a an0 that
enefits the country as a whole. &igh taxes on the an0 would e good for (6, ad for everyone
else. 1nd those outside of (6 would have no power to change the result. &ere the court must
step in to ma0e the correction.
(odern court+s view for reviewing the constitutionality of economic regulation. Review for any conceivale rational asis
Ailliamson v. "ee ?ptical -<JII. / ?pticans challenged a law that prohiited them from fitting of lenses to a
face, or duplicate or replace lenses into frames w,o a recent prescription from an ophthalmologist or optometrist.
#learly a very wasteful law. 4nfair to the optician who is clearly qualified simply to grind and replace lenses in
existing glasses. 2retty stupid law.
<<
o &;"6: 8ot the province of the courts to alance the pros and cons of a law, will not second guess or
sustitute their !udgment. 8eed only a rational asis, and possile rational ases include: catching
glaucoma, ensuring
o 5ut the court did 8?T cite any support for this supposed reason. 6oesn+t require any evidence. #ourt
doesn+t care aout the actual underlying reasons for the law, so long as the law itself is not totally
irrational. 5ased
*n "ochner ;ra wouldn+t even ta0e at face value the stated reasons for the laws they struc0 down.
o *n reality, rent-see0ing y politically influential and wealthy ophthamologists and their loying group@
3upreme #ourt has not struc0 down an economic regulation on 362 grounds since %6R+s chat.
o #eleration of 6emocracy
o Reu0e of the excesses of the "ochner ;ra.
REVIVAL OF SDP TO PROTECT NON-ECONOMIC RIGHTS
"ochner ;ra antecedents to non-economic 362
o (eyer v. 8eras0a -<JG>. / "ierty protected y <9th 1mend extends not only <9th 1mend protects all
rights necessary to the orderly pursuit of happiness
o 2ierce v. 3ociety of 3isters -<JGI. / 3truc0 down a law requiring all children to attend pulic school.
2arents have a fundamental right to educate their children as they see fit.
o 4nli0e "ochner, we continue to praise these cases, despite the fact that they were decided during the same
era and on the same grounds: 362.
*n (eyer, the law really targeted $ermans. *n 2ierce, it was targeting #atholics who sent their
0ids to private schools. 1t the time these were discrete and insular minorities, so 33 should apply.
5ut this is a cop-out ecause all languages and private schools were targeted / the 3#?T43 did
not stri0e them on those grounds, ut ,c they violated independent fundamental rights.
$riswold v. #onnecticut -<JKI. / #ourt struc0 down a #T law that criminally prohiited the use of
contraceptives, even y married couples in their own home. E-G. #ase involved the prosecution of ;stelle
$riswold of 2lanned 2arenthood opened a clinic and openly distriuted contraceptives.
o Ahat exactly was unconstitutional aout this #T law' :iolates the right to privacy. C. 6ouglas found
this unenumerated fundamental right and proceeded to apply strict scrutiny.
3tate claimed that the law is necessary to ensure against extramarital and premarital sex / idea is
that without access to contraception, people will e deterred from doing so. 5ut there were
already laws against adultery and fornications, so not least restrictive means.
o 5ut where is this right of privacy in the #onstitution'
6ouglass -(a!.. / 2enumras of the more narrowly focused <
st
, >
rd
, 9
th
1mendments. %S&'"()*)(
+,-.-!""/ )! 0" #oR 0-1" '"!,23.-/4 *o.2"5 36 "2"!-)o!/ *.o2 0o/" +,-.-!""/ 0-
0"7' +)1" 0"2 7)*" -!5 /,3/-!("8 #laims not to rely on the <9
th
1mendment or 362, ut the
road scope of the 5oR itself.
$olderg / J
th
1mendment evidence that there are other fundamental rights
&arlan / <9
th
62 #lause itself protects the right to privacy.
5lac0+s view is naTve ecause it is !ust as easy for a !udge to impose his personal view or
policy preferences within the -highly flexile. construction of an expressly enumerated
right.
o 6issents pointed out that this is the same theory as espoused in "ochner.
C. 5lac0 /. 1lthough there are some privacy protections in the 5oR, this is not one of them. ?nly
the rights of the 5oR are fundamental lierties. 5ut doesn+t this view violate the Jth 1mendment
which was designed !ust for this purpose'
Nes. &is view is inconsistent with oth the text and history of the J
th
1mendment -elow.
5ut still has a powerful force to it, ecause it is anti-democratic to find unenumerated
right. *t puts the power to stri0e down democratically enacted laws in unelected !udges.
*t+s one thing to use the anti-democratic tool of !udicial review y stri0ing down a
popular law
<G
5ut what is the history of the Jth 1mendment'
o (adison and the federalists did not feel that the 5oR was necessary ,c the structure of the government
was designed. 1nti-federalists were unsatisfied and demanded the 5oR.
o (adison and the federalists thought the 5oR was dangerous and a ad idea@
Aanted a federal government of limited powers. 5y listing specific rights, there will e a negative
implication that 54T %?R those prohiitions, the #ongress would e ale to do those things.
2eople will infer a roader scope of federal power than granted y the #onstitution as adopted.
1nother danger is that people would ta0e that list to e exclusive or exhaustive. The federalist
thought that would e disastrous. *t is impossile to list them all, and then those left out would
ecome fair game for regulation.
o *n the deates, (adison elieved he came up with an answer to these concerns: the comination of the J
th

and <F
th
1mendments.
<Fth 1mendment / all powers not given to the federal government are retained y the states.
-That didn+t wor0@.
Jth 1mendment / The enumeration in the #onstitution of certain rights shall not e construed to
deny or disparage other remained y the people.
o The history and text of the Jth 1mendment along w, the history and text of the <9th 1mendment are
powerful evidence to reut the notion that the whole enterprise of recogni7ing fundamental unenumerated
rights were intended y the framers.
o 6o we need the unenumerated rights of the Jth 1mendment to protect against the tyranny of the ma!ority'
&ighly unli0ely that it would e possile to amend the #onstitution to overrule a law that is an
affront to an unenumerated right if there is a political faction strong enough to get the law passed
in the first place.
#ounter-ma!oritarian prolem with discovery of unenumerated fundamental rights.
o Cudges were not elected in the first place. 6o not stand for office. 1nd yet have the last word on issue.
Thus, every time the !udges hold that some right is fundamental, they trump the will of the people.
o #an only e overturned with a constitutional amendment or upon the death and replacement of the
!ustices. Those and the crude chec0s of impeachment, stripping of !urisdiction, threats of expanding the
numer of !ustices -%ireside #hat..
o Thus the 3#?T43 !ustices are very circumspect and careful when they decide to recogni7e a new
fundamental right.
o 1ttempts to circumscrie scope of unenumerated fundamental rights while recogni7ing that some exist.
2enumras emanating from the 5oR
Aants to somehow tie the expansion of personal rights to the 5oR. 5ut penumras can
emanate wider or narrower as the !udge views appropriate -6ouglas..
C. 6ouglas was a 8ew 6eal !udge and hated Loc%ner. 3o he could not ring himself to
ground the right to contraceptives in 362.
3till, it is useful as a asis for loo0ing to the enumerated rights as guides and compare a
putative fundamental rights to them to see how the new one stac0s up to those.
362 Q Jth 1mend, ut so rooted in the history of the people as to e classified as fundamental in
the collective conscience -$olderg concurrence in $riswold..
5ut how does this permit the recognition of new rights' 6oesn+t account for the
possiility of change.
*f the right is so recogni7ed and randed into the collective conscious, how did the
offending law get passed'
62 is !ust the alance struc0 as a society etween lierty of the individual and the power of the
government -&arlan.. #an change over time. Tradition is one aspect, ut tradition is a living
thing... and not restricted to rules in the past.
5,c our tradition is a changing thing, new rights ecome fundamentalL others can wane
and fall out of fundamental status.
;xample of new right: Right to privacy in $riswold.
<>
;xample of a fundamental right falling out of favor: ;conomic rights in "ochner.
2rolem <: ;ven if we accept this theory, does that mean that unelected !udges are
supposed to e the guardians of these evolving, amorphous rights'
2rolem G: 6oesn+t the fact that the law was passed y duly elected legislators, enforced,
not repealed, and the legislators not thrown out of office suggest that there was no
consensus' Aon+t it always e the case' (ust always e a case or controversy efore
the matter can come efore the court.
o 5ut none of these approaches really provides a principled foundation for distinguishing the fundamental
right to contraception in $riswold from the fundamental right to freedom of contract in "ochner.
&ow does the #ourt identify a new fundamental right' ;xample: $riswold and its progeny.
o Ahat is it aout the #T law that ma0es it so offensive'
%ocuses on intruding into the edroom and regulating the use y married couples.
5ut #ourt suggested that #T could regulate or prohiit the sale of condoms.
3o is there really a fundamental right to contraception' ?r is the right something else' *t
doesn+t seem li0e this case answers that question.
"ater the #ourt struc0 down a contraception sale an, even to nonmarried people.
2rotection seems to extend only married couples. The #ourt seems to ta0e for granted that the
state could regulate the use y minors or unmarried.
3eems li0e unmarried couples and those having affairs have an even greater interest in
0eeping their privacy.
"ater the court expanded $riswold+s holding to all heterosexual, and eventually to
homosexual intimate relationships.
o 3o what is the method'
3omething of a common law method of derivation. Relies very heavily on precedent.
*n its essence a conservative institution, ut one that allows for slow evolution of the law.
?ther proposed theories for a method to finding fundamental rights:
2olitical process theory.
8atural law.
6eeply emedded moral consensus.
;isenstadt v. 5aird -<JEG. / ;xpands the holding in (riswold to stri0e down a law anning the distriution of
contraceptives to unmarried persons. 6enied ;2 to unmarried persons Q right to control repo B fundamental right
The Right to 1ortion
Roe v. Aade -<JE>. / 3tri0es down a TU law prohiiting all aortions except those necessary to save the life of
the mother. The question in the case oils down to: does this law infringe on a fundamental constitutional right' *f
so, what right' ;ven if it infringes a fundamental right, does it survive strict scrutiny'
o Nes. The right at issue here is the right to privacy. #ourt locates it in the sustantive part of the 62 right
in the <9th 1mendment and its guarantee of lierty.
o 5ut what 0ind of privacy is this'
8ot one of eing viewed or someone usting down the door li0e in $riswold. Really tal0ing more
aout autonomy, the right to ma0e certain private and touchy personal decisions.
3ustantially expands the scope of $riswold. 5ut that scope was already expanded y ;isenstadt.
3o $oe does not flow directly from $riswold, ut it is a much smaller leap from ;isenstadt.
1lso the concept of the right to odily integrity plays into this expanded scope of the right of
privacy. The right to control one+s own ody and ma0e decisions concerning it has long een
cherished.
5ased the right of privacy either on <9
th
1mend. 62 or the J
th
1mend. 8o penumras@
o 6oes the law survive strict scrutiny'
The answer to this question is more difficult. ;ven if there is fundamental right to privacy, the
state can infringe on that right if it has sufficient !ustification. TU give two reasons: -<. protecting
the health and welfare of the mother, -G. protecting the life of the fetus.
<9
#ourt alances the privacy interest of the mother with the state+s interest aove and found that:
#oncerning mother+s heath: 3tate cannot regulate in the <st trimester, ,c level of ris0 of
the aortion procedure is lower than the dangers at irth. 1fter <st trimester, state can
regulate how the procedure is done.
#oncerning the potential human life: 3tate can regulate, even proscrie, aortion
procedures after the point of vitality of the fetus, or aout the time of the Gd trimester.
o 5ut does that ma0e sense' *f the state has an interest in protecting potential
%uman li)e, why is the point of viaility important' Aouldn+t $riswold also
interfere with potential human life'
o *t seems that the state+s interest is actually in protecting not potential, ut actual
%uman li)e of a eing that could possile survive w,o the support of the mother.
5ut this means the #ourt decided when life egins@
5ut pro-life proponents elieve that a fetus, even emyo or 7ygote, is a )ull %uman li)e. 3o they
argued that they had a compelling interest in protecting that life. #ourt held that the state cannot
adopt one view of life to the exclusion of all others.
#ourt claims that it cannot decide when life egins / that such a question is a matter for
theologians, philosophers, and medical researchers to discover. 5ut it does seem to e deciding, at
least in the eyes of the law, that full human life does not egin at conception.
o Roe+s trimester framewor0:
%irst trimester: 8o regulation. 6ecision left to the pregnant woman and her physician. 8o
government interference greater than regulation for other medical procedures.
3econd trimester: #annot prohiit aortion, ut state can regulate in ways reasonaly related to
protecting the health of the mother.
Third trimester: 3tate can regulate, even proscrie, aortion except where necessary to save the
mother+s life.
o Rehnquist 6*33;8T: The whole complicated system seems li0e legislation@ This 0ind of horse-trading
and alancing is what legislators do, attempt to ma0e everyone happy. 8ot a slow, evolution, ut an
arupt rea0 and a creation of a comprehensive framewor0 for aortion. %inally, strict scrutiny is not
supposed to e aout alancing and splitting the difference. 3upposed to e lac0 ) white.
1nalysis of the Roe decision
Ahat gives them the right to ma0e such a determination'
o 8ecessity / the #ourt is called on to decide cases and controversies
o :alues are intrinsic to constitutional rights / #annot e completely value-free in constitutional
interpretation.
6elegating the decision
o 2erhaps rather than deciding when life egins, the #ourt is simply delegating the decision to the
individual, rather than to the state.
5ut #ourt cannot delegate the right to murder to the woman, so the #ourt must naturally decide
that full-fledged human life does not egin at conception.
o 6eeply difficult moral questions must e left to the individual, not imposed from aove y the
government.
#oncern among the pro-choice w, the viaility standard
o 3ome irth defects are detectale only in the later stages of the pregnancy. *f the fetus has reached the
point of viaility efore detection, the pregnancy cannot e terminated.
o :iaility depends on the state of medical science. 1s science advances, the right of privacy of the woman
shrin0s.
2oorly reasoned and written opinion. 3o what went wrong'
o 1ttempt at alancing two conflicting interests. The interests are asolute and nonnegotiale on oth sides.
The #ourt is concerned that this matter cannot e left to democracy, ecause once one side gets a slight
ma!ority, it will crush the other side and violate what they consider
<I
o $ood old fashioned !udicial alancing act. 5est possile compromise. 5ut is this acceptale' *s this the
function of the court'
o #ourt did not want to say that they were defining, even only as a legal matter, when life egins. 3o it
wrote aout potential life instead. 2erhaps they thought that in doing so they could coax those who
were pro-life into accepting the opinion as less of an affront to their eliefs.
2erhaps the #ourt had hoped to stri0e a argain that would placate oth sides. *f so, they were greatly mista0en.
The views on each side are too strong. 2ro-life / aortion B murder. 2ro-choice / state-coerced ay incuators.
Summary: The case ma0es far more sense as a legal and constitutional determination of the eginning of actual human
life. "eaves open whether science, religion, or philosophy determines a different time for the eginning of life. *t is within
its power to determine when life egins at law / and they did so, ut they were too chic0en to come out and say it.
o #onsistent with the traditional common law view of separate life eginning at the quic0ening. 1fter that
point the woman assumes legal responsiility
o #onsistent with the ma!ority of 1mericans+ view at the time, as well as today.
Three options esides Roe assuming there is a fundamental right to odily integrity. "oo0ing at how compelling
the state+s countervailing interest is:
o The state+s interest in protecting potential life is not compelling, protecting actual life is. 1nd a fetus is
not actual life until viaility. -;ffectively what the #ourt decided, ut did not admit..
o %etus is not an actual human life efore irth / Right to aortion throughout the pregnancy.
o Cudges not qualified to decide when life egins, so leave it up to the state. 3o if Texas+s democratically
elected legislature decides that life egins at conception, it can an all aortion.
1ll three will e quite unsatisfactory to a large percentage of the population.
5ut how can the court avoid deciding the question' The controversy was efore them.
RECASTING ROE UNDUE #URDEN TEST
1ortion Regulation from $oe to Casey
The reaction to $oe included attempts to amend the #onstitution to permit the states to enact laws
regulating,prohiiting aortion or to create a constitutional definition of life as eginning at conception. 8one
were successful.
3ince <JEK, opposition to Roe ecame a central plan0 of the Repulican platform. #ontinuing Repulican efforts
to appoint anti-Roe 3upreme #ourt !ustices. Regan promised to appoint !ustices who would overturn.
o &owever, in the <J years etween Roe and #asey, Repulicans has dominated the presidency. ?nly the 9-
year term of 2resident #arter intervening, and he had the distinction of eing the only president to serve a
full 9-year term w,o appointing a single 3upreme #ourt !ustice.
#ourt continued to stri0e down laws designed to limit the availaility of aortions y other means:
o 3pousal consent requirements / struc0 down in 6anforth -<JEK..
o 2arental consent requirements / 5lan0et consent resulting in >2 veto of aortion for mature minors /
struc0 down in 5ellotti * -<JEK.. 5ut can involve parents in the decision so long as it does not result in an
asolute, and possily aritrary, veto. 5ellotti **.
o 2rocedure that requires either parental consent or a !udicial determination regarding minor+s maturity to
ma0e a decision to aort. 1shcroft -<J=>..
o 2arental notification also acceptale. (atheson -<JJF.. 5ut struc0 down a law that requires oth parents
e notified 9= hours prior to the aortion is performed. &odgson v. (8 -<JJF..
o Regulation of medical practices: protection of viale fetuses.
Requirement that aortions performed in the first trimester must e performed in a hospital, rather
than an outpatient clinic, unconstitutional. 10ron -<J=>.. &ospitals much more expensive and
resulted in significant ostacle in the path of women see0ing an aortion. #ourt struc0 down a
variety of other procedural hurdles placed in front of aortion or that otherwise would chill the
practice.
o $overnment refusal to fund aortion.
<K
3ustaining (edicare enefits for childirth, ut not for nontherapeutic aortions. (aher v. Roe
-<JEE.. #ourt held that the funding decision did not interfere with a fundamental right, so applied
a rational asis test.
;xtended to apply to a restriction on aortion counseling for any pro!ect receiving federal
funding. Rust v. 3ullivan -<JJ<.. 5ut 2resident #linton rescinded them efore they went into
effect.
Cudicial questioning of $oe / in the years etween $oe and Casey, several Custices express dout aout certain
aspects of the decision.
o 4ndue urden approach / %irst articulated y C. ?+#onner in her dissent in 10ron, was proposed as an
alternative to the trimester approach. Rationale: 1s medical science progresses, the two ends of $oe,
medical danger to the mother and viaility of the fetus were on a collision course somewhere in the Gnd
trimester. 8ot a long-term viale framewor0.
o ?thers have called for the end of the trimester approach or to overrule $oe altogether. The strong criticism
of $oe in Aester v. Repoductive &ealth 3vs. -<J=J. caused some commentators to pronounce the end of
$oe and the right to aortion was near.
1fter years of Repulican appointees and retirements of nearly all lierals on the #ourt. ?nly two !ustices were
openly for upholding $oe. Thus, for $oe to survive, > of the I new Reagan appointees had to vote in favor of
upholding.
o This seemed li0e a long shot, if not impossile.
o ?n the last day of the term, the #ourt had still not handed down the opinion.
o 2ro-choice movement had already scheduled its protest march
o *n the voting conference, Rennedy voted with the conservatives to overrule Roe I-9. Rehnquist had
already egun
o 5lac0mun was writing a dissent when he received a note from C. Rennedy, who had een meeting secretly
with CC. 3outer ) ?+#onnor and decided to change his vote.
The 4ndue 5urden 3tandard and the modern right to aortion.
2lanned 2arenthood of 3e. 2a. v. #asey -<JJG. / #hallenge of an aortion law that required a physician to inform
a woman planning to have an aortion aout the nature of the procedure, health ris0s, proaly gestational age
of the child at least G9 hours prior to the procedure.
o Reaffirms the central legal principle of $oe, that a woman has a fundamental privacy interest in
controlling her reproductive autonomy. &owever, aandons the trimester approach as outdated and no
longer supportale y medical 0nowledge.
*irect abortion restrictions: *nstead, focuses on the 3tate+s interest on the potential human life.
&olds -'. that the point of viaility is the point at which the 3tate+s interest in life can outweigh
the mother+s autonomy rights.
$egulating abortion pre-viability: 1dopts the 4ndue 5urden 3tandard to apply to measures other
than outright ans on aortion / unconstitutional where a state regulation has the purpose or
effect of planning a sustantial ostacle in the path of a woman see0ing an aortion of a
nonviale fetus.
o 4ndue urden standard in action:
#n)ormed consent / ?verrules prior cases that struc0 down statutes that required physicians give
truthful, nonmisleading information prior to an aortion procedure -when designed to dissuade
the mother from continuing.. 3tate can enact legislation to ensure the decision is mature and
informed, even when the policy is clearly to encourage childirth rather than aortion. -?R.
Mandatory +,-%our waiting period / Required reflection period not unreasonale. %inds the fact
that some women must travel long distances to get an aortion, and may not e ale to afford two
trips, to e a closer question, ut in the end finds that it is not a sustantial urden. -?R Oon
these factsP.
5ut even for very serious surgeries, the state does not require such a waiting period.
Really, the state is attempting to discourage women, hope that a certain percentage of
women would change their minds.
