Comparative Con Law Outline 2009

Comparative Con Law 2009 PART I: FOUNDATIONS Major issues: 1. Understand how and why a particular jurisdiction answers a question the way it does 2. What if, anything, can the US learn from these jurisdictions, in light of relevant differences b/t them? When, if ever, should the US use foreign law? Modes of Comparison A. Originalist/genealogical: 1. Useful comparison is possible when the legal systems share many of the same constitutional starting points. Similarly situated decision makers, facing parallel questions, can be an important source of insight. It focuses on the internal logic of particular legal principles or the relationship b/t those principles or specific rules. 2. Prob: the Supreme Court’s use of originalism is often embodied in their interpretations. Thus, such insights might have little relevance unless they have the strongly backwards-looking approach that focuses on the proper meaning to be given to principles already embodied in the text or the originalist understanding of the Constitution. 3. Prob: Legitimacy- the more that value judgments are called for, the more difficult it is to rely on outside sources of justification B. Deliberative: 1. Sort of like secondary sources; have added rhetorical value b/c analysis comes from other learned scholars 2. Legitimacy: based on the existence of real-world consequences, reasons and experience 3. Persuasive value: public will accept 4. Posner: we have to be worried about rhetoric that isn’t quite right on all fours C. Empirical: 1. Empirical evidence can usually support both sides 2. Context is very important 3. Have to be wary of mixing up causation with correlation and possibility vs probability D. Moral-cosmopolitan: a consensus on a value judgment might be worth following 1. Posner/Sunstein and Independence: comparing allows US courts to gain insights about the moral conclusions of a large number of relatively independent constitutional decision makers who have access to diff information. Thus if they all arrive at the same morally correct answer, the collective action decision reached will reveal a truth rather than reflect one entity’s idiosyncratic preferences. a. Requirements: 1) Independent 2) Moral judgments 3) Against similar backgrounds or conditions b. If two people are answer the same question that has two possible outcomes, and each has a greater than 50% chance of being correct, then the probability of reaching the right answer increases as the group increases. c. Juries: each juror has access to private information as well as the public trial information. If they all make decisions based in part on both the private and public information, then the decision reached is more likely to be correct as the number of jurors increases. 2. Waldron and Interdependence: if the global community reaches a consensus after having deliberated and gone through iterative processes of refining and re-testing decisions, then such conclusions should have the equal force of scientific conclusions that have undergone testing and re-testing. Encourages a rich marketplace of ideas whereby sound ideas win out after having been implemented successfully. Coercive compliance with the consensus isn’t the same thing. E. Reflective: see how things have changed by examining a small subset of like-minded countries Background on the countries we’ll study: A. Canada 1. Provincial trial ct makes decision; gets appealed to the SC of Canada 2. SC of Canada = court of general appeal so it can hear c/l cases, cases in equity as well as federal and constitutional q’s B. India 1. 21 provincial High Courts can hear constitutional questions; have original jurisdiction as well 2. Supreme Court of India has 30+ judges who sit in groups of 3 (Division Bench) for most cases, w/ groups of 5 to hear major cases (Constitutional Bench) 3. SCI has original (intra-govt), appellate and advisory jurisdiction; hears constitutional as well as nonconstitutional questions. 1

Comparative Con Law 2009 C. Germany 1. Has a Constitutional Court which only hears constitutional issues 2. Can hear cases in the abstract (ie before any injury has occurred) or after injury has occurred 3. (Contrast w/ the Kelsen court: before a law went into effect, the court would be asked to look at its constitutionality; once passed, no private party could challenge) D. South Africa 1. SA Constitutional Court: so limited jurisdiction; can hear abstract questions (almost never does) but mostly concrete questions. 2. No discussion of standing or advisory opinions but it’s being pushed by the govt to have these issues settled The Death Penalty and Comparative Engagement: Case Studies Burns (Canada) 1. Roper (US) Makwanyane (South Africa, 1995) A. Relevant provisions: Sec 11(2) of the Interim Constitution: No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment. B. Sec 9: Everyone shall have the right to life. C. Sec 10: Every person shall have the right to respect for and protection of his or her dignity D. Issue: in light of constitutional provisions on a seemingly unqualified right to life, the right to dignity and the right to be free from cruel, inhuman or degrading punishment, is the death penalty constitutional? E. Holding: No it’s not constitutionally justifiable. South Africa, b/c of its unique history, is committed to not exacting full retribution and under a Kantian version of human dignity, deterrence is not a valid enough reason. F. Background history: 1. African National Congress is in power, lead by Mandela. 2. This was a deliberated transition from an apartheid system thus the concessions b/t the outgoing white majority and incoming black majority; an interim constitution was drafted w/ certain provisions that must be in the final 3. This is about the interim constitution. The issue of the DP was not decided upon (out of fear that it would be used against the outgoing pro-apartheid govt) and it was well known that the issue was being punted to the supreme court. G. Relevant constitutional provisions: 1. 11(2): prohibits cruel, inhuman or degrading punishment (to be read disjunctively) 2. 9: everyone has the right to life (seems to be an unqualified right, unlike the US and due process that leads to rights violations) 3. 10: everyone has the right to dignity 4. 33(1): a depravation of rights is permissible if it’s “reasonable” or “justifiable in an open and democratic society.” Requires a 2-step analysis: (now Sec 36) a. Is there a right? b. If so, can the limitation be justified in an open and democratic society? Use enumerated factors. c. This seems sort of like varying levels of scrutiny that constrain discretion; here the inquiry is holistic. H. Reliance on foreign law? 1. Cruel and unusual: a. Customary international law, international agreements and international tribunals  moral-cosmo reliance b. Cites Brennan for the proposition that dignity is at the core of the prohibition on cruel and unusual punishment  deliberative c. Citing Germany’s holding that capital punishment is a serious impairment of human dignity  deliberative (Kant would say that you have to treat people as ends unto themselves; can’t treat them as objects) 2. Right to life? a. There’s no international consensus against the DP b. But there is a moral-cosmo consensus that life is important; thus state has to meet a very high bar to justify the DP if life is so important I. Analysis: 1. Framework: limitations on fundamental rights have to be justified under Section 33 a. Is there a right? b. Purpose must be reasonable and necessary in a democratic society 2

Comparative Con Law 2009

c. Weigh competing values by balancing. Proportionality will turn on the importance of the govt objective 2.

3.

AND its constitutional grounding Balancing a. Deterrence, prevention and retribution vs alternative punishments; factors that make the DP cruel, inhuman and degrading; destruction of life; annihilation of dignity; elements of arbitrariness; inequality and possibility of error in the judgment b. You don’t forfeit any constitutional rights just by being a criminal—so the right to life and dignity are not automatically forfeited by a convicted murderer. c. Yes, imprisonment does impair dignity; the fact that their freedom has been curtailed doesn’t legally justify further curtailment (relative to whatever crime they committed) d. The right to life and dignity are the most important of all human and rights. Thus these two are valued above all else. These values are not upheld when the state objectifies murderers by the DP, in the hope that it will deter others. e. Balancing: 1) Costs: Loss of dignity and life (most important con/HR values) against 2) Possible Benefits: retribution (Court says this cannot by definition outweigh dignity/life) and deterrence (which is a valid reason at this time) f. Conclusion: costs are too high. How is dignity implicated? 1. Under Kant, deterrence isn’t a valid reason b/c can’t use people as a means to an end. 2. Retribution might be ok under Kant but isn’t good enough given the history of the region and the apartheidera use of retribution

Bachan Singh v Punjab (India 1982) A. Facts: Singh was tried and convicted of murder. He’s been sentenced to the DP and now argues that the penal code provision calling for the DP is unconstitutional under Article 19 of the Constitution. B. Issue: Does the DP violate the Constitution? If not, does the sentencing procedure violate the Constitution? C. Held: The DP does not violate Art 19(1). The sentencing procedures don’t violate Art 21. D. Test: 1. Does the impugned law, in its pith and substance, deal w/ any of the fundamental rts conferred by A 19(1)? 2. If so, does it abridge or abrogate any right? 3. If not, then is the direct and inevitable effect of the impugned law to abridge those rights? 4. Next: a. Remote or collateral effects on those rights don’t satisfy the test b. If the answer is yes to any of those questions, the impugned law, in order to be valid, must pass the test of reasonableness under A 19. c. But if the impact on the rights are merely incidental, indirect, remote or collateral or depend on factors which may or may not come into play, the anvil of A 19 is not available to judge its validity. E. Rules: 1. Pith and Substance: does the law aim to burden a right? Is the purpose of the law to burden the right? Is the law designed to impose a burden on the penumbral rights associated here? 2. Effects Test: is the direct and inevitable impx a burden on the right a. This is like Yick Wo/Washington v Davis—disparate impx are enough to burden b. Or explicit classification that is the burden F. Is Art 19 violated? No. 1. Test: P’s burden to rebut presumption of constitutionality a. Does the impugned law, in its pith and substance, deal w/ any of the A19 rights? No. b. If not, is the direct and inevitable effect to abridge those rights? No. 1) The deprivation of freedom is not a direct and inevitable consequence of the penal law. 2) The deprivation is merely incidental to the order of conviction. 3) You get tried for murder it’s not automatic that you’ll get the DP. Plus the law provides for exceptional circumstances, so it’s not a direct or inevitable outcome. 4) Weird argument. 2. A19 enumerates a bunch of rights but the claimant is arguing something of a penumbra: that the general right to life is a priori in order to give rise to the more specific enumerated rights. It’s not specifically discussed though at this time, there is an understanding that there are more general rights. 3. Assuming that that the Pith and Substance or FX test is satisfied and you move on to the reasonableness inquiry: a. The legislature is not required to choose the least severe penalty possible as long as it’s not cruelly inhumane or disproportionate to the crime. 3

Comparative Con Law 2009 b.

