CON LAW II OUTLINE

The Bill of Rights- Allows a P to bring an action against the US Federal Gov’t

o Begins with rights found in first amendment- Some sections of the Bill of Rights are incorporated into the states by the 14th

amendmento 14th Amendment Privileges OR Immunities clause

All persons born or naturalized in the US and subject to the jx thereof, are citizens of the US and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…

“privilege” – grant of substantive rights “due process” – grant of procedural rights “equal protection” – grant of equality rights

o Barron v. Mayor and City Council of Baltimore (1833) - MARSHALL B sued city for ruining use of his wharf b/c diverted flow of streams

dropped deposits that left wharf unusable; suing the state gov’t Local gov’ts are subdivisions of state govts and must afford the rights of

the state constitution “The 5th Amdmt must be understood as restraining the power of the

general govt, not as applicable to the states” Thus it is the STATE constitution that puts limits on what the state and

local govt can do NOT the federal govt 14th Amdmt intended to overturn Barron

o What is the 14th Amdmt doing? Correcting citizenship Citizenship clause – made people who were not citizens prior to the Civil

War able to claim citizenship in the states they moved to African Americans had no rights before rights before the civil war,

the P/I Clause gives them privileges and immunities that were previously enjoyed by residents of the states that had slave

The Privileges OR Immunities Clause – 14th Amdmt.- See cases below they are applying P OR I clause if they are a citizen of US

o usually a state citizen asserting a fundamental right that has been infringed upon by his home state

- “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states”

o Privileges and Immunities Fundamental? or Natural law not anymore or As defined by federal law…such as the BOR

Bill of rightso Selected incorporation or

o Total incorporation not anymore or evero Unenumerated rights?

No right to work Slaughterhouse Right to travel Saenz

o Without justification Difference between 14th Amdmt. P or I clause and Art. IV, § 2 P AND I clause

- Art. 4 § 2 (privileges and immunities against a state on which you are not a resident) and- 14th Amdt (privileges or immunities against a state to which you are a resident)?

o 14th gives us privileges against state in which we resideo Art. IV, § 2 gives you rights against state in which you are a nonresident

Usually noncitizens trying to get rights akin to state citizensThe Privileges and Immunities Clause – Art. IV, § 2

o Privileges a word used to identify types of right and libertieso GOAL: trying to promote Union – let people move around US with same rights

2nd purpose: equality clause (Brennan’s view)- “The Citizens of each State shall be entitled to all Privileges AND Immunities of

Citizens in the Several States”o Citizens

Can be citizens or nonresidentso Privileges and Immunities

Defined by fundamental rights or NOT natural law Privileges are rights given elsewhere in the constitution B.O.R.

Defined by states***most recent trendo Several states

Need to grant right unless a threat to state sovereignty o Shall not be deprive of P/I without justification

Strict scrutiny Intermediate level

Comes from Stevens in Saenz case**** Low level

- What is IS included?o About the rights given between stateso Privileges are given but privileges/rights are NOT absolute (can be taken

away) Only right that is absolute see establishment clause

- What is NOT included?o Does not protect corporationso Cannot be waived by action of congresso Does not extend to all commercial activities just “fundamental rights”o No market participation exception

- Definition of Privileges and Immunitieso Corfield v. Coryell (1823) – WASHINGTON

P owned ship, hired her out to person for 10 bucks/month. While person had ship, ship seized and condemned for violating a NJ statute that forbid raking oyster beds if you weren’t an NJ resident

Puts a modifier on the constitution “…citizens of each state shall be entitled to all [FUNDAMENTAL]

privileges and immunities of citizens in the several states.” Named these fundamental rights: protection by govt, enjoyment of

life, liberty, right to acquire/possess property, obtain happiness/safety

Also acknowledged state law definition Takeaway: States obligated to treat all of those within their territory

equally in most respects, they were not obliged to share those thing they held in trust for their own people

o Bradwell v. State (1873) – WASHINGTON Married woman not able to practice law in Illinois 14th Amdmt applied to national citizenship (slaves), not state citizenship

She files under 14th P or I clause b/c she was not a resident of Ill.o Can’t file under Art. 4, § 2

Takeaway: can only claims rights that are fundamental to citizens of the UNITED STATES

Takeaway: cannot claim total incorporation by Bill of Rights CONCURRENCE – BRADLEY

B/c he dissented in the slaughterhouse case, would he recognize a lawyer’s claim for a right to work

Concurred even though he would incorporate right to work b/c it is not a married woman’s place to be a lawyer

DISSENT-FIELD Purpose of the 14th amendment was to extend the basic protections

of the bill of rights to citizens of every state and to prohibit state violation.

This is where fundamental theory of rights comes fromo Slaughter House Cases (1873) – MILLER

White butchers claiming that Louisiana law deprived them of right to exercise trade trying to claim fundamental right to work

Court construes 14th Amdmt VERY NARROWLY Defines “privileges” in the 14th Amdmt as totally restricted

o free access to seaportso the right to demand the care of the federal government

while on the high seaso protection while under the jurisdiction of foreign

governments The Rights in the 14th Amdmt are created for the citizens of the

United States, not the individual states DISSENT-FIELD

Would incorporate right to work as broad right under Corfield

****Slaughterhouse has never been overruled so if we want to incorporate fundamental unenumerated rights, we will have to put pressure on another clause in the 14th other than the P/I clause

o Hague v. CIO (1939) – ROBERTS

Roberts is embracing the narrow list noted by Washington in Corfield, not broad fundamental rights

o Baldwin v. Montana Fish and Game Comm’n (1978) – BLACKMUN B is Montana resident who takes other people hunting (outfitter).

Montana residents pay 7.5xs less than out of state residents to hunt. Confirms that Justice Washington’s insertion of Fundamental has carried

through to modern times and does prevent some P’s from bringing actions Takeaway: - If you can make the argument that honoring the privilege

will promote a stronger Union, then it is a fundamental privilege DISSENT – BRENNAN

View P.I clause as more of an equality provision NOT a fundamental provision

Uses intermediate scrutiny Brennan only wants to retain the nonresident provision Unequal treatment of nonresidents has to be reasoned and “suitably

tailored”o Supreme Court of NH v. Piper (1985) – POWELL

Piper was VT resident who lived 400 feet from NH border. She passed the bar but could not be admitted b/c of NH restriction requiring residency for bar admission

Right to work is a fundamental privilege Applied intermediate scrutiny

Substantial objective – OK (lawyers should know NH law) Winds up using what looks like least restrictive means, doesn’t

passo Majority pushes strict scrutiny

DISSENT-REHNQUIST – 2 major points 1) based on laws – since states make laws, should choose lawyers 2) disagreement with ct’s least restrictive means analysis

o Saenz v. Roe (1999) – STEVENS California statute stipulates a residency requirement (1 year) for welfare

recipients. Statute requires a cap on benefits for new residents equal to the corresponding limit from the state they moved from.

Right to travel is fundamental right 3 components

o The right to enter one state & leave another;o The right to be treated as a welcome visitor rather than a

hostile stranger;o The right to be treated equally to native born citizens.

Applied Strict Scrutiny

Not changing P/I clause but possibly talking about it in a different way in the future

Takeaway: if a fundamental right is found Strict Scrutiny DISSENT – REHNQUIST/THOMAS

Disagreed that right to travel = fundamental right; parallels to in-state tuition focus: Federalism

14th Amdmt Substantive Due Process

Levels of Constitution Scrutiny (Ends/Menas Relationships of Laws

Strict Scrutiny Intermediate level Scrutiny Rational basis scrutinyCompelling State Interest Important Gov’t Objective Legit. Gov’t interestsMeans narrowly tailored? Means substantially related to

endsMeans rationally related to end

- “No State shall deny any person of life, liberty, or property, without due process of the law”

o Liberty 1) Fundamental

Bill or righto Total incorporationo Selective Incorporation with due process of law

2) Unenumerated rights (right to contract Post-Lochner) or 3) Nonfundamental

o And without justification Strict scrutiny

If fundamental right Low level scrutiny

If nonfundamental right- DP clause trying to incorporate bill of rights into 14th Amdmt – How?

o Specifically look at the word liberty as an incorporation tool What is incorporated?

Freedom of speech, freedom of religion Right to jury trial – harder to claim as liberty interest but see

Duncan for criminal cases Most criminal procedures incorporated

What is NOT incorporated Most civil procedures ≠ incorporated (right to trial by jury under

7th ) 2nd, 3rd Amdmts not incorporated

- Pre-Warren Courto Palko v. Connecticut (1937) – CARDOZO

2nd degree murder conviction set aside by the highest state court and on appeal taken by the state, he was convicted for first degree murder

Talks about selective incorporation b/c 5th amdmt and right to trial by jury not incorporated into states

o Adamson v. California (1947) – REED Trying to overturn murder conviction by saying that P should not be able

to comment on his not taking the stand Selective incorporation upheld – selective incrimination not applicable to

states DISSENT – BLACK

Worried about expansion of Ct’s power through vagueness of non-incorporation

o Meyer v. Nebraska (1923) – McREYNOLDS Teacher convicted for teacher German, violating state law Right of individuals to K, to engage in any of the common occupations of

law Liberty in the DP/C of 14th A protects

Right to marry Right to establish a home Right to bring up children

o Ct has no ability to make this unlawful Right to worship God according ot dictates Right to K (Lochner era – before its deny) Right to engage in occupations

o Pierce v. Society of Sisters (1925) – McREYNOLDS Overturned Oregon law that required kids to attend public school Infringes on parents liberty interest in making educational decisions about

kids o Skinner v. Oklahoma (1942) – DOUGLAS

Act called for 3rd time felons to be sterilized Court does NOT decide this on DP analysis Marriage and procreation are fundamental to the very existence and

survival of the race ****Brought the STRICT SCRUTINY ANALYSIS to “Fundamental

Liberties”- Post-Warren Court – applied more 14th Amdmt rights to states than ever

o In 1965 the Griswold court looks a the Lochner era cases about the right to kids

Building off the Pierce and Meyer idea of the liberty to raise kids and transitioning it to a right to marital privacy

o Pre-Griswold right to K = an unenumerated, nonfundamental righto Griswold v. Connecticut (1965) – DOUGLAS

Law makes distribution of contraception illegal Distinction between a right to privacy (social right) and between a right to

contract (economic rights) Gets around “Lochnerizing” but talking about “Penumbras” to find zones

of privacy Does NOT rely on 14th Amdmt, but looks to 1, 3, 4, and 5th Amdmt

Found a fundamental right Strict scrutiny applied to overturn law CONCURRING – GOLDBERG, WARREN, BRENNAN

The fundamental right of privacy is a combination of the 14th and 9th amdt (14th – dpc, 9th “the enumeration in Constitution of certain rights, shall not be construed to deny or disparage others retained by the people”)

Defining privileges like Bingham CONCURRING – HARLAN

Finds fundamental right to privacy in DPC clause itself no real reason to look elsewhere

CONCURRING – WHITE Need better fit between means/ends here

DISSENTING – BLACK/STEWART Need to have rational basis scrutiny and afford legislature more

credit No privacy rights found, but mere protection of state from govt

DISSENTING- STEWART/BLACK Would be willing to incorporate bill of rights, but since right to

privacy is nowhere in bill or rights won’t recognize right Takeaway: Since Griswold, put focus on “LIBERTY” interest

What does Griwold give us? What kind of rights? Spatial – Right to avoid intrusion into the home – has to do with

the home itself (Douglas – penumbras) Informational – Right to avoid disclosure of personal information Marital/Relational – Right to freely engage/protect intimacies of

martial relationship Autonomy – Right to free from gov’t regulation in Area of

Personal Activity that does no harm to otherso Types: reproductive, sexual

Take this liberty interest and expand it for Bowerso Duncan v. Louisiana (1968) – WHITE

Duncan convicted of Battery, crime hosting up to 2 years of imprisonment and a fine of 300 bucks. argued on appeal that he was denied a jury trial

“Because…trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the 14th Amdmt guarantees a right of jury trial in ALL criminal cases”

Slaughterhouse cases makes P/I clause too narrow to find this right therefore, take Bingham’s original intent of total incorporation and stress it under the DP clause

CONCURRENCE – BLACK Believes in total incorporation – tighten constraints on frivolity

DISSENT – HARLAN DP only requires fundamental fairness, not total incorporation

o Bowers v. Hardwick (1986) – WHITE Facial Challenge to Georgia statute that made sodomy a crime, mostly

enforced on gay couples (means they want statute stricken)

Heterosexual P’s kicked off case, which meant that it was no longer a general liberty interest at issue

Majority framed issue narrowly: liberty interest to engage in homosexual sodomy?