<E
#onscious effort y the state to discourage a citi7en from exercising a fundamental
constitutional right. *s this o0ay'
o The plurality says yes. *t is a urden, ut not an undue one.
o 3tate is protecting its interest in the potential life. #an vindicate that right y
ma0ing sure the woman is sufficiently sure that she wants to exercise that right.
o 3tate can discourage citi7ens from exercising a wide variety of constitutional
rights: ;x. Right to assemly urdened y a pulic awareness campaign designed
to discourage 8eo-8a7i memership.
#oncerning the travel urden, the #ourt loo0ed to the record and the findings of fact. ?n
this record they found that it was not an undue urden. Thus, it left open the possiility
that in other places the urden could e too great. -''.
Thus, it is a fact-ased inquiry. 1ny new aortion law will e litigated in the courts.
!pousal noti)ication / #ourt pointed to the prevalence of domestic ause as a reason the spousal
notification provision created a sustantial ostacle. -45.
5ut what aout the !udicial ypass procedure'
o 1use / could e under the psychological control of a physically ausive
husand, so such attered women would not e ale to ma0e such a statement. *n
addition, there is veral and psychological ause, which is not accounted for y
the statute. 1lso, ased on fact-findings.
o Aomen+s rights / more recognition of the women+s rights aspect of the aortion
deate. &usand can have a sort of de facto veto power through psychological or
socio-economic control. *nforming him would e a great urden on the woman+s
decision.
Parental noti)ication / 1ffirmed past rulings that a 3tate may require a minor see0ing an aortion
to otain the consent of a parent or guardian, provided there is an adequate !udicial ypass
procedure. -?R.
-iling and documentation re.uirements / all permissile as in the interest of health research and
trac0ing. 2atient+s name is confidential. -?R.
34((1RN: 3plit the difference. &ad to stri0e one provision and uphold another to usher in a new era of
alancing and stri0ing a alance in the constitutionality of aortion law.
o 3tevens #)6 in part / Aould have struc0 the G9-hour waiting period and disclosure requirements.
o 5lac0mun #)6 in part / Aould 0eep $oe+s trimester framewor0 and strict scrutiny, ut was clearly
pleased that it was not overruled entirely.
o Rehnquist -Q>. #)6 in part / 2oints out the !oint opinions tortured application of the stare decisis and the
fact that the new standard for review was made out of whole cloth. 5elieve that $oe should e
overturned as not in tune with pulic sentiment and an un!ustifiale incursion into the legislative process.
Two ma!or issues from Casey:
o Ahat are the doctrinal rules governing aortion rights under #asey'
o Aas the 3upreme #ourt correct to invo0e the doctrine of stare decisis and not overturn Roe'
*ssue V< / 6octrinal rules governing aortion rights under #asey
o Reassures that there is a 362 right to privacy and to aortion. 5ut it is not unqualified and can e su!ect
to the state+s interest in preserving life.
o 3tate can prohiit aortions -except where the mother+s health is at ris0. from the point of viaility. That
is the point of independent existence of another life. 8o longer ound to the rigid trimester framewor0,
so whenever viaility happens is the point when the state+s compelling interest 0ic0s in.
o *n protecting the health of the mother and the potential life of the fetus, the state can ta0e steps to
encourage irth over aortion )rom *ay /, ut cannot create an undue urden on the right to aortion.
Ahat 0ind of test is this' 3trict scrutiny' *t doesn+t seem so harsh as that.
(ore li0e an intermediate scrutiny level of analysis. &ow strong or wea0 is difficult to tell.
5alancing test. -1nd for this uncertainty, the dissenters attac0 the opinion..
<=
The fundamental right of the mother+s privacy clashes with the primary interest of the state in
protecting the potential life of the fetus. Thus, it is not li0e most cases of infringement of a
fundamental right, where the countervailing state interest is usually not so strong.
5ut the undue urden test gets only 3 sure votes for the test.
3tevens uses the language undue urden ut he elieved that the test should e closer
to the strict scrutiny side.
5lac0mun elieves strict scrutiny should e applied.
The other 9 !ustices elieve $oe should e overturned and the 3upreme #ourt should get
out of the aortion regulation usiness.
o Ahat to do with a fractured court'
Ta0e the position with which at least I people agree.
;xtreme example
9 elieve aortion should e anned, < in the middle, 9 elieve aortion is an asolute
right.
*n this situation, if the middle person writes an opinion that incorporates parts of oth
views, that sole !ustice+s opinion will control with respect to all issues. Ahere lone !ustice
sides with the pro-lifers, that will have I votes. Ahere s,he sides with the other side, the
opinion has I votes too.
*n Casey, the !oint opinion gets at least I !ustices to agree that some of the procedures amount to
an undue urden. Ahile two of the !ustices elieve that a higher standard should e applied, the
agree at least that the state regulations at issue unduly urden the right to aortion. Thus, the
position of > !ustices of the !oint opinion -with the help of G pro-Roe !udges. trump the 9
dissenting !udges.
*ssue VG: #orrect to invo0e the doctrine of stare decisis and not overturn Roe'
o "ierty finds no refuge in a !urisprudence of dout.
"ierty depends upon a certain amount of certainty in the fundamental rights of citi7enship. *f
you never 0now when the court will ta0e away a particular right. Aill always e insecure aout
whether.
Aith that quote, the #ourt invo0es the doctrine of stare decisis.
o $enerally, state decisis has the most weight in commercial law. 1cts to protect the reasonale reliance of
commercial actors. Aould e profoundly wasteful and unfair. *n some situations, it is etter to leave the
law settled, than to get the law right@
o 5ut is there that type of reliance on the holding of $oe v. 0ade'
6e-legitimi7es the aortions already had. 10in to a -retrospective. !udicial determination that
these women were criminals at the time they had the aortion. 3tigma.
#ultural reliance / society has relied upon having the option of terminating a pregnancy. Aomen
expect to have control over their reproductive destiny and thus they advance their careers and not
have their professions
#ourt claims that the doctrine of stare decisis is especially important where grave, highly
controversial constitutional issues are decided.
Rehnquist states that this is ac0wards. #onventional wisdom is strong s.d. in statutory
interpretation -#ongress can always amend if the courts get it wrong.. Ahere as for
constitutional issues, s.d. should have a wea0er effect ,c a wrong decision is impossile
to overturn except with a constitutional amendment.
(a!ority agrees that this is true as a general matter. 5ut for the loc0uster issues must e
aggressive with s.d. ?therwise the #ourt will lose its legitimacy. Ahy'
o *t would undermine the #ourt+s legitimacy in the eyes of the nation if it was in
the usiness of overturning such loc0uster decisions. "egitimacy in the eyes of
the people is crucial to maintaining the power of the court@
o 2eople have accepted the power of the court to protect the interests of the
minority. %ollow the decisions ,c we respect the right of the court to have the
final say. 5ut that legitimacy turns entirely on the perception of the people that
<J
the court is ehaving neutrally, interpreting the law, not playing politics. %or that
reason the #ourt has to e extremely careful not to issue opinions that cause
people to question its legitimacy.
o #oncern that overruling Roe may simply lead to a new pro-choice appointment
that would overrule that case, and so on. 3oon people would reali7e that the
#ourt is not neutral, ut political !ust li0e the legislature. (ust guard the non-
political nature of the !udicial ranch. 2lacing the law over political views.
3calia ) Thomas agree that the 3upreme #ourt needs to e concerned aout its
legitimacy. That is why they elieve the #ourt should get out of the aortion regulation
usiness.
o 5ut what is more important: $etting it right' ?r protecting the legitimacy of the #ourt'
*s this case any different from 1rown v. 1d o) 2duc or 0est Coast otel'
Rehnquist: 8o difference.
Coint opinion: 8ot the type of fundamental change in factual, legal, or societal conditions
to warrant such a rea0 in stare decisis
o *n those cases, there was a lac0 of understanding of the factual underpinnings of
the !udicial reasoning. The legal reasoning was permissile has the situation
actually panned out as the !udges had thought: that separate facilities could not e
created equal, that laise77 fare economics would not ma0e corrections for the
poverty and generally e detrimental to society.
o 2lus law evolved enough such that the legal principles surrounding those
decisions had change so that those decisions no longer fit in.
o 3ocietal views on this issue have remained remar0aly consistent.
5ut the !oint opinion discards the trimester framewor0, so was stare decisis actually applied' #an
the 3upreme #ourt invo0e stare decisis and overrule a slew of cases at the same time'
&iding ehind the doctrine of stare decisis to deflect criticism' 4n!ustified application of
stare decisis'
o 8o. Reeps the core of $oe, that a fundamental right exists, ut !ettisons the parts
that have een undermined y later developments. %actual underpinnings of the
trimester system had ecome osolete, so only that part of the opinion should e
overruled.
o $rounds the right of aortion in autonomy and odily integrity. (ore explicit in
this regard.
o $ives a more detailed, less conclusory, history of the right to autonomy in
matters of family and privacy. *ncorporates the woman+s rights aspect of the right
to terminate pregnancy.
3ituations appropriate for overruling stare decisis -%rom #asey.
o ;arlier decisions had proved unwor0ale.
o ;volution of legal principles had undermined the doctrinal foundation of the precedents.
o #hange in the factual predicate for the decisions.
;xpress adoption of the undue urden test y a ma!ority of the #ourt. -3tenerg v. #arhart..
Re-emphasis of the deference to the state+s interest in protecting potential life.
o $on7ales v. #arhart -GFFE. / 4pheld a federal law prohiiting partial irth aortions that was almost
identical to the one in 3tenerg. 5oth sought to an the same practice and did not contain a health
exception for the woman. Though the federal law was drafted more precisely.
FAMILY RELATIONSHIPS
8ote: 6id not really discuss all the family relationship cases in the oo0Wseem to e unimportant.
?pinions in the case elow directly focused on the asic question of how the #ourt should decide the content of
fundamental rights: *s tradition determinative and, if so, must it e a tration stated at the most specific level of
astraction' *nstead, discussion focused on the famous 3calia footnote on pg. IJ9.
GF
(icheal &. v. $erald 6. -<J=J. / 1dulterer iological father sought visitation rights with child. #1 law gave a
virtually irreuttale presumption of legitimacy of any child orn to a wife. Refused to recogni7e parentage of the
adulterer despite paternity tests that showed a J=X correlation.
o Custices were all over the place. 5ut holding is unimportant for the class.
Ahat is important is the deate in this case aout from where 362 rights arise:
o &istory and traditions' -3calia.
o ?r contemporary societal values and understandings' -5rennan.
1lso what is the appropriate level of specificity -in the individual claiming the right. that should e viewed when
loo0ing to history and traditions to determine the right:
o The very narrow categori7ation: 1dulterous natural father. -3calia.
8arrowly construes a 362 right to apply only to well-accepted areas. (ust loo0 at the most
specific level at which it is possile to identify a tradition in our culture as to identify whether
there is or is not a recogni7ed right for that group.
(ost specific level at which the court can discern a tradition or history relating to the treatment or
recognition of the right. . . -see oo0..
&igher levels of generality permit !udges to dictate rather than discern the society+s view.
o 5roader astraction when recogni7ing a right: 2arent. -5rennan.
6efines the right roadly, at a high level of generality.
2oints out that viewing matters at the level of specificity 3calia proposes (riswold and Loving
and many other cases were wrongly decided. *nconsistent with this entire ody of law.
Aould result in a calcification of our rights and values in the <=th #entury. 8ot the living charter
* have come to 0now our #onstitution to e.
Ae must never forget that it is a #onstitution we are expounding. / Custice Cohn (arshall.
#hoosing the level of generality.
o &ow does 5rennan choose his level of astraction' ;ssentially the !udge decides what the outcome of the
case, then applies the level of astraction that gives the answer the !udge see0s. 3tart with the result and
wor0 ac0wards.
o 1t least 3calia has a methodology. &as the enefit of constraining !udicial activism.
o 5rennan: 3calia is right that when you re!ect 3calia+s view there is room for su!ectivity, and there is the
potential for ause y activist !udges see0ing to inter!ect their own political views. 5ut there is a way to
constrain the level of astraction: the case law and precedent.
This acts as a restraining force, ecause there would e conflicting precedent from other
decisions. *nfer principles from the previous decisions -oth those defining freedom and those
defining restraint., find controlling principles, astract the application to new facts and cases.
This is the common law method.
HOMOSE9UAL RELATIONSHIPS
"awrence v. Texas -GFF>. / 2olice ro0e into a house on a reported weapons disturance. *nside they found two
men engaging in homosexual sex. They were arrested and charged under law criminali7ing homosexual sex.
o K-> decision. Rennedy / 3truc0 down the statute. 362 includes the rights of gays and lesians to engage
in consensual sexual acts, including
o Ahat aout stare decisis'
*n 5owers v. &artwic0 the court had, relatively recently, held the opposite. 6irectly on point.
3pecifically stated that there is no fundamental 362 to gay sex.
Ahat happened to lierty finds no refuge in a !urisprudence of dout' 3calia goes allistic.
Ahat aout the excuse given for not overruling $oe' 1lso a high-profile case, far more recent
o Ahat are the factors the #ourt loo0s to in deciding whether to overrule or not'
Societal values had changed / %or aortion, had not changed. %or homosexuality, the values of
society had changed.
;merging awareness that lierty gives sustantial protection
G<
8ot as prude as we were. 3ocietal values have changed regarding sexual mores, ut
especially in regard with homosexuality. 3ociety has changed despite 1owers. 8o
reliance.
#lear trend in the law:
o I state supreme courts re!ected 1owers under their state constitutions.
o ;uropean #ourt of &uman Rights recogni7ing the right.
*ncrease in visiility of gay life in society.
3calia argues that it is the role of the government is to protect the social mores of the
country. 1owers recogni7ed that right of the state.
Legal landscape has evolved / 5owers was an outlier. 6id not fit within the legal landscape. 6id
not fit in precedent. *t made a moc0ery of precedent.
Too0 a very narrow level of astraction: 6oes tradition or history confer a fundamental
right on individuals to engage in homosexual sodomy.
o ;xample of 3calia methodology. Relied upon this decision in (ichael &.
o ;ssentially viewed the rights as free-standing and unconnected laundry list.
%ailed to synthesi7e these precedents to derive the common threat, theme,
rationale.
5lac0mun dissent stated that 5owers should have een viewed as the right to e let
alone.
o 5ut this right is articulated way too roadly.
o 5oth sides engage in lawyer games. 8either of these formulations is really
helpful in determining the existence of a fundamental right.
1ppropriate analysis is the raise the level of generality to the point at which the prior
ody of cases on point -or a similar point. have analy7ed similar rights. 3o the view in
5owers the #ourt should have ta0en the level from $riswold and analy7ed it in the
context of a right to privacy
No reliance / &omosexuals were virtually never prosecuted for these acts.
actual underpinnings / %actual assumptions underlying the 5owers opinion -and to some
extent the Roe decision as well w, the trimester system..
(a!ority claims that 1owers more li0e segregation and li0e the decisions of the Loc%ner
era.
5ut what factual underpinnings had changed since then or were wrong in 1owers'
o 8o history of outlawing specifically homosexual sodomy. "ong tradition of
criminali7e all non-procreative sexual acts such as fellatio, oral sex with
opposite, etc. ?nly in the <JEFs did the legislatures egin legislating against
gays.
o Ahen 2owell -the fifth vote. discussed the matter with his law cler0s, he was
ewildered. &e told his law cler0s that he had never met a gay person in his life.
That law cler0 was gay@ 6idn+t understand what it meant to e gay, thought it
was something men resorted to when men weren+t very good at getting the ladies.
Thought it was !ust a deviant sexual choice.
o 5y GFF>, the !ustices had a much etter understanding of what it means to e gay.
8atural intimacy of an entire group of people.
o 5ut what test was applied here'
(a!ority tal0s aout the right to consensual adult sex as a fundamental right which causes one to
thin0 that strict scrutiny. 5ut opinion states that the law does not serve a legitimate state interest.
That it is irrational. This is the type of language that is used in rational asis scrutiny.
The Texas statute furthers no legitimate state interest which can !ustify its intrusion into
the personal and private life of the individual.
3calia points this out in trying to ma0e sense of the Rennedy opinion. #an only ma0e
sense of the opinion y viewing it as an attac0 on the discrimination of gays and that this
rationale does not meet the rational asis test.
GG
6oes this mean that it is not legitimate to pass a law ased solely on upholding societal moral
values' That would seem to e the inescapale conclusion@
(a!ority distinguishes widely held moral values that have tended to condemn
homosexuality and the role of the law, which is to protect the lierties of individuals.
3calia points out that much in the criminal code is ased upon moral values: polygamy,
igamy, underage sex, incest, eastiality etc.
o %or underage sex, most incest, and eastiality, there is a lac0 of legally valid
consent that could e used to differentiate from consensual homosexual sex.
o 5ut igamy and adultery would seem to e covered y the ma!ority+s reasoning.
These could e distinguished on the asis that these involve government
recognition of certain relationships. *t is one thing to ar the government from
criminali7ing something, it is entirely another to require it to validate a
relationship.
3calia as0s who gets to decide / the unelected 3upreme #ourt !udge, or democracy and
the people'
Rennedy counters that that is not the right question. The proper question is: who gets to
decide, the government, or the individual'
Theme running though the opinion is that the law targets an unpopular group. 3uggests that any
law that singles out such a group is per se an illegitimate state purpose.
Ahat would happen if the law outlawed all non-procreative sex'
3till would e invalid: Aere we to hold the statute invalid under the ;qual 2rotection
#lause some might question whether a prohiition would e valid if drawn differently
say, to prohiit the conduct other etween same sex and different-sex participants.
Aould have a disproportionate impact on gays nonetheless.
(riswold line of cases seems to stand for the proposition that we all have certain
fundamental privacy rights.
3o why is there so much discussing of the discrimination against gays'
Ahy when these questions were raised y the circulating 3calia dissent did Custice Rennedy not
clarify'
3ea change at hand' #ourt perhaps trying to distance itself from the 362 precedent and
will adopt a more liertarian approach requiring the state to ma0e a showing for all
infringements into lierty, regardless of whether or not there was fundamental right at
sta0e.
?r perhaps li0e $oe and later the #ourt will re-interpret the rationale of this case to etter
fit into the 362 doctrinal framewor0.
o 4pshot: 8ot very good opinion. 6octrinal framewor0 is unclear. (ay e rememered for eing the first
time the #ourt has compassionately treats gays.
Roe and #asey and "awrence may give one the impression that the 3upreme #ourt has ta0en a very lieral stand
when it comes to unenumerated fundamental rights.
o ;uropean law is far more lieral in that it imposes a))irmative rights on the governments such as the right
to laor, shelter, and protection.
o 362 gives rise only to negative rights. 8o 362 oligation on the part of the state to protect
This reflects the %ramers+ vision of freedom. "imiting the power of government to interfere in the
lives of citi7ens. Aanted a limited government.
5ut the #" rights evolving tradition could have given rise to new, affirmative 362 rights of the
type that are granted in quasi-socialist Aestern
o Roosevelt came closest to molding the country in this image during the 8ew 6eal.
2roposed a 3econd 5ill of Rights. *ncluded many of the economic and cultural rights that are
protected as fundamental rights in ;urope.
(any of these visions have een reali7ed and continue today: 3ocial security, %("1, welfare
o 5ut as time when y, and people ecame to rely more and more on these affirmative rights, the question
arose whether they have ecome incorporated into the constitutional 362 rights.
G>
o (any commentators elieve that the Aarren #ourt was aout recogni7e %6R+s 3econd 5ill of Rights
through the operation of the 6ue 2rocess #lause.
o 5ut then 8ixon was elected and the Aarren #ourt ecame the 5urger #ourt, and the #ourt ac0ed away
from finding 362 protection for affirmative economic and social rights.
Re!ection of the use of the 362 as source of such affirmative rights.
o *es%aney v. 0innebago City -<J=J. / %ather repeated eat son. 3tate officials 0new aout this treatment
and did nothing. %inally the father eat him so adly that he ecame retarded. (other sued the state
claiming a violation of 362. Ahen the state ecame aware of the ause
#ourt re!ected the claim. 362 only limits in which circumstance the state can act and does not
impose an affirmative oligation to protect citi7enry from harm.
E:UAL PROTECTION
ECONOMIC REGULATIONS UNDER E8P8 RATIONAL #ASIS
$wy 2xpress 3gency v. New 4or5 -<J9J. / 8N #ity ordinance that prohiited placing advertisements on the side
of truc0s. 5ut made exception for truc0s used primarily for own usiness. #hallenged the ordinance on 362
grounds and ;qual 2rotection grounds. #ourt quic0ly dismisses the 362 claim. Loc%ner era is over.
o #ourt applies rational asis scrutiny to the ;.2. #lause. 6espite the argument that the law was irrational,
e.g., ads for one+s own company are !ust as distracting as those for other companies, the #ourt upheld the
law. The theory is that the legislature is entitled to say that if a company is spending the time to uy
advertising on a truc0, the ad would e more flashy, eye-catching and professional. The owner of the
truc0 is more li0ely to simply put a stencil w, the company name.
o *s that right' (aye or maye not. 5ut that is not the question with rational asis. The question is whether
there is any possile rational reason for the law. :ery deferential.
"egislature, if it has the valid purpose, need not tac0le the entire prolem at once.
o 1 law can e underinclusive and still comply with ;.2. so long as the regulation marginally advances the
government interest. #an tac0le the little, easy issues efore trying to ta0e on the harder ones.
o ?ther laws sweep too roadly, are overinclusive. -;x. law prohiiting all motorcycles in a residential area
after <F p.m..
o ?ther laws are oth at the same time. -;x. "aw arring former patients of a methadone from ecoming
us drivers..