Heavy burden on the claimant to prove unreasonableness when the penalty scheme is the outcome of a democratic process. c. It is reasonable b/c it serves the penalogical purpose: 1) Use of international law: A) US stats and cases – DP is democratically favored even when judges rejected the DP B) Bill to reinstitute the DP in Britain was narrowly defeated C) Upshot: b/c there’s no international consensus that it’s devoid of purpose or utility and reasonable people disagree on it, it’s reasonable for India to have it. 2) SCI reads in c/l principles of mitigating/aggravating factors to cut against an argument that the DP is arbitrary. G. Is Art 21 violated? No. 1. Art 21: no person shall be deprived of his life except by procedures of law (India is very concerned about procedural due process and the drama of the Lochner era) 2. Procedures of law: refers to meaningful process but not as strong as substantive due process; process must be “right and just and fair” and not “arbitrary, fanciful or oppressive” 3. So hard to win on this b/c so narrow. Is dismissed quickly. H. This decision is used to avoid granting the DP in India. SCI reads in the aggravating and mitigating factors in such a way that it’s used to restrain sentencing of the DP. Thus DP is not done as often as it could be done. German Life Imprisonment Case (1977) A. Facts: a lower court referred a murder case to the GCC. The relevant murder/manslaughter statute called for life imprisonment in extreme cases such as homicide to satisfy sexual urges and homicide as the result of greed etc. B. Issue: Do the life imprisonment statutes violate the human dignity clause of Art 1, Sec 1 of the Basic law? C. No. D. Reasoning: 1. Framework of Art 1, Sec 1: a. Art 1, Sec 1 as a constitutional norm: every penal sanction must bear a just relation to the severity of the offense and the guilt of the offender. The command to respect human dignity means that cruel, inhuman and degrading punishment is not allowed. b. Deterrence is not a valid goal of punishment as the state cannot usea person as an object to deter. This would strip him of his constitutionally protected right to social worth and respect. c. It’s inconsistent w/ the concepts of human dignity to forcefully strip a human of his freedom w/o the human having at least the possibility of ever regaining freedom. 2. There’s no violation of Art 1, Sec 1: a. The inviolability of the dignity of man means that lifetime imprisonment still requires rehabilitation. The ultimate goal is for the criminal to re-enter society after having atoned for his crime. Thus he must be given that chance to re-enter and that requires ongoing rehab. b. Lifetime imprisonment is only humane if the criminal has a concrete and principally attainable possibility to regain freedom at a later point. There has to be hope that the criminal will be allowed to leave—this hope is what makes the imprisonment bearable and reinforces human dignity.

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Comparative Con Law 2009

PART II: EQUALITY 1. Foundational Cases Relevant Constitutional Law Canada Section 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Sec 15: Equality (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. US 14th Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. South Africa Sec 8 of the Interim Constitution (now Sec 9) (1) Every person shall have the right to equality before the law and to equal protection of the law. (2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language. (3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms. (b) … (4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established. A. Brown v Board of Education 1. Sweatt/McLaurin/Gaines: lots of intangible benefits of established schools can’t be mimicked; SC is chipping away at the separate but equal doctrine 2. Statute: 14th Amendment, EPC 3. Revisionism: Sc says that the growing importance and understanding of public schools has changed since Plessy and the ratification of the Reconstruction Amendments, thus the mood on public schooling has changed 4. Originalism: SC asked both sides to brief the issue of education at the founding  is inconclusive. 5. Test: is there social stigma or intangible psychological harm? If so  unconstitutional. 6. Brown is about dignity and equal opportunity of Af-Ams; is rooted in the history and c/l evolution on intangible benefits. 7. It is notabout subordination and getting rid of hierarchy based on group membership. (Jim Crow laws had the structure of creating pervasive legal subordination) Why not go this route? a. It’s too controversial compared to an already controversial subject. b. Might have lost unanimity on the opinion. (Price of unanimity is a watered down language and remedy) c. Brown II: “with all deliberate speed” certainly didn’t provide guidance. 5

Comparative Con Law 2009 8.

Is this a clear test for racial discrimination? a. No. It’s a clear pushback to Jim Crow laws. Ambiguous as to the framework. b. Brownis re-read to standing for the use of SS for race-based classification and the idea that separation based on race is inherently unconstitutional let alone workable. It’s not read for dignity, opportunity or subordination though there are some references to dignity and opportunity. 9. Prof: Brown would fail on narrowly tailored to achieve a compelling state interest B. Andrews v Law Society of British Columbia 1. Facts: Andrews, a permanent resident, wants to practice law but Canadian law says only citizens can; permanent residents have to wait for 3 years before citizenship can be acquired. 2. Relevant Law: Sec 15(1) a. “Before the law”- formal rule of law guarantee b. “Equal protection” – US formulation (of a negative right?) c. “Equal benefit” – more substantive maybe, seems more like a positive right d. Enumerated list of bases of inequality: race, national or ethnic origin, religion, sex, age or mental or physical disability 1) Compare to the US: Religion (SS); Sex (IS); Age (RBR); Disability (RBR+) 3. Approach: What framework? a. Hogg (rejected)-All distinctions engage Sec 15. Then move to Sec 1 and ask whether the law comes w/in “such reasonable limits prescribed by laws” that can be “demonstrably justified in a free and democratic society.” 1) Ct rejects: if you do this, then no separate investigation into discrimination and discrimination as an enumerated prohibition loses its meaning b. McLachlin (rejected)-ask if a “fair-minded person, weighing the purposes of legislation against its effect … and giving due weight to the right of the legislature” 1) Ct rejects: too front-loaded c. Enumerated grounds is the best approach. 4. Andrews Enumerated Grounds Test to determine if there’s a prima facie violation of equality a. Equality standard: equal application of the law, not equality generally b. Is Sec 15 engaged? 1) Is there disparate impact? 2) Has a distinction on the basis of an enumerated or analogous ground of Sec 15(1) been made? A) Enumerated: Race, national or ethnic origin, color, religion, sex, age or mental or physical disability B) Ie: stereotyping, historical disadvantage, prejudice 3) If so, does it rise to the level of discrimination? A) “A distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.” B) Have to show that the legislative impact is discriminatory. c. Does 15(2) save it? If not go to Sec 1 d. Sec 1: is the law a reasonable limit which can be demonstrably justified in a free and democratic society? (ie, is the limit a legit exercise of legislative power?) 1) State has to explain the objective/purpose of the law at issue. A) All of the objective/purpose analysis comes in for the first time at this stage. B) NB: Oakes held that to override a Charter right, the law must relate to “pressing and substantial” concerns in a free and democratic society; but don’t apply when the law at issue is largely administrative or regulatory. 2) Proportionality component or balancing A) Nature of the right B) Extent of its infringement C) Degree to which the limitation furthers the goal of the law D) Importance of the right to the individual or group concerned E) Broader social impact of the impugned law and its alternatives 5. Application to these facts: a. Is there disparate impact? 1) Yes, a distinction has been made b/t citizens and noncitizens. 2) Sec 15(1) rights apply to all persons, not just citizens. 6

Comparative Con Law 2009 b.

C.

Does it rise to the level of discrimination? 1) Yes, permanent residents have to wait for 3 years. Thus the distinction imposes a burden in the form of some delay on permanent residents who have acquired all of their legal training. 2) Citing Carolene Products, non-citizens are a good example of a “discrete and insular minority” deserving of protection of Sec 15. c. So Sec 15 is engagedgo to Sec 1. d. What is the nature and purpose of the enactment? 1) The valid and desirable social purpose of creating and regulating the legal industry. e. Balancing 1) The disadvantages to the permanent residents is too great to be justified. 6. The majority and dissents agreed on the framework but disagreed on the reasonableness of the limitation in the Sec 1 analysis. 7. True proportionality: explicit cost-benefits analysis; true proportionality not done here 8. Compare to the US: a. Canada does less work at the Sec 15 analysis—most of the analysis comes at the Sec 1 analysis. This is unlike the US where sorting into which level of scrutiny largely determines the outcome. b. Overinclusiveness/underinclusiveness are characteristics of the SS or IS analysis in the US; the presence of those traits influences how much deference to give to the legislature; Canada is less concerned w/ crisp tailoring. c. SCC says public policy rationale is reserved for the legislature. Law v Canada (Minister of Employment and Immigration) 1. Puts a gloss on the Andrews framework. 2. Facts: Plaintiff, a 30 year old widow, was denied survivor’s benefits under the Canadian Pension Plan which granted benefits generally starting at age 35 for able-bodied surviving spouses. 3. Law clarified the purpose of Sec 15(1): to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice and to promote a society in which all persons enjoy equal recognition at law as human beings and as members of Canadian society, equally capable and deserving of respect, concern and consideration. 4. Law Test: a. Does the law draw a distinction b/t the claimant and others, in purpose or effect? 1) On the basis of personal characteristics 2) Or by ignoring their already disadvantaged position b/c of personal characteristics? b. Is the distinction based on enumerated or analogous grounds? c. Does the law have a discriminatory purpose or effect w/in by imposing burdens or withholding benefits or perpetuating or promoting the individual as less worthy or capable as a human or member of Canadian society? (dignity concerns overlay the opportunity and group-based distinctions analysis) 1) To determine whether dignity was demeaned, construe dignity harms both subjectively and objectively. 2) Subjective: The claimant must show dignity harms by reference to: A) Pre-existing disadvantage, stereotyping, prejudice of vulnerability by the individual or group B) Correspondence or lack thereof b/t the grounds on which the claim is based and the actual need, capacity or circumstances of the claimant or others (if law takes into account claimant’s circumstances that form basis of claim, harder to make out a claim) C) The ameliorative purpose or FX of the law on a more disadvantaged person or group (if the law helps out the disadvantaged at the cost of the advantaged-claimant, harder to make out claim) D) The nature and scope of the interest affected by the law 3) Thus, the claimant now bears the burden of proving intent to discriminate. 4) Usually, if differential treatment is based on an enumerated or analogous grounds, then there’s some presumption on finding a Sec 15(1) violation. d. Then do the Sec 1 analysis. 5. Application: 1) Yes the law draws a distinction b/t the claimant and others. 2) Yes the distinction is based on the enumerated ground of age and perhaps disability. 3) Does the law have a discriminatory purpose or effect by undermining dignity? A) Use the subjective and objective viewpoints. B) No pre-existing disadvantage; she’s not part of some historically underprivileged minority. C) Ameliorative purpose: There’s a real need for this legislation and as a young able-bodied person, she’s more advantaged than disadvantaged. D) In the long run, denying her these benefits will force her to work harder and become self-reliant, thus the legislature is actually helping her to self-actualize, thereby enhancing her dignity. 7

Comparative Con Law 2009 4) Thus under Sec 1, it’s a reasonable limit. This kind of a case could be problematic as it’d be a drain on dockets and state resources. This is diff from Andrews: a. The law’s allegedly discriminatory purpose analysis shifts from Sec 1 to Sec 15. b. In order to make out a successful claim, the claimant must show that the law conflicts with the purpose of Sec 15. c. Allows the courts to bow out of finding a violation every time there’s a distinction by focusing on comparison and dignity harms. D. President of the Republic of South Africa v Hugo 1. Facts: President Mandela decided to pardon mothers in prison w/ minor kids. Male prisoners w/ dependent children who have no other primary caregiver challenged the decision as violating Sec 8 of the interim (now Sec 9) constitution. 2. Held: It’s constitutionally permissible to pardon mothers w/o similarly pardoning men. 3. Reasoning: a. Sec 8 (Sec 9) analysis: 1) Is there a differentiation in treatment? 2) Is it discrimination? 3) Is it on specified grounds or analogous grounds? A) Specified  unfairness is presumed B) Analogous  claimant must prove unfairness 4) Is the unfairness rebutted by the state? A) Nature of the power? B) Purpose of the law or rational connection? i) Ameliorative purpose? C) Nature of the interests affected? i) Dignity ii) Or seriously affect in a comparable manner b. Application 1) Yes there’s a differentiation in treatment. 2) B/t men and women—specified ground of gender –unfairness is presumed. 3) Is unfairness rebutted? A) Power: executive orders are discretionary; it’s a common democratic power to pardon and is inherently selective B) Interests affected i) Many male prisoners ii) In the background, there seems to be a notion that most of these women are lower level offenders whereas male offenders would be more dangerous unless they were differentiated on the basis of specific crimes iii) This is not a severance of father’s rights; it’s a temporary delay of giving them back their parental rights. iv) Dignity: father’s dignity not impaired b/c it’s not an insult to their capacity as fathers. c. SA makes a distinction b/t fair and unfair discrimination. The key distinction is whether or not dignity has been harmed. If there’s discrimination but no dignity harms, then it’s fair and usually considered to be a “necessary (but impermanent) evil” on the road to reaching an egalitarian society. d. Equality doesn’t mean equal access to benefits but rather, each person is treated w/ equal respectin the decision making process. That means that there interests of those disadvantaged by a decision should be factored into whether or not the general interest is served given such losses. This requires balancing the interests of the community along with those disadvantaged. 4. Dissent a. This relies on the stereotype that women are better caregivers b/c it makes the distinction on gender. b. Can’t rebut unfairness by relying on a reason that itself is based on an overgeneralization that mothers are more important than fathers. c. It’s insulting to the dignity of both men and women to perpetuate the idea that women are better caregivers. d. There’s no suggestion that there’s an ameliorative purpose or that this is a measure to combat the subordination of women. e. If this is meant to help women, then should be more clear. 6. 7.