Found it was not a liberty interest Uses rational basis scrutiny to uphold law

o White focuses on marital bedroom precedent about procreation

CONCURRENCE – BURGER Emphasis on religious sodomy roots

DISSENT – BLACKMUN, BRENNAN, MARSHALL, STEVENS Maj. Opinion too narrow Want to define right as “right to be left alone”

DISSENT – STEVENS Makes 2 arguments

o 1) Equalityo 2) Liberty issue (look at Lawrence)

Worried about standing issue being used against homosexuals

o Lawrence v. Texas (2003) – KENNEDY Texas law specifically prohibiting same sex sodomy Since precedent said right to homosexual sodomy was not a liberty

interest, court would have to use low level scrutiny or overturn Bowers Maj. Defines BROAD liberty interest

Liberty as self autonomy protects the right to protect sexual liberty – freedom of thought, belief, expression, and certain intimate conduct

o General liberty interest = fundamental liberty interest Supposed to use strict scrutiny

o But just says that promotion of public morality is not a legitimate government interest

No mention of compelling state interesto Kennedy trying to abolish tiers of scurinty****o Only one DP clause only one standard

Must still look to what gov’t purpose is and how the means are related to the end (judicial discretion)

Reframing Griswold, overturning Bowerso Viewing Casey as showing that liberty is present in the

DPC– the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy…

Stare Decisis Argument – OK to overrule Bowers b/c there had been an erosion of precedent (bowers now stood on bad case law)

CONCURRENCE – O’CONNOR Would only overrule law on EP, not DP standard Didn’t want to admit wrongness in Bowers

DISSENT – SCALIA, REHNQUIST Believed Bowers should not have been overturned Strict construction argument – no liberty under DP

DISSENT – THOMAS Similar to dissent in Griswold, no right to privacy in DP

Equal Protection- “No Gov’t shall deny to any person the equal protection of the laws”

- Gov’to 5th Amdmt (fed)o 14th Amdmt (state)

Will limit gov’t and state action, but not private conduct Amdmt 11- 14 can regulate private conduct + Interstate Commerce

Clause can regulate private conduct + individuals Concentrate on what is state action

- Shall Denyo Deny = burden

Ban OR Regulation?

- [by an intention classification] of a o Direct evidence of intent by facial classificationo Circumstantial evidence of intent (see Yick Wo and Gomillion)

Policy reasons for circumstantial evidence o Federal govt wants to give more deference to state actors to

regulate state activitieso Harder proof burden with facially neutral lawso Judicial efficiency

Look for discriminatory purpose or effect 2 ways to find DP/E:

1. Stark statistics – data based (99%) or 2. Changing of boundaries to intentionally classify

o Malign circumstantial evidence?o Benign circumstantial evidence?

No Malign/Benign after POWELL’S decision in Bakke

o Class? Suspect class (SS)

Race based that hurt minorities (malign) TEST – from Frontiero

o 1) history of discriminationo 2) group historically powerlesso 3) characteristic immutableo 4) does it have to do with one’s abilities

Quasi-suspect class (IS)

Race based that help minorities (benign) Gender, sexuality, alienage

Non-suspect class (LLS) Age, wealth

o Burdens substantive interest? Fundamental?

Voting, access to courts If fundamental interest being infringed upon, even though it is

NOT a suspect class still invokes Strict Scrutiny For Harlan (dissent) fundamental rights can ONLY be found in

constitution or deeply rooted in history Quasi-fundamental?

education Non-fundamental?

- To any persono Race?o Sex?

- The Equal Protection of the Laws- [without justification]

o Strict scrutiny Compelling state interest Means narrowly tailored to ends

Race, voting, access to courts Classroom diversity v student body diversity (25 years post-Bakke)

o Intermediate level scrutiny Important governmental objective Means substantially related to ends

Gender, alienage, educationo Low level scrutiny

Legitimate governmental object Means rationally related to end

Age, disability 2 types of low level:

Deferential – burden of proof on challengero Used with Economic Regulationo 2 ways to uphold Deferential low level scrutiny:

1) Ct listens to legit gov’t objectives and if Ct doesn’t like them, the Ct can make some hypothetical objectives up

2) Mantra of “one step at a time” – legislature does not have to obtain every goal all at once

“With Bite” – burden of proof on Gov’t (Moreno/Romer/Lawrence)

- EP Clause zeroing in on classifications o Looking for a classification

o DP – looking for fundamental rights- Classifications typically described as:

o Suspect – strict scrutinyo Quasi-suspect – intermediate level scrutinyo Non-suspect – low level scrutiny

- Strauder v. West Virginia (1880) – STRONGo D gets convicted by all white jury, Claim under 14th is that he didn’t get fair trial

b/c state law denied black men to sit on juries State Gov’t (5ht) Intentional Classification – RACE Suspect Classification – RACE

o Sort of applies what looks like strict scrutiny, but can’t tell b/c this came before we tiered scrutiny

o Specifically states that race is a suspect class b/c it’s a brand affixed upon themo Found that race is suspect class, but gender is NOT

- Plessy v. Ferguson (1896) – BROWNo Separate RR cars for blacks and whites

State Gov’t – Louisiana law Intentional Classification – based on race Suspect – Race based on Strauder Denial? – has more than one meaning – to place burden

Benefit – pure whites get to sit on cars Burden – all black and mixed race peoples

o Court finds that purpose of EPC is to get rid of inferiority o However, finds that since both classes have the same rights, the law stands

Cannot protect black people from social inferiority, just legal inferiorityo DISSENT – HARLAN

Said that this is just a guise, like slavery, to create a system that consistently places white people above everyone else

Social inferiority IS inferiority - Civil Rights Cases (1883) - BRADLEY

o Consolidation of five cases from Kansa, CA, Missouri, NY, and Tennessee – 4 cases were criminal indictments, 5th action for the civil penalties – cases grew out of African American exclusion from hotels, theaters, and RR

o Question was whether Congress has power to pass Civil Rights Acto State action that is the subject of 14th Amdmt, not private conduct

Congress only has ability to regulate states not business Maj. Opinion calling for a State ACTION REQUIREMENT to 14th Amdt

o DISSENT – HARLAN Worried about blurring between state action and private conduct Believes instead of state action, should use the public function doctrine Takeaway from dissent: Public function doctrine used to regulate some

private actors performing public functions Marsh v. Alabama (1946) – a company town may not limit speech

through restrictions that would violate the first amdmt

o Clearest public f(x) case b/c company IS govt actor Amalgamated Food Employers Union v. Logan Valley Plaza Inc

(1968)– a shopping center was clearly the functional equivalent to the business district involved in Marsh

Lloyd Corp v Tanner (1972)– narrowing view of state action by not viewing a shopping center as a state actor

Evans v. Newton (1966) – INVALID to operate a Georgia park for whites only pursuant to a trust of Senator Bacon’s will – a park is in the public domain

o Park state actor – probably b/c race classification hereo Shows that state action is mutable

More likely to find state action where racial classification is at issue!!!!!!

Nixon v Herdon (1927)– exclusion of blacks from Democratic primaries expressed on the face of a Texas law is INVALID

Smith v Allwright (1944) – the white primary established by the state violated the 15th amdmt; primaries involve state action

Terry v Adams (1953)– Exclusion of black voters from a pre primary elections of the Jaybird Democratic association – a voluntary club – violated the 15th Amdmt (even if this is a club, an election in which public officials are chosen are involved with state action)

Jackson v. Metropolitan Edison Co. (1974) – found NO state action present in the exercise by a private entity of powers traditionally EXCLUSIVELY reserved to the State- the supplying of utility service is not traditionally the exclusive prerogative of the State

o State merely regulating, not acting, just so happens state action had monopoly

o REHNQUIST – less likely to find state action- Shelley v. Kraemer (1948) – VINSON

o Decision arose from challenges to judicial enforcement in Missouri and Michigan of agreements among property owners to exclude persons of designated races

State action = enforcement of contract provisions (bears imprimatur of state)

State action b/c the contractors were looking for an AFFIRMATIVE remedy from the court (the court had to do something)

If they had asked for an out-of-court remedy, probably no state action found

Denial – burden on Blacks b/c they couldn’t find housing Intentional classification? – RACE Violation of EP found

o DISSENT- HARLAN Focused on the blurring of state action (see above cases for blurring

reference)

- Post-Shelleyo Evans v. Abney (1970)

Shelley had not barred all state involvement in enforcing racial restrictions on private propery

o Pennsylvania v. Board of Directors of Trusts (1957) State action found in the denial of admission to nonwhite students b/c the

board was the one making the decisionso Burton v. Wilmington Parking Authority (1961) – CLARK

Private restaurant’s exclusion of an African American customer under a provision of state law – parking building owned and operated by the Wilmington party authority is an agency of the state of Delaware and the restaurant is that authority’s lessee.

State actor: parking authority,o However, the state is leasing lot and land to private actor

and state gets profits state action found b/c state allowed discriminatory treatment (merger of private/public actor)

Denial? yes, customer denied service Intentional classification yes, based on race

CONCURRENCE – STEWART If you look at the statute itself that allowed denial of service b/c of

race that is obviously a racial classification made by state legislature

Wants to avoid following the maj’s money trail, but stick to legislatures actions

Takeaway: 2 places to find state action in this caseo Moose Lodge No. 107 v. Irvis (1972) – REHNQUIST

Private club’s discrimination of service to black P on basis of race; arg. For state action is that they have liquor license as given by state

State action? – no leasor/leasee relationship like Burtono State not significantly involved hereo Wants to see more intertwining between state and private

owner No EPC violation fond DISSENT – DOUGLAS/BRENNAN

o Do not like to see state action doctrine shrunkeno Reitman v. Mulkey (1967) – WHITE **** IMPT case

CA’s repeal of fair housing laws, which CA voters then adopting in proposition 14, which permitted discrim. w/ private housing

State action? the people passed a law, which was then adopted by CA STATE action where group of individuals perform legislative function

Also found that text of amdmt violated federal EPC clause as well as state

- Strict scrutiny of facially racially discriminatory lawso Korematsu v. United States (1944) - BLACK

Japanese internment camps in context of WWII

Maj. Notes that racial classifications are an inherently suspect class State action? – 5th Amdmt – FEDERAL action (Congress) Denial – of freedom. Intentional classification – race based classification

o First time we see the words “suspect class” States that suspect classes deserve STRICT

SCRUTINY However, doesn’t’ want to limit Congressional power during war

DISSENT - MURPHY The threat is not as immediate or as pressing as the govt proclaims,

even under a reasonableness standard This is the legalization of racism

DISSENT - JACKSON Military orders are fleeting, but Court decisions last so shouldn’t

make ruling that expands racism- Pre-Brown

o Missouri Ex Rel. Gaines v. Canada (1938)- HUGES Missouri segregate state and had an all white law school. Missouri did not

want to pay money for black P’s tuition at all white school State action? – state govt refusing admission – YES Denial? – burden is that he could not go to law school Intentional classification ? – yes, only b/c he was black

Found that this did not satisfy Plessy b/c there was no separate schoolo Sweatt v. Painter (1950) – VINSON

P denied admission to U, Texas law school b/c he was black. State given extra time to make facilities equal. U.T. created new school and said it satisfied Plessy

State Action – Texas is denying admission Denial? – denied opportunity at grad school Intention classification? – because of his race

Found that the inequalities in the new school were so bad as to undermine “separate but equal” EPC violation

o McLaurin v. Oklahoma State Regents for Higher Education (1950) - VINSON Black Oklahoma resident wanted PhD at State university and denied

admission b/c of race; “equal” facilities constructed where he had to sit on different floor etc

State action? Oklahoma denying him admission Denial? can’t get PhD, burden on him/black students Intentional Classification by race

EPC violation b/c denial of separate but equalo Take away from precedent: looking at tangible denials of education – law

school more tangible in effect b/c these are JUDGES To get past Plessy first must find difference in tangible factors (school

facilities, etc) Then must find difference in Intangible factors (where Brown picks up)

- Brown v. Board of Education [Brown I) (1954) – WARREN

o State action now that education was MANDATORY by state rule, and the schools were funded by state state action

o Deny? Nature of intangible inequalities affecting BLACK students

Ability of students to study, retard development, looking at psychological factors

“…generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”

o Intentional Classification – obviously raceo 2 ways to read opinion

1) this conclusion follows from psych data about kids or 2) Ct is taking Harlan’s Plessy dissent

Any race-based classification is inherently UNEQUAL- Implementing Brown & its implications

o Bolling v. Sharpe (1954) – WARREN Reaffirms that race is an extremely suspect class

o Brown v. Board of Ed [Brown II] (1955) – WARREN Full implementation of desegregation requires local courts to help Local courts best suited for judging constitutionality of implementation

o Green v. County School Board (1968) – BRENNAN School district had “freedom of choice” to comply with Brown As segregation still existed, no affirmative efforts to comply found

o Swann v. Charlotte Mecklenburg Board of Ed (1971)- BURGER Found that desegregation plan wasn’t working Court could use drastic measures like implementing busing to help

desegregateo Keyes v. School District (1973) – BRENNAN

So long as only part of a school district practiced systematic segregation, the whole school district was in violation and had to be remedied

o Milliken v. Bradley (1974) – BURGER De jure segregation not enough to warrant gerrymandering (just have to

prevent de facto segregation by state, not by private choice of house)o Missouri v. Jenkins (1990) - WHITE

Ct limited fed. power in implementing desegregation Context: REHNQUIST court, deference to states

o Missouri v. Jenkins II (1995) – REHNQUIST Fed ct could ≠ order salary increases and remedial education programs on

the ground that student achievement levels were below national norms Ct scaled back rationale of Brown remedies

o Board of Ed of Oklahoma City v. Dowell (1991) - REHNQUIST District Ct ordered system-wide busing of Ok., which produced

integration in 1972, Ok. Stopped busing in 1984 Ct said that local systems know how to help local needs best so school

district can decide when to stop bussing DISSENT – MARSHALL

Ignores stigmatic harm stipulated in Brown Dispute between dissent and maj. = when do you have full remedy

- Other types of segregationo Loving v. Virginia (1967) – WARREN

Facially symmetrical statute banned interracial marriage State action? – yes, it’s a Virginia state law Denial?