SUSPECT CLASSIFICATION: RACE DISCRIMINATION
%irst application of the ;.2. clause of the <9th amend. came E years after the 3laughterhouse #ases.
o !trauder -<==F. / 3truc0 down a A: law that prohiited lac0s from serving on !uries.
*nfamous Capanese internship camp case. Aellspring of the suspect classification language and the first
application of strict scrutiny.
o 6orematsu v. 7nited !tates -<J99. / Reviewed the constitutionality of the quarantine of Capanese-
1mericans pursuant to the military orders in detention centers. Those who did not choose to report to the
detention center were arrested, li0e %red Rorematsu. &e was orn in the 4.3. and raised here.
%irst part we still follow today: 1ll legal restrictions which curtail the civil rights of a single racial
group are immediately suspect. That is not to say that all such restrictions are unconstitutional. *t
is to say that courts must su!ect them to the most rigid scrutiny.
5ut application of the law to the facts is less sympathetic:
:ery real fear that the Capanese-1mericans would !oin the side of the enemy was very
real. 1nd the military must e granted great deference in periods of crisis.
Thus there is a pressing pulic necessity, and the law survives strict scrutiny.
#onvicted not of failing to report to a detention center, ut for eing in an area where Capanese-
1mericans were not permitted. Thus the court could avoid the most egregious aspects of the law
and focus on violation of a no-go 7one.
G9
Custice (urphy+s dissent:
8ot necessary: "aw orn out of an erroneous assumption of racial guilt rather than ona
fide military
8ot strictly tailored: 5oth over- and under-inclusive. #overs all Capanese-1mericans,
many of whom are loyal citi7ens. 5ut does not require the same treatment to $erman-
1mericans and *talian-1mericans.
Custice Cac0son -eloquent dissent.
5orn in this country, citi7en of the 4.3. and #alifornia. 8o claim he has actually een
disloyal. #onvicted of eing located in the same territory were he lived and was orn.
?nly difference is that he was of different racial stoc0.
4nderstands that military decisions in times of war will not always conform to the
#onstitution. Ae may not li0e it, ut its going to happen. 5ut the real tragedy is when the
supreme court of the land confers constitutionality on these actions. 1 !udicial
construction of the due process clause that sustains OtheP order is a far more sutle low
to lierty than the promulgation of the order itself.
o ;ssentially counsels for restraint of !udicial review during times of war. 5ecause
the political realities force the #ourt to sustain a wartime order that is
unconstitutional. This then ecomes precedent and can e used as a weapon y
future leaders.
o #annot avoid the unconstitutional action. That has already happened, and given
exigencies of war, perhaps it was necessary. 5ut the #ourt should not validate
this wrong under the #onstitution.
4nli0e for economic regulations in which it is o0ay to e over- and under-inclusive so long as there is a rational
asis for the law, here the law must e narrowly tailored ,c it deals with a suspect class.
6orematsu has ta0en on greater importance in recent years. Ahile the ac0lash against 1ra-1mericans was
nothing in comparison with the action ta0en against Capanese-1mericans in <J9Fs. &owever, there still was a
ac0lash, and it continues today.
o 3ome proponents of 1ra internment camps have pointed to this case as proof of the constitutionality of
such a system.
o *s strict scrutiny enough. ?r should there e asolute scrutiny in cases where there is discrimination
against a minority' Ahat aout a law that imposes heightened security chec0s on 1ra-1mericans in
airports and other security chec0points' Aould that pass strict scrutiny'
o 3ince 6orematsu, the 3upreme #ourt has never upheld a law that constitutes race discrimination.
SEGREGATION CASES

3upreme #ourt upholding segregation.
o Plessy v. -erguson -<=JK. / OE->P #hallenge rought to legally imposed segregation on rail cars. #ourt
upheld the law, found that it fell w,in the general police powers of the state. 6id not seem to apply a
heightened level of scrutiny.
5ut on the other hand, it did scrutini7e as to whether the law actively discriminated specifically
against the lac0s li0e in !trauder. The law segregated, ut did so for oth races. 2resumaly,
whites were not permitted to ride on the lac0 trains either.
3o while the law deprived lac0s of the right sit in a certain wagon, a reciprocal urden was
placed upon whites.
3ocial vs. "egal inequality. *n !trauder lac0s were entirely deprived of the legal right to serve on
!uries. &ere lac0s were permitted to ride cars, drin0 from fountains, eat in restaurants etc., the
only inequality is the social status in each place. #ourt holds that the #onstitution does not protect
social status.
5ut the social e.uality is enforced y the law that perpetuates the social inequalities.
#ourt claims that so long as the facilities were equal in nature, then the stigmati7ation perceived
y the lac0s is simply a case of an overactive imagination.
GI
6issent points out that the discriminatory intent is ovious from the historical and current
context. #lear from context that the law was passed to 0eep the lac0 man down and to
o 6*33;8T: Custice &arlan -*.. The !udgment this day rendered will, in time, prove to e quite as
pernicious as the decision made OinP the 6red 3cott case. Recogni7ed that within the context the
segregation laws are oviously discriminatory in effect and intent. 3tates that the #onstitution is
colorlind.
;nd of segregation in pulic schools.
o 1rown v. 1oard o) 2ducation / 1 consolidation of several cases in which lac0 schoolchildren challenged
their segregation at the primary school level. %acial challenge to school segregation, rather than an
attempt to secure equal facilities.
#ourt felt that there must e a unanimous decision due to the divisive nature of the question.
?rder a rehearing one year later to uy time. #hief Custice :incent was a strong supporter of
segregation, felt he had a consensus. 5ut then he died unexpectedly. 8ew #.C. Aarren twisted
arms until there was a consensus to stri0e down segregation.
#ourt proceeded on the presumption that the facilities themselves were equal. 5ut found that
separate is always unequal.
8arrowly limited the decision to education only. 6istinguished y did not overrule Plessy.
;ducation was unique in that young children are vulnerale and especially susceptile to the
social conditioning of inferiority that arises from segregation.
(arshall and the 811#2 too0 a roader approach than necessary to win. 5ut they were not !ust
going for a win, they were going for social change. 5ut this was pretty dangerous, it could have
come out the other way and reinforced segregation@ Ahy did they not adhere to their previous,
successful strategy'
1spirations: 811#2 wanted more than actually equal facilities. Aants the end of
segregation and the ostraci7ing effect that it causes.
#ost: Ahile successful, it requires concrete findings in each individual case that the
facilities were not equal.
Aanted a igger win. 1nd this rationale of inherently inequality in segregation could e
used as a springoard to stri0e down.
o 1rown+s importance cannot e overstated. *t was the eginning of the end of segregation.
o 5ut it is also important in a strictly constitutional sense. 1rown was the first time since the end of the
Loc%ner era that the #ourt aggressively protected personal rights. 3ignaled the end of total deference to
democratically enacted laws. Return of !udicial scrutiny. 1rown led the way to (riswold8 $oe8 Lawrence.
Ahat was the asis of 1rown+s ruling that the school segregation'
o 4nconstitutional ecause there is a detriment only to the lac0 children, not the white ones. This
detriment is the psychological inferiority complex instilled in lac0 youth due to this separation.
2sychologically insulting and damaging to that group.
?perating on the assumption that all the materials and conditions are the same. ?f course, there
really were quite different conditions.
o Re!ects the Plessy case+s presumption that if there was a stigma associated with the segregation of the
race+s, then that is solely in the mind of the minority that views it that way. #ourt points to modern
psychological authority that shows the inferiority complex among lac0 children.
%amous %8 << -%8 I in caseoo0. / string cite to numerous sociological and psychological
studies.
3hould the court loo0 to such studies in ma0ing their decision' (ost of the studies in that
footnote have een re!ected y modern experts as methodologically unsound.
o "oo0s to the history, context, and reality on the ground. ;veryody 0new y that time that segregation
had the purpose of su!ugating the lac0s. That was the purpose of these laws.
5ut does not come out as say that segregation is intentionally racist. That would have een
political suicide.
(ade it seem that this was simply inadvertent effect that only now was coming to light in various
sociological and psychological studies.
GK
Aas 1rown wrongly decided'
o (orally right, sure. 5ut is it legally right' *s it a valid interpretation of the #onstitution' Ahat aout the
methodology of the case, the reasoning'
o Ahat !ustifies the #ourt+s re!ection of democratically enacted laws' The case simply turns on the moral
!udgment of the 3upreme #ourt !ustices. 6ressed up with the studies.
o 8o support from textualism, precedent, or originalism. *t was a total rea0 with precedent. -3ee Lawrence
elow for the factors to loo0 for in ma0ing a total rea0 w, precedent..
o This flies directly in the face of 0est Coast otel. The #ourt, ased solely on the individual morals of the
!ustices, made the decision. Ahat ma0es it different'
5ut here, the group was one that did not have sufficient political power to protect its interests.
Therefore, the democratic process fails, and the courts need to step in. $rossly outnumered and
outgunned y the white ma!ority.
6iscrimination against discrete and insular minorities. 3ee %8 9 of Caroline Products.
1rown is the ultimate non-originalist opinion. Re!ected that view. #annot turn the cloc0 ac0.
?riginalism has gained a lot of adherents in recent years. 2artially due to 3calia+s fierce defense of this view and
the fact that it ma0es great soundites. 5ut it has not ecome a dominant constitutional theory in part ecause it
would require a different outcome in 1rown. 1ny constitutional interpretation that could put us ac0 into the era
of Cim #row laws is not acceptale to most.
SEGREGATION IN DC SCHOOLS
1owling v. !%arpe / #ompanion case to 1rown rought y lac0 schoolchildren in the 6istrict of #olumia.
#ould not apply the <9th 1mendment ecause that was only applicale to the states. 6# was a federal territory.
Thus, the #ourt held that the due process clause of the Ith 1mendment prohiits segregation as well.
o Ahat does segregation have to due with due process of law'
6enial of a sustantive due process right to e treated equally under the law.
o *n other words, equal protection is one of those rights that are required for ordered lierty even if it is not
specifically mentioned in the #onstitution as enforceale against the feds.
Reverse incorporation. The incorporation theory holds that the <9th 1mendment incorporates
many of the rights enforceale against
(ost certainly in <EJ<, the Ith 1mendment was not understood to protect the equal protection of
rights among lac0s and whites. The original #onstitution expressly contemplates the use and
preservation of the slave trade. *t would have een unconstitutional@@@
&ow can the #ourt claim this' 5asically no !ustification in the #onstitution. 5ut the
#ourt %ad to come up wit% somet%ing to !ustify the finding that 6# must also follow that
law. *t would e unthin0ale to permit the feds to continue to segregate and prohiit the
states from doing the same.
3o the #ourt reached out and evolved a 362 right to e free of segregation. "iving
#onstitution and evolutionary concept of rights.
o ;ven though located in the ;2 chapter of the oo0, it is clearly a 362 case.
5or0 got into troule at his confirmation hearings y his adherence to 5lac0+s view that there are
no 362 rights outside of the 5oR.
3enate could not permit a 3upreme #ourt !ustice to sit on the ench who would permit Cim #row
laws in the 6istrict.
*n 6# the effect of
o KFX white residents
o Cust after 5owling, dropped to 9IX. (ost who stayed, send their 0ids to private schools. >FX white, ut
only 9X go to pulic schools@@@
o ?nly a few genuinely integrated schools in 6#.
SEGREGATION CASES AFTER B!"#N
GE
*mmediately following 1rown, the struc0 down segregation in all areas of pulic accommodation: swimming
pools, drin0ing fountains, restaurants, train cars etc. These were done in rief per curiam opinions.
1rown * did not order a remedy. Thus, it did not order desegregation immediately. Rather it called for additional
riefing.
5rown ** forced integration. . Required that the defendants ma0e a prompt and reasonale effort and
integration at all possile speed. 5ut in truth, was not immediately implemented. Resistence was widespread.
<JKK a coalition of 3outhern congressmen called for resistence. 1$ of 3outhern states gather to ma0e strategies
for how to avoid the 1rown decision:
#ivil Rights 1ct of <JK9
o Aithheld federal funds from all schools that refused to segregate.
o ?nly then with the firm support of the other ranches of government did the 3#?T43 feel secure to ta0e
a firm stand in enforcing 1rown.
Ahy did the #ourt ta0e it so slow'
o Rnew that there would e massive resistance. *f they drew a line in the sand and ordered segregation
tomorrow, the people would not have listened. They would have lost that tenuous authority they had.
o #ouldn+t do the !o on its own. %ed. 2aper+s wea0est ranch.
o 3hould we give the 3upreme #ourt such credit'
Real integration came only <F years later with an act of #ongress.
8ot the first to integrate. The 1rmy had already done so and ("5 was eginning to integrate as
well.
3till, it played a large role. 2lus the real heroes, the federal district court !udges in the 3outh, who
order integration despite death threats and ostrici7ation in their communities. 8ot sufficient, ut
an integral step. "andmar0 moment in the #ivil Rights movement.
5egan using programs that integrated the schools. 1fter many years of such programs, the schools as0ed for
release from these expensive programs. #ourt found that de !ure segregation had ended, and released the schools
from these using orders.
o 3tates returned to a system of neighorhood schools. 5ut, of course, residential districts have always een
highly segregated. This led to de facto segregation.
o 3egregation ecame much worse with white flight and sending their 0ids to private schools. 5oth
phenomenon go on to this day. 3chools are ecoming more and more de facto segregated every day.
8ationwide, the schools may e more segregated than they were efore 1rown@
4nder 0as%ington v. *avis -elow. this sort of de facto segregation is su!ect only to rational asis review.
2ending case in 3#?T43 concerning the constitutionality of the using programs in 3eattle and "ouisville, a
couple of the only cities that maintain such programs and desire to create integrated schools. #hallenged as
unconstitutional as a form of affirmative action that should e struc0 down.
o #hance that the 3#?T43 may hold that not only are cities not oligated to do something aout de facto
segregated schools, ut that the constitution prohiits efforts such as using programs that involve facially
race-ased laws.
o 6e facto segregated schools may e constitutionally re.uired@
FACIALLY-RACE #ASED LAWS THAT APPLY E:UALLY
Loving v. 9irginia -<JKE. / 5lac0 man and white woman got married in 6# and then traveled to :irginia. They
were prosecuted for violating the anti-misogenation law. #.C. Aarren stri0es down the law apply strict scrutiny.
o 3tate argued that, despite 1rown+s 33 review and the demise of all segregation laws, the #ourt should
have applied rational asis. 1rgued that this law impacted oth races equally. 6id not discriminate against
minorities, no discriminatory effect li0e the inferiority adge of segregated schools.
#ourt accepts the argument that there was no real discriminatory effect.
#ould dispute that claim. *mplicit that the ma!ority finds such an effect in the attempt to 0eep the
white race pure from the lac0s -or other races..
o 1lso claims that the purpose is simply to preserve the racial integrity of the white race, not to denigrate
the lac0 race.
G=
#ourt does not uy this argument. Ahat purpose of maintaining racial purity except. ?nly a crime
to have interracial marriage if one of the two spouses is white. ?ther races can water themselves
down all they want, so long as the great white race is not affected
o 1ggressively non-originalist opinion. 1solutely 8? amiguity with regard to the exception from the
#ivil Rights 1ct for the anti-misogenation laws. ;ven the radical Repulican denounced any effect on the
prohiition on inter-racial marriages.
:o%nson v. Cali)ornia -GFFI. / 3egregation of new prisoners in #1 penal system y race for a certain period of
time. ?viously a facially race-ased law, ut seems to treat everyone equally. 2urpose of the law was to protect
against race riots and racial violence prevalent in 4.3. prisons.
o Cohnson claimed that this segregation was humiliating to racial minorities in the same way that
segregation of the schools did in 1rown.
o #ourt doesn+t uy it, ut it also doesn+t seem to care aout Cohnson+s claim of humiliation. Re!ected the
view out of hand that separate can ever e equal. %acially race-ased laws are always su!ect to
o 6id the #ourt get this case right'
Ahat aout a law requiring race identification for census-li0e information'
o 5ut to !ustify the #ourt+s holding:
2laying with fire. Reinforces the elief that race is a valid distinction.
3lippery slope, could !ust as easily say that a law segregating the schools would reduce inter-gang
violence.
FACIALLY RACE-NEUTRAL LAWS AND E:UAL PROTECTION
"aw racially neutral ut racist in purpose and effect. 6iscriminatory purpose can e found in:
o Racist administration of the law.
4ic5 0o v. op5ins -<==K. / To operate a laundry in 3% in a wooden uilding, a person had to
apply for a permit. 1ll ut one of the white launderers+ applications were granted -==,=J., and all
the #hinese applicants were denied -GFF,GFF..
o *nferring discriminatory motive from extreme circumstantial evidence.
(omillion v Lig%t)oot -<JKF. / Tus0egee redrawing its orders to exclude all the lac0
neighorhoods and includes all the white neighorhoods. ?viously passed to 0eep lac0s
outside of the city and deprive them of their right to influence municipal affairs.
o The hard part of this category is determining a discriminatory purpose and effect. ?nce estalished, it is
clear that strict scrutiny should e applied.
3ometimes it is so latant that it can e inferred from the statistics.
That was the case in 4ic5 0o.
Today, most of civil rights cases turn on statistical data. 5oth sides hire statistical experts
who engage in complex regression analyses.
"egislative history to determine discriminatory purpose.
6ifficult to prove. 8eed legislator to e oth racist and stupid to ma0e an overt comment.
1lso, often the law has multiple purposes and different legislators have different reasons
for passing a certain law. This is a prolem with loo0ing to legislative history in general.
o #ourt has solved this prolem: ?nly need to prove that racism was a purpose of
the law, it ma0es out a prima facie case.
o Then the urden shifts to the government to prove that the law would have
passed anyway even had there not een those racist votes.
6irect evidence or statements of the officials.
%acially race-neutral laws that have a discriminatory purpose ut do not have a discriminatory effect
o Palmer v. :ac5son -<JE<. / #ity of Cac0son closed all pulic swimming pools shortly after that federal
government ruled that limiting access to the pulic swimming pools on racial grounds was impermissile.
#lear from the context that the purpose of the closure was an animus against lac0s.
GJ
C. 5lac0 wrote opinion for closely divided #ourt. "egislative purpose is difficult to show, a
dangerous game. ?nly apply 33 if those laws also have a discriminatory effect. Ahere there is no
such effect, apply rational asis.
%ound that the city could have closed the pools for other reasons, commercial viaility -saving
pulic money., avoiding race-ased violence. 6oesn+t matter. ;asy to uphold under R5.
Really no discriminatory effect'
?nce the city closed all the pools, presumaly private operators will ta0e over the
swimming pools and exclude the lac0s.
Ahat aout the stigma' Ahat sort of low was it to the ego of the lac0 0ids to learn that
the whites were willing to deprive themselves of the pleasures of swimming pools in the
hot (ississippi summers to avoid eing in their presence.
Ahat aout Carolene Products %8 9' 6oes the process-ased theory of !udicial review support
this outcome' *n the process-ased review
Aant the !udicial to step in and apply strict scrutiny when the political process rea0s
down. "aws that enefit the ma!ority at the expense of a discrete and politically-
disenfranchised minority have the greatest threat for violating rights without political
redress.
1 law that has no discriminatory effect equally harms the citi7ens. Thus, the entire
electorate will e ale to decide whether to 0eep such a law. -3ort of li0e export control
laws. &ave a national interest, ut also self-damaging..
5ut sometimes the political process will not wor0 in this situation either. 3ometimes race
hate can e so strong that the ma!ority is willing to deprive itself of a enefit in order to
deny it to others.
?n the other hand, the #ourt is not there to police legislative purpose, ut to prevent the
actual discriminatory effects.
%acially neutral laws that have no discriminatory purpose ut has a discriminatory effect.
o 0as%ington v. *avis -<JEK. / #ivil service literacy test was challenged y lac0s who were interested in
ecoming police officers in 6#. 8o evidence of discriminatory purpose -plaintiffs conceded this fact.,
ut it had a disparate impact on lac0 applicants. 3ignificantly more lac0s failed the test than white
applicants. The effect of the test was far more harmful to them. 3o this is a discriminatory effect.
4nder Title :** this type of disparate impact is actionale. Then urden would e on the
government to prove that the action serves a ona fide purpose.
The question is whether it gives rise to a constitutional right of action' 1nswer: 8o. 8o enhanced
protection from the #onstitution. *f there is no discriminatory purpose, then it is not a matter for
the ;2 to e concerned aout.
Race discrimination is premised on a racist purpose. The lac0s who failed the test have no more
a right of action than whites who failed the test.
Rational asis review is appropriate for these types of cases.
o 3ingle most important ;2 cause since 1rown. 8ot a single dissent in this case. Ahy'
3trong policy argument for not applying strict scrutiny:
&ow can a remedy e fashioned' #an re-write a test over and over again and never ma0e
one that all suspect groups pass with equal aptitude.
%lood of litigation on a strict scrutiny. %inding 33 in situations such as this would e far
reaching and would raise serious questions aout, and perhaps invalidate, a whole range
of tax, welfare, pulic service, regulatory, and licensing statutes.
:irtually every law has some sort of disparate impact. Aould force the courts to engage
in strict scrutiny of every law and detail of government and second guess whether such a
law served a ona fide societal purpose.
o #ounterargument: :ery difficult to show discriminatory purpose. 1 racially motivated government could
pass laws that are sutly discriminatory, rather than the outright, patent racism of the past. 1 lot of racism
may snea0 through without !udicial scrutiny.