2. Race-Based Disparate Impacts

A. Washington DC v Davis 8

Comparative Con Law 2009 1.

Facts: black police officers challenged the test used by the police department alleging that it had the effect of keeping blacks out of the department. 2. Held: Showing disparate impx isn’t enough—to make out a claim, the plaintiff has to prove the legislature acted with discriminatory intent. (Sometimes discriminatory FX can be so strong as to give rise to the inference of intent, ie Gomillion) 3. The plaintiffs could’ve argued under critical race theory that the test perpetuates race-based policies b/c it’s based on education standards that themselves are racially problematic, especially for blacks. 4. Possible harms that P can argue: a. Opportunity b. Dignity c. Hierarchy/Subordination d. Brown has all 3 going for the plaintiffs. 5. Dignity + Law v Canada a. Law said that by denying the petitioner benefits, the court is forcing her to meet higher objective stds and that’s good for her self-actualization and self-respect b. Could say the same thing here: by not calling the test problematic, the court forces applicants to reach higher stds, which is good for their dignity B. SA’s Harksen Test for unfair discrimination in Sec 9 Analysis: 1. Is there a distinction? 2. Does it amount to “discrimination?” a. If it’s on a specified ground discrimination is established b. If it’s not on a specified ground, then whether there’s discrimination will depend on whether the ground is based on attributes and characteristics that have the potential to impair fundamental human dignity or harm them in a comparable way c. Discrimination can be direct and indirect (facially neutral that has the FX of discrimination; intent is not required to prove discrimination) 3. If there’s discrimination, is it “unfair?” a. If discrimination on specified ground  unfairness is presumed b. If on an unspecified ground  claimant has to prove unfairness c. (Test of unfairness focuses primarily on the impx of the discrimination on the complainant and others in his situation) d. State must rebut the unfairness by showing fairness. Fairness factors: 1) Purpose of law? To ameliorate past harms? 2) How vulnerable is the group affected? What is the dignity harm? 3) Dignity (is a separate fairness component) OR impairment of a comparably serious nature A) Self worth (right to be free from stigma/persecution) B) Threshold level of capability (right to be free from threat of prosecution) 4) Intent to discriminate is useful but not required C. City Council of Pretoria v Walker 1. Facts: Pretoria is an important city, one of the capitals, the de facto national capital, is Afrikaans-speaking and a stronghold for the ANC; has symbolic significance. Post-apartheid, predominantly white neighborhoods had metered rates for tariffs on water/electricity consumption. The black sections were on a flat rate through some had meters but were not used yet, out of fear for violence. The city was phasing in the use of meters. City also lied to the white residents about the rates they were getting. This creates a bit of an issue as to whether this is racially motivated or geographic. a. Walker first argued that the law violated 8(1) and that 8(3) didn’t save it. b. Walker then argued a violation under 8(2). 2. Issue: Walker, a white, challenged the whole scheme when he was sued for nonpayment. He argues that it’s unconstitutional under Sec 8 (now Sec 9) of the interim constitution, for being racially discriminatory. 3. Held: Although Walker made out a claim for discrimination under Sec 8(2), the state successfully rebutted the presumption of unfairnessas to the facial challenge. However, the lying is a violation of dignity. 4. Application to the facial challenge: a. Is there a distinction? Yes. b. Is there discrimination? Yes. c. Is it direct or indirect? The impact is sufficiently racial that the distinction or discrimination is on the basis of race, indirectly. d. Unfairness rebutted? Yes 1) Nature of the group? A) Despite their past power, Walker’s group is now vulnerable 9

Comparative Con Law 2009

2) 3) 4)

5)

B) Economically powerful but politically vulnerable C) Huge ANC majority makes white minority potentially powerless Nature of the rate-setting power? A) Rate setting is always about power and line drawing B) So some good intentions, ie wanting to avoid violence, but not enough to rebut unfairness Purpose? A) An ameliorative purpose is relevant to the fairness inquiry B) Pretoria is trying to do the right thing, and that counts for something Interests affected? A) Facially, the policy itself doesn’t invade Walker’s dignity objectively though he was subjectively insulted. B) Application though violates his dignity b/c the city is lying about the rates and white residents were targeted to be lied to Result? A) Facial challenge doesn’t violate the Constitution; city rebutted the unfairness B) As applied violates the Constitution; city can’t justify lying.

What would the US court say about dignity? A. Dignity concerns has the ability to ask the individual to sacrifice a lot in the name of the community’s health; we generally don’t ask people to sacrifice in the name of some greater good; we don’t impose certain kinds of duties. B. As a test, it’s very slippery b/c it grants a lot of discretion to the court to determine what it thinks is wise, and that might undercut the role of the legislature. US cts generally take the position that they don’t substitute their own wisdom for that of the legislature’s. Is the SAC overreaching its judicial bounds and encroaching on democracy? A. Maybe not: The elected Council made the decisions about the rate-setting, the differences and the phase-in 1. The lying and selective enforcement decision was made by bureaucrats (whom we also assume to be democratically accountable). 2. The selective application is not a written policy. B. But the Court might be saying that you Council can’t do it in this sloppy incoherent way. If this policy was written and clear, then maybe the Council could’ve gotten away with it. The Court is exercising its powers in a way that leaves a lot of discretion to the Council to do what it wants. 1. If this program was ok’ed under 8(3) aff action grounds, then that might be problematic and regressive as it’s limitless and any kind of program that grants benefits to one group w/ costs to the other could be green-lit. 2. Can’t use other parts of the constitution like property rights to be a backstop to excessive aff action b/c that would heavily protect the white minority and that’s the last group and right that they want to give a robust reading to. 3. Walker has to pay and the Council can’t keep doing this in secrecy—kind of balancing b/c judiciary wants to help other branches of govt to sell the idea that everyone has to do their part; don’t want everyone to resort to self-help like Walker did Can Walker be used to explain Washington v Davis? 1. If the US was going to look at cases based on disparate impx, then that would explode the number the claims and clog the ct’s docket. 2. Title VII: does look at impx for disparity and discrimination. So it’s possible to address discrimination claims in terms of disparity of impx. A. SoP and federalism B. If you didn’t like the law, you could change Title VII but changing constitutional law is much harder to either amend the constitution or change the justices. C. SA Con: very weak form of f’ism. Much easier to amend than the US; 3. Histories? A. In Walker, the problems are far more recent. B. Davis: much greater reliance on case law and less on textual sources. There’s a plausible argument that the Reconstruction Amendments were meant only to protect against state-sponsored discrimination more along the lines of slavery. C. The SA Constitution is more explicit but the SA Con is explicit about repealing apartheid as well as the achievement of a nonracial society.  similar histories but very diff reactions 4. Textual differences: A. SA explicitly discusses direct and indirect discrimination. Indirect is on the same footing as direct. 1. Might say that the USSC and SA CC got it right given their own texts. 10

Comparative Con Law 2009 5.

6.

B. If the text is key, then Walker might have less to say about Washington v Davis SA has the Hugo-Harksen framework whereas the US, after Brown, is committed to SS. A. SS makes it very hard to uphold the law. B. SA Test creates a leaning that the rule is presumptively unfair but that is a rebuttable presumption thus it’s for sure easier to uphold a law. C. If the US had decided Davis the other way, it would’ve had to nuance its SS analysis or else it was committing itself to very searching scrutiny. D. The SA commitment is less searching and is doctrinally diff b/c the SA, even on a finding of unfairness, doesn’t automatically tilt it to the unconstitutional side. E. In the US, the lower cts do a lot of the work of deciding equal protection cases. SA had a diff structure: for 2 years, no decision could be implemented until it was signed off on for being invalid by the Constitutional court (much of the old judges had stayed on). If there’s a con q, it’s very likely that it’ll reach the con ct whereas US has more discretion over choosing its own docket. Point of View A. Dissent in Davis: would’ve reviewed purpose B. SA: multi-racial court C. Point of view of legislature: are they intending to discriminate  US point of view D. PoV of victim: how does this law affect the recipient? More used in SA. E. Critical race theory: the US is too focused on legislature and we should be more multiple-viewpoint oriented F. Realist overlay: 1 black judge vs a critical mass of black judges changes the perspective that the court will have.

3. Equality and Affirmative Action 9. Equality (SA) 1. 2.

3.

4. 5.

Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

D. Minister of Finance v Van Heerden (SA 2004) 1. Facts: After new Parliament is elected in 1994, the new rules include a new pension plan scheme whereby the state would pay higher contributions for the new members of Parliament (79 % black). Returning members (from the apartheid era, mostly whites)) would be under the older scheme which paid out less. 2. Issue: Does the 2-pension scheme violate the equality provision of the Constitution? 3. Held: No. E. Moseneke Reasoning: 1. No violation, decide this under 9(2). This is restitution and not discrimination. 2. 9(1): formal declaration about the formality of (positive and negative) equality rights. 3. 9(2): aff action programs are permissible. a. 9(1) and 9(2) are complementary to each other. b. Aff action ≠ positive discrimination or reverse discrimination 4. Mosekene Analysis:any restitutionary measure, even if based on a 9(3) basis for discrimination, must pass muster under 9(2). If so, then can’t be presumed to be unfairly discriminatory. a. Target: Does the law target people who have historically been discriminated against? b. Purpose: Does the law serve an ameliorative purpose? c. FX: Does it promote equality? 1) Look at larger societal context 2) Some measures might come at a price for those who were previous advantaged 3) Measure should not constitute an abuse of power or impose such substantial harm on those excluded such that our long-term constitutional goals would be threatened. 11

Comparative Con Law 2009 5.