Benefito White, White; black, black, yellow yellow couples

Burdeno Interracial couples

Intentional classification Yes, solely based on race

Decision can be read in two ways: 1) equal application of law doesn’t matter b/c this is a race-based

classification and this fails Strict Scrutiny 2) Real purpose of statute = discrimination – look at equal app.

o Palmore v. Sidoti (1984) – BURGER When ex-wife remarries black guy, custody given to ex-husband Ct reverses custody b/c this is a racial classification (fails SS)

o Johnson v. California (2005)- O’CONNOR Cal. Dept Correction separated prisoners for fear of gang violence “All racial classifications imposed by government…must be analyzed by

a reviewing court under strict scrutiny”- Racially discriminatory Purpose and Effect (how to show law is classifying based on race

or others…)o Yick Wo v. Hopkins (1886) – MATTHEWS

SF ordinance prohibited operation of laundry unless in brick building; law administered to that it prevented Chinese laundry owners from operating

State action? obvious state law Denied?

o Burden: Chinese immigrants who owned laundries Intentional classification?

o Statute neutral on its faceo So ct looked to statistics and found that more than 200

Chinese were excludedo ADMINSTRATION of the law = discriminatory to a class

of peopleo Gomillion v. Lightfoot (1960) – FRANKFURTER

Alabama law (state action) redefined city boundaries of Tuskegee that segregate white and black voters (effect of discrimination = voting difference)

o Griffin v. County School Board of Prince Edward County (1964) Public school (state action) gave grants of public funds to white children

attending private school (administration of law discriminatory)o Washington v. Davis (1976) – WHITE

Test for DC police officer (administered by state = action); test passed more by whites and failed more by blacks

Statistics of passage rates not as high as in Yick Wo so not enough to warrant finding of discrimination

- Affirmative Actiono Big takeaway with affirmative action: only strict scrutiny applies with racial

classifications, even if racial objectives are “benign”o Regents of University of California v. Bakke (1978) – POWELL

Powell is the only one writing on EPC grounds, other 4 justices writing on statutory grounds

Found UC Davis’ numerical set aside of 16 slots of med school admission for minority students (out of 100) permissible

State action UC (run by California state) Denial?

o Benefit racial minoritieso Burden minorities who don’t get in, non-minorities

(bakke) who feel they were put aside Classifications?

o Intentionally setting aside quota for minoritieso Argument about whether classifications is “malign” or

“benign” Arg for malign possible framer’s argument b/c

framer’s never though discrimination used against white people

Arg for benign this is remedial If benign would argue that no strict

scrutiny b/c SS would be “fatal in fact” Because race deemed suspect SS applies CONCURRING – BRENNAN, WHITE, MARSHALL, BLACKMUN

Like gender, use of inter-level scrutiny appropriate for remedial measures

Goes back to “stigma” of Brown no stigma here CONCUR/DISSENT – STEVENS, REHNQUIST, STEWART, BURGER

State schools should be able to decide what program stands Statutory interpretation of Title VI – race cannot be basis for ANY

exclusion- Racial preferences in public employment

o Wygant v. Jackson Board of Education (1986) - POWELL Minority preferences in teacher layoffs – collective bargaining agreement

kept teachers with most seniority would be retained, but a stable majority of minority personnel had to remain, thus some whit teaches could not

State action: public school Deny:

Benefit minority teachers with less experience Burden non-minority teachers with more experience

Intentional classification?

Facially retaining minorities to “promote role models” Racial classification SS

Compelling state interest compelling But not narrowly tailored enough

CONCURRENCE – O’CONNOR Remedial justification only should be read where there has been a

contemporaneous wrong committed in the communityo Fullilove v. Klutznick (1980) – BURGER

Congressional spending program (5th) requiring 10% public work monies to be set aside for minority business owners (LAW UPHELD)

Facial classification = minorities; minorities get benefit Takes up O’CONNORS view in Wygant that affirmative action is OK

where a long history of discrimination has been found Using “quasi-strict scrutiny” This case is now questionable precedent after City of Richmond

Idea that we should give any special deference to congress disappears

CONCURRENCE – POWELL Wants to use same strict scrutiny analysis as in Bakke

CONCURRENCE – MARSHALL Used Bakke analysis to show that racial classification OK here

DISSENT – STEWART No discrimination allowed by gov’t at all

DISSENT – STEVENS Objected to 10% of monies (arbitrary limitation)

o Richmond v. J.A. Croson Co (1989) – O’CONNOR Affirmative action program made by Richmond law set aside 30% of

public works monies for minority owned businesses State actor: City of Richmond Denial:

o Benefit: ALL minorities (not just limited to African Americans)

o Burden – white people Intentional classification? Was an affirmative action program

o Direct evidence Suspect class – race Strict Scrutiny applied

o Compelling state interest CSI met when remedying past discrimination

o Narrowly tailored NOT met b/c the statute is overly inclusive Includes races who do not have a history of past

discrimination (need empirical evidence) CONCURRENCE – STEVENS

Racial classifications can be valid for other reasons rather than just remedying past wrongs

CONCURRENCE – KENEEDY Rejects automatic invalidity for all racial preferences

CONCURRENCE – SCALIA State and local gov’t should be able to discriminate in order to

remedy past harms DISSENT – MARSHALL, BRENNA, BLACKMUN

Believe that Fullilove set a precedent brining in intermediate level scrutiny

Under Intermediate level scrutiny would have passed (like his dissent in Bakke)

DISSENT – BLACKMUN Constitution being used to help continue discrimination

o Adarand Constructor v. Pena (1995) – O’CONNOR Federal funds given to general contractors on gov’t projects used as

incentives to hire minority businesses and subcontractors Fed govt (5th) Deny? Benefit = minority business owners Intentional classification? – direct evidence of intent Class? – race based Strict scrutiny applied

Ct overrules Fullilove no more quasi strict scrutiny b/c race is ALWAYS suspect and ALWAYS should have SS applied to it

Strict scrutiny is “not fatal in fact” o Message she’s sending: congress could formulate

affirmative action program in this context CONCURRENCE – SCALIA

No reform policies letting govt discriminate should be allowed CONCURRENCE – THOMAS

Reformatory discrimination = paternalism, which reinforces racial superiority/inferiority

DISSENT – STEVENS/GINSBURG Strict scrutiny IS fatal to minority groups, still bias today

- Affirmative action 25 years after Bakke – rethinking A.A. post Richmond & Adarando Grutter v. Bollinger (2003) – O’CONNOR

U. Michigan law using quotas to give sets to minority applicants State action U. Michigan (run by state) Denial: burden on whites, benefit on minorities Intentional classification: program facially classifying minorities through

numerical quotas Suspect class Race SS applied

Compelling state interesto Student diversity considered to meet CSI

Narrowly tailored?o “narrow tailoring does not require exhaustion of every

conceivable race-neutral alternative”

o Just need to give a holistic, individualized evaluationo Using POWELL’s language; race is just one factor (Bakke)

Maj. Makes historical observation that affirmative action is on temp’ry

If affirmative action is remedial one day, it will be remedied CONCURRENCE – GINSBURG/BREYER

Ginsburg & O’Connor tag-teaming by stating that affirmative action can disappear when racial discrimination no longer occurs

DISSENT- SCALIA/THOMAS (concurring in Adarand) Constitution is colorblind – no discrimination allowed period Does not believe this passes strict scrutiny (Adarand SS was

tougher) DISSENT – THOMAS/SCALIA

Argues that all racial classifications should be banned Harped on back empirical evidence in this case

o Embracing the inherent inequality of affirmative action (Adarand paternalism) and inferiority (Brown)

o Gratz v. Bollinger (2003) – REHNQUIST U.Mich undergrad used point scale for admission and gave extra 20 pts to

ethnic groups State action University run by State Denial benefit to ethnic minorities, burden on whites Intentional classification facially give them extra pts Suspect class? Race SS applied

CSI classroom diversity meets CSI Means narrowly tailored?

o Looks at statistic and correlation of applicants to find that 20 pt system award is not narrow enough

o Wanted to see “individual” consideration not just pt system awarded

CONCURRENCE – O’CONNOR Wants more nuanced individual judgment like in Grutter

CONCURRENCE – THOMAS Same as in Grutter – no racial discrimination anywhere

DISSENT – SOUTER This is not a Bakke quota but a point system It IS individualized b/c it is a 100 pt scale This is like Grutter

o DISSENT – GINSBURG/SOUTER Same position as Grutter As long as there is race discrimination in world not time to strike down

affirmative action plans (uphold soft strict scrutiny like Grutter)- Takeaway from Grutter and Gratz – Bakke is still good law

o Parents Involved in Community Schools v. Seattle School District (2007) – ROBERTS - PLURALITY

School districts assigned students to public school based on race to achieve racial diversity

State action public schools (state) Denial? benefit/burden? questionable here? Intentional classification yes – facially choosing minority students Suspect class race = yes SS applied

Compelling state interesto Racial balancing is NOT a CSI o Diversity in education is, but this is different b/c people

choose where they want to live (not like college, law school where you choose school)

o Invalid law CONCURRENCE – THOMAS

Does not know whether racial balance or diversity actually has any positive education effects

CONCURRENCE – KENNEDY (kind of dissenting) Diversity is a state interest school has longstanding legal right

to undue racial discrimination DISSENT – STEVENS

Overturning massive precedent and re-reading history Not respectful to ruling in Brown

DISSENT – BREYER Radical step from established law that would resegregate

Takeaway: look how Roberts/alito changed court- OTHER suspect classifications!

o Gender – a history of Equal protection (EP) Bradwell v. State (lady lawyer) – specifically stated that gender

discrimination OK EPC traditionally only applied to slaves race

19th Amdmt gives women right to vote, but doesn’t guarantee EP ERA (equal rights amendment)

Failed in 1982 Goesaert v. Cleary (1948) – FRANKFURTER

Michigan law (state) said that No woman (burden on women; facial classification; intentional) could obtain bartender’s license unless she was wife/daughter of male owner

Classification of sex nonsuspect Low level scrutiny uses = law upheld

Reed v. Reed (1971) – BURGER State Cts (state actors) sustained preference for men over women

in appt of administrators in estates o Deny – women (burden on women)o Intentional – yes o Facial classificationo Suspect class? – argument lies here

Argument that sex was suspect However, question narrowly framed Found that sex preference bears no rational

relationship to state objectives (arbitrary)o Court applies low-level scrutiny to overturn law

Frontiero v. Richardson (1973) – BRENNAN Fed law (state action) afforded male members of armed forces

automatic dependency allowance for wives but not vise versa Denial: women’s husbands = burden of proving dependency Intentional classification – specifically treated women diff. Gender = suspect?

o Brennan says it is b/c women treated badly like blacks and that gender is immutable (see Korematsu)

Brennan applies SS but never gets 5th vote Sets our CRITERIA for suspect classification

o 1) Has there been a history of discrimination against the relevant group? (suspect if yes)

o 2) Was the group historically powerless? Women not a technical minority but brennan looked

at current discriminationo 3) Issue of Immutability?