>F
This case ma0es it all the more difficult to root out such discrimination. $overnment can turn a
lind eye to these matters.
The opposition outcome would have put tremendous pressure on the legislatures to ensure their
policies in fact do not discriminate against minorities.
o Raises the question, what does ;2 in the #onstitution mean' 2rotect an equal chance in society' ?r
protect equal opportunity in all matters including access to enefits and wealth.
FACIALLY-RACE #ASED STATUTES THAT #ENEFIT MINORITIES ;AFFIRMATIVE ACTION<
$egents o) 7niv. o) Cal. v. 1a55e -<JE=. / #hallenge to the racial quotas of the 6avis campus of the 4niv. of #al.
&eld that race can e a factor in ma0ing admission decisions, it can e an element of consciousness. ut it
cannot e a quota.
o ;xample of a 9-9-< split in which one !udge writes the opinion of the #ourt even though noody agrees
with opinion, simply ecause !udge splits the difference. 3tood for GI years as the constitutional policy.
4niversity of (ichigan #ases
o (rutter v. 1ollinger - 4pholds 11 program at the law school that ta0es race into account in a gloal effort
to improve diversity.
o (rat; v. 1ollinger / 3tri0es down undergraduate 11 program that gives GF point ump in admissions
screening process to racial minority candidates. ?ther great characteristics that would add to the diversity
of the student ody were allocated
#omparing the these cases:
o 1pplied strict scrutiny review. I-9 decisions, C. ?+#onnor !oining oth ma!orities. Re!ected the lower
form of scrutiny suggested y (arshall et al in 1a55e.
*s it really strict scrutiny'
6eference to the law school that says that this policy is needed. 33 usually shows no
deference. The #ourt usually engages in an aggressive !udicial review of a certain law or
policy.
6orematsu was one of the only other cases that upheld a racially ased law under 33, and
the consensus is that it was decided wrongly.
4sually the government must prove that a law under 33 is asolutely necessary, not !ust
that other alternatives were carefully considered and re!ected.
(ore li0e strict scrutiny -minus.. Aatered down version.
o #ompelling interest' 5oth programs have a compelling interest in diversity in the student ody. 1ll the
educational enefits that flow from a diverse student ody. %ollowing C. 2owell in 1a55e.
o 8ecessary and narrowly tailored'
"aw school policy is narrowly tailored. "oo0s at all the things an applicant can ring to the tale.
Race was one of a great many factors loo0ed to in forming a diverse student ody.
33 requires serious good faith consideration to other race-neutral alternative and
conclusion that it will not wor0. 6oes not require in all cases the adoption of the least
invasive method.
o %ear that the suggested that the TU method of admitting anyone who graduated
in the top X of the high school class would dilute (* law school prestige and
ran0ing. This method also ta0es the control of diversity out of the admissions
o 1lso considered the 5er0ley method which loo0s only to socio-economic
diversity as an alternative to race-ased ones.
4ndergraduate policy not narrowly tailored. 2ut too much emphasis on race. #lumsy.
o #omment aout the GI year limit on these programs
&ope for the future, ut also shows that 3#?T43 will get more and more s0eptical of these
programs over time.
;mphasi7es the fact that such programs should e discarded as soon as there is no longer a
compelling government interest in 11.
><
Aarning shot to states. %or now these programs are o0. 5ut 3#?T43 expects that states will ta0e
measures to correct the imalance rather than relying forever on
*s there any !ustification for applying the same level of scrutiny to race-ased statutes that enefit minorities'
3urvey of various methods of analysis:
o Textualist / <9th 1mendment ma0es no distinction etween the races. *nstead it spea0s aout all people.
3uggests standard must e the same.
o Originalist / 2assed contemporaneous statutes that provided welfare enefits that gave enefits only to
destitute lac0 mothers, destitute lac0s in 6#, special awards to lac0 soldiers and sailors who fought in
the 4nion army. 3uggests o0 to apply a different standard.
o Political-process / 8o need for courts to step in to protect democracy. 8o tyranny of the ma!ority where
the ma!ority chooses to urden itself and enefit the minority. "ower scrutiny.
o Precedent / 2lessy dissent. #onstitution is color-lind. (any cases from the 1rown-era that supports
this view. ?n the other hand, YYYY. #uts oth ways.
*f the #ourt is actually applying strict scrutiny, did it get it right' *s racial diversity really necessary or helpful to
academic diversity in an educational environment'
o "arge lecture halls, don+t really 0now what most of the other students thin0.
o 5ut there is also student life, social activities, small classes where more contact and exchange of ideas can
happen. 1ssumes diversity in the campus culture that does not necessarily happen. ?ften the racial groups
will segregate themselves into social groups that do not interact with another anyway.
o *s race a good proxy for diversity' 5ased on presumption that all lac0 people will see an issue more or
less the same way and in a different way than whites. #an e said that it is sutly racist !ust to assume this
fact.
5ut there is an underlying common experience that racial minorities must live through regardless
of whether raised in a wealthy suur or the inner city. #onfronted with different treatment in
society due to race. #onclusions drawn from that experience will not e uniform, ut that core
will remain.
o *s this !ustification !ust a smo0escreen' (any other diverse viewpoints are not represented at all, even
though they could ring much more diversity: religious fundamentalists, social conservatives, liertarians
are li0ely to foster a far more roust discussion in most areas of study than the presence of racial
minorities.
;conomic and social enefits of diversity
o 5usiness amici emphasi7ed that the exposure and learning how to communicate with other races is a
valuale s0ill for future employees.
o 6iverse and gloal viewpoints allow companies to understand different cultures, increase the ottom line.
o 6iverse management in the wor0force reduces racial tension etween managers and lower level
employees. -3ame thing for etween the officers and the soldiers..
o $overnment and community leadership ecomes more legitimate in the eyes of the population.
These roader rationales can e used to !ustify 11 outside the educational context.
2otential costs of achieving racial diversity through affirmative action college admissions programs:
o 6iscrimination against whites -and often 1sian 1mericans.
3omewhat of a fallacy. 1nalogy to the open handicapped par0ing spot in a pac0ed lot.
5ut it is true that someone from the non-protected group will e denied an opportunity.
o 6evaluation of minority achievements. 3tigma for those who enefit from 11
o ;ntitlement -more controversial. / #ount on 11 and 0now they don+t have to wor0 hard. 5ecome
dependant on such programs.
o Racial tension / Ahites resent 11 programs.
o "ess success'
2eople who are admitted to institution through 11 program tend to have lower scores. $et lower
grades, so they have fewer career opportunities coming out of school.
Ahereas, if they had gone to a school that was more in line w, their ailities, they would have
encountered more success.
5ut C. Thomas argues that the prolem is the self-esteem costs.
>G
Ahat other interest could the state have advanced for considering race in admissions process' Remedying past
discrimination' *n 1a55e (arshall ) 5rennan considered this to e a compelling state interest. $inserg in
dissent in (rat; also argues that the government should ta0e account of the past and recogni7e -at least one of. the
true reasons for such programs. ;veryone thin0s aout this !ustification, ut no one tal0s aout it.
INTERMEDIATE SCRUTINY FOR GENDER DISCRIMINATION
The early answer to whether ;2 requires equal treatment for women
o 1radville vs. #llinois / 8o right for women to practice law. (an is woman+s natural protector . . .
woman+s place is in the home. Rational asis review.
#hanges in the early <JEFs / %eminist movement. #ourt stri0es down a series of sexist law.
o -rontera v. $ic%ardson / 1pplies rational asis review that gave male memers of the military a
presumption that their wives were financially dependant on them, ut required women
5ut isn+t it perfectly rational that in <JE> the odds were much higher that a man in the military
was supporting the wife and unli0ely the other way around.
$ave women the option to prove that their husands are indeed dependant on them. 6id not
exclude them. 1pparent that the #ourt was applying a more strict standard.
9 memers led y C. 5rennan claimed that they s%ould apply strict scrutiny.
1dvent of intermediate scrutiny.
o Craig v. 1oren / Aomen were permitted to purchase >.G eer at the age of <=, whereas men were
permitted only upon reaching the age of G<.
6iscrimination against men@ (ore li0ely to sympathi7e with oppressed young males. 3o 5rennan
uses this case to estalish intermediate scrutiny that then can e turned around and applied to
women.
C. 5rennan B anti-3calia. 8eed to do what you have to do to get I votes. Ready to compromise
principles somewhat in order to get a etter result than eing intransigent li0e 3calia and writing a
scathing dissent.
&ere he compromised with intermediate scrutiny, although he felt that strict scrutiny should e
required when facing. #ame out of nowhere, no citations to precedent@
To withstand constitutional challenge must: -<. serve important government o!ectives and -G.
e sustantially related to those o!ectives.
o Revolutioni7ed ;2 / expanded it out of the racial equality context.
o Ahy couldn+t 5rennan get I votes for strict scrutiny'
8o political agitation to change some gender segregation -such as pulic restrooms..
1ctual physical differences etween the sexes. Race is pretty much irrelevant. 5ut gender is a
relevant consideration in government decisionma0ing.
3ome gender segregation does not have any malicious intent, not to advance sexism.
2rivacy
8otions of social morality, decency
2rotecting against archaic and outdated notions of the need to protect women from the world. -ogan.
8eed an exceedingly persuasive !ustification
o 7.!. v. 9irginia -<JJK. Othe :(* caseP / The last astion of all male education and comradery, :(*,
#ourt struc0 down the school+s policy of admitting only oys,men.
(ost important gender discrimination case of recent times. #laims that it is applying intermediate
scrutiny, ut is it really' The language used in this opinion seems to require a higher and etter
!ustification B *ntermediate scrutiny Q standard.
o #annot ase discrimination in the law on such archaic stereotyped notions, ut can ase discrimination on
actual physical differences and non-threatening, equally applied social norms and privacy issues.
o 6id the #ourt apply strict scrutiny or some sort of heightened intermediate scrutiny'
2hrase was reworded and now sounds more aggressive. Tougher rhetoric.
#omparing with earlier cases elow, it seems that the standard is sustantively more roust.
>>
o Custice $inserg+s most important opinion. &er legacy will e her triumph in raising the level of scrutiny
to intermediate Q, especially considering the open discrimination she -and ?+#onnor. faced early in their
law careers.
5iological differences etween the sexes as a permissile asis for distinction
o Mic%ael v. !uperior Court -<J=<. / #hallenge to a #1 law that prosecuted only underage males that
engage in statutory rape and not the female.
4pheld the law. %ound that the potential of pregnancy acted as a deterrent for teenage females,
ut there was no such deterrent for males. Thus, the state could step in to equali7e these inherent
iological differences.
%ound that the 3tate had a genuine, important interest that was not related to gender stereotyping
and that the law was sustantially related to that purpose. Therefore, it meets intermediate
o $ost5er v. (oldberg -<J=<. / %emale soldiers are not permitted to serve in comat.
$enerally not physically ale to withstand the stress of the attlefield.
Threat of rape and sexual ause if captured.
1re either of these cases valid under :(*'
o Mic%ael seems inconsistent with :(* case, where the #ourt dismissed the ad hoc explanations for the
male-only admissions policy. 3tate could not satisfy intermediate scrutiny simply y proffering a reason
for the disctinction. *t has to e the actual
o $ost5er+s !ustifications that the ma!ority of females are not capale of withstanding the physical exertion
and stresses of comat. 5ut in :(* the #ourt stated that the proposition that most women are not capale
of something or are susceptile to greater harm y engaging in that activity.
Though in :(* the #ourt made much of the !udiciary deference to #ongress on military
affairs.
?ther policies that may e threatened under :(*.
o (en-only footall teams , Aomen-only field hoc0ey teams.
o 3eparate athletic programs and teams in general. 5ut maye not. :(* placed a lot of emphasis on the lac0
of an equal alternative. Aomen+s teams are a way to provide opportunity and recogni7e a real iological
difference in the sexes.
The determination may come down to:
o Ahy the gender-discriminating policy was adopted, and
o Ahat other opportunities are made availale.
Ahat if all those segregated athletic programs were aolished in favor of only one team that is open for all'
Aould that e constitutional'
o 4nder *avis v. 0as%ington a neutral policy that has a disparate impact is not unconstitutional. *t would e
li0e the effects of school segregation after 1rown.
E:UAL PROTECTION FOR AGE AND INTELLIGENCE
Cleburne v. Cleburne Living Ctr. -<J=I. / "aw that required a special use permit for the construction of a group
home for the mentally ill was denied. 3eemed apparent that the law requiring such a permit was passed out of
malice to the group.
o #laims to stri0e down the law on a R5 standard. 5ut doesn+t loo0 li0e R5 review. 4nder Rwy ;xpress,
the #ourt said that they did not care if a law was over- or underinclusive, so long as the law contriutes in
some way to solve a valid prolem under the police power, the law stands.
o &ere, the #ourt essentially points out that the regulation is underinclusive on several factors:
*f flood is concern / then why is it o0 to uild a nursing home'
*f ridicule is the concern / then why are there retarded 0ids in the high school'
*f legal liaility is the concern / then why is a frat house o0ay'
o Really, it is applying something more aggressive than the regular rational asis. Rational asis w, ite.
?r rational asis Q.
o Ahy is the #ourt eing more aggressive than in a typical R5 review'
>9
"ess trustful of the political process here. (ore concerned with the possiility that the law was
enacted out of some pre!udice against the mentally retarded.
?n the other hand, the #ourt finds that the ris0 of pre!udice is lower than in other cases, given the
generally positive legislation and accommodation of this group.
E:UAL PROTECTION AND SE9UAL ORIENTATION
$omer v. 2vans -<JJK. / #ertain large, progressive #olorado cities had included gays and lesians in their anti-
discrimination legislation. This deeply distured other constituencies w,in the state. 1mendment G was a state-
wide allot referendum to amend the #onstitution to repeal these anti-discrimination laws and ar forever the
enactment of such accommodation and anti-discriminatory laws.
o 3tate claimed that all 1mendment G did was to deny gays the special rights that others do not get. Thus,
they are treated equally with everyone else.
o #ourt re!ects this argument. 2oints out that the amendment does not !ust strip the current protection they
en!oyed under the executive order forecloses the chance to petition the government to grant them the right
to see0 such government protection in the future, short of gaining enough support to get a #onstitutional
amendment passed.
o 1mounts to clear discrimination against gays and lesians on the asis of sexual orientation. 5ut what
sort of scrutiny does this discrimination warrant'
#ourt claims that it applied rational asis review and the amendment failed even that.
1mendment G defies such review.
1mounts to a frontal assault precisely the equal protection of the law. (ost of the time, the law
has a discriminatory impact and a discriminatory intent that had a tangential effect on the person+s
rights under the law. This amendment actually denies all protection of law and is a literal
deprivation of the protection of the law. :iolates the plain language of the ;2 #lause.
o &ad the #ourt stopped there, it would not have een such an important case. Aould have een limited to
the odd facts of the case. 5ut the #ourt went on to apply the R5 review under the ;2 !urisprudence, and
re!ected the state+s arguments as not rationally related to:
%reedom of association / %ound that law was not rationally related to the interest in protection the
freedom of association of the citi7ens have a moral or religious o!ection to homosexuals. -(ight
not have een legitimate for the state to sanction private pre!udice..
#onservation of resources for other anti-discrimination efforts / disregards.
o Ahy not' #learly advances those interests.
6out that these interests are the real reasons for the law.
3tates that it is overroad. 5readth of the amendment is so far removed from these particular
!ustifications that we find it impossile to credit them. 3o road that those could not possily e
the real interests. *nstead, the real interest is a are desire to harm a politically unpopular
;x post !ustifications that !ust don+t cut it.
o ?nce again, does not loo0 li0e true R5 review.
?ver- and underinclusive is usually not a factor in such deferential review.
3crutini7ing the real reasons for enactment.
1nother example of R5Q.
3calia+s dissent
o The #ourt has mista0en a Rultur0ampf for a fight of spite. Thus, claims that the #ourt sees hatred,
where the state tries to enforce morality and preserve community values.
o Thus the #ourt has ta0en the gay rights side in the culture war y viewing homosexuality as a valid social
construct.
o #ompares the animosity towards or moral disapproval of homosexuality with the laws against murder or
pedophilia.
>I
o &e is right in that the Custices are viewing homosexuality as an orientation, not as a lifestyle choice. 3o is
it wrong that the #ourt is ta0ing sides in the culture wars'
5ut if the #ourt had never ta0en sides in the segregation culture wars, there never would have een 1rown v.
1oard o) 2ducation and Loving v. 9irginia and the 9M# Case. 3o the court occasionally has to ta0e sides in the
culture wars where morality and community values are used to discriminate against another group.
#ourt in $omer never confronts the issue of what level of scrutiny should apply. *nstead duc0s the issue y
finding that 1mend. G violated rational asis -w, ite..
1re gays and lesians a discrete and insular minority'
o 6iscrete' %lamoyant gays may stand out, ut homosexuality does not necessarily have to stand out. #an
choose not to e visile.
%act that their characteristic is not visile might wor0 against them. 3ome may prefer to hide their
homosexuality. 3tay in the closet.
*f 11, no way to hide it, so might as well stand up for your rights.
o *nsular'
8ot living among us' 5orn into every family, including 6ic0 #heney+s@
1re they not ale to protect themselves through the political process'
?n the one hand, do well on the local level getting anti-discrimination li0e that in 6enver
and the other ig cities in #olorado.
?n the other hand, on the national and even state level they have done quite poorly'
&istory of discrimination and marginali7ation' Nes. ?f course.
*s it an innate characteristic' &ere is the iggest attle:
o ?pponents to recogni7ing gay rights view homosexuality as a lifestyle choice.
o 2roponents for gay rights elieve that homosexuality is an inherent trait.
GAY MARRIAGE
6oes it violate the %ederal #onstitution to limit marriage to enact the current gay marriage ans'
3ustantive 6ue 2rocess arguments. "oving v. :irginia Q "awrence v. Texas
;qual 2rotection
o &ow would the #ourt go aout analy7ing this issue' ;valuate the strength of the government+s interest,
and determine if the law is sufficiently closely tailored to withstand the selected level of scrutiny.
o Ahat are the state+s interests'
-5efore "awrence. 2rotect against illegal sex. 8o longer valid.
?ppress gays' 4nconstitutional to try to harm a certain group.
$uarding societal morality'
;ncourage procreation'
%amilial unit / interests of the children'
2rotecting the institution of marriage, traditional integrity of this social construct'
o 1re these state interests sufficient' ?f course, it depends on which level of scrutiny the #ourt applies.
3trict scrutiny: The > familial unit !ustifications were re!ected in Loving as insufficient under 33.
*ntermediate scrutiny: 1re those interests important'
Rational asis -w, ite.: *nterests are certainly legitimate, ut is the gay marriage an rationally
related to those interests'
6istinguishing $omer / The law in $omer was clearly enacted out of pre!udice. 1rgument that gay marriage ans
are not as invidious if focused on promoting and defending the institution of marriage.
3ociety not ready'
o 5efore Loving, there was another inter-racial marriage case. *n legislature there was a constitutional
amendment waiting should the #ourt rule
o There it was a constitutional amendment that
o 3hould the #ourt thin0 this way' 2olitically' 2ragmatically'
*sn+t it the role of the #ourt to uphold lierties and rights, regardless of popular opinion'
>K
DETERMINING THE LEVEL OF SCRUTINY FOR CLASSIFICATIONS
3trict 3crutiny *ntermediate 3crutiny Rational 5asis
Race
1lienage
8ational origin
3ex
"egitimacy
1ge
Aealth
*ntelligence,disaility -Q.
3exual orientation -Q. -'.
Ahy only *3 for sex discrimination' Ahy only R5 review for age and wealth discrimination'
The #ourt is really ma0ing it up as it goes along. The #onstitution guarantees equal protection under the law,
ut government would grind to a halt if it could not discriminate at all among citi7ens.
o ;xamples:
"imitations on driver+s privileges -oth age and passing a written test.
*ntelligence tests for certain positions -or degree requirements as a proxy.
3o the #ourt must loo0 somewhere else to determine the level of scrutiny in various cases. Ahere should the
#ourt loo0'
o &istory / ut that is insufficient as mores change and develop over time. 3calia would loo0 only to
history and leave the development of the law to the legislature. ?riginalism is not enough.
o "egal context / what is has een afforded greater protection from state legislation or common law
findings of courts.
o 3ocietal consensus values / :alues change over time and new rights may ecome viewed as essential to
lierty.
o 2olitical process theory O0eyP / #an+t confer heightened scrutiny to every minority in the political
process ,c every group if compared to society at large is vulnerale. (ust loo0 to the long run: whether
that group is one that wins some and loses some in the shifting alliances of the political process.
5ut where the discrimination is ased upon constant marginali7ation of one group than that group
might e a 6*3#R;T; -distinct, differentiated from the crowd. and *834"1R -li0e an island,
precluding cross-group coalitions to win some,lose some. minority group, then heightened
scrutiny is required.
*mmutale characteristics / %airness dictates that greater protection is required where the political
process discriminates against those who cannot help eing who they are. 8ot so with other
categories:
Aealth / everyone has a chance to change their wealth status -or so we elieve.
1ge / immutale, ut also universal, so everyone will end up old someday.
&istory of discrimination / 2roof for the li0elihood that detrimental laws were passed out of
animus towards the group.