Application: a. Target 6. Moseneke is ok w/ some costs to achieve long-term equality F. Mokgoro’s Reasoning: 1. No violation, decide this under 9(3). 2. Historically, the inequalities perpetuated by the entrenched minority were used to suppress, degrade and dehumanize the majority. 3. Why doesn’t this go under 9(2)? a. This appears to be restitution based on race. But it’s not clear that all the members of the newly advantaged class constitute a majority of the historically disadvantaged class. Thus not all the new beneficiaries have been the victims of discrimination. b. Thus use 9(3). Focus on fairness factors not used in 9(2): 1) Vulnerability of the group 2) Is nature of discrimination serious 3) Does it impair the fundamental dignity of the claimants? 4. 9(3) Analysis: 1) Yes there is a distinction being made b/t old and new Parliamentarians. 2) Yes it results in a discriminatory impact to the old Parliamentarians. 3) Yes it’s on prohibited grounds—race of the minority  presumption of unfairness 4) State has to rebut the presumption. A) No impact to dignity. B) Only loss here is pecuniary. C) Measure advances an important remedial goal—aimed at creating equity b/t the new MP’s (mostly black) and the old ones (mostly white). 5. Mokgoro is very deferential when evaluating the fairness factors. G. Both Moseneke’s and Mokgoro’s analyses are permissive as to the costs of aff action to the outgoing “advantaged group.” This is unlikely to stand the test of time as it’s rather deferential. H. Sachs 1. Concurring; endorses the “essential rationale” of the judgments which is that both Moseneke and Mokgoro are balancing the fairness of the law w/ the effects on the “disadvantaged” group. A. How do you choose b/t the constitutional mandate of using aff action to remedy inequalities on the one hand, and the duty of the state not to discriminate unfairly against anyone on the grounds of race, on the other. B. 9(3) focuses on the group advanced and the mechanism used to advance them (confers positive rights) C. 9(2) focuses on the group of persons being discriminated against (confers neg rights) 2. But says that you have to use 9(3) first b/c you won’t know if it’s restitutionary or not until after there have been some effects. 3. For Sachs, 9(2) confirms that the vision of equality espoused in 9(3) is not just formal equality but substantive equality. 4. 9(2) Analysis: a. Yes there’s a distinction. b. Yes it’s on the basis of race, an enumerated ground. c. Yes the state rebuts the presumption of unfairness. 1) Good purpose: to achieve equality 2) No impact to dignity. 3) The rebuttal to unfairness is anti-materialism. 4) (Sachs is using the Hugo-Harksen test which is more rigorous on the fairness prong) I. Over time, Moseneke (restitution) and Mokgoro’s (vulnerable group) deferential analysis will be difficult to operationalize once it becomes harder to tell the diff b/t affirmative action and naturally occurring political power differences that may result in a less advantaged group. Sachs’ rigorous use of factors to determine fairness under the Hugo-Harksen test is more likely to stand the test of time. India Art 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Art 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. 12

Comparative Con Law 2009 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Art 16: Equality of Opportunity in Matters of Public Employment (4) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. Ev Chinnaiah v Andhra Pradesh A. Facts 1. India’s constitution not only provides for the possibility of aff action, but embodies the expectation that such programs will occur, per Art 15(4). 2. Under the Constitution, the President is allowed to designate those who fall into the “scheduled castes” category. 3. AP tried to further subdivide the category of “scheduled castes” into 4 sub-groups which had the effect of giving more preference in govt/edu seats to a miniscule proportion of the scheduled castes relative to the others under the idea that some sections of the scheduled castes were more advanced than others and thus less needy. B. Held: The Act further subdividing the scheduled castes violates principles of federalism and is unconstitutional. C. Reasoning: Only the fed govt can determine the entire set of people who will be entitled to special protections from aff action. Once that designation is made, states are not free to further subdivide the class and grant more benefits to some over others w/in the designated class. States are free however, to choose how to execute aff action policies and set-asides. D. Justice Sinha: 1. Making the initial reservation gets RBR and we’ll usually defer to the legislature. But if the state further subdivides w/in that category, then that subdivision gets heightened scrutiny—something like IS. 2. Cites Ginsburg in a deliberative fashion—we’re so suspicious of using immutable traits like race or untouchability that if it purports to be used in a “positive” way, we’re still going to be very suspicious. 3. So the state action fails IS b/c there’s no good reason to further subdivide. E. Justice Hegde: 1. Something akin to SS—the subclassification is per se illegal. US Affirmative Action A. Croson:Richmond’s minority set aside program which gave preference to minority business owners in municipal K’s was held to violate the Constitution’s EPC for lack of a compelling interest. They were trying to remedy general societal discrimination and not something institutionally specific. B. Adarand:All racial classifications imposed by the govt must be analyzed under SS. For state action, use EPC. For USFG action, use the 5th’s DPC to import EPC ideas. The program awarded a DOT K to a minority business over the lowest (white) bidder. App Ct ruled against the white bidder but SC vacated and remanded. C. Grutter v Bollinger: 1. O’Connor’s Majority: a. Race as a loose factor in law school admissions is permissible. b. Is willing to use SS in a more nuanced way so that it’s not fatal for the govt; diversity is a compelling interest 2. Ginsburg/Breyer Concurrence: a. Cites stats showing that predominantly minority communities have unequal and inadequate resources and educational opportunities. Despite these problems, some minorities nonetheless can meet the high stds for getting into top schools. b. They use something closer to intermediate scrutiny or something less stringent than heightened scrutiny b/c they are willing to justify the state’s interest as correcting educational inequalities and providing equal opportunities. 3. Renquist/Scalia/Kennedy/Thomas Dissent: a. Applies SS in such a way that the state fails; the state’s goal is to achieve a “critical mass” of minorities but the actual program is just an effort to achieve racial balancing. D. Gratz v Bollinger 13

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1. Renquist’s Majority: Using a point system to judge each candidate’s abilities, including giving a big bump for 2. 3.

race, is not a real individualized consideration as required by Bakke. Thus in some cases, the boost for race becomes the decisive factor and that amounts to impermissible outright racial balancing. O’Connor’s Concurrence: All diversity factors don’t have to be weighed equally but the effect of the race boost ensures that all diversity factors aren’t considered once you assign point values. Souter/Ginsberg Dissent: a. Using racial diversity in the admissions process means that race is being considered in some way to increase an applicant’s chance for admissions. Thus using a point system helps to achieve that goal. b. Colleges want to maintain their minority enrollments—this system is candid but if you strike this down, their attempts will just become more covert.

Comparing India and the US A. India has a constitutional mandate to use affirmative action, thus aff action policies are ok as long as they fall w/in the 4 corners of the Constitution. AP tried to do something that violated the SoP of aff action and thus it was stricken. The fed govt designates the classes who receive special protections. Then states can set aside slots for members of that class but the state cannot further discriminate w/ in that class. B. US: 1. Possible rationales for aff action: a. To remedy specific past instances of discrimination b. To remedy societal discrimination c. To remedy de jure institutional discrimination d. Diversity 2. Judicially accepted rationales: a. Diversity b. Institutional (in the diversity + education contexts) 3. AT: societal discrimination: can’t do it; it has to be institution-specific otherwise everything will be opened up to aff action 4. AT: institutions: even though it’s permissible, it might open up institutions to a flood of litigation every time; hard to set boundaries to cabin litigation; thus institution + diversity might be a better fit.

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PART III: SPEECH Hate Speech • “Hate speech”-speech designed to promote hatred based on race, religion, ethnicity or national origin • Became an issue after WWII; international covenants call for or condone the criminalization of hate speech. Canada Section 1: Limitation of Rights The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 2: Fundamental Freedoms-Everyone has the following fundamental freedoms a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association. Regina v Keegstra (SC Canada, 1990) A. Facts: Keegstra, a HS teacher, was criminally charged w/ unlawfully promoting hatred against an identifiable group by making anti-Semitic statements and teachings in class. Keegstra appealed his conviction arguing that the criminal law violated his FoE rights under Sec 2(b) of the Charter. B. Held: Keegstra’s claim was rejected. The criminal law is a reasonable limitation on his Sec 2(b) rights under Sec 1 of the Charter. C. Reasoning: 1. Oakes Framework: a. Is the right prima facie protected under the Charter? b. Is it a reasonable limit under Sec 1 of the Charter? 1) Is the govt interest substantial and pressing? 2) Is it proportional? A) Rational connection? B) Narrowly tailored? C) Extent of the impairment of the right? D) Alternate means to achieve the same objectives? E) Is there true proportionality b/t FX and objective? 2. Application a. Is the right prima facie protected? Yes, Sec 2(b) protects hate speech, which is not considered violence. b. Is it a reasonable limit under Sec 1? 1) Govt interest substantial and pressing? Yes. A) International treaty obligations require us to condemn hate speech. But SCC is careful not to be too heavy-handed about this obligation. B) Moral-cosmopolitan use of treaties: they reflect universal values; the reasonableness of this action is supported by some international consensus. 2) Balancing: A) Rational connection? The point of the FoE is to get to the truth and promote the common good. Hate speech is rarely true nor does it better the political process. And in fact, it undermines the democratic process. B) Tailoring? Maybe the crim law doesn’t work perfectly (it might promote hatred due to increased media exposure or galvanize the opposition) but nonetheless, it sends the message that hate speech is harmful and threatening to a harmonious society. C) Extent of impairment? Is minimal. Tailoring need not be as narrow as possible—the existence of less restrictive means doesn’t mean that this is a bad policy. At any rate, this is low value speech. 3. Canada treats all hate speech equally; doesn’t create subsets of hate speech, unlike Germany. Germany 15

Comparative Con Law 2009 Article 5 (Freedom of expression) 1. Everyone has the right freely to express and to disseminate his opinion by speech, writing and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by radio and motion pictures are guaranteed. There shall be no censorship. (explanation of the basic right) 2. These rights are limited by the provisions of the general laws, the provisions of law for the protection of youth and by the right to inviolability of personal honor. (authority to limit 5(1) rights) 3. Art and science, research and teaching are free. Freedom of teaching does not absolve from loyalty to the constitution. Holocaust Denial Case (Germany CC, 1994) A. The Public Assembly Act allows the govt to prohibit meetings where the likelihood of things said will themselves constitute crim law violations. Sec 130 of the crim code makes “criminal insults” illegal. The govt made an NDP meeting conditional on the grounds that revisionist historial Irving would not propagate the “Auschwitz Hoax,” denying that the Holocaust ever happened. Irving challenged the condition as violating his Sec 5(1) rights to FoE. B. Held: Under Sec 5(2) gives the govt the authority to limit 5(1) rights b/c the factual utterances are “demonstrably untrue” and would violate the dignity rights of Jews. C. Reasoning: 1. Explanation of Sec 5(1) a. Opinions and expressions of opinion are prima facie protected. b. True facts are prima facie protected. c. Demonstrably untrue facts are not protected. d. But usually it’s very hard to disentangle opinion from fact, thus the utterance is viewed as a whole as opinion and gets protected. Thus opinions + true/untrue facts get weak presumption of FoE protection. 2. Explanation of Sec 5(2) a. Textually grants authority to the govt to limit Sec 5(1) rights based on protecting 1) youths or 2) the inviolability of personal honor. b. Balance: 1) Value of the expression 2) Harms to dignity 3. Application: a. Irving’s speech gets the weak Sec 5(1) presumption b/c it’s got a mix of opinion and facts. b. Balancing: 1) Value of the expression: A) Gets weak presumption B) This is an issue of importance to the public 2) Harms to dignity: A) Singular statement that Holocaust didn’t happen is demonstrably untrue. B) Defamation to the group: denying the Holocaust is an affront to the group’s worth (resilience, bravery etc) as survivors of tragedy. C) B/c the Holocaust is so bound up with the identity of the Jews, the Jews are entitled to special respect and status. To deny the Holocaust denies their special status and personal worth. (kind of circular). US Free Speech Jurisprudence A. Political speech: 1. SS—highly protected 2. But reasonable time/manner/place restrictions are permissible 3. Viewpoint-based regs are per se invalid a. But when it’s the govt as speaker, some viewpoint discrimination is ok. B. Intermediate Scrutiny: substantially related to an important state interest 1. Used when law is content or speech neutral but has an incidental or demonstrable burden on speech 2. O’Brien: A criminal prohibition against burning draft cards did not violate claimant’s FoE rights. The draft card laws were facially neutral towards speech and even though the law wound up addressing both speech and nonspeech elements, a sufficiently important govt interest in regulating the nonspeech elements could justify the incidental burden on free speech. C. Commercial speech: something b/t IS and RBR D. RBR 1. Commercial speech, might have reasonable time/manner/place restrictions 2. Obscenity 3. Fighting Words 16