Suspect if it discriminatory criteria immutableo 4) Ability

Four criteria fleshing out Carolene products foots bout what it takes to be a “discrete and insular minority”

Craig v. Boren (1976) – BRENNAN Oklahoma statute (state action) prohibited beer sales to males

under 21 and women under 18 Denial: burden on males under 21 from buying beer Intentional classification facial Suspect class gender

o Applied 4 part test from Frontiero 1. No historical precedent of young men being

discriminated against (need to meet all 4) But not totally non-suspect

Brennan needed 5 judges applied INTERMEDIATE SCRUTINY

o Important Governmental objective Traffic safety = impt

o Means substantially related to END No stats to back up objective I/S not met EPC violation found

CONCURRENCE – STEVENS

o Only one EP Clause so should one standard of evaluating EPC violations – SS for everything; large judicial discretion to eval. On case by case basis

CONCURRENCE – POWELLo Rational basis fine

DISSENT – REHNQUISTo State’s objective were substantial o Men should not be able to invoke stricter standard

Post-Boren Mississippi University for Women v. Hogan (1982) – O’CONNOR

Univ. was made specifically for woman, denied male nurse adm. State axn = university Denial of male = burden, intentional class based on gender Applying Brennan Frontiero test to see if suspect

o No real history of discrimination against meno State trying to argue that men in nurse should be like

affirmative actiono Ct doesn’t by remedial discrimination arg.

Reaffirms intermediate scrutiny for gender, but does not apply intermediate scrutiny at all – School’s policy U/C

DISSENT – POWELLo Rejection of higher standard

JEB v. Alabama (1994) – BLACKMUN State used preemptory challenges to strike male jurors on a case

trying to award mother child support State action = court Circumstantial evidence of discrim. Use of Inter. Scrutiny

US v. Virginia (1996) – GINSBURG Virginia military institute is male-only and denied women adm. After 1st round of trials, VMI set up separate facilities for females

but they were not equalo State action school run by State (VA)o Denial – women bear burden of non-military educationo Intentional classification – direct evidence of denial o Suspect class – Gender

Gender = quasi suspect classo Intermediate scrutiny applied

Maj. Says they apply I/S, but uses term “exceeding persuasive justification for action” sounds like SS

o Discusses differences in schoolso New “women’s military” academy is separate but NOT

equal (Sweatt v. Painter analogy) Separate but equal analysis off the table

o For I/S asserted justifications of single sex ed and method of training were not enough

CONCURRENCE – REHNQUISTo Believes that separate but equal institutions would have

been OK DISSENT- SCALIA

o Dissenting based on scrutiny use, believes maj. Used SS Would prefer rational basis scrutiny

o Does Frontiero analysis Finds that women not politically powerless b/c of

#’s in electorate and Women get legislation that favors them

Gedulig v. Aiello (1974) – STEWART CA disability law denied coverage for pregnancies State action = CA Denial? – of disability benefits

o Benefit – non-pregnant men, non-pregnant womeno Burden – pregnant –women denied benefits

Intentionally classification facial classification based on PREGNANCY

o Circumstantial evidence used to show only women Pregnancy as suspect class? nonsuspect

o Maj. Says pregnancy is NOT a gender classification Rational basis scrutiny applies upholds law

o Never overruled but Title VII barred this DISSENT – BRENNAN

o This is an obvious gender class look at circ. Evidence Caban v. Mohammad (1979) – POWELL

NY law grated mom but not dad of illegit child right to block kid’s adoption by withholding consent

State action – NY law Denial? – benefit goes to moms, not to dads Intentional classification – based on which parent Suspect class? – gender based – therefore quasi suspect Intermediate scrutiny invoked

o Impt Gov’t objective? yes, wanted parents to have relationship with child

o Substantially related to ends? no, just an overbroad gender classification based on gender stereotypes

DISSENT –STEVENSo Believed that gender differences real so that means would

be substantially related to end Nguyen v. INS (2001) – KENNEDY

Treated kids born out of wedlock to citizen parent differently depending on if citizen parent was mother or father

State action: INS = fed. govt action letting kids in

Denial: o Benefit = mother who had out of wedlock kido Burden = father with kid b/c he had to prove blood

relationship, promise of $ support, and paternity Intentional classification based on parents Suspect class gender = quasi suspect Intermediate scrutiny applied

o Impt gov’t objectives 2 1) assuring biological parent/child relationship

exists 2) child + citizen parent have relationship

o Means Substantially tailored? – YES DISSENT – O’CONOR

o Could use gender-neutral alternative to achieve same ends Takeaway: can take into account biological differences

Kahn v. Shevin (1974) – DOUGLAS Law provided property tax exemption for widows, not widowers Case resolved under low lever scrutiny Decided PRIOR to Boren DISSENT-BRENNAN

o SS should have been applied (foreshadowing for his future cases)

Orr v. Orr (1979) – BRENNAN (applying Boren standard) Alabama (state axn) law allowed women, but not men (intentional

classification based on gender- quasi suspect) to get alimony Using heightened scrutiny

o Alienage EPC is one way to invalidate these laws, also look at Preemption Graham v. Richardson (1971) – BLACKMUN

Lawfully admitted resident aliens denied welfare benefitso Makes it EPC opinion by concentrating on govt benefits

State action: fed. benefits Denial:

o Burden: LPRs Intentional classification: yes, based on origin Suspect class?

o Are immigrants “discrete and insular minority”o Goes through Frontiero 4-prong analysis

Historically discriminated against? yes Historically powerless yes b/c they are

prohibited from voting Immutable? possibly, unless you naturalize Has nothing to do with immigrant abilities

o What goes against finding them suspect? Citizenship not immediately identifiable like in

Carolene Products

Can be mutable Other ways to participate in politics than just voting

Maj. Decides non-citizens ARE a suspect class applies SS Overturns law

In Re Griffiths (1973) – POWELL Used SS to invalidate Con. Law excluding LPRs from lawyering

based on Graham Sugarman v. Dougall (1973) – BLACKMUN

NY law gave only citizens right to hold civil servant jobs Ct used strict scrutiny, however, in DICTA, states

o Lesser scrutiny would be used if jobs go to the “heart of state functioning”

DISSENT – REHNQUIST – alienage not immutable trait so doesn’t fit “discrete and insular minority”

Foley v. Connelie (1978) – BURGER Law that state troopers could only be citizens

o Sugarman dictum becomes law Upheld law using low level scrutiny with heart of state f(x)

Ambach v. Norwick (1989) – POWELL Using Foley reasoning, upheld law limiting public teachers to

citizens Called it the “public function exception” “less demanding scrutiny required with jobs that were “bound up

with operation of State as a gov’t entity” Bernal v. Fainter (1984) – MARSHALL

Notary publics do not fall into public interest exception Public interest exception has to be narrowly construed

Toll v. Moreno (1982) – BRENNAN Maryland law did not allow non-LPRs who were domiciled in state

in-state tuition Overturned state law b/c of PREEMPTION (state law clashed with

US law about diplomatic status/tax breaks) Hampton v. Mow Sun Wong (1976) – STEVENS

Civil Service comm’n barred LPRs from fed. civil service jobs Not allowed to discriminate b/c they found that national interest

not good enough justification DISSENT – REQHNUIST

o National interest substantial Matthew v. Diaz (1976) – STEVENS

Fed. Law - LPRs not allowed Medicare b/c they had not been here for 5 yrs

Used extremely deferential legislation b/c this was Congress’ law Doesn’t make sense to change scrutiny based on who is legislating

o Disability, Age, and Poverty Cleburne v. Cleburne Living Center, Inc. (1985) – WHITE

City did not allow group home to be opened b/c the intellectually disabled would be living there

State action = city affirmatively shut them down Denial: not allowed to open group home Intentional classification: mental disability Suspect class?

o Use 4 step test from Frontiero as taken from Carolene History of discrimination: Yes Is mental retardation an immutable characteristic?

Yes, but it ranges (light to severe) Politically powerless? – not really b/c there has

been lots of legislating to get fair treatment Does it have to with their ability? – yes in a social

function Only really meets three out of four not politically powerless

o If you cannot meet all four factors, but meet three look at quasi-suspect class!

Maj. Makes them non-suspects and purports to use low-level scrutiny, but really uses intermediate b/c they analyze the gov’t interest asserted and then strikes them down

Called: Low-Level Scrutiny with “Bite” to overturn law CONCURRENCE – STEVENS/BURGER

o Only should use one tier of scrutiny low level/rationalo Just look at neutrality of law to come to same result (this

law not neutral) DISSENT – MARSHALL/BRENNAN

o Would have used intermediate scrutiny Massachusetts Bd. Of Retirement v. Murgia (1976)

Mandatory retirement law for police officers OK Age is not a suspect classification

o Immutable, but only for a year when you get older Rational basis review to sustain law DISSENT – MARSHALL

o Elderly = discrete and insular minority James v. Valtierra (1971) – BLACK

Wealth is not a suspect class = entirely non-suspect US Dept of Agriculture v. Moreno (1973) – BRENNAN

Statute classified that households had to be groups of related people in order to get aid

Maj. Strikes down law Supposed to be doing low-level scrutiny, but doesn’t

o Sexual Orientation Romer v. Evans (1996) – KENNEDY

CO. amdt stripped protections away from those were discriminated against b/c of their sexuality

State axn? Colorado Amdmt

Deny protections (burden on homosexuals) Intentional classification – sexuality (in general)

o However confined by Bowers b/c is this a conduct or a status-based classification?

Status-based classifications get heightened scrutiny Conduct based do not

This is a MIX Maj. Settles on Status based

o Different than Bowers b/c this is an EPC, not a DP case

Suspect class? – Frontiero 4 prong However, Kennedy doesn’t DO the 4 prong test but uses Moreno

precedent o He hints that the class is suspect, but does not apply SS

Applies Low Level Scrutiny “with bite”o When using LLS w/ bite look for ANIMUS

See if Gov’t is exercising bias, motive, prejudice DISSENT – SCALIA/THOMAS

o This should be decided on the Bowers precedento State’s should be able to make these decisions

Takeaway: look to O’Connor’s opinion in Lawrence – she makes sure that sexuality is ALWAYS a status-based classification

o Using “animus” approach – states that promotion of public morality and desire to harm a particular group can NEVER be an interest

o Economic Regulations (Minimum Rationality Review) Railway Express Agency v. NY (1949) – DOUGLAS

NY law prohibits operation of advertising vehicles except for vehicles engaged in usual course of business (like buses)

State action – NY law Deny: burden on advertisers not in regular business Intentional classification: non-regular course ads Suspect? – non suspect class Rationality review

o Legit gov’t objective = traffic safety, public policing purposes (yes, promoting public safety always legit)

o Means rationally related to end: Not all evils of same genus have to be eradicated Uses “One Step at a Time” approach from Lee

Optical Upheld law b/c legislature could move slowly to help safety issues

Williamson v. Lee Optical Co. (1955) – DOUGLAS Ok. Law that made it illegal for anyone other than optometrist to

fit eyeglasses Upheld under deferential low level b/c Ct emphasized public

health

New Orleans v. Dukes (1976) La. Law said no pushcart vendors, only those that had been there

for 8 years or longer (upheld) Takeaway: Economic Legislation = big deference to states

o Fundamental Interests – Given HEIGHTENED SCRUTINY Only two interest have been identified:

1) voting 2) access to courts Voting Harper v. Virginia State Board of Elections (1966) – DOUGLAS

Va. Poll tax req’d before people could vote Frontiero test inapplicable Maj. Looks at historical analysis: voting is given to electorate

o Fee = individuous discriminationo Note: equal treatment = individuous discrimination

DISSENT – BLACKo Does not want to expand the scope of substantive EP

Remember, in Griswold – did not want to recognize fundamental DP interest in privacy

o Asserts 2 justifications for why poll tax is ok: 1) state’s desire to collect revenue and ) belief that voters who pay tax have more interested in furthering state welfare

Justifications make law OK, voting not fundamental DISSENT – HARLAN/STEWART

o Relying on tradition to say that poll tax is traditionalo In Griswold, DP clause designed to protect basic values

implicit in liberty with respect to TRADITION Griswold could be grounded in tradition Here, poll tax = tradition too!

o Harlan worried about opening pandora’s box of rights Indiana v. Crawford County ID Board (2007)

State law requiring voter ID to vote at polls This is a REGULATION, not a BAN on voting

o Therefore, not subject to SS b/c not a total infringement on fundamental rights

Takeaway: Strict Scrutiny only used when there is a BAN on a fundamental right

Kramer v. Union Free School District (1969) – WARREN NY law that only people who could vote in school dis’t elections

were those who owned taxable real propertyo State axn NY lawo Deny? burden on non-land owning pplo Intentional classification non-land owningo Suspect? - noo Fundamental right? votingo Ban or regulation BAN (some ppl could not vote)

SS applied to overturn law Cipriano v. City of Houma (1969)

Statute provided that only property owners could vote on whether a municipal utility could issue municipal bonds (Ct = U/C) = ban

City of Phoenix v. Kolodziejski (1970) Extended Cipriano to prevent states from limiting the vote to real

property owners in elections to approve the issuance of bonds Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973) –

REHNQUIST State law limited voting in water storage district elections to

property owners and that apportioned votes according to assessed valuation of land within districts

As landowner bore entire burden of cost greater interest in outcome of election

Upheld law (beginning to overturn SS for these cases) Richardson v. Ramirez (1974) – REHNQUIST

No voting for felons even if they finished sentence & parole Upheld law

Takeaway: With voting some laws survive strict scrutinyo Access Courts – Fundamental Right Cont.