Thus, the #ourt is simply identifying the most invidious and unreasonale forms of discrimination. The ones in
33, are ones that the discrimination is invidious, requires more protection that other areas, and does not have an
underlying real difference.
R"1)"=: 1 law that discriminates ased on classification is su!ect only to rational asis, unless it discriminates
on the asis of a suspect categori7ation, then strict scrutiny, or quasi-suspect categori7ation, in which case it is
intermediate scrutiny.
o 3eems easy. 5ut in practice it is not quite so clear. Aorld is more complex and cannot e fit into !ust >
categori7ations. *n reality, the #ourt has created several intermediate steps along the way R5Q, *3Q.
THE FUNDAMENTAL INTERESTS PRONG OF E:UAL PROTECTION
>E
1nother way a law will e su!ect to heightened scrutiny: *f discrimination ears upon the provision of certain
fundamental rights:
o :oting rights
o Rights to access to the !udicial process.
1ny discrimination on the provision of such asic, fundamental rights violates the ;qual 2rotection #lause unless
it can withstand strict scrutiny.
o Ahere there is another #onstitutional provision on point, usually can simply sue to vindicate one+s rights
under that #onstitutional right and don+t need to sue under ;2.
;x. 2isenstadt v. 1aird / contraception to unmarried couples.
o 4sually it+s a different category of cases that fall under the fundamental rights prong of ;2. 1 narrow
category of rights that the state could deny to everyone, ut if they provide for that right, must extend it to
everyone.
8o fundamental right to vote in the #onstitution@ 5ut struc0 down:
o 2oll taxes, literacy laws, restrictions to landowners. one man, one vote. -8o discrimination tw city and
country dwellers..
o arper v. 9irginia !tate 1d. O) 2lections -<JKK. / :irginia had a S<.IF poll tax as a precondition for
voting. 3tate argued the financial urden was minimal and the tax insured the people coming out to vote
were serious.
3truc0 down. ?nce the franchise to vote is granted, the state violates ;2 whenever it ma0es the
affluence of the voter or payment of any fee an electoral standard.
o 3#?T43 upheld restrictions to voting in very limited circumstances when the impact is almost
exclusively on one group and the discretion of the pulic officials is very circumscried. -Aater authority
cases..
3ame with access to the !udicial process. 5ut struc0 down:
o transcript fees for appeals
o denial of court-appointed lawyers for appeals of right.
5urger and Rehnquist #ourts very reluctant to extend these types of cases. 3ought to limit these rights
o ;x: "imited the right to transcripts and lawyers to criminal cases.
!an 3ntonio #ndep. !c%. *ist. v. $odrigue; -<JE>. / #hallenge to the policy of tying school funding to property
taxes. ;nsures that schools in wealth regions are etter funded than those in poorer regions.
o *f education were to e found a fundamental interest that triggers 33 under the ;2 #lause, it would
certainly e illegal. 6iscriminates on the level of funding ased upon the wealth of the community where
one+s parents live.
o 6emonstrates the limits of the fundamental interest prong of ;2. %inal nail in the coffin of the movement
to get positive rights recogni7ed.
5asically says, That+s it, no more. 6rawing the line here. 8o more fundamental interests in this
ody of law.
o *llustrative of the modern #ourt+s reu0e of the Aarren-era hint towards the affirmative rights to pulic
enefits in it anti-discrimination under ;2 #lause.
Thus the scope of the fundamental interests prong of the ;2 #lause is actually quite narrow. 6oesn+t loo0 li0e it
will expand anytime soon. *ronically, the one expansion in recent times was in 1us% v. (ore.
FREEDOM OF SPEECH
4.3. #onst. amend. * / #ongress shall ma0e no law aridging the freedom of speech, or of the press.
%ree speech serves three principal values
o 1dvancing 0nowledge and truth in the mar0etplace of ideas.
o %acilitating representative democracy and self-government.
o 2romoting individual autonomy, self-expression, and self-fulfillment.
>=
Ahat is the theory that explains why some forms are protected -and how stringently. and what forms are not
protected. 8eed to do so in a principled way that is predictale and non-aritrary. 8o easy rule. *nstead there is a
we of complicated rules and exceptions.
&ow do we determine the meaning of the %irst 1mendment'
o Textualism / 4nsatisfactory.
3trictly from a textualist view, the 2resident could issue an executive order sustantially
aridging free speech rights ecause <st 1mendment applied only to laws made y #ongress.
This view has never een accepted. 8ot withstanding the language, we read it more roadly to
stand for a roader principle. Aould create too large a loophole.
1lso, under the plain meaning, #ongress could pass a law prohiiting hand-written sign
critici7ing the *raq Aar. This too has een re!ected. 3peech includes a wide variety of
expression, not !ust veral speech.
#an+t get our answer strictly y construing the text of the amendment.
o ?riginalism / 1lso unsatisfactory.
1ridging implies that there already was freedom of speech at the time the <
st
1mendment was
passed, so it suggests that we could loo0 to the original meaning.
(ost legal historians agree that the historical understanding of free speech was )ar narrower than
the understanding today.
2revented prior restraints only.
5ut perfectly o0 for the government to prosecute you after the fact.
1lso fails to answer the ig question.
o 2recedent and the #ommon "aw (ethod/ This is where the answers are. 4nderstanding of free speech
has developed over time.
Custifications for affording speech protection as a fundamental right
o 6iscovering truth,(ar0etplace of ideas
o #rucial to political process,democratic self-governmance.
o 3elf-fulfillment
o 3afety valve
INCITEMENT
Aorld Aar * #ases - ;spionage 1ct of <J<E
o Thousands of people were prosecuted under this act and sentenced to long prison terms.
o 2rosecutions uniformly upheld y the 3upreme #ourt.
!c%enc5 v. 7nited !tates -<J<J. / *nvolved a 3ocialist 2arty circular that ma0es legal arguments against the draft,
including arguments that it violates the <>th 1mendment as it is ondage and religious rights of certain groups
opposed
o #ourt recogni7ed that it is political speech which is protected, ut given the context of war and the danger
to society upheld the convition.
o ;stalished the #lear and 2resent 6anger Test / speech can e restricted y the government where it
causes a clear and present danger to society. 1nalogi7es to the fire in the theater situation.
o 6oes the analogy to shouting fire in the crowded theater wor0 in this case'
6anger:
#ould cause a panic. 5ut not li0e in a theater. There we 0now what the reaction will e to
a certainty.
8ot clear that ad things are actually going to happen.
2resent:
*n the theater the reaction would e immediate.
The pamphlet, even if it wor0ed, would ta0e a long time to uilding into a movement and
societal consensus against the war.
Truth,falsity
>J
#18 yell fire in a crowded if it is true@
(any of these pamphlets contained statements of opinion that could not e determined
true or false.
6oesn+t seem to fit at all.
o 5efore !c%enc5 the lower courts had een upholding the ;spionage 1ct under a standard that seems to e
more honest: 3peech that has a natural and proale tendency to cause harm.
#ourt seems to actually apply this test.
#onfirmed y -ro%wer5 -mere pulic opposition. and *ebs -ma!or political figure in the 3ocialist
2arty that carefully crafted his speech to never directly critici7e the draft or war, ut expressed the
view that he was a pacifist..
These cases do not even use the language clear and present danger.
4se the phrase natural tendencies to ring aout harm.
3brams v. 7nited !tates -<J<J. / Russian immigrants who supported the Russian Revolution. 1fraid that the 43
was planning on entering the fight against the Revolution on the side of the c7ar. 2assed out pamphlets urging a
stri0e in ammunition plants to prevent 43 from using that ammunition for an intervention in Russia.
o 3upreme #ourt upheld the conviction under the ;spionage 1ct. Relied on !c%enc5 and disposed of the
case summarily.
&olmes and 5randies 3brams dissent:
o ?nce again advocates the clear and present danger test. Cust claims that in this case, as opposed to
!c%enc5, the prosecution does not pass the test.
o *ntent under the statute
3tatute was directed at actions with the intent y such curtailment to cripple or hinder the 4.3. in
the prosecution of the war with $ermany.
&olmes loo0ed to their direct proximate motive to determine whether or not it was evil or
harmful. Their goal is to protect the Russian Revolution, not hurting the 4.3. war effort against
$ermany.
Trying to preserve the law of criminal attempt. #ould not formulate it very well. ;ven remar0ing
o *mmediacy element added
8o ris0 that this speech is going to cause immediate harm. &olmes finds the leaflet is silly and
did not elieve that it would have any real effect.
Ahat then, aout criminal intent'
5ut how is it more immediate than in the previous cases'
o Thus creates a two part test where speech can e restricted under such sedition laws:
Ahere the speech actually creates a clear and present danger.
Ahere the speech is intended -mens rea. to e a clear and present danger.
o 5ecoming more lieral on the topic of what 0ind of speech should e protected'
#hanged application of the test. 8early same facts as an earlier case.
(any legal historians elieve that the change of heart came after an exchange of letters with
Cudge "earned &and. 5efore this exchange, Custice &olmes did not really care aout freedom of
speech.
"ast paragraph of this dissent: *ntroduces the famous 2-.>"'7-(" o* )5"-/ 2"-'0o..
Masses Publis%ing Co. v. Patten -<J<E. / 2ulication that was very critical of the war effort and included critical
political cartoons and articles.
o "earned &and+s incitement standard / To e restricted, the words must directly incite the reader. 8eed to
loo0 at the language itself and determine if explicitly encourage to engaged in harmful, illegal conduct.
2rolem: #an craft an inciteful message around direct language. 8eed merely to choose words
carefully and use innuendo and hint.
2rolem: 1llows the government to prosecute the harmless cra7y people ecause they choose to
articulate their thoughts too clearly.
9F
o &and agrees that the cartoons may have the effect of undermining government policies, ut disregards
that fact. 1ll that matters is whether incitement and violence are actually expressly called for, if so, then it
can e restricted ut otherwise, no restriction.
8either of these tests ever won the day. 5y the time &olmes got serious aout the clear and present danger test, he
had lost the ma!ority. The ma!ority was applying the natural tendencies test.
*s the mar0etplace of ideas theory valid'
o (ar0et failures -see 5arron.
o "istening only to the speech one li0es
o $overnment as dominant spea0er.
The R;6 3#1R; cases
(itlow v. New 4or5 -<JGI. / *n 8N, radical wing of the 3ocialist party ro0e off to advocate more forceful
measures and revolution. $itlow was the printer of a political tract The "eft Aing (anifesto.
o %irst case to incorporate the <st 1mendment as against the states through 362 of <9th 1mend. (ade no
ig deal of the incorporation of these rights. Ae may assume arguendo. . .@ This was long efore the
main incorporation cases. 2retty nonchalant aout it. Resolved the dispute ever since@
o #ourt admits that there was no evidence of any clear or present danger. 5ut still upheld the convictions on
the authority of !c%enc5.
#laims that test does not apply to statutes li0e this. "egislature already made a determination that
the speec% itself was illegal.
The statutes in the previous cases prohiited interference with certain activities, and the court had
to determine whether the speech has a sustantial propensity to interfere or hinder the desired
conduct -operation of the draft, munitions production..
(uch more deferential when the legislature criminali7es speech directly.
o Aouldn+t such laws call for more scrutiny, not less'
#ourt is confident that this type of speech does present a danger. #omfortale ma0ing this
assumption without individual review ecause the legislature has already made this
determination. $ives great weight to #ongress -rational-asis review..
"egislature li0ely did not have speech in mind when they passed laws prohiiting interfering with
the draft etc. 3o it falls to the #ourt to ma0e an independent assessment of whether the speech
actually presents a clear and present danger.
o 6*33;8T: &olmes and 5randies.
&olmes elieves the clear and present danger test should apply even though the law directly
criminali7es speech.
;ven if danger is clear, &olmes doesn+t elieve that the threat is imminent or immediate.
*f the threat is real, why should we can if it is imminent' *f the speech is directed at
organi7ing a terrorist attac0 four years from now, why should society have to wait until
the attac0 is near efore anning it'
5ut &olmes elieves that so long there is a sufficient interim, the mar0etplace of ideas
will sweep it away and it will never present a real threat to the society.
0%itney v. Cali)ornia -<JGE. / 2rominent social activist. Aesleyan graduate. Aealthy niece of a 3upreme #ourt
!ustice. Aas a moderate wor0ing within the #ommunist 2arty, ut here resolutions were struc0 down in favor of
more revolutionary measures. Aas arrested for eing part of a group advocating overthrow of the government.
o #ourt upheld the conviction. 6isregarded the fact that she advocated for peaceful means of ringing aout
a change to communism. #oncerned only with the threat posed y the group.
o #?8#4R: 5randies ) &olmes
5randies adds another factor: 3eriousness and proportionality. $overnment can only censor the
speech and punish someone when the unlawful activity is sufficiently serious and the restriction is
proportionate to that threat.
#omes ac0 in the context of civil rights civil disoedience measures. 1dvocacy of
rea0ing the law in minor ways, sit-ins and unauthori7ed protests,demonstrations, would
e protected under the 5randies view.
9<
6oes not elieve that the #ourt should defer to the #ongress / ?ffers an extremely influential
theory for why: 2olitical 2rocess 1rgument. -4nli0e &olmes who relies on (ar0etplace of *deas
theory..5randies+ greatest opinion. (any elieve it is the greatest defense of free speech ever.
The 3mith 1ct 2rosecutions -R;6 3#1R; **.
o 5lac0lists / once your name was on the list, difficult to ever wor0 again.
o &ollywood gets torn apart when (c#arthy accused
o 1rthur (iller, T%e Crucible / ?stensily aout the 3alem witch hunts
*ennis v. 7nited !tates -<JI<. / 1rrest and prosecution of the entire leadership of the 4.3. #ommunist 2arty.
#harged under the 3mith 1ct which made it a federal crime to advocate or espouse views of overthrowing the
government y force or violence.
o 4pholds the conviction. 5ut does not agree to (itlow and 0%itney that the clear and present danger test
applies to statutes that directly criminali7e speech. There had never een a direct arogation of those
opinions, ut the dissents were so powerful that
6id they actually follow the test'
There was a low li0elihood of ringing aout the evil.
;ven that li0elihood would only materiali7e well down the road.
3how a sustantial deference to #ongress.
o *nstead, this formulation appears to e a sliding scale of harm vs. proaility.
Z2otential harm[ U Z2roaility of harm[ \ *nfringement on %ree 3peech.
"i0e ". &and formula in torts, adopted for the free speech context.
o :incent references the 5eerhall 2utsch
3uggests that the failure to prevent the type of speech &itler
5ut is that the right lesson to draw from 8a7ism' 1fter all, once &itler too0 power one of the first
things he did was prevent dissent and restricted free speech.
o 6*33;8T -5lac0 ) 6ouglas.
%reedom will prevail over #ommunism regardless, ut it will do so faster if we remain open and
true to our free speech ideals. 8eed not suppress #ommunist ideas, that is what the #ommunists
do. ;mpowering speech exposes how ridiculous (arxism really is.
1dopts the &olmsian (ar0etplace of *deas notion.
MODERN INCITEMENT TEST
1randenburg v. O%io -<JKJ. "aw that ma0es it a crime to advocate violent methods of political reform.
5randenurg is a clan memer who urns a cross and gives a speech8 The #ourt overturns his conviction as a
violation of his <
st
amendment free speech rights.
o Ahat is the test for speech that might encourage other to ta0e actions against the 43'
o W0"." 0" -51o(-(6 )/ 5)."("5 - )!())!+ )22)!"! 7-=7"// -()o!4 -!5 )/ 7)>"76 o )!()" o. '.o5,("
/,(0 -()o!8
-<. D)."("5 at lawless action: The speech must intentionally and explicitly call for people to
engage in lawless action.
-G. I22)!"!: The incited action must e imminent.
->. L)>"76 to produce lawless action.
o The court says that this is settled lawL ut what aout 0%itney -saying it is enough to advocate for the
violent overthrow of the government, or even !oining an organi7ation that itself so advocates, even if there
is no li0elihood of inciting imminent lawless action.
o The #ourt does not say it overrules AhitneyL ut it indicates that Ahitney has not stood the test of time.
3ays that &olmes and 5randies view has won the day, on the asis of *ennis. 5ur really a new test'
S(0"!(> Ho72"/?#.-!5")/ H-!5:
M-//"/
D"!!)/ #.-!5"!3,.+
;1< D)."("5 8o: 5ad
tendency
8o: %ocuses on
the effect of the
Nes: 3peech
must e
Nes: 6oesn+t
say much
Nes
9G
requirement speech, rather
than intent or
phrasing
explicitly and
must directly
call for lawless
action
aout needing
to e explicitly
directed at
lawless

1stract ides
cannot e
prosecuted
unless
expressly
advocate
violence
;@< I22)!"! 8o: ?nly
required ad
tendency in the
speech rather
than any
imminent
danger
Nes: They argue
for imminence
8o: The form
of the words on
the paper
matters, not the
how soon the
effect would e
rought aout
8o: 6oes not
need to wait
until the
overthrow is
imminent to
act
Nes
;A< L)>"76 8o: 5ad
tendency test
only, no
li0elihood
requirement
3ort of: 8ever
says the harm has
to e li0ely, only
that the harm
can+t e
extremely
unli0ely
8o: ?nly the
words
themselves
matter, not
li0elihood of
effect
8o: Require
only that the
gravity of the
harm
multiplied y
the li0elihood
of harm
occurring
outweigh the
cost to free
speechL 8o
particular level
of li0elihood
required -can
have small
li0elihood if
the harm is
great
Nes
3o the #ourt is cherry pic0ing form other tests to create a much more speech protective test than ever efore.
#ourt goes further than &olmes and 5randeis ever would have imagined, or wanted to@
This is a revolution in free speech law, overruling 6ennis and asically everything efore it, ut the #ourt treats
this as though it is settled law, in a per curium opinion.
&istory of the case:
o 5ut this was not done ecause the court thought that this was so fundamental that the #ourt wanted per
curium, ut instead more li0e a routine per curium reversing a lower court with nothing important
involved.
o 1pparently: 1ll J !ustices agreed that this conviction had to e overturned, ut the !ustices could not
agree upon the test at the first meeting.
o 5rennan adds the current test to %ortas+ draft which cited clear and present danger test. 5rennan says let+s
!ust do this per curium, and everyone agrees, proaly not recogni7ing the profound change in law that
was occurring. 5rennan+s cunning in terms of #ourt strategy.
5randenurg: "ast ma!or decision of the Aarren #ourt. 5ut this decision still en!oys widespread acceptance on
the court and among academics across the political spectrum
9>
5ut, it this the est test to employ in this area'
o :ery speech protective: This is good if you elieve in free speech as oth a means and an end of
democracy.
o &istorically, the 3#T has not stood up for free speech rights during times of crisis. Ahy'
Realist institutional concerns: #ourt is afraid to stand up for the law during a time of crisis -li0e
(c#arthy era.
o 2rolem in the #lear and 2resent 6anger Test -particularly the 6ennis Test.: 5ecause in times of crises,
even the court tends to overestimate the real danger.
o The Cudge under 5randenurg must e sure aout the danger for there to e a suppression of speechL this
overcompensates in protecting speech ecause of the phenomenon of overestimating the danger caused y
speech
5ut does 5randenurg not go far enough' 3hould there e a serious harm requirement'
o &olmes an 5randeis said this should e a requirementL -e.g., the harm isn+t serious for calling for a sit-in
to protest segregation laws.
o 3ome people read 5randenurg as having an implicit seriousness requirement, ut it is not explicit
-though you can assume that it is incorporated in the 5randenurg test.
o *f it is explicit, then this test still allows for the suppression of speech when there is speech directed at and
li0ely to produce serious lawless action.
o 3hould some speech in this area e protected'
Ahat aout the argument that the conduct itself should e illegal, ut not the speech. *t is almost
hypocritical to punish speech that we display in the national archives: the 6eclaration of
*ndependence
6oes 5randenurg go too far, does it tie the hands of the govt. too much'
o *mminence requirement may ma0e the govt. wait too long
o 6irected at requirement allows a win0 and a nudge -carefully chosen speech to get around the
requirement.
o ;xample: the Jth #ir. case -The 8uremerg files.with the anti-aortion group giving photos and address
of aortion doctors, and saying wanted dead or alive and then chec0ing off the photos when they are
murdered.
Jth #ir. said this did not implicate 5randenurg, ecause this is !ust a threat
#ompelling dissent: 3ays this is not a threat / it is not explicit, and not the spea0er saying he will
do the act, ut instead is incitement and should e analy7ed as such. *f 5randenurg is applied,
then this speech cannot e suppressed ecause the treaty is not directed, imminent, or li0ely
o (aye the 5randenurg test is outdated in the internet era: 2erhaps the aility to reach so many people
immediately and turn speech into action quic0ly may e cause for a more restrictive test.
FIGHTING WORDS
C%aplins5y v. New amps%ire -<J9G. / Cehovah+s Aitness denouncing all religion as a rac0et was escorted
away after the crowd he addressed grew restless. #haplins0y demanded the police arrest the
o 8aturally causes a person to react with physical violence B fighting words. %all outside the scope of the
protection of freedom of speech and the government can regulate them at will.
o ;xtremely important quote: pg <F9F-<F9<.
Theory that those categories that have little or no value to society and that tend to cause sufficient harm such that
they fall outside the wide scope of freedom of speech. 5ecause of the slight value to the mar0etplace of ideas and
the significant countervailing harm, they can e anned outright.