Comparative Con Law 2009

a. Chaplinsky: fighting words-incite an immediate breach of the peace 4. Threats 5. Libel E. RAV v St. Paul 1. MN passed a law banning symbols, objects etc, including burning crosses, that will arouse anger, alarm or resentment in others on the basis of “race, color, creed, religion or gender.” MN SC interpreted this to ban fighting words only. 2. Held: This is unconstitutional viewpoint discrimination. Yes MN can ban fighting words but if they only ban some fighting words, then that gets SS and it fails here. a. Fighting words are low valued speech. But if you only proscribe some types of fighting words and not all or the most core kinds, then use SS to justify the subdivision. b. Content-based distinctions w/in the category of unprotected speech must satisfy SS w/ 2 exceptions: 1) Particularly germane exception: a content-based distinction, where the basis for the distinction is also the reason to proscribe the entire class A) How do you know? Don’t know! Cts know b/c they carved out the exception in the first place so they can add or subtract from it. 2) If the law remedies a secondary effect and incidentally also proscribes a subcategory of a proscribable class of speech, that’s permissible A) Example: Title VII generally prohibits sexual discrimination in the workplace. This law probably has the effect of limiting sexual fighting words but not other kinds of fighting words. But that effect is nonetheless permissible. c. Application: the MN law prohibits hate speech on the basis of race, religion, color creed or gender but excludes political affiliation or sexual orientation. Thus, hateful speech, no matter how bad, is ok as long as it’s not one of the enumerated topics. This fails SS under tailoring as there are other content-neutral ways of prohibiting public violence. d. Pretext: the city has excluded a particularly offensive mode of expression and when it does so selectively, then we have to be worried about the city really trying to handicap the expression of particular ideas. F. VA v Black 1. D was convicted of violating a statute that made it illegal to burn a cross. Cross burning was prima facie evidence of intent or intent to intimidate. 2. Held: The statute criminalizing cross burning w/ the intent to discriminate is constitutional, implying that given the long history of its use to incite hatred and violence, it’s a true threat or fighting words. But SC struck down the prima facie evidence of intent part. a. It’s ok to ban cross burning. But the burden of proving intent remains; can’t be inferred. It’s possible to do it w/o intent to intimidate. b. This seems like viewpoint discrimination w/in the category of fighting words and might be problematic under RAV. But it’s permissible if it’s proscription is based on the reason to proscribe the entire category. Cross burning has historically amounted to threats and inciting violence thus it’s a “particularly germane” exception to subdividing w/in that speech. c. Why have a targeted law instead of something more general? Sends the message that city is really against this b/c it’s a particularly virulent form of intimidation, a form of low value speech. Comparing Keegstra and the Holocaust Denial Case to the US: A. Text: 1. Canada/Germany both have constitutional textual limitations on FoE. Their constitutions explicitly allow the govt to limit FoE rights whereas in the US, the 1st A seems to be expressed in categorical terms. 2. The Canadian and German constitutions tell you 3. The Canadian and German constitutions tell you whysuch rights can be limited: to promote a free and democratic society and to protect youths and personal honor. The US in contrast, typically doesn’t (explicitly) derive overarching constitutional values to inform the analysis or any limitations. B. International obligations: 1. Canada is following its international hate speech treaty obligations. The US has ratified such treaties but also exercised its right of reservation on the clauses that have become imperatives for Canada and other signatories. 2. Canada sees the number and type of treaties as moral-cosmopolitan justifications. US isn’t going beyond its borders in the hate speech context. C. History and culture 1. Anti-Semitism and hate speech (that doesn’t rise to “violence”) is protected in the US, maybe in part b/c the risk of anti-Semitism as a political movement is less in the US than it is (perceived) in Germany. 2. Better comparison: racial hatred (Jim Crow etc) and anti-Semitism: cross-burning rises to the level of violence as it was historically followed by lynchings, beatings etc. 17

Comparative Con Law 2009 3. But jurisprudentially, speech (that doesn’t amount to incitement to violence) is just viewed differently. D. Harms 1. In the US, the harm level of the speech has to rise to something akin to physical violence before hate speech can be proscribed. 2. In Canada and Germany, dignity harms are enough to justify speech limitations. 3. The feeling in the US is that even if speakers say false things like denying the Holocaust, let the debate play out. Objectors to that position will respond and the truth will emerge. Thus the US tends to be very protective of speakers. Idea is that majoritarian politics will stomp out unpopular or untrue viewpoints, especially held by a bare minority. The best antidote to false statements is through further speech in the MoI. 4. US is also worried about the slippery slope: assuming that we can distinguish violence-inciting speech from other speech, curbing all hate speech might also curb legitimate speech. Drawing a sharp line at defining violence-inciting speech from all other might be more workable than the fact/opinion distinction that Germany uses. E. Context 1. US: tends to promote individualism and the individualist assimilationist ideals 2. Canada/Germany: greater value on group identity, cultural diversity, and co-existence F. Balancing 1. In the US, most of the work gets done in trying to decide what category of review you go under. The amount of protection the right gets is determined early. Pure dignity harms don’t outweigh if you’re in SS. a. US does not create and rank order constitutional values. b. Though they are operating in the background. 2. In Canada, the Oakes frameworklets most speech get prima facie protection under Sec 2(b). Then under Sec 1, the Court engages in balancing than the US but less than Germany. Looks like something b/t SS and IS. Canada-style balancing looks at what works for the “common good.” Canada-style tailoring also need not be tight; it’s good enough to send the message and criminal stigma that hate speech won’t be tolerated. 3. Germany: does all-out balancing including looking into the value of the speech and what it contributes. Weak presumption for speech but dignity harms can outweigh. 2. Pornography Canada Section 1: Limitation of Rights The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 2: Fundamental Freedoms-Everyone has the following fundamental freedoms a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association. R v Butler (Canada 1992) A. Facts: An adult bookstore was convicted of criminal obscenity. They now challenge the law under Sec 2(b). B. Held: The criminal law does impinge on Sec 2(b) rights but the limitations are justified under Sec 1. C. Reasoning: 1. To qualify as “obscene,” the material must contain the “undue” exploitation of sex as the dominant characteristic. a. Community stds test: “Undue exploitation of sex” as judged by community stds of what Canadians would not want other Canadians to see; not about offense or insult or Keegstra-dignity harms; cts judge on the basis of the degree of harms that flow from such exposure. b. Types of pornography: 1) Explicit sex + violence = covered by this crim code 2) Explicit sex + degradation and dehumanization: covered by this crim code 3) Explicit sex w/o degradation or violence = not covered 2. Oakes Framework: a. Does Sec 2(b) protect the right, prima facie? 18

Comparative Con Law 2009 b.

Is the limitation justified under Sec 1? 1) Is the govt interest substantial and pressing? 2) Proportionality? A) Rational connection b/t limit and objective? B) Extent of impairment of the right? C) Balance FX of limitation against legislative objective? 3. Application 1) Yes, pornography presumptive gets protected under Sec 2(b). 2) Govt interest: A) Pornography undermines the Charter value of morality—gender equality—that is necessary in a free and democratic society. B) The law is about tangible harm avoidance: preventing exploitation, victimization, abjection of women and kids which leads to sexual violence and deceased self-worth and acceptance 3) Rational connection A) Loosely applied. B) Irwin Toy reasonability rule: if social science data is inconclusive on harms, then ask if there’s a reasonable basis for the legislature to enact this law. C) Yes, the social science data on FX of such materials is inconclusive but the legislature had a reasonable basis: the dissemination of these materials will perpetuate attitudes that will negatively harm women D) Court is being very deferential to the legislature. E) KeegstraDistinguished: There the minority argued that suppressing hate propaganda had the perverse effect of gaining media coverage and therefore attention to the cause, making the link b/t suppression and harm of hate propaganda weak. But here, suppressing pornography will not promote the pornographer’s cause. 4) Impairment A) Loosely applied. B) Opponents say do education and reasonable time/manner/place restrictions. Court says that’s not enough. C) Court says that the legislation need not be perfectly tailored or be the least intrusive route. Question is: is it appropriately tailored? D) The prob of obscenity requires a multi-pronged approach and this is just one component. E) Plus the law still allows for sex w/o degradation or violence and allows porn in the home b/c of privacy rights. So the right to see this isn’t entirely taken away. 5) Balance FX of the limit against legislative objective: A) How serious are the free speech values here? Not very. This kind of expression doesn’t go to the heart of the FoE rights. So letting this run wild in the MoI isn’t a core concern. B) These materials only appeal to the most base aspect of self-fulfillment. C) And anyway, the right is somewhat limited in the face of avoiding a serious constitutional harm. D. Why aren’t dignity harms good enough? 1. In Canada, dignity harm is a subjective/objective evaluation. People could be subjectively insulted but objectively, it might be harder to determine especially if we’re socialized about gender roles—then we might not be able to really evaluate what’s an insult to self-worth and what isn’t. 2. When women represent 50% of the population, they aren’t really a minority that might need special protection in the way that Jews or other minorities might. Thus we want the harms to be tangible. 3. In Butler, “dignity” harms is used more rhetorically to refer to gender inequality but the law’s animating purpose is the tangible harm about sexual violence. Feminist Critique of Pornography A. Catharine MacKinnontheory of pornography: porn portrays women as sexual objects or objects of sexual violence; that becomes the self-perpetuating foundation for gender relations as it becomes ingrained in both women and men’s opinions of women. It’s deeply conducive of inequality and on top of that, it perpetuates violent sexual crime. B. Canada is using this MacKinnon definition; it is built into the Explicit sex + degrading and dehumanizing def C. Response to MacKinnon 1. If we took MacKinnon really seriously, then women would be silenced by porn. It overplays domination and underplays people’s capacity for agency. This is too persuasive a view of hierarchy. 2. Porn, per Judith Butler, is how we get out of the binary gender roles. By sexual play, cross-dressing, pornography etc. lets us dispel traditional gender lines. US on Pornography 19