Griffin v. Illinois (1956) – BLACK (plurality) Illinois law gave right to appeal criminal conviction but only with

transcript of record cost money; so some D’s couldn’t appeal State axn Illinois Law Deny burden on criminal D’s (regulation) Intentional class those that could not afford transcripts

o Like a wealth-based classificationo Traditionally non-suspect

Fundamental right? yes, to access criminal courts that have appellate review

Burdening fundamental right yes Applied SS to overturn law CONCURRENCE – FRANKFURTER

o Right to appeal = right to liberty fundamental right under DP

DISSENT – HARLANo No EPC action b/c no state axn and no classificationo Thinks majority just voted on fundamental fairness

Boddie v. Connecticut (1971) – HARLAN CT law required filing fee to process divorce; P’s ≠ afford fee NOT decided under EPC, but under DP clause

o Found that DPC means that all people should be allowed to dissolve legal relationship

o Involved access to CIVIL courts Case sets stage for MLB v. SLJ CONCURRENCE – DOUGLAS

o Would have decided via EPC, not DPC DISSENT – BLACK

o Argued that opinion in Griffin was narrowly tailored to access to criminal courts, not civil courts

MLB v. SLJ (1996) – GINSBURG Mississippi Ct terminated mother’s custody of child; to appeal she

had to pay fine and record prep fee which she could not afford Both an EPC and DPC argument here

o DPC = fairness to payo EPC = denying applicants who can’t pay v. those who can

Need to combine Griffin (criminal) and Boddie to create a similar fundamental right under EPC

o “Fundamental Family Relationship” = fundamental right Like Boddie marriage/divorce similar to

parent/child relationship Like Griffin (criminal) this is quasi-criminal b/c

it destroys a legal relationshipo Makes it more like Griffin (stronger precedent)

Used Heightened scrutiny to overturn law CONCURRENCE – KENNEDY

o This should rest on DPC, not EPCo Kennedy = modern Harlan (not expanding rights)

DISSENT – THOMAS, SCALIA, REHNQUISTo Too much burden on state-related activities (deference!)o DP was given b/c P had hearing; no valid EP claim b/c no

discrete and insular minority San Antonio Indp’t School Dist. V. Rodriguez (1973) – POWELL

Parents alleged that their kids were getting diff’t educations based on where they lived; alleged that education = fundamental right

Suspect class? wealth classification (that they allege based on tax = traditionally nonsuspect)

o Why nonsuspect? No reason to believe poorest families are clustered

in one area 2) not having the best education is different than

not having an education 3) wealth = traditionally nonsuspect

Fundamental right?o Do not have to decide if there is a fundamental right b/c P

is complaining about the QUALITY of education not lack of education entirely

Low level scrutiny applied – law upheld (however, state constitutional challenges sustained)

CONCURRING - STEWARTo EPC confers no substantive right to education, creates no

substantive liberties, just look at validity of classifications

DISSENT – WHITE, DOUGLAS, BRENNANo EPC is made empty gesture b/c equal treatment not

established DISSENT – MARSHALL, DOUGLAS

o EPC should be a spectrum – sliding scale of rights based on Constitution

o Poverty has social stigma, like Brown Takeaway: this case has profound effect on development of

fundamental rights b/c if education is not a fundamental right, what is?

Plyer v. Doe (1982) – BRENNAN Texas Law provided free public education for children of citizens

and of documented aliens, but required undoc.’d aliens to pay State action = texas is a state law Denial: burden on undocumented aliens only

o Ban or Reg? ban on undoc. Aliens who cant pay Intentional classification? On undocumented aliens (facial)

o Previous aliens held as quasi-suspecto 4 prong test

History of discrimination yes Immutable? not if they naturalize Political powerless can’t vote, yes Has to do with their ability no

o If you can’t get four go for quasi-fundamental with 3 Fundamental right?

o Education based on San Antonio is not fundamentalo However, needed BLACKMUN to see that this was a ban

on education for some people who couldn’t afford to pay for school

o Needed POWELL to see that these kids were innocent victims and were thus a quasi-suspect classification

o Diff’t from San Antonio – quality of ed. v. ban on ed.o Found this to be at least a quasi-fundamental right with a

BAN Using Inter-Level Scrutiny to overturn law CONCURRENCE – BLACKMUN

o Education is at least a quasi-fundamental interest CONCURRENCE - POWELL

o Children singled out for a life-long penalty and stigma by nothing they choose to do (makes them suspect/quasi suspect)

DISSENT – BURGERo Court is to in the place to set a nation’s social policyo Stepping into the f(x) of legislative branches

Takeaway: Plyer is hard precedent to invoke b/c BRENNAN had to cobble majority together; can be challenged by saying that Ct moved away from fundamental interest strain of cases

FREE SPEECH –FIRST AMENDMENT- Gov’t shall make no law abridging the freedom of speech”

o Three ideas free speech serves: 1. Advances knowledge/truth in “marketplace of ideas” 2. Facilitating representative democracy and self-gov’t 3. Promoting individual autonomy and self-fulfillment

- Gov’to 5th

o 14th

1st Amdmt incorporated into 14th via “Incorporation Doctrine” If something is a “liberty interest,” it is incorporated

Speech = liberty interest, but not absolute right Whitney v. California

- Shall make no law o With a content-based or viewpoint-based classification

Can only look to content/viewpoint-based classifications if the words fall within the first amdmt [words need to be protected a little bit] (RAV)

Use SS if find content or viewpoint based classification- abridging

o ban v. regulation Time, Place, Manner Restrictions OK if narrow enough Intermediate level scrutiny (Heffron/Ward)

- the freedom of Speech – classified through categorization process Pure Speech

High Value - SSo Political

Speech becomes high level by defaulto Sexually Explicit but not Obscene??

Courts have generally found that such restrictions on sexual expression are OK as long as they do not wind up being de facto prohibition on dissemination

But not totally core political speech Inter-value – Intermediate Level Scrutiny

o Indecent words broadcastedo Commercial speech

Analyzed through CONTEXT Overbreadth not used with commercial speech TEST:

To be called commercial speech: need speech that is about a lawful activity AND is not fraudulent

2)whether government interest is SUBSTANTIAL and whether means Directly advances governmental interest AND whether means are reasonably related to end (Hudson as modified by Fox)

o DIFFERENT that EPC Here – substantial govt interest &

means reasonably related to end (commercial) v.

Need Important Government Objective AND Means substantially related to end (EPC)

Low value – Low level scrutinyo 1) Inciting speech (inciting misconduct in others)

Have intent to speak words that will stir up breach of peace

Justification is that gov’t is regulating the CONDUCT that inciting speech causes

o 2) Fighting (inciting misconduct towards speaker) 2 DEFINITIONS 1. Words that tend to incite immediate breach of speech

towards speaker (Brandenburg – tight connection between speech + conduct)

Needs to be directed at the hearer Need intent

2. Words that inflict injury by their very utterance (Chaplinsky definition in dictum)

Cts have not embraced the 2nd def. o 3) True Threat/Intimidating words

Intending to place victim in fear of bodily harm/death (Virginia)

o 4) Obscenity 4a) Obscenity as to minors 4b) Child pornography

o If Speech is low level it is subject to regulationo Low value speech only slightly protected after RAV

Pre-RAV – low value speech was not speecho Can regulate low-value speech if:

Regulation is broad enough to cover entire “low value” box (RAV)

Regulation predominately regulates conduct (Wisconsin)

Regulation targets core of box (Virginia v. Black) Thus can regulate “subset” of box if it is core

(hardest core pornography v. just pornography) What is the “core” of the low level speech box?

o Ask what ct is getting at by creating box?

o Then ask – what is the worst kind of behavior that could fit in this box

If statute neutrally targets core OK

Conduct O’Brien: Is this Suppression of Expression?

o Expressive Conduct (like Pure Speech) High Intermediate Low level Scrutiny

If you have expressive conduct, then next step is to figure out what category of speech the gov’t is suppressing

Then apply that level of scrutinyo Conduct with incidental impact on speech

Intermediate level scrutiny See O’Brien/Ward

o Pure Conduct NOT protected

- [without justification]o Strict

Compelling state interest Means narrowly tailored to end

o Intermediate 3 TYPES

Commercial Speech intermediate (Central Hudson/Fox)o Substantive Gov’t interesto Directly advance the ends?o Means reasonably related to ends?

Conduct w/ incidental impact on speech (O’Brien/Ward)o Substantive gov’t interesto Means reasonably related to ends?

Time, Place, manner Restrictions (Heffron/Ward)o Significant gov’t interesto Means reasonably related to end (Ward)o Leave open ample alternative channels (heffron)

Makes sure this is t,p,m and not a bano Low

Legitimate gov’t interest Means rationally related to ends

- [or without overbreadth]o 1. Standing – gives person standing to claim that a 3rd party right was violatedo 2. Statute’s facially invalid – no need to challenge “as applied”

Overturns whole statuteo Require “Substantial Overbreadth” to invalidate a lawo Only applicable to first amdmt (not commercial speech)

- First go through steps to see what type of speech is it- If it is low level, go back to see if it is content/viewpoint based to get heightened

scrutiny

- Inciting Wordso Schenk v. United States (1919) – HOLMES

Espionage Act of 1917, P’s charge with conspiracy to commit insubordination against military/navy during WWII b/c P circulated document that argued that draft violated 13th Amdmt

5th v. 14th? 5th b/c it’s a federal act What kind of speech?

Says this is “INCITING speech” Articulates “Clear and Present Danger Test” to see if speech is

protectedo Clear & Present Danger = matter of proximity and degree

Maj. States the conduct that creates a clear & present anger of conduct that Congress tries to prevent is NOT speech

Found this was the type of speech here Upheld Espionage Act Takeaway: at this point, inciting speech is not protected AT ALL

o Abrams v. United States (1919) – CLARK Russian immigrants circulating leaflets objecting to US sending troops to

Eastern Europe after Russian Rev & advocating a strike in ammo factories Maj. Uses clear and present danger test to show that people have to be

responsible for effects that their speech are LIKELY to produce Upheld conviction DISSENT – HOLMES

Reframed C&P danger test Congress can regulate speech that is an immediate threat of

imminent harm Distinguishes from Schenk b/c threat not met with “silly pamphlet”

o Whitney v. California (1927) – SANFORD Woman convicted under CA syndicalism act, she was part of Commie

party that advocated violence, even though she wanted a peaceful political process

She challenged the statute as APPLIED (to her) Law upheld as applied to her however If she had challenged the statute on its face (facial challenge), it would

have been a different story CONCURRENCE – BRANDEIS, HOLMES

Really dissenting b/c they think statute should be U/C

Hinting towards overbroad statute b/c it bars high value political speech

Takeaway: Set space for doctrine of overbreadtho Dennis v. US (1951) – VINSON

Narrows Clear and Present Danger yet Violation ins only when speech is directed at inciting/producing

IMMINENT LAWLESS ACTIONo Takeaway: Dennis and Whitney set precedent for Brandenburgo Brandenburg v. Ohio (1969) – PER CURIAM

Leader of KKK convicted under Ohio syndicalism act, evidence of “incitement” videotaped at rally; supposed march on Washington

Court uses precedent to fashion NEW test: Incitement only if:

o 1. Advocating/producing lawless action that iso 2. Likely to produce imminent lawless action

Different than C&P danger b/c of imminence requirement

No incitement here b/c D’s were advocating FUTURE (not imminent) action

Law did not distinguish between advocating violence for political reform and imminent violence

Thus, law is also OVERBROAD CONCURRENCE – BLACK

C & P danger doctrine should have no place in 1st amdmt jurisprudence

CONCURRENCE – DOUGLAS 1st amdmt should not be subject to C&P danger test in times of

peaceo Cohen v. California (1971) – HARLAN

Man w/ jacket walked around Ct house with “Fuck the Draft” written on back; during Vietnam era

Analyzed as both an “inciting words” and “fighting words” case Inciting Words:

o Not advocating lawless action, just using vulgarityo Not likely to produce lawless action

Unwilling views not enough to curtail speech Fighting Words

o Analyzed under Chaplinsky Is it a personally abusive epithet is inherently likely

to provoke a violent reaction? Not a personal threat No evidence anyone had violent reaction

o Or was there intent to incite disobedience? No

o Was it directed at the hearer? No

If not fighting words/inciting words high level speech by default

SS appliedo No compelling state interest o “one man’s vulgarity is another man’s lyrics”

Overturned Conviction DISSENT – BLACKMUN, BURGER, BLACK

o Jacket is not speech- Fighting Words

o Cantwell v. Connecticut (1940) – ROBERTS Jehovah’s witness arrested for proselytizing for breaching peace Fighting words test:

Need indecent/abusive language to cause breach of peace or Personal abuse inflicting immediate injury

Passersby were somewhat offended, but no one acted violently and he backed down when people asked him to move

NOT fighting words if you back down Invalidate conviction

o Chaplinsky v. New Hampshire (1942) – MURPHY Jehovah’s witness engaged in distributing literature on side of streets,

when arrested he told city marshal that he was a “damned fascist” Began categorizing speech that was NOT protected under 1st amdmt

Included: lewd, obscene, profane, libelous, insulting, or fighting words

Defined fighting words as: words that by their very utterance inflict injury

Since lower court’s question was narrow: just whether gov’t could regulate fighting words

Thus, SCOTUS did not have to consider whether offensive speech was low-level speech (last SCOTUS case on fighting words)

Upheld Conviction- Hate Speech

o The Skokie Controversy (1977 & 78) – BLACKMUN 2nd time around Nazis stage march in predominately Jewish suburb After 1st time in SCOTUS, Skokie adopted ordinances that were intended

to prevent Nazis from marching 7th Circuit declared ordinances U/C (never made it to SCOTUS again) Takeaway: expression of hate speech = protected speech

o Police Dep’t v. Mosley (1972) – MARSHALL Chicago ordinance prohibited picketing while school was in session unless

you were in a labor dispute; P was not in labor dispute but picketed Maj. Treats this as EPC case b/c 2 protestors treated unequally Found a content-based classification

Non-labor union protestors were not allowed to “speak” Takeaway: First articulation of content based regs (used by Scalia)

o Gooding v. Wilson (1972) – BRENNAN

Georgia statute prohibiting use of abusive language tending to cause breach of peace, anti-war demonstrating and says “I’ll kill you”

Maj. Writes that the statute is overbroad and reverses convictiono US v. Robel (1967) – WARREN

Ct overturned Fed. law criminalized membership of commie party to be employed in defense facility

Ct disavowed balancing approach only categorizing speecho RAV v. City of St. Paul (1992) – SCALIA

City of St. Paul ordinance prohibited placing certain symbols on public/private property that raised alarm/anger based on race, color, creed, gender, religion

Maj. Assumes that these kinds of symbols are under “fighting words doctrine”

Did not want to decide case on overbreadth, so have to classify words (intent to incite breach of peace or words that inflict injury)

Viewed statute as a content-based classification Statute protects some groups listed but not others

o In order to use content-based classification need to make sure words fall w/in scope of 1st amdmt

Here, statute is content based b/c it is UNDERINCLUSIVE Protects people on basis of some things but not others like labor

unions First case to give “fighting words” protection under first amdmt If “Low-Level” speech Rational Basis Scrutiny However – if Content-Based classification STRICT SCRUTINY

CSI yes, public interest Means narrowly tailored to ends? No

o City failed to use broad means to regulate ALL fighting words – not just some

In Dictum, writes: Content-based distinctions within a category of unprotected speech will have to meet strict scrutiny with 2 exceptions

1. Permissible if it directly advances the reason why the category of speech is unprotected (ie obscenity)

2. OK if directed at remedying secondary effects Invalidated ordinance CONCURRENCE – WHITE

Concentrates on overbreadth of statute Fatally overbroad b/c it criminalizes protected and unprotected

expression Worried about “arouses anger, alarm or resentment”

o These are not confined to fighting words CONCURRENCE – BLACKMUN

No first amdmt compromise b/c St. Paul is punishing fighting words

CONCURRING – STEVENS Should not categorize speech but subject all speech to balancing

Speech is a hierarchy and is concerned that majority giving fighting words same protection as political speech

o Spectrum of protected speech needed Disagrees that this is content-based but rather, regulating harm

Takeaway: 3 ways to interpret RAV 1. Fighting words will only be upheld if ordinance does not draw

content based distinction among types of speech 2. Strong presumption against content based discrimination within

categories of unprotected speech 3. Should RAV have met Scalia’s exception

- Post- RAVo Wisconsin v. Mitchell (1993) – REHNQUIST

Wisc. Statute enhanced penalty based on whether D intentionally selected victim based on race, religion, color, disability, sexual orientation, etc; Group of black boys beat up white boy here violating statute

This is a “content-based classification” Maj. Distinguishes this case from RAV

Statute does not concern types of speech, but motive of conduct If State wants to regulate hate speech they have to do it in

conjunction with regulating conduct o Thus makes it fully outside first amdmt protection

Thus can regulate hate CRIMES (conduct) with content-based classification, but cannot regulate hate SPEECH (speech) with content-based classification

Takeaway: RAV limited! Content and viewpoint based classifications are prohibited when

regulation is only targeted at Speecho Virginia v. Black (2003) – O’CONNOR

Va. Statue made it unlawful for any person w/ intent of intimidating another to burn cross on public/private property; cross burned here on private property

Content-based classification? No language of race, ethnicity, or gender in statute does not

trigger rule of RAV O’Connor creates NEW category of low-value speech – true threat

True threat – speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm/death

Resuscitating Chaplinsky definition of fighting words as “injurious”

True treat = core of Chaplinsky definition Using SCALIA in RAV

o Can regulate against the specific reasons why the particular class of speech at issue is proscribable

Since low-level speech apply low level scrutiny Legit gov’t interest? safety, yes

Means rationally related to end? noo Statute made it too easy to prove intent to intimidate and

infringed on high-value speecho Maj. Argues cross burning could be high value

Just b/c you have a nasty message doesn’t mean you lack a political message at all

CONCURRENCE/DISSNET – SCALIA Entire statute is constitutional

DISSENT – THOMAS Statute addresses only conduct and thus is taken out of first amdmt

protection Subject to DPC/EPC only but not 1st amdmt protection

- Obscenityo Miller v. California (1973) – BURGER (pre- RAV)

CA crim. law criminalized knowingly distributing obscene ad/brochures for “adult” material through the mail.

Is it under protection of First Amdmt Since this is pre-RAV, low value speech does not exist yet

Applies Roth Test – what is obscene 1) Whether the average person, applying contemporary community

standards would find the work, taken as a whole, appeals to the prurient interest (lustful, lascivious thoughts)

o Determined by community standards 2) Whether the work depicts or describes in a patently offensive

way sexual conduct specifically defined by the applicable state law and

3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Finds that speech is obscene and thus, post Roth no protection at all Upholds conviction

What would have happened post-RAV?o Would have been low-value speech (obscenity, fighting

words, inciting words = low value)o Would have been a content-based regulation

b/c not targeting distributing but what was inside o probably would have upheld a statute that regulated the

distribution of hardest-core porn DISSENT – DOUGLAS

Obscenity too loosely based for crim. conviction DISSENT – BRENNAN, MARSHALL, STEWART

Statute is overbroad for criminal penalties in context Community standards test is too hard to discern

o Community Standard in Obscenity Hamling v. US (1974)

Local rather than statewide or national standards used in obscenity prosecutions

Jenkins v. Georgia (1974) – REHNQUIST Judges do not have total discretion in deciding what was patently

offensive Obscenity does not reach mainstream material

Smith v. US (1977) Determination of community standards is a question for the jury HOWEVER, “literary, artistic, or political/scientific value is NOT

to be measured by communities” Pope v. Illinois (1987)

Value of speech not measured at local level, but subject to reasonable person test

- Child Porn/Porn as it relates to Minorso Ginsberg v. NY (1968) – BRENNAN (pre-Miller)

Ct asked if material was patently offensive to parents of minors Creates a new box of law speech – “Pornography as it Relates to Minors”

States can regulate material that is obscene with regards to adults AND

State can regulate material that is obscene with regards to minorso NY v. Ferber (1982) – WHITE

Charged with owning bookstore that specialized in selling sexually oriented products that depicted boys masturbating

Maj. Classified child porn as a category of materials wholly outside 1st Amdmt protection (like Chaplinsky fighting words)

Maj. Calls out new category – Child porn Different than obscenity b/c it actually harms children Creates modified Miller standard

o 1) here is does not need to appeal to the prurient interest of the average person

o 2) does not need to always be done in a patently offensive manner and

o 3) the material at issue need not be considered as a whole Uses a more state-deferential test

As this is a BAN should SS be applied? Maj. Hints that they are using SS b/c they call out CSI

Preventing harm to children = beyond compelling interest CONCURRENCE – O’CONNOR

Statute is not overbroad enough to warrant facial attack Audience appreciation of child porn is wholly irrelevant

CONCURRENCE – BRENNAN/MARSHALL Some significant value in child porn (literary, artistic merit)

o Osborne v. Ohio (1990)- WHITE Stanley rule (free to consume obscenity in home) found Inapplicable to

possession of child porn Ban SS?

No strict scrutiny

SS only applied when there is an outright ban on something OTHER than core low-level speech

Compelling state interest in eliminating full chain of child porn distribution

DISSENT – BRENNAN Statute itself is overbroad

o Ashcroft v. Free Speech Coalition (2002) – KENNEDY Child porn prevention act of 1996 (CPPA) outlawed all child porn,

including images not made with real children (virtual child porn) Question: Did this fit within the box of Child porn (Ferber) or was statute

overbroad? Concludes that Congress has not stayed within Ferber box

Found that statute was overbroad b/c virtual child porn does not harm actual children

No proof that State needs this to help prosecute ppl with child porn Left room for Congress to rethink the Act CONCURRENCE – THOMAS

When technology does evolve to where you cannot tell difference between real and fake kids, gov’t should be allowed to regulate

CONCURRENCE – O’CONNOR Barred prosecution of adults that look likes kids

o DISSENT – REHNQUIST/SCALIA Congress has compelling interest here in protecting kids Believes on its face that it IS narrowly tailored

- Sexually Explicit but not Obscene Speecho Ernozik v. Jacksonville (1975) – POWELL

Drive in movie theater showing films with sexual content; city had ordinance that prohibited exhibition of the human male or female bare but, breasts or pubic area

Facial Challenge Obscenity (low level speech ) v. Nudity

Obscenity = CORE bad speech Nudity is the least of the obscene

o Portrayal of nudity may not be obsceneo Therefore, can’t have outright ban on nudity b/c not

core low level speech Outright bans on things OTHER than CORE low-level speech

trigger heightened scrutiny Compelling state interest traffic safety is compelling Least restrictive means analysis rejects state justifications

2 rulings: Law is overbroad with regards to access to minors AND Doesn’t meet SS for traffic safety

DISSENT – BURGER/REHNQUIST Reads Maj. Opinion as classifying nudity as high value speech Would apply low-level scrutiny

If just traffic at issue no true 1st amdt issue invoked- Indecency Bans in the Communications Media

o FCC v. Pacifica Foundation (1978) – STEVENS 7 filthy words skit played on radio during day, dad heard it in car w/

kid, FCC fined radio station focusing on time of day it played Core low level speech? no, just dirty words

Maj. Says this is “Intervalue speech”o Intervalue speech = speech that is normally without

value, but that is valuable in some instanceso Social value Determined by looking at context

Ban or regulation? Forward looking BAN (outright on times of day) OR could also be looked at as regulation (time, place, manner)

o Maj. Looks at it as T,P,M regulation Since it is an outright ban on something other than core low-level

speech SS invoked? NO Intervalue speech wants to be able to defer to state regs/bans

on indecent/profane speech Context = Broadcast media 2 reasons why FCC sanctions were OK

1) Unique nature of the radio (extremely pervasive) 2) Radio uniquely accessible to kids

This is a Time, Place, and Manner restriction OK (narrow holding) 2 ways to look at why he upheld law

1) FCC narrow regulation on interlevel speech 2) nature of the radio

CONCURENCE – POWELL/BLACKMUN Do not talk about high/low value speech This is not a BAN but a REGULATION (TPM)

o If not a ban not SS Agree its intermediate value speech

DISSENT – BRENNAN/MARSHALL Aware that other concurrence talks about TPM He targets the type of speech Concerned that this was high level speech – subject to SS Carlin had message/and political

o Maj. Could wind up banning literary/political works Disagreed with nature of radio can just turn it off

o Sable Communications v. FCC (1989) – WHITE Fed. Communications Act 1934 amended to outlaw obscene or

indecent phone messages (included dial-a porn, pay per message calls) Differentiated from Pacifica

Here – a total ban (not a TPM restrictions) Here – not like radio – you have to contact them

o Therefore, Pacifica not controlling What type of speech?