5ut do fighting words fall outside the scope'
o 1re there words we really elieve have the capaility in civili7ed society that give rise to imminent
fighting' 8otion that there is an honor code that requires physical violence following certain insult seems
archaic and outdated. Today taught to turn the other chee0 or see0 other recourse.
o &as een narrowed sustantially y the modern #ourt. 6o not see much cases falling under this doctrine
anymore. C%aplins5y is the "13T T*(; the #ourt has upheld a conviction.
99
Co%en v. Cali)ornia -<JE<. / #ohen wore a leather !ac0et with the inscription %uc0 the draft while wal0ing
through a courthouse. #onvicted under a disturing the peace statute. 3tate court upheld the conviction on the
fighting words doctrine. 3upreme #ourt reversed the conviction.
o %ighting words argument:
The message was not a directed, personali7ed insult, so it cannot e fighting words. (essage that
is roadcast to no one in particular, offensive or not, is not reasonaly viewed as personal insult.
2olitical speech. #rass, ut protected no the less. 5roadcasting to a group of people is more li0ely
to contriute to the mar0etplace of ideas. ?ne-on-one communication does not have as much
pulic value.
(ore on notice that violence may e provo0ed when the message it one-on-one. 1lso there is
more notice that the state might restrict the speech.
2ermitting the censure of a controversial statement to the pulic through hec0ler+s veto.
o 3ensitive listeners / profanity
*n C%aplins5y the #ourt assumed in dicta that if words were classified as profanity they could e
anned y the states.
5ut in Co%en the #ourt re!ected these dicta. 2rofanity that offends other people is not outside the
freedom of speech. "oo0ed to the circumstances:
2ulic forum is a protected place. ?ne can always loo0 away.
o 5ut this is nonsense, ecause one has to loo0 at the !ac0et, understand it is
offensive, efore one decides to loo0 away.
o #an avoid repeated harm. 5ut still permits the offenders to ta0e over the pulic
places if they want. %orce those who want to avoid offensive language to stay at
home or avoid pulic places that attract such types.
3tate can prohiit offensive speech where there are captive audiences or the speech
invades a person+s home.
This offense is a cost. 5ut the #ourt determined that the contriution to the mar0etplace of ideas
outweighs this harm. The easily offended cannot silence the rest of us.
5ut is profanity necessary' #ouldn+t #ohen have made his statement without the use of
profanity' Custice &arlan+s three !ustifications for including profanity in freedom of speech:
;motive force vs. cognitive force of words. 2rovocative and powerful.
*mpossile to draw the line. The same words are not offensive to anyone.
o %or while the particular four-letter word eing litigated here is perhaps more
distasteful than most others of its genre, it is nevertheless often true that one
man+s vulgarity is another+s lyric.
The profanity used in a popularly disli0ed concept would li0ely e permissile.
o Ahat aout the context' Aas arrested in a courthouse. Ahat aout decorum in a courthouse'
6on+t have time to cover time, place, and manner restrictions. 5ut it is permissile so long as it
does not discriminate ased on viewpoint. 8eeds to e viewpoint-neutral:
8o hats in court / even if it prevents wearing an ?verturn Roe v. Aade.
8o spea0ing during oral arguments / even if it prevents "arry %lint
#ohen was prosecuted under a road law that prohiited offensive speech anywhere any time, it
!ust happened to e that he was in a courthouse.
?verreadth doctrine: 3tate cannot prosecute a person under an overly road statute
proscriing more speech than necessary, even if prosecution for the conduct or speech at
issue would have een permissile under a narrower statute.
Ruling otherwise would permit states to draft laws with a chilling effect while never
ringing actual prosecutions against those who egregiously violating the law. #an 0eep
the law on the oo0s y selective prosecution.
LI#EL
9I
$roup liel / 1eau%arnais v. #llinois -<JIG. / -discussed in context of hate speech'..
#ommon law view of liel
o 3trict liaility for pulications that tend to cause harm to a person+s reputation.
o 1ffirmative defense / ?nce reputational harm is estalished, pulisher needs to demonstrate that all the
statements in the pulication are true.
o *f no 16, then pulisher liale for statutory damages / plaintiff need not estalish actual damages.
(odern standard for defamation and liel of pulic officials: (ust pulish untrue statements with actual malice.
o New 4or5 Times v. !ullivan -<JK9. / #ivil rights groups trying to garner support for ("R and the civil
rights movement y exposing the types of violence and aritrary state power that goes on in the 3outh.
2ulished an advertisement in the 8ew Nor0 Times that contained numerous mista0es of fact, including
the numer of times ("R was arrested. 2olice chief who was implicated, ut not named, in the ad, sued
for liel.
#ourt held that some defamatory speech is protected y the %irst 1mendment. 8eeds a certain
amount of reathing room in order to survive.
;ven some lies facilitate the search for truth. %orces those that hold the truth to counter the lies
with the information they exclusively hold and may not otherwise disseminate.
;rrors are inevitaly going to ma0e their way into the discussion. *f people were afraid that if
what they thin0 is true, that eventually turns out to e false. "eads to self-censorship.
%ailures of 3ullivan+s case under the new standard:
8o evidence of actual malice. 8egligence at est. 8ot sufficient ,c greater pulic
interest in critici7ing the government requires a higher standard for liaility where the
criticism is directed at pulic officials.
8ot of or concerning a particular person. 8ot actually targeted at plaintiff. 5road attac0
on the government, doesn+t even specifically mention 3ullivan.
o Ahy actual malice' Ahat does it matter for the mar0etplace of ideas'
"imited category of unprotected speech to only that which has no value to society. *f the spea0er
0nows that something is untrue from the start, then entering untrue speech into the mar0et is not
worth the harm.
(atters if the whole theory is chilling effect. Then ma0es sense to draw the line at intent. *f there
was no intent to lie, then there was actually an attempt to contriute. 8ot possile to e always
correct in factual assertions.
o 8ot sufficiently speech-protective'
"itigation costs.
"ies, li0e oscenity, can e used to express a point, especially in politics.
o Too speech-protective'
"ies pulished aout a person can ruin their career, ut cannot recover any damages or even
receive an admission.
Times seems to not ta0e into account the harm to the person defamed.
#ourt essential forces the puic officials to susidi7e the la7y, irresponsile speech of the press@
&as this decision really improved the search for truth' &as it enhanced the operation of the press:
taloid trash, 1 #urrent 1ffair, political attac0 ads. #luttered the mar0etplace of ideas with lies
and half-truths'
6eterred good and qualified people from going into politics'
6idn+t the 4.3. have a free and open deate aout pulic figures under the #" standard'
1ctual malice standard+s deviations from the common law rule:
o 5urden of proof on the plainti)) to show the speech is false.
o (ust show actual malice,
o 4nder a clear and convincing evidence standard.
&ypos on the New 4or5 Times standard:
o (anager of Ahite &ouse gift shop manager accused of eme77lement ased upon an alleged insider tip.
3tory is untrue and manager sues for
9K
8o actual malice. 3o if !ullivan applies,
"i0ely not a pulic official. #ategori7ation not co-existent with federal employment. *n the
case, the #ourt did not decide how far down the hierarchy the lael pulic official goes.
5ut does not seem that a A& gift shop manager is sufficiently high up to qualify.
o 6iscussion y T: tal0 show host that #heney+s daughter cheated on her lesian lover and was a
8ot a pulic official.
2erhaps a pulic figure
*f a private individual, then what standard applies'
?n a matter of pulic concern / middle ground standard. (ert;
o 5urden on 2laintiff
o 2rove negligence on part of spea0er.
o 5ut does not need to prove actual malice.
8ot a matter of pulic concern / ?ld common law standard. *un & 1radstreet.
o 3how only that the speech
o Then strict liaility on the defendant.
o 4nless can prove everything is true.
o Aesite pulishing nude photos of 1ntonella 5ara -1merican *dol. and engages in casual sexual
activity. 5ut was assured y people who allegedly 0now her that these photos and
6oes the actual malice standard apply'
*f she is a pulic figure, then the wesite wins.
o #learly she thrust herself literally into the spotlight. 8o fairness prolem.
o 5ut should actors, game show participants, and athletes e considered pulic
figures such that it !ustifies overriding state tort laws. Aould the <st 1mendment
suffer if stars could sue the taloids for untrue stories'
*f she is not a pulic figure, then it is li0ely she would e ale to show negligence.
#larification of pulic official
o #ontrol over government policy and affairs
o 3uch that the pulic has an interest in how the pulic !o is eing done. -8ot all govt employees.
*nclusion of pulic figures in the New 4or5 Times standard. 5ut what is a pulic figure'
o Curtis Publis%ing Co. v. 1utts -<JKE. / ;xtension of 8N Times standard to pulic figures. Ahy'
2lay an influential role in ordering society.
&ave ready access to mass media, oth to influence policy and to counter criticism of their views
and activities.
o To e a pulic figure, you must voluntarily enter the deate. (ust thrust himself,herself into the
spotlight.
2rivate figures
o (ert; -<JE9. / 2rivate person can recover w,o meeting the 8N Times standard. This involved a lawyer
representing a client ringing a wrongful death action against the police. "awyer was not a pulic figure,
ut the matter at issue was of pulic interest. 5ut states cannot impose liaility w,o fault where the issue
was one of pulic concern.
Two levels of analysis for defamation actions rought y private person:
o ?n a matter of pulic concern / middle ground standard. (ert;
5urden on 2laintiff to prove negligence on part of spea0er to recover actual damages, ut does
not need to prove actual malice.
%or punitive or presumed damages, must still show actual malice.
o 8ot a matter of pulic concern / ?ld common law standard. *un & 1radstreet.
3how only that it is the type of speech that rings a person into ill repute.
Then strict liaility -presumed statutory damages. on the defendant.
4nless can prove everything is true.
o 9 dissenters in *un & 1radstreet. Ahy would they apply a heightened standard even to defamation of
private individuals on topics not of pulic concern'
9E
6issenters are concerned that the lines etween matters of pulic concern and private concern are
not clear. ;nds up with a !udge ma0ing the decision of what speech is of a pulic concern.
$overnment thus decides with what the pulic should and shouldn+t care aout.
(ere fact that it was pulished seems to suggest that the pulic does care aout.
$reat summary of the law of liel y Custice ?+#onnor:
?ne can discern in these decisions two forces that may reshape the common-law landscape to conform to the %irst
1mendment. The first is whether the plaintiff is a pulic official or figure, or is instead a private figure. The second is
whether the speech at issue is of pulic concern. Ahen the speech is of pulic concern and the plaintiff is a pulic official
or pulic figure, the #onstitution clearly requires the plaintiff to surmount a much higher arrier efore recovering
damages from a media defendant than is raised y the common law. Ahen the speech is of pulic concern ut the plaintiff
is a private figure, as in (ert;8 the #onstitution still supplants the standards of the common law, ut the constitutional
requirements are, in at least some of their range, less foridding than when the plaintiff is a pulic figure and the speech is
of pulic concern. Ahen the speech is of exclusively private concern and the plaintiff is a private figure, as in *un &
1radstreet8 the constitutional requirements do not necessarily force any change in at least some of the features of the
common-law landscape. P%iladelp%ia Newspapers8 #nc. v. epps, 9EI 4.3. EKE, EEI -<J=K..
P,37)( Co!(".! No P,37)( Co!(".!
P,37)( O**)()-7 o. P,37)( F)+,." !ullivan < 1utts '''' Ohard to even imagineP
P.)1-" F)+,." (ert; *un & 1radstreet
?ther torts that conflict with %irst 1mendment -!ullivan standard imported.
o *ntentional infliction of emotional distress, etc.
o *nvasion of privacy.
o %alse light invasion of privacy
Thus, there is a road exception to the freedom of speech for 0nowing, intentional lying. 5ut there is protection
for unintentional, non-negligent lying, and protection for even negligent -ut not grossly rec0less. lying aout
pulic figures.
o 5ut must e a statement of fact, not of opinion.
o 186 must reasonaly e understood as a statement of fact. -ustler v. -alwell.
O#SCENITY
$ot% v. 7nited !tates -<JIE. / 1 couple of mail order dealers were convicted of mailing oscene advertising and
oo0s. #onvictions upheld.
o #ourt agrees that oscenity was categorically outside the %irst 1mendment.
4nli0e !ullivan -re!ecting the dicta in C%aplins5y that liel is categorically outside.
4nli0e Co%en -re!ecting the dicta in C%aplins5y concerning fighting words,oscene words,hostile
audiences.
o 6efinition of oscenity: The dominant theme of the material, ta0en as a whole, appeals to the prurient
interest -tends to incite lustful, shameful thoughts.. 1dopting the (2#+s definition of oscenity.
o 8ot a very lieral standard y today+s standards, despite Custice 5rennan as the author. 5ut more lieral
than the precedent. 5efore this opinion, any movie or sculpture with any nudity or references to sex could
e proscried.
o 4sing the C%aplins5y framewor0, the #ourt essentially says that whatever minimum social enefit
provided y oscene speech is outweighed y the significant social costs.
Restricting pornography ased on the negative impact on society. *ncrease in violence ) sex crimes.
o Paris 3dult T%eatre # v. !laton -<JE>. / 2rosecution of an adult theater operation despite the clear
warnings of oscene material insides and age limitation of G< or older.
;ssentially applied rational asis review. #ourt didn+t even require that there e empirical proof
that pornography actually leads to violence or other crime.
5ut this is entirely inconsistent with 1randenburg and the incitement cases.
Restricting pornography as degrading to women.
9=
o 3merican 1oo5sellers 3ss=n v. udnut -<J=K. / #hallenge to an oscenity statute enacted in *ndianapolis
that was written y a well-0nown feminist Ratharine (cRinnen. 6efined pornography in a novel way,
focusing on whether the pornography depicts women in a sumissive, su!ugated way or shows them
en!oying rape, in!ury, or aasement.
Cudge ;asterroo0 stri0es the law down. %inds that this law imposes one government-sponsored
viewpoint / that women should not e sumissive or su!ugated y men. That message,
regardless of whether in a cheap film or literature, regardless of how sexually explicit, is anned
y the government.
;ngaged in no alancing at all. 1pplied strict scrutiny as a law discriminating on the ground of
the content of the speech. 6irect violation of the %irst 1mendment.
"aw would reach even highly valuale speech, literature
;asterroo0 agrees that pornography could lead to the commission of crimes such as rape. 5ut
1randenburg and other incitement cases stand directly in the way. (ust e directed at imminent
lawless action. ;ffect of porn is sutle and gradual, so it does not meet the 1randenburg standard.
2rotects speech against suppression that is inconsistent with true freedom. 5ut it has
costs. Tough tradeoff. 5ut that harm is the price our society pays.
5oth sides are sending messages: 3hows depicting women as confident, capale
o 6on+t want to give the government the right to restrict speech to its preferred message unless asolutely
necessary.
$overnment cannot criminali7e possession of oscene materials in a person+s home.
o !tanley v. (eorgia -<JKJ. / ?verruled conviction of a person viewing pornography at home. 3tated, *f
the %irst 1mendment. 5ut this was not expanded to purchasing, downloading, ma0ing, distriuting
oscene materials. ?nly the privacy interest of home overrides the government interest in this case.
Miller v. Cali)ornia -<JE>. / #ontemporary standard for oscenity.
o Miller standard: Three part test:
Ahether the average person, applying contemporary community standards would find that the
wor0, ta0en as a whole, appeals to t%e prurient interest,
Ahether the wor0 depicts or descries, in a patently o))ensive way, sexual conduct speci)ically
de)ined by t%e applicable state law, 186
Ahether the wor0, ta0en as a whole, lac5s serious literary8 artistic8 political8 or scienti)ic value.
o &ow different from $ot%'
1dds two more prongs to the standard. (ore lieral standard in that it permits sexually explicit
material so long as, ta0en as a whole, it has significant value to society.
#ourt too0 a lot of heat from the conservatives. *ncluding the 4tah 3upreme #ourt@
2rolems with the Miller standard.
o *nherent contradiction: 2rurient B turns people on. ?ffensive B people have to e revolted, turn people
off.
o 6iffering standards among the prongs: 2rurient -local,community., offensive -depends upon what law is
at issue, li0ely state or federal., value -national standard..
Custifications for oscenity regulation
o 6easement of the individual character -paternalistic.
o ?ffense to unwilling onloo0ers -contra Co%en.
o *nducement of criminal conduct -Paris 3dult.
o ;roding moral standards
o &arming the social faric
o ;xtremely low value of oscenity as speech w,in mar0etplace of ideas.
8on-political
8on-cognitive
8ot susceptile to counterspeech
6istinction etween regulating speech: political v. moral.
9J
o The #ourt in these cases seems to state that restrictions on speech to entrench a particular political view is
clearly protected y the %irst 1mendment.
o 5ut interfering with speech for the purpose of morality is valid. ?ne of the reasons we have government
is to regulate the morals of the country.
o 5ut is this a tenale distinction'
;verything is a political issue, including issues of morality.
#ontrolling morality is controlling the thoughts of the people on matters that eventually involve
politics.
The ottom line on this topic:
o (odern oscenity regulation is entirely content-ased. 5ased on the amalgam of the !ustifications aove,
ut li0ely most ased on morality.
o Recogni7e that even worthless speech is protected, ut we don+t extend that principle to oscenity. 3o
long as it is not aout sex, there is full protection.
o Ahy do we apply this regulation only to sexual speech' (ost of the rest of the world thin0s we have it
precisely ac0wards: permitting violence in unlimited quantities, ut restricting nudity.
o Reflects the danger of the current model of defining certain categories as eing outside the scope of the
freedom of speech: 2ermits the #ourt to determine on its own, ased on own su!ective views, to
proscrie some speech: porn, and permit others: crappy horror movies.
o 2rof. thin0s there is no !ustification for that line. Custices 5lac0 and 6ouglas elieved that the government
has not legitimate interest in telling the pulic what to thin0. They were the great champions of free
speech and the %irst 1mendment. 5lac0 thought of himself as a %irst 1mendment asolutist B %irst
1mendment protects all speec%. 5ut this view turned out to e impractical. -5lac0 B no symolic speech.
CHILD PORNOGRAPHY
New 4or5 v. -erber -<J=G. / 5oo0store owner convicted for selling videos of oys masturating.
o %ocuses on the fact that the creation of child pornography harms the child who is sexually
molested,aused in its ma0ing.
The production of the images itself is unlawful. 4nli0e adult women, children are not legally
capale to consent to such treatment.
#hildren are hurt over and over again whenever it is distriuted.
o !tanley v. (eogia does not apply. #an e convicted for possession of child pornography at home.
3s%cro)t v. -ree !peec% Coalition -GFFG. / #hallenge to the #hild 2ornography 2revention 1ct of <JJK on
overreadth grounds. "aw prohiited the depiction of child sex, even where no actual child was involved in the
production.
o #annot ar non-oscene depictions of child sex if that actors portraying the child is actually an adult or
if computer generated.
o Aould result in the an of great movies such as $omeo and :uliet and 3merican 1eauty. 1ctually changed
the director+s vision due to the concerns of child pornography charges.
o Ahat aout whetting the appetite of pedophiles'5arred y 1randenburg.
#ourt+s determination in -erber has never een sustantially critici7ed. *s that !ustified' &ave we gone too far'
o "aw treats any depiction of a nude child, regardless of any proof of intent to sexually molest or
o 2eople are arrested for ta0ing pictures of their children in the athtu@
o "i0e the Red 3care' &atred of certain ehavior causing us to ignore 0ey #onstitutional protections'
#ausing wrongful prosecutions'
INCIDENTAL RESTRICTIONS ON SPEECH
7nited !tates v. O=1rien -<JK=. / #hallenge to prosecution of :ietnam Aar protester who urned his draft card on
the steps of a 5oston courthouse.
o #ould not e convicted for seditious speech after 1randonburg. *f he had said 6own with the draft@ it
would e insufficient to meet that standard.
IF
o 5ut #ourt finds he is not eing convicted for his speech, ut for the conduct, the act, of destroying his
draft card. "oo0ed to all the non-speech purposes and uses for these draft cards in the administration of
the selective service. 5ut even if the law does not facially target speech, it is eing used to stifle a sort of
speech. The #ourt has always found that laws targeting conduct for the purpose of prohiiting the
expression of ideas.
o O=1rien test for regulation of expressive conduct -hyrid *3,33, supposedly of 9 parts.:
Ahether the law is $ithin the constitutional po$er of the government. -Throwaway prong..
*f it furthers an important or su%stantial governmental interest. -*ntermediate scrutiny..
*f the governmental interest is unrelated to the suppression of free e&pression. -?therwise
would e an attempt at indirect censorship and strict scrutiny would apply..
1nd if the incidental restriction on alleged %irst 1mendment freedoms is no greater than is
essential to the furtherance of that interest. -3trict scrutiny'.
o #ourt+s actual application of the test to the facts.
2rongs G ) 9: *ntermediate plus scrutiny'
#ourt does not apply a standard as stringent as it claims. The draft cards were clearly not
essential to the operation of the draft. 5urning the card does not free one from the
operation of the draft. (ost draftees reporting need not present the draft cards to enlist.
*nstead the court applies intermediate scrutiny, maye even lower. "ater cases have
generally clarified that straight intermediate scrutiny is the standard that should e
applied.
2rong >: 8ot targeted at suppressing speech.