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A. Miller Test for Obscenity: whether the avg person, applying contemporary community stds, would find that the

B.

work, as a whole, appeals to the prurient interest or depicts sex in a patently offensive way. Work must as a whole lack serious scientific, literary or artistic value. 1. But if law is targeting the secondary FX, then time/manner/place restrictions are ok. 2. If it fails the Miller test for obscenity, then use SS. American Booksellers v Hudnut (7th Cir. 1986) 1. Facts: Catharine MacKinnon and Andrea Dworkin drafted an anti-pornography ordinance that was passed in Indianapolis. The statute defined pornography as the graphic sexually explicit subordination of women through pictures and/or words that also included one of the following. (Then gives a long list of conditions that define porn as a practice that discriminates and degrades women.) Statute was challenged as violating the 1st. 2. Held: Yes it violates the 1st b/c it does not refer to the prurient interest, to offensiveness, or to the standards of community nor does it consider the artistic, literary or scientific value of the work. It’s based on impermissible viewpoint discrimination. 3. Reasoning: a. If something fits the Miller definition of obscenity, then it becomes easier to regulate b/c that speech isn’t at the heart of what’s protected under the 1st. b. To regulate pornography, the porn being regulated must be “obscene” but the statute doesn’t regulate materials that could be “obscene:” doesn’t refer to the prurient interest or patently offensive sex nor does it carve out an exception for meritorious works. (But Mackinnon would say that we’re too socialized to believe that subordination can be valuable thus we can’t really judge what’s meritorious and what isn’t.) c. Biggest prob: this is viewpoint discrimination. The law has taken the view that speech treating women in an approved way is ok but if it’s in a disapproved way, then it’s to be prohibited. d. Thus b/c it’s viewpoint discriminatory, use SS. Viewpoint discrimination almost always spells invalidity. e. Truth is not a prerequisite for the right of free speech. Everything is open to revision and contestation. Govt shouldn’t be able to suppress speech if it’s false b/c that’d put the govt in the position of determining truth and driving out falsity, thereby supplanting the role of free speech altogether. f. Something being called “low value speech” doesn’t refer to the content of the work, ie female subordinate pornography isn’t “low value.” Low value refers to the entire category.

Comparing the balancing done by Germany, Canada and the US A. German and Canadian cts tend to do balancing in a kind of subjective and unconstrained way that almost makes them like quasi-legislatures. B. US does balancing but the big q is whether to get into SS, IS or RBR. Once there, discretion is constrained. C. Internal balancing: putting into categories: 1. Which category it gets into first will greatly affect the decision 2. More explicit balancing for Germany/Canada opens up the dialogue for more political debate as opposed to a technical debate about which category you go to first. 3. The 2-stage generalized approach: promotes a more informative debate for the polity to understand; also engages the legislature better. In the US, most of the analysis happens at the early stage of which category to go in to. Also, this implicates who should have more input in to the decision and institutional competence. D. Comparing: 1. US: uses categories; it’s a kind of balancing but the balancing is always pre-determined based on what category you get into first. So lots of analysis gets done in the sorting phase. Most things are either RBR or SS. 2. Canada: Oakesframework; see if something gets prima facie protection. Then use Sec 1 analysis. Canada seems to apply it in such a way that it seems to move b/t SS or intermediate scrutiny. (Placing a high burden for the state to overcome.) More balancing than the US but less than Germany. 3. Germany: all out balancing and reasonableness review; what the US used to do under Lochner. For example, in the Holocaust Denial Case, there’s a weak presumption in favor of speech but it goes away if the comment is “demonstrably false.” E. Is there an interest in protecting people from hate speech in terms of constitutional values? 1. US doesn’t rank order constitutional values nor does the US make any suggestions about values per se; instead there are values operating in the background. We don’t create and order values. a. “Truths” are to emerge after competing in the MoI. b. The Constitution stands on the side of the individual and the state must show a compelling interest to override; it’s probably unlikely to draw on other constitutional values to justify a govt interest 2. Canada/Germany: yes there are constitutional values which can be rank ordered. a. Explicit recognition ov values b. Open-ended balancing c. Is more concerned w/ popular and democratic input 20

Comparative Con Law 2009 F.

d. The constitution favors both the limits on the regulation and the regulation itself What forms of hate speech are particularly pernicious? 1. US: cross burning b/c of the particular history of it 2. Germany a. Special dignity harms to the Jewish; part of what it means to be a German Jew is the special entitlement to protections and the statute must provide that protection (sui generis); lots of regs ok but the broadest protections go to the Jews b. Generalized hate speech regs are ok. 3. Canada: all hate speech is treated equally; does not carve out a special concern for a subset of hate speech

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Comparative Con Law 2009 PART IV: DIGNITY AND AUTONOMY 1. Abortion Sunstein/Segal A. A minimalist decision: is narrow (rather than broad) and shallow (rather than wide or deep) – decide as little as possible; limit the impact of the holding to the facts, as much as possible 1. Narrow: frames decision in the facts of the case rather than in terms of a broad rule 2. Shallow: skirts issues of basic principles in explaining its decision; allows people who disagree on the deepest levels to converge; thus judges can agree on how to decide a case w/o agreeing on why it should be decided a certain way 3. Deep reasoning: usually produces widely applicable rules. 4. Professor: a. Broad: provide guidance under the full range of where this is applicable; tries to pre-judge future analogous cases b. Narrow: just decide the single issue w/o providing much guidance on other possible cases (Roe is raised as a narrow issue about whether she can get an abortion for rape b/c the law doesn’t make an exception for rape; but decision is broad and addresses abortion in multiple contexts) c. Shallow: theorize the minimum that you need d. Deep: very theorized, very normative B. Why might minimalism be beneficial? 1. Narrow and shallow decisions leave many issues undecided, thereby giving the legislature the democratic room to maneuver. A) That reduces the costs of judicial decision-making b/c the Court can converge on a result w/o having to converge on the reasons or implications of the result B) It also leaves the court free to reach diff results in future cases w/ similar facts. The court can reason analogously from the minimalist precedent but need not be strictly bound by the prior case. Thus minimalism allows for flexibility b/t the judiciary and the legislature. 2. Narrow and shallow decisions can be tailored to promote deliberation and accountability in political decisionmaking. a. Rather than face a controversial constitutional question head-on, the court can interpret or invalidate political decisions in ways such that it encourages the legislature to re-think the issue. b. For example, striking down legislation for vagueness, improper delegation, unclear legislative statements (clear statements of intent influence interpretation) or desuetude are examples of drafting or procedural defects that then allow the legislature to come up w/ a “revision.” 3. If the decision is narrow, that provides guidance to lower courts while leaving space for debate and discourse— the democratic process is then engaged. C. Critique: 1. But having a narrow decision isn’t always enough to kick the legislative process back into gear. Sometimes, a legislature cannot reach true majoritarian preferences w/o a dictator setting the agenda. (See Canada’s postMorgantaler politics.) 2. And issuing a broad decision doesn’t mean that the legislature cannot “rethink”either. The German legislature pushed back by adopting essentially the same law but w/ some tweaks—so some rethinking happened. 3. The kind of interest group mobilization to re-think will only happen if there’s enough money and deep-seeded sensitivities to make it worthwhile to engage in contestation that leads to political, democratic and legislative change. D. Segal 1. Instead of trying to avoid pushback and promote engagement, let there be backlash. 2. Backlash from a broad or deep decision is good. People will yell more, debate more, giving them a sense of ownership in the Constitution as well as a stake in the democratic project. It enhances legitimacy and stability of the democratic system. US Roe v Wade 1. Women’s interest? A. Textual basis enormously unclear i. Liberty and due process clause of the 14th. ii. Griswold: contraception; Douglas uses the “penumbras and emanations” of the bill of rights—right to privacy is inherent in all these cases 22

Comparative Con Law 2009

iii. 9th: rights and liberties reserved to the people; rights that predate the constitution remain (but marital

B. C.

D. E.

contraception was not historically an issue at the time of the founding, so 9this weaker for marital contraception but stronger for marital privacy generally). 9thpurports to be preservative. (It could preserve natural rights or clearly historically grounded rights). a. US really uninterested in enforcing god-given natural rights b. If the 9th preserves discrete rights, then one interpretation is that the court can’t use it to add on more rights. c. Alternatively..? iv. Balancing (women + physician) vs (fetus + state) a. Blackmun sees this as an interference not only w/ a woman’s decision but also the state is messing w/the dr’s autonomy and w/ the decisionmaking done together by the dr and the woman. b. But there’s a prob w/ this argument: if we recognize that a dr has a privacy or liberty right to make medical calls, and the court then had to regulate that right, that would push the court into Lochnering. v. Countervailing rights: a. Fetal rights? b. Health/life of the mother? Precedent, c/l: fundamental rights, EPC cases and privacy cases: there’s a fundamental right to privacy that’s derived from the case law. SS and Trimester framework: i. 1st trimester: mother’s privacy rights trump; state cannot regulate abortions ii. 2nd trimester: state can regulate abortion procedures to protect health of the mother iii. 3rd/Viability: fetal life is compelling, which means you can prohibit it as long as there’s a health and life exception for the mother. Trimester framework: like SS but more category based. Stewart/Douglas: i. You need to give careful scrutiny—this law is too broad but doesn’t want to go as far as Blackmun. Very narrow reasoning, and doesn’t tell the legislature how much scope it has. ii. Douglas: fetal life is compelling whenever state says so but this isn’t tailored properly.

Planned Parenthood v Casey 1. In b/t Roe and Casey, politically: A. Red states: trying to protect fetal life pre-viability; not by banning it outright but by imposing onerous liability; and then post-viability, they take out the mother’s health exception B. Very mobilized pro-choice and pro-life movements C. Strong Republican judges were appointed w/ the hope that they’d overrule Roe, but that never happened. 2. Casey keeps Roe’s essential holding: right to choose abortion pre-viability w/o undue interference from the state. 3. Casey gets rid of the trimester framework. They get rid of the really broad part of Blackmun’s opinion. 4. Change: The trimester framework notwithstanding, the state from the outset has an interest in the woman’s health and life, ie fetal life. 5. Rule:undue burden test: if the purpose of the law is to impose a substantial obstacle on the decision to get an abortion or the effect is to impose a substantial obstacle. It’s not undue just b/c it’s more difficult or expensive. 6. Diff from the ‘undue burden’ in Germany? A. On board w/ purpose effect B. Undue burden in Germany: if it causes an undue burden on the pregnancy; tells you the content of the rights; don’t know if you have the right to an abortion or not until you decide whether or not the pregnancy will pose an undue burden C. US: can’t impose an undue burden on the right to choose to have an abortion; so the burden is a standard b/c of the prima facie right to get an abortion 7. Casey: (this is a facial challenge) A. Strikes down spousal notification i. Which women are more likely to be adversely affected by this? --women subject to DV (Alito at the appellate level said the common denominator is all women and this is a small burden on the group as a whole. Here O’connor says this component is only relevant to battered women and for them it’s an undue burden.) B. Uphold the 24 hr waiting period, counselor + sign off, parent notification C. The spousal notification is more an affront 8. Why drop the trimester framework? A. More sophisticated understanding of medicine now. B. Plus abortion plus keeps getting safer so that pushes out when you can regulate to later and later. Viability is also moving forward. So science has made these sharp divisions unworkable. 23

Comparative Con Law 2009

9.