“sexual expression which is indecent but not obscene IS protected by the first amdmt”

HIGH value speech Ban on High value speech triggers SS

CSI protecting kids (always CSI) Means narrowly tailored? no

Overturned law CONCURRENCE – SCALIA

Suggests that if law became narrowly tailored it would be ok

CONCURRENCE – BRENNAN, MARSHALL, STEVENS Dissented that obscene communications should not be

restricted in this way- Commercial Speech- Pre-1976

o Valentine v. Chrestensen (1942) Ban on distributing handbills soliciting submarine ride Explicitly held that commercial speech was low value speech Low value b/c just state purely factual matters

o Pittsburgh Press Co. Pittsburg Human Relations Comm’n (1973) Ordinance prohibited newspapers from listed employment ads in

gender designated columns Upheld sex discrimination ordinance b/c employment advertising as

commercial speech is not subject to first amendment protectiono Bigelow v. Virginia (1975)

Virginia could not criminalize ads in Virginia newspapers showcasing the availability of abortions in NY

- 1976 – giving protection to commercial speecho Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976) –

BLACKMUN Virginia law said that pharmacists were guilty of unprofessional

conduct if they advertised price of prescription drugs Govt? – Virginia (14th) Ban or Regulation total ban Type of speech – commercial speech

High, low, intervalue? Emphasizes freedom of information – helping to promote

democracy, marketplace of ideaso Political and economic interest connectedo Protecting a CLEAR public interest

Probably felt it was high value speech, but does not articulate it clearly

NO language of what scrutiny level is used Believes he was using SS (see Central Hudson concurrence) Cuts down state justifications after analysis However, Commercial speech can be regulated IF:

o 1) the regulation is neutral and not content basedo 2) it serves a significant government interest (drawing

up intermediate scrutiny) ando 3) ample alternative channels for communication exist

DISSENT – REHNQUIST Would rather apply low level scrutiny and call it low value

speech Believes that the majority opinion will allow dissemination of

info that is normally discourage Takeaway: 3 limitations on commercial speech protection

Free speech protection does not extend to: o 1) advertisements for illegal transactions, oro 2) factually false or misleading information oro 3) special procedural protections such as the ban on

prior restraint- Post-Virginia

o Central Hudson Gas v. Public Service Comm’n (1980) – POWELL NY public service commission prohibited electrical utilities from

engaging in promotional advertising designed o stimulate demand for electricity, even alternative fuels/sources of engery

Govt NY law Ban/Regulate? BAN What type of speech? Commercial

Application of Virginia test o 1) To be called commercial speech: need speech that is

about a lawful activity AND is not fraudulento 2)whether government interest is SUBSTANTIAL and

whether means Directly advances governmental interest AND whether means are not more extensive than necessary to serve that interest

Means need to be reasonably related to end (Modified by Fox)

Is about a lawful activity + is not fraudulent Promoting substantial gov’t interest? conserving energy (OK) Means no more extensive than necessary? YES

Limits all advertising, even promotion of alternatives that would help shortage (too broad)

Overturned law (probably would have upheld law after Fox) CONCURRENCE – BLACKUN, BRENNAN

OK with intermediate level scrutiny but not OK with test used CONCURRENCE – STEVENS/BRENNAN

This is not commercial speech, but speech dealing with promotion of alternative energies

DISSENT – REHNQUIST Speech here not entitled to 1st Amdmt Protection

Reasserts that economic speech is subordinate to political speech

Utility is like state owned entity state can regulate economic activity

o Bolger v. Youngs Drug Products Corp (1983) - MARHSALL Unsolicited ads for contraceptives were being handed out at a drug

store and they spoke about venereal disease and condoms Ads were discussing public issues were entitled to substantial first

amdmt protectiono Board of Trustees State Univ. Of NY v. Fox (1989) - SCALIA

Tupperware parties were being held on campus with the “public interest” agenda of being financially responsible

Rejected public interest agenda and stated that it was pure commercial speech

Mere links to constitutional issues is not enough to get first amdmt protection

***MODIFIED Central Hudson test Now means only have to be reasonably related to end

Takeaway post Fox commercial speech = intermediate level scrutiny

- Content Neutral Lawso Where legislature tries to write a Ban or regulation on type of conduct that

infringes on free speech (incidental impact) Intermediate scrutnyo 2 types of content neutral laws:

1) aimed at behavior and has incidental speech impact OR 2) aims at expression but is not for content reasons

o United States v. O’Brien (1968) – WARREN O’Brien burden draft cards at Ct. house, under Congressional statute

mutilating/changing draft card was illegal Ban or Regulation? ban on changing draft card Speech or Conduct?

On its face, statute deals only with conduct However, applied in such a way as to “squelch his speech” Is his conduct speech (expressive conduct like RAV)?

o Ct says no – 1st amdmt not limitless, not all expressive speech triggers 1st amdmt

Maj. Creates NEW categogy “Legislation that regulates conduct that has an incidental

effect on speech” Calls out scrutiny level

1) regulation within official power of the gov’t (not really a big prong b/c all statutes/regs are within power of govt)

2) Substantial Governmental interest 3) is the gov’t interest unrelated to the suppression of free

expression (this is the prong you need to start with)

o Start at 3rd prong b/c if the gov’t’s interest is related to suppression of expression you have a content-viewpoint based classification (RAV/Virginia)

o That would invoke strict scrutinyo If not intermediate scrutiny is applied

4) whether means no greater than necessary becomes “whether means are reasonably related to end (becomes Central Hudson as modified by Fox)

3rd Prong analysis is gov’t interested in suppressing free speech? Maj. Says no only interest in maintaining draft cards

Therefore intermediate level scrutiny applied (not heightened)

Substantial gov’t interest protecting national security (OK) Means related to end?

o Yes, b/c if you destroy draft cards undermines being able to build an army

Upholds statute even as appliedo Texas v. Johnson (1989) – BRENNAN

Burning American flag is violation of Texas law; flag was burned in political protest at Republic national convention

Govt? texas law Law? this is a regulation on flag desecration

Since this is a law on conduct, need to apply O’Brien test to see what level of scrutiny applies

Is the regulation related to suppression of expression? O’Brien Test Compares statute to statute in O’Brien

o Does not prohibit degradation of ALL flags, just where it would seriously offend someone

o Therefore statute is targeted at expressive conduct NOT JUST SPEECH

See if it targets speech by looking at effect of statute, but only look at statute’s face

Therefore outside O’Brien’s less stringent testo What kind of expressive conduct was it barring?

Political speech (at political rally) That is high level speech

Since related to suppression of expression of political speech look for content/viewpoint based classification (RAV)

Content-based b/c it is classified as “offensive” flag burning Thus triggers Strict Scrutiny

Compelling state interest?o Breach of peace not good enough b/c no immediate

threat found hereo Preservation of flag as unity is related to suppression of

expression (both interests rejected) 2 state interests asserted

1) breach of peace 2) preserve flag as symbol of national unity

Overturns conviction DISSENT – REHNQUIST, WHITE, O’CONNOR

Believe that flag burning is akin to fighting words This is targeting pure conduct, not speech

DISSENT –STEVENS Not punished for expression of ideas, but for the way in which he

did it- Time, Place, and Manner Test – designed to promote public order

o Cox v. Louisiana (1965) – GOLDBERG Breach of peace conviction arising from civil rights demonstration Invalidated breach of peace conviction arising from civil rights

demonstration Found discriminatory application of traffic safety law

o Heffron v. International Society for Krishnna Consciousness (1981) – WHITE Booth rule restricting literature at a county fair, could only distribute on

first come, first serve basis, Krishnas says it violated beliefs. Ban v. Regulation?

Time, Place, and Manner Restriction HERE b/c not saying that Krishna’s couldn’t distribute, but couldn’t do it inside fair

T, P, M regulations IF (TEST) 1) they are neutral AND 2) modified intermediate level scrutiny

o A) significant gov’t interesto B) means reasonably related to end, ANDo C) whether the reg left open ample channels for

communication Allows ct to monitor “purity” of TPM reg

Found TPM OK here upheld reg DISSENT – BRENNAN (partial dissent)

Not narrowly tailored enougho Police Dept v. Mosley (1972) – MARSHALL

Barred picketing in front of school while in session except if labor dispute Ban v. Regulation?

T,P,M restriction telling people where they can/can’t stand Conduct v. Pure speech

Conducto O’Brien’s 3rd prong – suppression of expression?

YES, b/c gave exemption for peaceful picketing, therefore suppressing an idea

Look for content/viewpoint based reg? Content based anyone but labor

Therefore triggered strict scrutiny Not true TPM, b/c became a ban on types of political speech Therefore regulation

o Ward v. Rock Against Racism (1989) – KENNEDY City had law that city had to control concert sounds for volume control Uses O’Brien test for T,P,M (b/c its regulating conduct) Modifies O’Brien test

For intermediate scrutiny means only have to be reasonably related to end

o Metromedia v. San Diego (1981) – WHITE (plurality) San Diego ordinance regulating billboard displays to eliminate hazards to

pedestrians and motorists brought about by distracting sign displays Takeaway: Court gives LARGE deference to gov’t interest in regulating

aestheticsFREE EXERCISE + FREE RELIGION

- “Congress shall make no law respecting an establishment of religion or prohibiting the exercise thereof

- Gov’to 1st o 14th

- Shall Make No Lawo Criminal o Civil (taxes)o Exception to Funding (Davey)

- Prohibiting the Free Exercise of Religiono Belief

Absolute protectiono Conduct

Not absolute protection Restrictions can be justified

- [or by an intentional classification]o Classification

Malign? (Santeria?) Benign? (Davey?)

o Direct evidence of classification Facial classification

o Circumstantial evidence Yick Wo

- [or by a neutral law with an incidental effect on religion?]o Neutral law w/ incidental effect is OUTSIDE scope/protection of 1st Amdmt

Smith (SCALIA)- [without justification]

o Strict Scrutiny Compelling gov’t interest Means narrowly tailored to ends

o Low level Scrutiny Legit Gov’t objective

Means rationally related to ends- Everson v. board of Education (1957) – BLACK

o Held that state may pay to bus children to/from parochial schoolo Two takeaway principles from this case: Voluntarism and Separatism

“Voluntarism means that the advancement of a church would come only from the voluntary support of its followers and not from the political support of the state.”

“Separatism means that both religion and government function best if each remains independent of each other”

- Rosenberger v. Rector (1995)- THOMASo Va. Included religious magazine as subsidized student activitieso Cannot single out religion for special benefits but govt can still participate in

neutral wayso Upheld gov’t ability to participate

- United States v. Seeger (1965) - CLARKo Law that held that people may be exempted from military combat by

conscientiously objecting through religious training and beliefo Here, seeger stated on draft card that he left his belief in a higher being “Open”o Test for what constitutes belief:

“whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption”

- Welsh v. US (1970) – BLACK (plurality)o Military exemption even though Welsh had struck the word religious on his

application- Gillette v. US (1971)- MARSHALL

o Congress could constitutionally refuse to exempt those who did not oppose all wars but only particular conflicts (faithful catholic – just/unjust wars)

- US v. Ballard (1944) – DOUGLASo Ds were indicted under federal mail fraud laws b soliciting for “I Am movement”

claiming they had been selected to distribute divine messageso 1st amdmt bars trier of fact from examining truth of religious beliefs

- Church of the Lukumi Bablu Ayev v. City of Hialeah (1993) – KENNEDYo City ordinance prohibited ritual slaughter of animals; but made certain exceptions

for Kosher slaughter and more, but Santerians still can’t practiceo Gov’t 14th (city gov’t)o Shall make no law?

Criminal lawo Prohibiting Free Exercise?

Need to see if this statute targets free exercise of religion Direct evidence look at text of statute

o Is not neutral at all makes all other exceptions except for Santerians

Circumstantial evidenceo Lack of exceptions = yick wo style classification

o Goes into legislative history as well Legislative history shows that the statute was

targeted directly at Santerians Triggers SS

o SS Compelling state interest to not harm animals (OK) Means narrowly tailored (no)

o Overturns lawo CONCURRENCE – SCALIA/REHNQUIST

Believes that law makers – NOT COURTS – should decide the real reason for laws

It is impossible to figure out the motive of the legislative body- Locke v. Davey (2004) – REHNQUIST

o Washington Constitution said that no money or property shall be appropriated or applied to any religious worship exercise or instruction; scholarship program would pay for post-secondary ed. but not for student to train as minister

o Gov’t – State lawo Shall make no law?

Exception to Fundamentingo Prohibiting free exercise of religion?

Targeted at conduct (where you can choose to go to school)o By an intentional classification?

Direct evidence? YES Statutory text specifically talks about evidence of intent to

discriminate finds proof of intent b/c statute specifically talks about not allowing religious study

Different than Lukumi Not about preserving religious freedom (Santerians), but about

preserving funding Not as onerous as Lukumi but Maj. Chooses not to make

benigh/malign distinction b/c it gets too messy Can either 1) apply SS or 2) concentration that fund is on a statute

o Chooses to apply low-level scrutiny State’s interest It’s constitution says it cannot give ANY funding to

religion V. compelling b/ c this is the state legislating AND this is

REHNQUIST Rationally related to end?