(ain point is that government almost always has an interest in suppressing controversial
speech that would meet intermediate scrutiny, so this prong acts as a gate0eeper to insure
this lower level of scrutiny is reserved to regulations that were not target
*n O=1rien the #ourt claims that the primary purpose of the prohiition is to protect the
integrity and efficiency of the draft system: reminder that draft exists, to notify of address
changes, 0eep address of the draft oard handy.
#ourt avoids the -damning. legislative history suggesting that the real purpose of the law
was to prohiit this form of protest and speech. 2retty ovious that the main point was to
suppress this speech. Aanted to limit the acts of pulic defiance of the draft.
o 3tatement on the floor of #ongress: 3traightforward clear answer to those who
would ma0e a moc0ery. . . thum their noses at the war and government.
o #laims that it is a well-estalished principle that the 3#?T43 will not stri0e
down an otherwise valid law y inquiring into the su!ective #ongressional
intent of the law.
o 5ut that is not true, at least w,in the ;qual 2rotection context@
4ic5 0o
3rlington eig%ts
o *n this regard, the #ourt appears to e dropping down to the level of rational
asis review@@@
o Ahy was the application of the -seemingly reasonale. proffered test so warped'
Aarren, while lieral, distained those who would attac0 1merican policy and a war effort against
#ommunist.
Today O=1rien is viewed as a deeply flawed application. 5ut the test itself is still valid today.
T0" ."-7 "'Brien "/ -/ 0-/ 3""! )!".'.""5 7-".:
o T0."/0o75: M,/ 3" ,!."7-"5 o 0" /,''."//)o! o* *."" /'""(08
o I* /o4 0"! -''76 )!".2"5)-" /(.,)!6:
F,.0"./ -! )2'o.-! o. /,3/-!)-7 +o1".!2"!-7 )!"."/8
I!()5"!-7 ."/.)()o! o! -77"+"5 F)./ A2"!52"! *.""5o2/ )/ !o %su%stantially greater&
0-! )/ "//"!)-7 o 0" *,.0".-!(" o* 0- )!"."/8
I<
Texas v. :o%nson -<J=J. / :ehement anti-1merican, anti-Reagan, anti-#old Aar protest held outside the
Repulican 8ational #onvention
o (ost important %irst 1mendment decision of recent times.
o %irst must determine if the conduct was intended as expressive efore applying the O=1rien test:
*ntended to communicate'
Reasonaly li0ely that a listener would understand that message'
o #lear that it was expressive conduct. Texas did not even challenge this point.
o 1pplication of the O=1rien test:
Ahat interests unrelated to expression'
Texas+ proffered !ustifications:
o 2reventing reaches of the peace
o 2rotect the symolic value of the flag. 2reserving the flag as a symol of
nationhood and unity.
5oth are deeply flawed and, in fact, intimately related to the suppression of free
expression.
o %irst is simply incitement, !ust li0e the AA* cases. The speech is eing
understood and might e potentially rousing to the crowd -1randenburg..
1lternatively, it would e fighting words, for which we have a doctrine. 8ot a
direct invitation to a rawl -Co%en..
o The symolic nature of the flag is a form of speech itself. 3ingles out one use of
the message-sending nature of the flag for prohiition. 2ermits the use of the flag
for pro-nation, pro-unity message.
Thus no need to move on to the intermediate scrutiny test. %ails the threshold inquiry.
o ;ven outside the O=1rien, some restrictions on speech are acceptale. &ad it een content- and viewpoint
neutral, then su!ect to time-place-manner restrictions. 1 sort of intermediate scrutiny. -6on+t have time
to get into much..
#ontent neutral' 8o. 6isrespectful message content illegal. Respectful message content is
permissile. $overnment is regulating speech ased upon the content of the message conveyed.
%amous phrase: *f there is a edroc0 principle underlying the %irst 1mendment, it is that
the $overnment may not prohiit the expression of an idea simply ecause society finds
the idea itself offensive or disagreeale.
:iewpoint neutral' 8o. 2ermits urning of the flag if the urner+s viewpoint is one of respect and
desire to dispose of flag out of respect for the symol.
o 5ut even if that is true, Texas argues that there are many other avenues for expressing the same critical
viewpoint, so foreclosing this particularly offensive means is acceptale.
#ourt re!ected this argument in Co%en. ?ther means may not convey the message with the same
power and vigor.
o Thus, applied typical %irst 1mendment strict scrutiny of the most aggressive 0ind. 8aturally the law falls.
"aws that are content-ased or -especially. viewpoint-ased are su!ect to this scrutiny.
o 6*33;8T -Rehnquist. / %lag is special. 1mericans regard it as an almost mystical reverence. 3hould e
an exception to the %irst 1mendment for the flag only. Treat it li0e fighting words under C%aplin5sy. 8ew
category of unprotected speech outside %irst 1mendment / flag urning.
5ut this exception does not fit the C%aplins5y framewor0 -minimal value in the mar0etplace of
ideas.. %lag urning expresses core political speech. 4nli0e fighting words, oscenity, or child
pornography.
o 6*33;8T -3tevens. / #annot deface the "incoln (onument argument. *diotic.
%ollowing the decision in Texas v. :o%nson, pulic outrage -=>X of population opposed. gave rise to suggestions
to amend the #onstitution to permit the prohiition of flag urning. 5ut this failed. 1nd instead a federal law
prohiiting flag urning without reference to desecration or venerated o!ects.
(any commentators laeled this case the worst example of !udicial activism ever@
o 8o possile construction of !udicial activism could ring this case w,in its meaning.
IG
o Cudicial activism is a an0rupt phrase / most often used y people who 0now nothing aout constitutional
law to express opposition to a particular !udicial decision on political grounds.
7nited !tates v. 2ic%man -<JJF. / 2rosecutions rought against several persons challenging the newly minted
federal %lag 2rotection 1ct of <J=J y pulicly urning,defiling the flag. "aw was drafted to appear only to
regulate conduct with no mention of maintaining an air of respect etc. 1llegedly protects the physical integrity of
the flag under all circumstances.
o #ourt, with the same I-9 vote, struc0 it down again. ;ven though it contained no explicit content-ased
limitation, it is nevertheless clear that the $overnment+s asserted interest is related to the suppression of
free expression.
o Ahat possile interest does the federal government have in the physical integrity of privately owned
flags' 8othing except to ensure that it is not used to express the same message as in Texas v. :o%nson.
o 3uffers the same flaw as in that case: suppresses expression out of concern for its li0ely communicative
impact.
1fter 2ic%man, several proposed constitutional amendments have een offered in the past years.
o "ast year passed in &ouse G=K-<>F. %ailed y one vote in the 3enate@
o &ad it gone on to the states, polls show that it would li0ely pass with ease.
HATE SPEECH
:ery difficult topic. 5oth ecause it is an emotional and sensitive topic, and ecause the cases dealing with this
topic are confused and contradictory.
8eed a special approach to hate speech'
o There are many types of offensive, even hurtful, speech that we do not criminali7e.
o 5ut hate speech is especially offensive. 1nd many have called for a special approach or exception for this
particular form of offensive speech.
$roup liel
o (ost aggressive theory for criminali7ing hate speech.
o 1eau%arnais v. #llinois -<JIG. -5o-harnai. / #hallenge to an *llinois law that criminali7e the portrayal
of depravity, criminality etc. of a class of citi7ens ased on race, national origin, religious etc.
6*33;8T -5lac0.: #laims it is censorship plain and simple.
o 8ever een officially overruled. 5ut today it is highly suspect as precedent today ecause it relies on liel
from C%aplins5y that such speech is entirely outside
1lso, such statements are of opinion. 4nder !ullivan statements of opinion can never e
prohiited under liel law.
Aords inherently creating in!ury, another rationale of this case, has een undermined y the
3#?T43 decisions in Co%en and Texas v. :o%nson.
o 30o0ie *" cases
"ower courts in those cases essentially treated 1eau%arnais as if it is no longer good law.
Today we ta0e it for granted that 1eau%arnais was wrong and these cases were correctly decided.
4nli0ely that a group liel theory will fly to prohiit hate speech.
$.3.9. v. !t. Paul -<JJG. / RRR memers prosecuted for urning a cross on the yard of a lac0 family. "aw
prohiited placing on pulic or private property 8a7i or RRR symols or other o!ects that represent hate speech.
o #ourt overrules the conviction. %inds that the law violates the %irst 1mendment.
o Ahere is the O=1rien test in this opinion' *t seems to e expressive conduct. 5ut the test does not seem to
appear. Ahy not'
"aw targeted at expression on its face. Targets graffiti, symols, and other methods of expressing
hateful speech.
o 1lso, clearly content-ased regulation. "imits only speech that offends on the asis of race, color, creed,
religion or gender, ut not ased on sexual orientation or footall loyalty.
o 5ut (innesota 3upreme #ourt construed the statute only to reach speech that amounts to fighting words.
8arrowed the statute somewhat, ut also forced it into a category outside the %irst 1mendment entirely.
I>
3o the question is, if the speech is outside the protection of the %irst 1mendment, can the state
discriminate ased upon content in that case'
o Custice 3calia states that even unprotected speech #188?T e proscried when a restriction within that
category is content ased.
5ut ma0es exception for content-ased distinctions that are drawn upon the same asis for why
that speech is outside the %irst 1mendment in the first place.
Thus a state regulating oscenity:
could draw distinctions etween type of graphic sex shown
ut not
o 5ut then what aout this case' *sn+t this law a nice example of fitting within 3calia+s own exception'
1ren+t racial epithets a form of fighting words of the worst 0ind'
3calia is distured y the fact that the law is also viewpoint-ased.
o Custice 3calia is even more distured y the fact that this law is also viewpoint ased. 2ermits pro-
integration fighting words and provocation, ut criminali7es. :iewpoint-ased restrictions are virtually
8;:;R allowed.
3o even if the law could arguale fit the except to the rule against content-ased regulations
6oes not survive strict scrutiny, ecause not the least restrictive means -on speech.. #ould have a
law that prohiits all fighting words.
?dd form of narrow tailoring ecause requires government to censor more speech@ *s it
possile that a law can e too narrowly tailored' 5roader reach, ut no viewpoint
restriction.
o #?8#4R: Custice Ahite. 1grees that law is unconstitutional, ut re!ects 3calia+s approach. *nstead, he
would find the law overroad. 6isregards the interpretation of the (8 3upreme #ourt that it applies only
to fighting words as a significant ) unacceptale stretch of the doctrine.
5asic application of settled %irst 1mendment rules.
#learly written and easily summari7ed.
3calia+s opinion in R.1.:. calls into question the entire framewor0 of having certain categories of speech outside
the %irst 1mendment. #omplete reinterpretation for the entire C%aplins5y framewor0.
o #onvoluted system of selective application of %irst 1mendment principles only to certain restrictions on
speech outside the protection of the 1mendment.
o Aants oth to 0eep the C%aplins5y framewor0 to proscrie porno movies, ut also wants to find a way for
courts to stri0e down politically correct regulation of speech outside the scope of the %irst 1mendment.
o #ritics say that the #ourt must ite the ullet one way or another. ;ither:
(aintain C%aplin5sy, ut recogni7e that politically correct regulation and distinctions can e
made within the scope of unprotected speech.
?r the %irst 1mendment reaches those forms of speech oth to prevent content- and viewpoint
discrimination, ut then confer protection as well.
0isconsin v. Mitc%ell -<JJ>. / #hallenge to an enhanced sentence for racially motivated attac0s on the asis of
R.1.:. #ourt upheld the conviction unanimously.
o Ahy is it different' ?nce again it is viewpoint and content ased@
This is a law regulating pure conduct, not even the expressive 0ind. &as nothing to do with
speech at all, so such distinctions do not implicate %irst 1mendment concerns.
Rational asis for this distinction. :iolence ased upon racial animus can give rise to more social
strife and li0elihood of retaliation.
o &as always een acceptale to punish conduct ased upon the motives or values ehind the conduct. %irst
1mendment only protects speech.
;x. Title :**: 2rohiits racist motives for hiring and firing decisions.
;x. 2remeditated murder vs. manslaughter.
9irginia v. 1lac5 -GFF>. / "aw prohiiting cross urning again. 5ut this one requires an intent to intimidate,
presumaly to ring the law within the threats exception to the %irst 1mendment. 2rovided that any such urning
of a cross shall e prima facie evidence of an intent to intimidate.
I9
o 4pholds the law in so much that it criminali7es cross urning with the intent to intimidate specific
persons. 5ut stri0es the conviction ecause of the presumption clause.
o 1gain no O=1rien test as law is a pure restriction on speech, not one where there is an incidental
restriction on speech. 3o why would the #ourt uphold it'
Threats are one of the categories always understood to e outside of the scope of the %irst
1mendment. 6oes not criminali7e all threats, only this one 0ind of threat: cross-urning. 8arrow
suset of the road category.
#ontent-ased. 3ingles out one mode of expressing the speech. *sn+t this counter the principle of
R.1.:.'
%its the exception: content-ased regulation drawing lines for the same reason that form
of speech is outside the %irst 1mendment. 3tate could draw distinctions etween threats
and more severely regulate the most egregious.
o 5ut could have said the same thing after R.1.:.@
o 1fter R.1.:., states stopped trying to use fighting words to criminali7e hate
speech. The threat category is a replacement for that lost cause.
:iewpoint-ased' 6ifference is that in R.1.:. engaged in viewpoint-ased discrimination.
2rohiited the use of fighting words only to one side. &ere the use of cross-urning with the
intent to intimidate is prohiited for any reason. -''''.
5ut why would one urn a cross except to express that one viewpoint'
#ourt came up with some oscure examples of use of cross-urning for a generic threat
that is not tied to racism. 3omewhat disingenuous argument...
o 5ut the #ourt stri0es down the law anyway, ecause of the presumption
#ross-urning at a RRR rally to rouse the crowd is constitutionally protected speech. 1nd the
presumption ma0es this law applicale to such rallies, rather than !ust uses
?verroad and unconstitutional on its face.
o 6*33;8T: Thomas. #ross-urning is an act of violence, not expression. Ahen the law was passed, :1
was still passing segregationist and racist laws. Thus it would have een odd if :1 was suppressing the
racist measure at the same time it was passing laws. -8o one else agrees..
Ahat aout college speech codes'
o 3ome are written in a round-aout way to try to ring them w,in the scope of 9irginia v. 1lac5.
o ?thers are much roader, and are more similar to group liel in readth.
1rguments for upholding such speech codes -and regulating hate speech in general.
o &ate speech as a new category of speech unprotected y the %irst 1mendment.
Aorthless speech. :alue and contriution is de minimis, and the harm is great.
?ne step further: harmful to the mar0etplace of ideas. *ntimidating, impediment. #ontrary to the
principles of the %irst 1mendment.
2rolem: The ideas are political and cognitive, core speech, even if o!ectionale. (a0ing a value
!udgment as to the worth or harm to society and censoring speech on that asis resemles the
attac0 on #ommunism during the (c#arthy era.
o Regulation of hate speech as surviving strict scrutiny.
#ould fall w,in the scope of the %irst 1mendment protection, ut prohiiting it is the only way to
advance the compelling state interest of integration and racial harmony.
2rolem: 5ut is censoring racist speech really the least restrictive means of advancing that
compelling state interest' 2roaly not.
o ;qual protection asis
$uarding suspect groups from discrimination
o ?ne of the great constitutional deates of our time:
2its two fundamental constitutional rights against each other: <st and <9th 1mendments.
;quality vs. lierty.
3o far, 4.3. law has tended to resolve those conflicts in favor of lierty.
3ummary of hate speech.
II
o #annot e suppressed on a theory of group liel. -1eau%arnais..
o #annot e suppressed as fighting words, at least under a law that targets only hateful speech for
prosecution. -$.3.9. v. !t. Paul.
o 3ome forms of hate speech can e regulated under the true threats doctrine, ut only those that can e
regarded as a real threat to a particular individual. -9irginia v. 1lac5..
THE RELIGION CLAUSES
?verview. -6id not discuss in class..
FREE E9ERCISE CLAUSE
%ree ;xercise doctrine in a nutshell.
3trict scrutiny will apply to any law that facially discriminates against religious practices.
o -Torcaso / (d. requirement that all pulic officials declare their elief in $od.
3trict scrutiny will apply to facially neutral ut are enacted out of a motive to discriminate against certain
religious practices.
o -Lu5umi 1abalu / prohiition on animal sacrifice indirectly targeting 3anteria religion.
Rational asis applies to all generally applicale, non-discriminatory laws, no matter how much they urden the
free exercise of some religious groups.
o -!mit% / prohiition on peyote use..
6irect infringement to free exercise -facially neutral, ut motivated y discrimination..
C%urc% o) t%e Lu5umi 1abalu 3ye v. City o) ialea% -<JJ>. / #hurch practicing the 3anteria religion wanted to
open a church in a suur of (iami. The church practices animal sacrifice. The town, having heard that of the
church+s plans, tailored a new city ordinance to prohiit this practice -ut not other slaughtering practices. within
the city limits. "aw used words such as ritual and sacrifice
o #ourt says that the law does not target religion on its face despite its reference to ritual and sacrifice.
Aords strongly suggest religion, ut fraternities, secret societies, etc. also have these things. 3o the #ourt
finds that it does not facially urden religion.
o 5ut the #ourt loo0s to the intent and the purpose ehind the law -li0e in ;2 context., and stri0es the law
as unconstitutional. &ow does the #ourt determine that the law was passed for discriminatory purposes'
1nalysis of the language. #ould the law e written in this manner w,o a discriminatory purpose'
8o. ;ven if the government interests proffered were compelling, the law was not narrowly
tailored: oth overinclusive and underinclusive.
6oes not prohiit animal 0illing: 2retty much any animal 0illing is o0, except in the
manner practiced y 3anteria.
8ot elievale that passed out of concern for animal cruelty: 6oes not regulate the means
of 0illing or humane methods. 2ermits Rosher 0illing, hunting, methods of
slaughterhouse, use of animals for research.
8o explanation except to discriminate against practitioners of an unpopular religion.
&istorical context and temporal connection etween the passage of the law and plans of the
church.
"egislative history. "awma0ers specifically indicated that the law would target this group and
expressed disgust at the group+s practices.
3calia ) Thomas often refuse to loo0 to legislative history.
5ut ecause of the withering attac0s y 3calia in recent years, the #ourt now turns less
often, and is reluctant to solely rely on, legislative history.
*ndirect impact on free expression
;arly cases: 1pplication of deferential review to free exercise claims in the face of facially neutral laws that are
not enacted out of religious discrimination, ut has a disparate effect on certain religious groups.
o $eynolds -<=E=. / 4pholding prohiition on polygamy in face of challenge from (ormons.
IK
$enesis of elief,action distinction.
o Cantwell -<J9F. / *nvalidating conviction of Cehovah+s Aitness under free speech doctrine.
3uggesting religious conduct is not wholly outside the protection of the free exercise clause, even
if su!ect to greater regulation than elief. (oving away from elief,action distinction.
o 1raun)eld v. 1rown -<JK<. / 4pheld 3unday closing laws in the face of a challenge y an ?rthodox
Cewish shopowner who had to close on 3aturdays due to his elief, and had to close on 3unday due to the
law, putting him at a competitive disadvantage.
"aws that merely ma0e the practice of certain religious eliefs more expensive do not violate the
free exercise clause.
Raising the standard in indirect impact cases: 3trict scrutiny review as to whether the 3tate can ma0e an exception
for religious practitioners.
o !%erbert v. 9erner -<JK>. / 3eventh 6ay 1dventist challenged a ruling denying unemployment enefits
ecause the person refused to wor0 on 3aturdays, which that sect elieves is the holy day of rest.
#ourt found that the denial of enefits on this asis was an infringement on free expression and
applied strict scrutiny.
(a!ority attempted to distinguish 1raun)eld, decided only G years earlier, on the grounds that
there was no other way for the state to achieve the goal of a uniform day of rest. 5ut there are
several reasons -pointed out y the concurrence ) dissent. for considering the urden in this case
far less serious than in 1raun)eld:
#riminal statute vs. civil guideline denying a enefit.
2ermanent denial of aility to compete in one+s profession and usiness vs. denial of an
affirmative -non-oligatory. government enefit that is temporary anyway.
(ain state concern: %raud. ;veryone will claim religious eliefs to get out of the requirement of
eing willing to wor0 on 3aturday to
5rennan elieves this would not e a prolem. (ost people wouldn+t do this.
5ut even if there is, there are other ways of addressing the fraud concern: testing
0nowledge, as0ing for religious advisor, etc.
o 3et standard governing free exercise claims where there is indirect religious discrimination for >F years.
(onumental 5rennan case.
1pplication of the !%erbert test.
o :arious unemployment cases following the !%erbert precedent to order payment of compensation ased
on wor0 lost for religious reasons.
o 0isconsin v. 4oder -<JEG. / 3uccessful 1mish challenge application of compulsory education law to them
as an infringement of their religious eliefs. #ourt held that challenge is valid.
o 5ut in many other cases, while supposedly applying strict scrutiny, the #ourt egan applying far more
deferential review:
1ob :ones 7niversity -<J=>. / Re!ecting challenge to denial of tax-free status to educational
institutions that practice racial discrimination, even though that practice
#hange in direction: (ore deferential standard for free exercise claims. 8eutral law does not raise free exercise
concerns, even where it urdens certain groups+ religious practices.
o 2mployment *ivision v. !mit% -<JJF. / #hallenge to a law criminali7ing the use of peyote y *ndians who
use the sustance in their religious rituals. %ired from his !o when his oss found out that he used peyote
and denied unemployment enefits for misconduct -using drugs.. Muestion presented to the #ourt: #an
the state criminali7e the use of peyote and refuse to ma0e an exception
C. 3calia: 4pholds the criminal law and refusal to grant an exception. %or strict scrutiny to apply,
there must e a hyrid. (ust involve more than one constitutional right at issue, so that free
exercise and something else couple with it.