C. But the core part of pre-viability and post-viability is supported by a number of factors. i. Reliance ii. When ct is being pushed back upon, we mustn’t overrule under fire—we’d lose faith as an institution. Ct spoke, everyone should’ve complied and ct should stand. Kennedy/Souter: seen as sell-outs for the republican perspective; seen as having abandoned the ideology that got them appointed in the first place. So they are saying that Roe might’ve been a bad decision but we have to stand behind it.

Canada Sec 7: Legal Rights Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Morgentaler, et al v. The Queen (Canada, 1988) A. History: 1. Prior to 1969, taking steps to effectuate an abortion was a criminal offense subject to life imprisonment. 2. In 1969, Canada passed a law in the criminal code which made abortions permissible providedthat it took place in a hospital and was certified first by a 3-committee team of doctors who certified that the pregnancy would likely endanger “life or health” of the pregnant woman. “Health” was not defined, thus doctors were free to come up with their own theories on risk factors which could include psychological health, to justify a “therapeutic abortion.” 3. As a result, stds were inconsistently applied; abortions were delayed ad women had to surmount many hurdles to get one. B. Facts: Morgantaler, a dr and abortion rights activist, challenged the abortion law, claiming that it violated Sec 7 of the Charter. C. Held: Yes, Sec 251 violates Sec 7 of the Charter. D. Dickson Majority Reasoning: 1. “Fundamental justice” refers to both the substantive and procedural parts of the law. Thus Sec 7 allows for limitations on life, liberty and security of the person if the limitation comports w/ “fundamental justice.” 2. “Security of the person” per Sec 7: a. At the least, this includes not just physical integrity but also psychological integrity and the right to be free from serious state-imposed psychological stress, including stigmatization of the individual, loss of privacy, stress and anxiety, possible disruptions to family, social and work life and uncertainty as to legal outcomes and sanctions. b. Majority expressly declines to determine whether the right extends to protect interests central to personal autonomy such as the right to privacy. 3. Oakes Framework: a. Is the govt interest substantial and pressing? b. Balancing to ensure that overriding the right/freedom is reasonable and demonstrably justified in a free and democratic society: 1) Are the means rational, fair and not arbitrary? 2) Extent of impairment of the right? 3) Balance FX of the limitation w/ the legislative objective 4. Has the Sec 7 right been infringed? Yes. (Look at both purpose and effect.) a. Sec 251 causes delays which are harmful to the woman’s psyche, emotional and physical well-being, even for those who would otherwise qualify for the abortion. b. Earlier abortions have lesser health risks and complications c. Major psychological stress from the uncertainty of waiting to find out if a woman qualifies for an abortion. 5. Does this comport w/ fundamental justice? No. a. The amount of delays and barriers, both administrative and substantive make getting an abortion difficult. b. The procedures to get an abortion contain so many barriers to actually getting an abortion that it becomes practically unavailable to women who would prima facie qualify for an abortion. Thus doesn’t comport w/ FJ. 6. Sec 1/Oakes Balancing a. Some notes: 1) Majority expressly declines to evaluate any “fetal rights” or assess any “right to life” as an independent constitutional value. 2) Do not need to measure the “full extent of the state’s interest in establishing criteria unrelated to the pregnant woman’s own priorities and aspirations.” 24

Comparative Con Law 2009

3) Must “evaluate the particular balance struck by Parliament in s. 251 as it relates to the priorities and

aspirations of pregnant women and the govt’s interest in the protection of the fetus.” Thus the law says fetal interests are not to be protected when the “life or health” of the mother is at risk. The Canadian Court is double-checking on the balancing done by Parliament: when the woman’s health/life is at risk, her right outweighs the fetal interest, whatever that is. But there is some fetal interest. b. Is the govt interest pressing and substantial? 1) Yes, govt is pursuing the valid govt objective of protecting the fetal life. 2) Yes govt is protecting the interests of the pregnant woman when her health or life is at risk. (At that point, the mother’s interest outweighs the fetal right.) c. Balancing: 1) Means A) Means are not rational or fair. B) The procedures and administrative structures of Sec 251 are arbitrary and unfair. 2) Extent of the rights impairment? A) Pretty bad b/c Parliament has ID’ed a class of women who should legally get an abortion but b/c of the practical unavailability of the supposed defense to liability, women suffer psychological and physical trauma, inconvenience or expense. 3) Legislative objective vs FX of the Limit A) Legislative objective is actually defeated b/c of the practical barriers. E. Beetz: Sec 7 inherently grants the right to medical treatment if your health is threatened. You should not be forced to choose b/t criminal sanctions or protecting your health. F. Wilson: Liberty is the key interest that needs protection: 1. Abortion is a fundamental decision that women should be allowed to make. (Uses Roe in a more favorable way than was received in the US). 2. Decisional autonomy and dignity count. Abortion is part of a woman’s quest for equal dignity not to be conscripted into using her body to carry a fetus to term. 3. First female justice on the Canadian Court. G. Morgantaler left abortions pretty much de-regulated. Post-Morgantaler Politics in Canada A. The Mulroney govt tried to enact a new abortion policy. It kept abortion in the crim code but did away w/ the committee, broadened the def of “health” to mean mental and psychological health and lifted the “hospitals only” restriction. B. The pro-life and pro-choice groups opposed the law wanting something more restrictive and less restrictive, respectively. But their amendments didn’t pass. C. Mulroney then re-introduces a similar compromise bill as the earlier one and orders party discipline. Warns the prolifers that this is his last attempt at introducing restrictions on abortions. One house passes the bill but it’s defeated in the other house by a pro-life + pro-choice coalition. D. Thus the judicially created “no law” policy status continued by default and not b/c it commanded majority support by the public or by Parliament. E. This illustrates what happens when you have a large plurality or majority bracketed by two opposing minorities. Neither the pro-lifers or the pro-choice people could get exactly what they wanted b/c they aren’t strong enough. This might show that the issue then isn’t a priority to the (disinterested) majority of the voters either way b/c the minorities can’t swing enough people to vote w/ them. F. The priority for most govts on such “moral issues” is to avoid them b/c they cause strife, political division and can’t be used to sway the otherwise disinterested majority. Germany Article 2(2)(1) Everyone has the right to life and inviolability of his person. The freedom of the individual is inviolable. These rights may only be encroached upon pursuant to a law. German Abortion Decision I (Germany, 1975) A. This is an abstract judicial review of Article 2(2)(1) and the Abortion Reform Act which liberalized abortion on demand by: 1. Not punishing abortions performed in the first 12 weeks of pregnancy by a physician w/ consent of the pregnant woman after preventative counseling (Law decriminalizes abortions in the first trimester.) 2. Crim penalties would continue to be enforced w/ respect to abortions performed after 12 weeks unless necessary to protect the woman’s health or life or justified by genetic indications. B. Article 2(2)(1) protects the fetal life as an independent legal interest. 25

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1. Gives rise to State’s duty to protect it as against state attacks and requires state to protect the life as against the mother.

2. Fetal interest trumps the mother’s right to self-determination. The legislature cannot make the woman’s right to

self-determination the sole justification for an abortion. The condemnation of abortion must be clearly expressed. a. Simply removing the legal condemnation of criminalizing abortion isn’t actively condemning abortion. b. If there are other ways to equally condemn abortion though, that’s ok. Need not use crim law. c. There may be circumstances where an abortion is justified, ie when it threatens the mother’s life or health. But the ordinary burdens imposed by an ordinary pregnancy doesn’t justify an abortion. d. The decisive factor is whether the totality of the measures serving the protection of the fetal life guarantee an actual protection corresponding to the importance of the legal value to be secured. 3. Art 2(2)(1) also implies Art 1(1) dignity, which also gives rise to the state’s obligations to protect fetal life. Wherever human life exists, it’s entitled to human dignity. The potential faculties present at the fetal stage suffice to establish human dignity. 4. Balancing: Dignity is the touchstone: a. The rights of the woman to self-determination and also health, life and avoiding undue burdens = dignitary basis b. Respecting the fetus = respect for human life as a person = dignity c. W/ dignity on both sides of the equation, the balance tips if the woman’s dignity claim outweighs (b/c of risks to health or life, rape or more-than-ordinary burdens.) C. Upshot: The fetal life has a right to life. State has a duty to use social, political and welfare means to foster the development of the fetus, and that these are preferable to criminalizing abortions though that is not impermissible. (This had the effect of striking down pre-unification E. German laws that permitted abortion in most circumstances.) D. NB: This decision could’ve been broader by: 1. Defining extraordinary burdens more broadly to encompass more disabilities 2. Defined the other forms of condemnation in addition to criminal condemnation German Abortion Decision II (Germany, 1993) A. Germany then passes a new law allowing abortions on demand in the first trimester if woman underwent preventative counseling + a mandatory waiting period. B. Holding: Under the law, a woman’s own determination that continuing her pregnancy would impose “unreasonable demands” is not legally conclusive. The legislature can decriminalize abortions but it could not define “unevaluated abortions” as justified or lawful. To do so would violate the State’s duty to protect the fetus. 1. Lawful abortions are those where treating the abortion as unlawful would impair the counseling system. 2. For example, decriminalizing abortions is justified b/c women might prevaricate in counseling or avoid counseling under the threat of crim punishment. C. Reaffirmed the independent fetal interest per Article 2(2)(1) which triggers the state’s duty to protect its life under Art 1(1) which says that human dignity is inviolable. D. The duty of protection is not absolute. Sometimes the mother’s right to her own life, bodily integrity and personality can trump: 1. Fetal life interest doesn’t vary w/ time (a la Roe); starts at fetal development 2. Abortions are legally permissible where the pregnancy imposes a hardship beyond the typical pregnancy; types of “unreasonable demands” of a woman: a. Risk to mother’s life or health b. Pregnancy results from a sex crime c. Sever birth defects d. Other situations of personal necessity (which in prior years had been interpreted too loosely) E. “Unreasonable demands” don’t automatically discharge the state’s duty to protect. Instead, the state must do more for the purposes of winning her over to voluntarily continuing the pregnancy; state must offer comprehensive counseling: 1. Financial subsidies 2. Counseling w/ father 3. Counseling and working w/ her employer to meet demands of pregnancy F. Upshot: 1. If woman undergoes counseling + some other requirements and then gets an abortion in first trimester, she can’t be legally sanctioned. Later abortions can’t be punished if done b/c of risk to mother’s health/life or if fetus is deformed. 2. Only low-income women can get public funding for abortions. 3. Majority said that the legislature can decriminalize unevaluated (by 3rd parties) abortions after counseling but cannot go so far as to call them justified or lawful abortions. 26