Yepo Upholds statuteo DISSENT – SCALIA/THOMAS

This is a facial ban Maj. Opinion is devoid of any standard of review

o Takeaway: Rehnquist started OK by making criminal/funding distinction but then he gets confused

By default he uses low level scrutiny

His state gov’t interest comes inNeutral laws affecting Religion? (outside scope of First amdmt)

- Braunfeld v. Brown (1961) – WARREN (plurality)o Pa. Sunday closing law that made people close stores on Sunday; Orthodox jews,

who had to close their stores on Saturday, said this was discriminatory o Regulating CONDUCT, not belief

Freedom to at is not w/o legislative restriction Striking down indirect burden would hinder the legislature

- Shervert v. Verner (1963) – BRENNANo 7th Day Adventist was discharged b/c she would not work Saturday b/c that was

her Sabbath day. She would not take other jobs that made her work that day and therefore was denied unemployment benefits b/c she turned down “suitable” work

o Gov’t – Employment benefitso Law: Denial of civil benefits? but not a penaltyo Targets Conducto Intentional classification? – religious based classification for 7th Day Adventistso Triggers Strict Scrutiny

Compelling State Interest? Preventing fraudulent claims not enough State not asserting any secular interests

o Overturns denial of benefitso CONCURRENCE – STEWART

Believes that this does not align with Braunfeld, should overrule ito DISSENT – HARLAN/WHITE

She was deprived from work for secular reason (could not work Sat.) Forcing state to create exception is bad

Post-Sherbert (more deferential review)- Thomas v. Review Board (1981) - BURGER

o Relied on Sherbert to strike down Indian’s denial of unemployment compensation to Jehovah’s Witness who quit job in a munitions factory b/c of objections to war

- Hobbie v. Unemployment Appeals Comm’n (1987o Followed Sherbert in upholding unemployment compensation claim of employee

whose religious beliefs had changed during course of employment- Frazee v. Illinois employment Security Dept (1989)

o Lack of membership in a church is irrelevant to find religious beliefCompulsory Education Laws

- Wisconsin v. Yoder (1972) – BURGERo Amish guy criminal punished for failing to send daughter to public school past

age of 15; argued it was what Amish culture requiredo Gov’t action? punishing Amisho Rule? neutral criminal law at issueo Freedom of religion?

This statute is regulating conducto Intentional classification?

Excludes Amish

Direct burden on Amisho Applies Strict Scrutiny

CSI? Ct reframes CSI NOT about whether education is a compelling state interest but

whether gov’t had a compelling state interest for refusing to carve out exception

No CSI assertedo Got 2 things

1) constitutionally mandated exception and 2) reversal of conviction

- Employment Division, Dept Human Resources v. Smith (1990) – SCALIAo This case governs todayo Oregon law criminalized use of peyote, challengers were members of Native

American Church (looking for Constitutionally mandated exception)o Gov’t action? Oregon Lawo Rule neutral criminal law at issueo Freedom of religion?

Statute is regulating conduct Not main purpose of law to inhibit religion just incidental effect

Confines Sherbert precedent to unemployment cases KEY determine if law prohibit exercise of religion

By putting large emphasis on “prohibit” an otherwise VALID neutral law with an incidental effect on religion is VALID

o Since not “prohibiting religion applied Low Level Scrutinyo Upheld Lawo CONCURRENCE – O’CONNOR

Believes in a different weighing test – burdens v. interest Goal: preserve religious pluralism Need to weigh all competing interests

o DISSENT – BLACKMUN, BRENNAN, MARSHAL Balancing (not neutral law only) is best way to go State offers no proof that peyote harms people Ct should not turn blind eye to central tenets of religion

o Takeaway: Neutral laws with just an incidental effect on religion are VALIDEstablishment Clause

- “Congress shall make no law respecting an establishment of religion”- Test:

o Establishment clause not recognizing liberty interest o Articulates a right to separation of church and state

- Top violations:o Creation of official church by gov’t stateo Paying taxes to fund religious orgs/programo School Prayer

Goes from most Official Tax for School Legis. Public Financial

deferential to least deferential

Church Religion Prayer (in class v. Graduation)

Prayer (adults at issue)- Marsh

Religious displays(creche v. menorah + symbols)

Aid to Schools(direct aid v. indirect aid)

Penalty Test (Scalia)

violation violation Violation/no violation

No violation

No violation X

Coercion Test (Kennedy)

violation violation Violation No violation?

No violation X

Endorsement Test (O’Connor)As informed by history

Violation violation Violation No violation

Violation/no violation

X

Lemon Test (Brennan/Souter)1) statute = secular legislative purpose2) its principal or primary effect must be on that neither advances nor inhibits religion (sectarian effect)3) the statute must not foster an excessive government entanglement with religion

violation violation violation Violation Violation/ violation

Direct aid = violation/Indirect aid = no violation

Indirect aid (post Zelman) use 2 prong lemon test

- Lemon v. Kurtzman (1971) o 1) statute must have a secular legislative purposeo 2) its principal or primary effect must be on that neither advances nor inhibits

religiono 3) the statute must not foster an excessive government entanglement with religion

- McCollum v. Board of Education (1948) - BLACKo School board’s permitted its students to attend religious/sectarian classes held in

public school during school hours by parochial school instructorso 2 major things wrong

1) public schools being used for religious ed AND 2) gave religious groups aid that was supposed to be for public use

- Zorach v. Clauson (1952) - DOUGLAS

o NYC program permitting public schools to release children to go to religious instruction – parents had to make written request to do so, no public $ used

o Use coercion test No evidence of coercion being used on students to get them to participate

in this religious activity (they could just stay in school if they wanted) Separation of church and state cannot go so far so as to create hostilities

towards each other School merely accommodating without providing funds OK

o Upheld statuteo DISSENT – BLACK

State manipulating laws to coerce kids into religious sectso DISSENT – JACKSON

Like EP argument – some people can take classes, other cants- Engel v, Vitale (1962) – BLACK

o NY legislature prepared non-demoninational prayer for use in public schoolso Maj. Makes school prayer akin to taxpayers giving dollars to establishing religiono Prayer = clearly religiouso Struck down prayer as violation of establishment clauseo DISSENT – STEWART

NY not coercing- Wallace v. Jaffee (1985) – STEVENS

o Alabama law authorizing schools to set aside one minute at the state of each day for mediation or voluntary prayer

o State action = authorizing that moment of silence could be for prayero Addition of “prayer” takes away secular purpose

Thus violating Lemono Overturned lawo CONCURRENCE – O’CONNOR

Key is not coercion, but if state ENDORSED religion- Leee v. Weisman (1992) – KENNEDY (only wrote for himself) b/c no test agreed upon

o RI middle school invited rabbi to read nonsectarian prayer at graduationo Proponent of coercion test

Did State Actor coerce children to embrace religion? Age of kids middle school kids are impressionable Graduation ceremony not voluntary to not attend State pretty much forcing participation through indirect social

pressureo Challenge to law sustained o CONCURRENCE – BLACKMUN

Need more than just freedom from coercion Gov’t cannot coerce religion or even convey a religious message as

“preferred” By hiring Rabbi state saying they prefer Judaism

o CONCURRENCE – SOUTER Ceremonial messages especially coercive b/c given to captive audience

Need more than just freedom from religious coerciono DISSENT – SCALIA

Proponent of penalty test If a criminal law imposing a penalty or a civil law imposes taxes

based on religion this is a penaltyo Nothing else qualifies

No penalty hereo Even under penalty test would find violation of EC if

there was prayer in school b/c school is mandated

Graduation not mandatory Speaks in terms of history and tradition

- McGowan v. Maryland (1961) – WARRENo Rejected claims that Sunday Closing Laws violated religious clauseso Evolution of religious rule to secular purpose (satisfies Lemon)

- Marsh v. Chambers (1983) – BURGERo Nebraska Legislature opens each legislative day with prayer made by chaplain

that is chosen by legislatureo Relies on History and Tradition

Prayer was performed for 200 yearso Perhaps BURGER was anticipating ENDORSEMENT testo DISSENT - BRENNAN

Legislative prayers clearly violate principles of neutrality and separation embedded in establishment clause

Injects religion into the political sphere Violates Lemon

o DISSENT – STEVENS State implicitly showing that it prefers one religion over another because it

chooses the chaplain- Lynch v. Donnelly (1984) – BURGER

o RI town erects Christmas display every year with crèche along with other secular symbols like Santa; putting up of crèche paid for by city

o Lemon test is only ONE way to measure violations of the ECo No coercion here b/c this is part of a legitimate secular purposeo NOT a subtle expression of gov’t coercing people into religion o Upheld displayo CONCURRENCE – O’CONNOR

Modifies Lemon test 1) too much entanglement with religious institutions (not v. impt) 2) endorsement/disapproval of religion (2nd prong of lemon)

o Look at purpose/effect of legislationo LOT of weight on second prong

Constructs “reasonable observer standard” Look at what the gov’t has done in terms of what a reasonable,

historically informed observer would see

Question is whether RI endorsed Christianity Not endorsement when just using religious symbols

o DISSENT – BRENNAN At least 3 principles must be satisfied to clear EC violation

1) gov’t may act to accommodate to some extent the opportunities of individuals to practice their religion

2) gov’t sponsored practices that stemmed from religious practices can continue today as long as they are continued for a secular purpose

3 gov’t cannot be completely prohitibted from recognizing in its public actions the religious beliefs and practices of the America people as part of our national culture and history

Creche foster’s excessive gov’t entanglement Nativity is NOT secular either

- Allegheny County v. American Civil Liberties Union (1989) – BLACKMUNo 2 things at issue: Crèche display at county court house without any other secular

symbols AND menorah placed next to Christmas tree and “Salute to Liberty” sign at city-country building a block away

o For the Crèche Maj. Used “endorsement test” (adopted from O’CONNOR)

Found that since the crèche was an endorsement of religion b/c it was not situated near other secular objects (unlike Donnelly)

DISSENT - KENNEDY Said that the endorsement test reflected a hostility towards religion Go back to “no coercion” analysis Would find no violation b/c standing crèche is a “tradition”

CONCURRENCE – O’CONNOR, BRENNAN, STEVENS Defended use of endorsement test Coercion test fails to embrace religious pluralism Coercion test fails to show subtle gov’t favoritism

Overturned crèche display as violation of ECo Menorah –BLACKMUN

Still using endorsement test Found that this was a more pluralistic setting b/c different religions + secular message No endorsement CONCURENCE – O’CONNOR

Need to concentrate on effect of gov’t action No endorsement here, but concentrate on second prong of modified

Lemon more This = akin to acknowledgement of religion (like in god we trust)

DISSENT – BRENNAN/STEVNS Menorah is indisputably a religious symbol Applies Lemon test

o No secular purpose hereo Advances Chanukaho Fosters entanglement b/c gov’t pays for care

All 3 prongs violated- Zelman v. Simmons-Harris (2002) – REHNQUIST

o Ohio had program to help low income students attend better schools w/ tuition voucher. 96% of these vouchers used to send people to religiously affiliated private schools

o Narrow Question – whether the vouchers constituted direct aid to religious schools (violation of EC under McCollum)

o Maj. Focuses on indirect means of funding Gov’t gives money to parents Who then make private choices about where their kids go to school

Must be evaluated differently than direct aido Applied Lemon test as 2 prong test:

Secular purpose = education (OK) Enhance/inhibit religion (purpose/effect prong) no b/c it’s indirect aid

o No violation of lemon test foundo CONCURRENCE – O’CONNOR

This is a break from precedent All educational alternatives (not just these schools) need to be considered Goes back to endorsement test no violation

o CONCURRENCE – THOMAS Defines education as a liberty interest Neutral programs should not affect this liberty interest

o DISSENT – SOUTER Vouchers – overwhelmingly go to religious education Since most private schools are religious is not voluntary Coercion of religious ideals (violation of EC)

- Board of Ed v. Mergens (1990) – NO MAJORITYo Equal Access Act of 1984 provided that public secondary schools receiving fed.

finaid has limited opp. to deny equal access to students wishing to conduct a meeting on the basis of the religious….content of the speech at such meetings

o Ct interpreted the ACT broadly o Found NO EC violation b/c school o O’CONNOR/REHNQUIST/WHITE/BLACKMUN

Act itself was secular in purpose (prong 1 of Lemon) No promotion of religion (no endorsement) (prong 2) at secondary

level, kids are mature enough to know this is not state sponsored speecho CONCURENCE – KENNEDY, SCALIA

Once again rejecting endorsement test for coercion test with no coercion found here

o CONCURRENCE – MARSHALL, BRENNA Schools needs to specifically separate itself from religious speech

- Cutter v. Wilkinson (2005) – GINSBURGo Religious Land Use and Institutionalized persons Act – gov’t can’t impose

substantial burdens on the religious exercise of prisoners without passing SS

o Davey – Gov’t can “play the joints” to accommodate religion w/o prisoners without endorsing

o RLUIPA OK b/c it was a narrow provision, balanced against other interests, passes SS

o