4oder B %; and 362 -direct the education of children.
Cantwell B %; and free speech -proselyti7ing in the town square.
8o scrutiny applies -well, actually, rational asis would still apply under 62.. 5ut this is not a
free exercise case. %alls ac0 on the standard of $eynolds.
IE
#?8#4R: ?+#onnor thin0s strict scrutiny applies, ut the law prohiiting peyote survives
anyway.
6*33;8T: 5lac0mun. %inds that strict scrutiny applies and this law violates it.
o Muestions with 3calia+s hyrid:
6oes the second constitutional claim ma0ing up the hyrid have to e valid, or !ust plausile'
:alid: Then no need for the %3 clause, ecause it would e covered y the other
constitutional provision@
2lausile: *dea that two near misses of violations of constitutional rights can, wor0ing
together, amount to a violation is entirely novel and not terrile rational.
6istinguishing !%erbert valid under 3calia+s approach'
6istinguishes that in that case, the rule was not criminal.
o 5ut what sense does that ma0e' *t seems that the criminal law would more
severely urden the free exercise of religion@
*n !%erbert there is an individuali7ed review of whether a person is. 3hould not extend to
the criminal context, ecause there is no similar individual approach through which to
create exemptions.
o 5ut there is prosecutorial discretion / so there is individuali7ed review@
o 6istinguished away the clear precedent on pretty lame grounds. 5ut that is nothing new. That is what was
done in 1rown v. 1d. o) 2duc. as well.
o Ahy does 3calia want to ma0e this new rule' Ahat is the asis for this new constitutional rule'
2recedent' 8o. 1used the precedent to attempt to
Text' 8o. 6oes not even mention the text. The text of the free exercise clause cuts strongly
against his framewor0: #ongress shall ma0e no law aridging the free exercise of religion.
6oes not say that #ongress cannot intend to aridge the free exercise of religion@
&istory' 8ot really. 6oes not review history of the adoption. ?nly really goes ac0 to the
polygamy law review in $eynolds.
Too0 a lot of fla0 from this opinion. Revolutionali7ed the law without any review of the
history ehind the amendment@
The history was, as usual, inconclusive. 5ut 3calia did not even ring it up. *n any case,
where the history was later deated in another opinion, most commentators agreed that
?+#onnor+s review of history -permitting an exception. was more persuasive.
3tructure' 2ossile. 8eed consistent meta-rules across the constitution. (ost li0e ;2. Ahat is the
rule in ;2' *f facially discriminatory B 33. *f discriminatory purpose B 33. *f the law is facially
neutral and not intended to impact minorities, ut does have a disparate impact B R5.
5ut 3calia does not rely on this. 2lus road coherence across amendments is not really
feasile. 8o unified rule of scrutiny, interpretation.
1nd what aout other constitutional rights' 1randenburg which deals with similar issues
in free speech -same amendment., and applies at least intermediate scrutiny.
Rules v. standards' (aye. ?viously 3calia li0es hard and fast rules.
2olitical process' Nes. 2rimary rationale for this opinion.
1nalysis of the political process asis in !mit%.
o Rationale: This is not the 0ind of constitutional right that we need the !udiciary to step in and apply
heightened scrutiny, ecause the political process affords sufficient protection. ?ur culture highly values
religious freedom. Thus, there should e !udicial restraint.
o This clearly wor0s to prevent rules that impact the ma!ority+s religious practices. 2olitical process would
even protect the religious practices of sustantial minorities with significant political power: Cews,
#atholics, (ormons etc., given the general pulic+s view that
o Ahat aout the lesser 0now minorities with even less political power' (uslims, Rastafarians, other more
fringe religious groups'
#aroline 2roducts %8 9 says the political process argument has it the other way around. 8eed
heightened scrutiny for this groups. ?f course there is no need to protect the ma!ority #hristians@
I=
(any religious groups are prototypical discrete and insular minorities. ;asily identifiale y
characteristic dress or customs.
o *s it true that the 1merican political process sufficient to protect the freedoms of religious minorities
without strict scrutiny from the #ourt'
(a!or legislative odies do seem quite deferential:
1fter this case came down, the ?regon legislature promptly amended the law to provide
an exception to practitioners of
#ongress was so upset aout this case, that it passed the Religious %reedom Restoration
1ct to overrule !mit%. ?ne of the most i-partisan ill in history: 4nanimous in the
&ouse of Representatives and J>-> in the 3enate.
"egislatures in this country are extremely deferential to religious free exercise freedoms
of religious minorities.
5ut what aout the city councils and local level governance such as was the case in Lu5umi'
3eems that there is greater danger of discrimination on the local level.
8ative 1mericans are possily a different case. 6oesn+t mean that the same receptivity would
apply for Aiccans, 3anteria, and other exotic religions. ?r even (uslims given the strong anti-
(uslim sentiment following J,<<.
o *sn+t placing faith in the legislature to protect the minorities inconsistent with the concept of the 5ill of
Rights and !udicial review'
6espite the popularity of racial diversity and anti-discrimination
3trict scrutiny designed to protect minorities during the ad times. 8ot as necessary during the
good times, ut having it on the oo0s is still necessary.
*s the reduced scrutiny in !mit% really necessary' 4nder the !%erbert test, the #ourt seemed to apply a variant of
strict scrutiny that is not as aggressive as in some other contexts. 33-
o 1mish denied exemption from 33 tax
o 5o Cones 4niv. etc.
o 3o 3calia+s concerns of anarchy is proaly overlown. 5ut it does highlight his concern aout
su!ectivity in the !udicial process. 8ot even the usual strict scrutiny, ut a watered down version of it.
<JJ9 R%R1 is passed. 6esigned to overrule !mit%, ut that was struc0 down@
o City o) 1oerne v. -lores -<JJE. / #ourt struc0 down R%R1. #ongress could not enforce the %ree ;xercise
#lause on the states -via <9th 1mend. eyond the definition given to it y the #ourt.
ESTA#LISHMENT CLAUSE
#ongress shall ma0e no law ma0ing an estalishment of religion.
;veryone agrees that #ongress cannot declare and estalish an official religion, of the li0e of the #hurch of
;ngland. 8or can there e a de facto estalishment of a church y passing a law requiring citi7en contriutions to
a particular church.
5ut in many other circumstances, it is much more difficult: school prayer, religious symols on government
property, etc.
%ocus discussion on three types of issues:
o 2rayer in pulic schools.
o 4se of religious symols or speech in pulic places
o 4se of pulic money to fund religious activities
Ahat does the ;stalishment #lause forid' Ahat is the touchstone for separating church and state'
o %orcing the people to engage in a particular religious practice.
o #oercion, either psychological or administratively, to accept a particular religion.
o ;ndorsement of a particular religion or group of religions.
o 8eutrality. Requires appearance of government neutrality etween religions and etween religion and
non-religion, ut permits accommodation.
o 4se of government facilities,funds to promote religion.
IJ
o 1ll government support, intermingling, or encouragement of religion.
2rayer in pulic schools
1ccommodating religious instruction during the pulic school day.
o McCollum v. 1d. o) 2duc. -<J9=. / 3tri0es down the practice of ringing in parochial school instructors to
teach sectarian classes on the school property.
o >orac% v. Clauson -<JIG. / 4pheld a program that permitted schoolchildren to leave the school property
during the official school day to attend religious classes.
o 3hould there e any difference etween these two cases'
o 6epends on the view of what the ;stalishment #lause is intended to prevent.
*f force, then neither should violate.
*f coercion, then oth should have een struc0 down.
*f use of government facilities,funds, then oth cases were decided properly.
5ut even in >orac%, there is a use of government resources / time in the school day that
could e dedicated to asic education, assistance of pulic teachers in rounding up the
0ids.
?n the other hand, a lot of outside groups wor0 with the school and there is
accommodation for these groups / athletics, dance, etc.
8eutrality.
o #ourt in >orac% purported to decide it on the asis of neutrality and upheld the law. 5ut then it seems that
the McCollum case was decided wrongly'
$overnment-facilitated coercion to religious adherence or prayer.
o Lee v. 0eisman -<JJG. / 2rincipal hired a rai to give a non-denominational prayer at a middle school
graduation ceremony. ?ne of the student+s parents sued the school claiming a violation of the
;stalishment #lause.
5oth the ma!ority and the dissent loo0 to coercion. 5ut they have very different ideas as to what
constitutes coercion.
(a!ority -Rennedy. / 2sychological coercion to !oin in the prayer. 2eer pressure if very
strong at this age. 2oints to the psychological studies.
6issent -3calia. / Aould only recogni7e coercion as an ;stalishment #lause violation
where the coercion is legal: threat of fines, criminal penalties, or other detriment.
$overnment not as the source of the coercion.
*sn+t the coercion here coming from the 0ids, not the government' 5ut it is the state that
is facilitating the coercion. *t is setting up the captive audience situation in the first place.
Thus, government-facilitated coercion violates the ;stalishment #lause, even where the
government is not the primary actor.
The concurrence advances another theory for the ;stalishment #lause analysis in agreeing that
this prayer. ;ndorsement theory.
;ndorsement y the government violates the ;stalishment #lause ecause it asserts a
preference for one religion over others.
#ritici7es the coercion model as duplicative of the %ree ;xercise protection. *f the state
coerces a person to adopt a certain elief, it would clearly violate the person+s rights
under that clause. 3hould not read the constitutional provisions to create a nullity.
3calia disputes this view that government cannot endorse religion in any way. 2oints to numerous
examples of express religious references throughout 1merican history.
*n $od Ae Trust on money.
2rayer efore the opening of congressional sessions.
?pening remar0 of the 3upreme #ourt: $od save this . . . #ourt.
C. 3outer+s > responses to 3calia+s attac0 on the endorsement test:
Previous violations don=t ?usti)y continued violation: (adison ) Cefferson thought such
acts were unconstitutional from the eginning. (ost these historical traditions tell us is
that lawma0ers sometimes violated the constitution for political expediency.
KF
Living constitution: 3hould e non-originalist when interpreting the Religion #lauses !ust
as is done in the free speech context. 5ac0 then, general references to Cudeo-#hristian
$od did not offended anyone
Ceremonial deism: 6ifference etween the rarely noticed and formalistic pulic
announcements and the direct impact of religious endorsement to a captive audience.
o ;xplicit: &ave faded into the ac0ground. ?ver time lost endorsing power.
o *mplicit: ;ven if that+s not true and these practices do endorse religion, they are
long-standing practices that have een grandfathered in as exceptions. 6oes not
!ustify opening the floodgates and rendering the ;stalishment #lause a nullity.
o !anta -e #ndep. !c%. *ist. v. *oe -GFFF. / "ater the #ourt extended this holding to prayers during high
school footall games. 3eems to expand the doctrine to any important school-organi7ed events. Ahile not
as important as a graduation ceremony, high school footall games are an important social event for teens.
3chool curriculum issues: ;volution and #reation 3cience.
o 3chool districts cannot an the teaching of evolution in schools, despite the road authority and discretion
to generally set school curriculum
o 8or can a state mandate schools teaching evolution give equal time to creation science.
2dwards v. 3guillard -<J=E. / #hallenge to "ouisiana+s 5alanced Treatment act that mandated
equal time for evolution and creation science in schools that teach evolution.
1pplied the Lemon test, still technically in effect today. 5ut has een severely critici7ed
y the #ourt over the years. 3ometimes the #ourt will simply ignore the Lemon test. 5ut
then it will appear again. (ade of three parts, violation if:
o 2rimarily religious purpose.
o 2rimary e))ect of advancing religion over non-religion
o #mpermissible entanglement / government is required to get too involved in the
internal affairs of a religious institution.
#ourt finds the law fails the first prong of the Lemon test: 2urpose is to discredit the
theory of evolution so that children will e more li0ely to elieve in the literal depiction
of creation in $enesis.
6*33;8T: 3calia. 1ttac0s the #ourt+s inquiry into the legislative intent. ?ne of his etter
explanations of
4se religious symols on government property or government expressions of religious eliefs.
"egislative prayer.
Mars% v. C%ambers -<J=>..
o #ourt avoids the Lemon test in upholding this practice, primarily on historical grounds. Relied on quasi-
originalist argument that something that was practice at the time the amendments were ratified cannot e
a violation of the original intent.
o *mplicitly estalished an exception to the ;stalishment #lause test / any religious practice that goes
ac0 to <E=J is immune from the Lemon test.
Religious o!ects in city #hristmas displays.
Lync% v. *onnelly -<J=9.. #ity set up a nativity scene among other secular #hristmas symols in a holiday
display.
o #ourt finds no estalishment clause prolem with the government erecting this religious display. (aligns
the Lemon test, ut still tries to apply it to the facts.
2urpose' 3ecular purpose to ac0nowledge the historical origins of a national holiday.
;ffect' 6oesn+t it have an effect of advancing religion y reminding citi7ens of the religious
origin of #hristmas'
o #?8#4R: ?+#onnor. ?rigin of the modern endorsement test. :iew that the first two prongs of the
Lemon test should e read together to determine whether the government+s actions give rise to an
endorsement of religion. ;ntanglement prong remains as the second test.
8ot as asolute as the Lemon test standard. "ess whether a law minimally advances religion in
some way. 5ut what sort of impact or impression of endorsement it creates.
K<
1ccording to ?+#onnor, the city did not intend to endorse religion. "oo0ed to the context of the
holiday display and found that in context with a whole unch of secular figures. 3o this same
cr]che could act as an endorsement in other contexts.
Reasonaly oserver test / Aould a reasonale oserver find the government action constituted
an endorsement of religion'
6ifficulty in determining who is the reasonale oserver / #hristian, adherent to another
religion, atheist'
o 6*33;8T: 5oth under the Lemon test and the endorsement test the deeply religious meaning of the
cr]che oversteps the oundaries of the estalishment clause. 1ny reasonale oserver would view the
placement of this religious symol is an endorsement.
3lleg%eny County -<J=J. / %reestanding display of nativity scene on courthouse steps ruled an impermissile
endorsement of religion. 5ut upheld display of menorah along with #hristmas tree and a sign stating that it was a
3alute to "ierty. I votes for the endorsement test.
The Ten #ommandments
McCreary County -GFFI. / Rentuc0y courthouse display of Ten #ommandments
o ?+#onnor !oined the ma!ority in stri0ing this display down, despite her general deference to state
accommodation of religion. Refuses to go along with the fiction that religious monuments do not
necessarily endorse religion.
o 6*33;8T: C. 3calia also recogni7es that posting the <F #ommandments endorses religion. ?nly an
endorsement of iilical monothesism generally, non-sectarian. 8othing wrong with non-sectarian
endorsement of religious monotheisim. 1cceptale to endorse the 5ile. &as een done so throughout
4.3. history.
#ourt seems to have moved away from the win0 and nod endorsement case in which defenders of religious
symols on government property. 5oth sides openly admitted that <F #ommandments are religious.
9an Orden v. Perry -GFFI. / Ten #ommandments monument on the territory of the Texas 3tate #apitol.
o Rehnquist writes an opinion upholding this display. $rudgingly applies the Lemon test, ut finds there
was a secular purpose to the monument: recogni7ing the religious ac0ground of our laws.
o 5reyer switches and this display is upheld. Rationale apparently ased on the fact that when the
monument was erected it was not done in a context that exacerated religious divisiveness in our culture.
Muestioning 5reyer+s divisiveness distinction
o 6oesn+t seem to elieve in any particular test, ut in legal !udgment. Aea0'
o #reates a rule that any <F #ommandment monuments long erected may stay, ut any placed w,in the past
few years during which this has ecome a divisive issue must e ta0en down and no more new ones can
e placed@ ?dd rationale that proaly will not stand the test of time.
$overnment %unding of Religion / 3usidi7ing certain expenses associate with private religious education.
2rovision of puic transportation to private, parochial schools.
2verson v. 1d. o) 2duc. -<J9E. / 8C statute authori7ed school district to ma0e provisions for school transportation,
including for private school students. 3tate reimursed parents of private school parents for the us fare they pay
to send their 0ids to that religious school.
o (a!ority focuses on the neutrality of the law. 1pplies equally to students of religious and pulic schools.
%unding provided though generally applicale programs w, a secular purpose not paid directly to the
religious institution seems to e acceptale.
o 8o tax in any amount, large or small, can e levied to support any religious activities or institutions,
whatever they many e called, or whatever form they may adopt to teach or practice religion.
&ow does this using reimursement not violate this rule'
8o as extreme as it seems: Ta0en to its logical end, such a prohiition would not permit
the state to fund the fire department or police department services as they apply to the
church.
Ta0ing it that far would single out religion and li0ely violate the %ree ;xercise clause and
a patently discriminatory law.
o 2rolem is that there are two fundamental religion clause principles articulated in this case, and they seem
to run counter to each other:
KG
8eutrality towards religion. #annot unfairly discriminate on the asis of religion.
3eparation of church and state. 8o state funding for religion.
Tax deductions for parochial education costs
Mueller v. 3llen -<J=>. / (8 provided a tax deduction for educational expenses including
o 4pheld the tax deduction. Custified on the change in society. Threat of religious ta0eover of the political
process and religious strife are not longer significant.
o 5ecause money is fungile, the practical effect is that government money is going to fund religious
education.
o 1utonomy and personal choice / 6ifference is that if the government gives money directly to the school,
the govt is purposely funding religion. 5y giving it to citi7ens, the choice is made y a private intervening
actor. $ovt only facilitates that choice on neutral terms.
The #ourt has vacillated irrationally etween the neutrality and no funding principle. %or aout IF years the
decisions have fluctuated etween -<. no funding, and -G. neutrality principles.
o 3tate can loan oo0s, ut not pro!ectors.
o #an pay to us 0ids to religious schools, ut not on field trips.
o 3tate can reimurse for mandatory state-created tests, ut not mandatory teacher-created tests.
Third prong of Lemon test.
o ?viously concerned aout having too much religion in government.
o 54T 1"3? the entanglement prong aims to protect against too much
2reeminence of 8eutrality 2rinciple.
?ver the past <G years, the #ourt has moved significantly in the direction of consistently adopting the neutrality
principle. 5efore no funding won out more often than it lost. 8o more. The neutrality principle has sustantially
won out.
;xamples of application of neutrality principle during the Rehnquist #ourt.
o 4:1 can ma0e student group funds to religious groups even where the money is openly religious in
nature and proselyti7es. $ave money direct to the printer, not to the religious group.
o Mitc%ell v. elms -GFFF. / $overnment money can e used to provide computers to religious schools.
>elman v. !immons-arris -GFFG. / #leveland school district adopted a school voucher program that permitted
residents to use government funds to send their 0ids to either a pulic or private school. The vast ma!ority of the
private schools are religious.
o ;ssentially applies the Lemon test. 8o religious purpose: secular purpose of the law was to provide choice
to students in the decrepit #leveland article. 8o real entanglement prolem, the voucher funders and the
religious schools.
o Thus the focus in on the effect prong of the test. (a!ority claims the effect of the law is neutral.
$overnment is not supporting religion. *t is !ust giving pulic funds for education to citi7ens who then
ma0e their own choices. (atters not that many choose to used the vouchers in private, parochial schools.
o 6*33;8T: 3outer focuses on the no funding principle. This is government tax money eing used to pay
religious instruction. #laims that the neutrality the court relies up is a mirage: JEX use the voucher funds
to send their 0ids to religious schools. G,> of the parents did not agree with the religion the private school
taught / the non-religious private schools were much more expensive, the voucher did not come near to
covering the cost / so the one option to escape the #leveland pulic schools was to go to a religious
school@
PLAY IN THE $OINTS #ETWEEN FREE E9ERCISE AND ESTA#LISHMENT
Loc5e v. *avey -GFF9. / Aashington constitution affirmatively prohiits the use of pulic funds for religious
purposes. 3tate had an education grant program / 2romise 3cholarship 2rogram / for gifted students. 2ermitted
recipients to use the SS to attend any college, ut not to study devotional theology.
o 4pheld exclusion of that particularly religious study as consistent with %ree ;xercise #lause.
o There are some state actions permitted y the ;stalishment #lause ut not required y the %ree
;xercise #lause. $ray area where state can exclude religion or act neutrally at its discretion.
Ahy doesn+t it violate %;' $enerally unconstitutional for a law to facially discriminate against religion.
K>
o 3calia ) Thomas in dissent elieve it does.
o 6oesn+t discriminate against religion wit%in t%e meaning o) t%e -2 Clause.
%or facial discrimination of %;: must impose a civil or criminal penalty on the practice of
religion, not !ust refrain from conferring a enefit.
Two conflicting religion clauses / countervailing force of the ;#'
5ut even if a law does not facially discriminate, 33 is applied if the purpose is to discriminate.
o *ntention of the Aashington constitution and previous 3#?T43 no funding rulings are not aout
punishing religion. ;nacted to protect religion from the government. 1nti-entanglement.
o $oal is freedom of religion and conscious from state interference. 1cceptale purpose.
5etter reading of the opinion: "aw facially discriminates, so should apply 33. 5ut this law survives 33 ecause
the state has a compelling interest in safeguarding religion from government interference and entanglement. 5ut is
this narrowly tailored or necessary'
K9