Comparative Con Law 2009 Abortion politics in Germany A. Abortion Decision Itold the legislature to do more to condemn. Instead the legislature passes a new law which essentially preserves the original scheme. B. GCC struck down the funding component—narrowness wasn’t necessary. Legislature pushed back on the breadth and court had to meet them halfway. C. Lesson: being somewhat broad doesn’t necessarily foreclose the legislature to change the scope of the ruling—they can tweak the ct’s interpretation Comparing the US, Canada and Germany A. Is fetal life a constitutional interest or just a govt interest? 1. US: fetal life doesn’t have an independent right in terms of the 14th’s DPC; states have an “evolving” compelling interest; SC also explicitly declined to address the q of whether fetal life is “life” at conception. 2. Canada: expressly declines to answer q of when “life” begins or its constitutional significance 3. Germany: fetus has a constitutional interest under Art 2(2)(1) and Art 1; life begins at 14 days—when a pregnancy test can tell basically B. What explains these differences? 1. Text a. US: DPC of the 14th 1) Maybe recognize under the P+I clause to give substantive protections (but this was rendered meaningless in the Slaughterhouse Cases) 2) “Person”-more plausible; refers to all citizens though so text isn’t determinative b. Germany: broadly construes “everyone” which weakly supports their conclusion c. Canada: also uses the term “everyone” 1) Is indeterminate 2) Text of Charter was passed w/ abortion being permissible in the background so didn’t want to put language in the Charter that would majorly change or repeal abortion laws. 2. History a. US 1) Grounded in some woman’s rights idea that can’t conscript women into continuing the pregnancy; it’s not about the extermination of life but rather about gender hierarchies and “enslavement.” 2) What about the 13th’s prohibition against slavery? (pregnancy = slavery?) A) Very insensitive to US history to say that B) Clearly conflicts w/ the original understanding of the 13th Amendment C) 13th isn’t subject to the state action doctrine b/c farmers didn’t want slavery to become private b. Germany 1) Constitution was enacted against the backdrop of Nazi Germany and their ideas that some weren’t worthy of life 2) The “never again” moment is no more Nazi eugenics or classifying life c. Canada: Morgantaler was decided on largely procedural grounds; majority did not explicitly contend that Sec 7 recognizes a substantive right to an abortion. 3. Restraint by saying that we don’t need to decide when life begins? a. Canada: Says that they don’t need to decide but that can’t be right as it’s factored in b. US 1) Roe says don’t need to decide when life begins. Having ruled out a right to fetal life, nothing could flow from finding some right to life at 14 days. 2) Whether fetal life is just a govt interest or a constitutional interest doesn’t necessarily matter in terms of when life begins. 4. Balancing: women’s interests  fetal interests a. US (woman’s interest per the DPC of the 14th)  Canada (interest supported by the constitutional structure)  Germany (fetal interest is a competing right to the woman’s interest) b. Recognizing the right affects what protections then flow from it 5. Notions of the role of law: a. Germany: have to give fetal life expressive protection; have to first affirm its value in some symbolic way first. (In the US, expressive protection submerged compared to instrumental protection of law) 6. Substantive beliefs of the significance of fetal life? a. US: 1) Judaism pretty permissive as to abortions 2) Right winged churches: life begins at conception 27

Comparative Con Law 2009 3) 70% attend church regularly; if people have an objection to abortion b/c we think that fetal life begins at conception and that is a religious notion, then the constitution has a duty to divorce that meaning from the govt but the constitution commits us to keep state and church separate. b. Germany 1) Less than half attend church regularly 2) Legislature thinks it’s a value that needs protecting C. Minimalism 1. Breakdown: a. US: least narrow/most broad b. German: somewhere in b/t c. Canada: most narrow 2. Backlash/democratic engagement/interest group mobilization will only occur when there’s enough money and deep-seeded sensitivities to make it worthwhile to engage in contestation that leads to political, democratic and legislative change. 2. LGBT Rights: Sodomy Cases National Coalition for Gay and Lesbian Equality v Minister of Justice (SA, 1999) A. Facts: Sodomy law criminalized anal sex b/t human males. B. Ackermann – Equality claim + dignity claim 1. Uses Harksen to hold that gay males have been unfairly discriminated against on the basis of sexual orientation and that state didn’t rebut by showing fairness. (Equality claim) 2. Is there a distinction? Yes. 3. Is it on a specified ground? Yes, sexual orientation per Sec 9(3). a. This is unique b/c in the US it’s not clear if sodomy laws are gender discrimination (a sub-gender distinction made b/t men and women for the purposes of sexual partners) or sexual discrimination. b. For SA, can’t separate identity and conduct—sodomy is bound up with the gay identity. 4. Thus it’s presumptively unfair. a. And in fact look at the impx—this denies the identity of gays 5. Is unfairness rebutted? No. a. Vulnerability of the group? High b. Ameliorative purpose? None. c. Dignity harms? Yes! 1) Sense of self-worth, respect for one’s self as a person; law stigmatizes, thereby violating the self-worth prong of dignity 2) Threshold capability of dignity: do you feel safe and secure A) Is undermined b/c of the threat of criminal sanction B) Stressed out insecure existence 6. Ackermann also finds a separate violation of Sec 10 which grants the right to everyone to have their inherent dignity respected and protected. a. Sec 10: requires us to acknowledge the value and worth of all people. b. Value and stigma:If you deny sodomy, then you deny the value and worth of gays b/c their identity is bound up with sexual expression. Crim law stigmatizes them. c. Breaches threshold dignity:if you no longer feel safe and secure. Gays are under the psychological stress of being prosecuted simply b/c they engage in conduct which is part of their experience of being human. Builds insecurity and vulnerability into their daily lives. C. Sachs: uses intersectional approach to privacy, equality and dignity 1. Looks at the case in a totality kind of way; strongly opposed to rank ordering rights. 2. Intersectional approach: social and culturally constructed categories interact on multiple levels to manifest themselves as inequalities in society 3. Privacy a. There are 5 ways to understand privacy: 1) Informational: mainly a neg right to not have your personal info out in the public 2) Spatial: physical space privacy A) But it’s overinclusive—can’t molest your child in privacy of your bedroom B) Stigma: if done privately, it’s deviant but free from prying eyes 3) Bodily: right to make bodily decisions and be free from bodily invasion 4) Relational: some relationships have a special status of intimacy 5) Decisional: autonomy; right to d-making b. For Sachs, relational and decisional autonomy are most important. 28

Comparative Con Law 2009

4.

5.

1) Privacy protects people and their conduct, not spaces 2) It’s the right to self-expression and to make fundamental decisions about your relations and use of body c. Sachs is for all-out balancing: the privacy right belongs on the table and tilts the balance against the state. Sec 36 Analysis for limitations of rights (equivalent to Canada’s Sec 1 analysis) a. Is it a law of general application, reasonable and justifiable in an open and democratic society b. Based on equality, dignity and freedom c. Balancing: 1) Nature of the right that is limited and its importance in a democratic society based on equality 2) Purpose for which the right is limited 3) Is it a valid govt objective? (govt objective can include constitutional moral values) 4) Extent of the limitation 5) Efficacy 6) Necessity 7) Could the desired ends be achieved through less damaging means? For Sachs, this case affects equality and privacy in terms of relational and decisional freedoms. The balance clearly tips against the state b/c their only justification is some sense of the “moral harm principle” but reference to some notion of morality isn’t enough unless it’s a constitutional notion of morality.

US Bowers v Hardwick A. In Griswold v CT, SC held that there’s a right to privacy implicit in the DPC of the 14th. B. Held: There is no fundamental right to engage in homosexual sodomy. 1. If there was a fundamental right, use SS. To be a fundamental right, it must be implicit in the concept of ordered liberty and/or rooted in our nation’s history. (slightly dominant understanding is that you need both). 2. If not, use RBR. a. It’s upheld under RBR under some conception of upholding public morality. It’s ok to give effect to nonconstitutional morals (presumably so long as they aren’t purely prejudicial). C. Burger concurrence: emphasized the historically negative attitudes about homosexual sex around the world. Lawrence v TX A. Held: explicitly overruled Bowers, which had been too stingy w/ the liberty interest. There is a liberty interest to engage in adult consenting intimate relationships in private. 1. It’s spatial, relational and decisional. 2. The decision also expands the generality of the liberty interest thus it purports to address a more broader issue than that of Bowers. B. This case does notsay that there’s an IFR to sex though it comes awfully close. (SC is worried about the gay marriage issue.) C. On tradition Bowers got it wrong: 1. SC cites the European Ct of HR 2. 14th and discrimination 3. Majority rebuts Burger’s overbroad Bowers concurrence which claimed that there was a uniform western standard on the issue. There isn’t. 4. More emphasis on stigma of gays—touches on dignity; there’s no legit state interest D. Since Bowers: 1. Casey: strengthens idea of decisional and relational privacy 2. Roe: strengthens bodily and decisional ideas of privacy E. Kennedy’s majority: equality and liberty are intersectional issues but if you do equality, then you will run into gay marriage complications. 1. Use of DPC and not equality analysis to avoid putting gay marriage on ct’s docket and didn’t want states to undermine the SC. So he’s trying to be narrow. 2. But he winds up being broad when he’s willing to use history and tradition as a starting point (not the end point) to determine if something is deeply rooted + implicit in ordered liberty for the right to rise to an IFR (he kind of rereads Bowers/Glucksburg to support his starting point idea). F. O’Connor’s Concurrence 1. Would’ve used equal protection (not DPC) b/c the law was designed to target males only. Thus under some heightened RBR like Romer, there’s no basis for drawing the distinction where the law did. 2. Would avoid including sexuality under protected liberties. 29

Comparative Con Law 2009 G. Scalia’s Dissent 1. Points out that while the majority seems to be implying an IFR, they don’t say that, but they do seem to be using heightened scrutiny. But you can’t get to that unless there is an IFR. 2. So instead, under RBR, enforcing the public notion of morality is a legit state interest. Summary A. Intersectional approach: 1. Sachs: if you look at all these issues in an intersectional way, they compound the problem instead of merely adding up and tilt the balance towards unconstitutionality 2. Lawrence: equality and liberty are very closely related and may inform each other 3. It’s possible for rights to intersect and influence each other so that you may not have a violation of each independently but can have it in the cumulative sense. B. Dignity 1. Ackermann: dignity is front and center; includes freedom from stigma and prosecution 2. Sachs: dignity is bound up with expression and autonomy 3. Kennedy: if the goal is to protect decisional autonomy, then dignity and liberty might be two routes to get to the same protection 3. From Same-Sex to Marriage?

A. Zablocki (SC strikes down law that makes paying outstanding child support a condition to marrying) and Loving

(strikes down laws prohibiting interracial marriage) seem to stand for the idea that there is an IFR to marriage. But for the SC to announce the right to marry w/o paying attention to the social environment might provoke major backlash. B. Alternatively, look to comparative law to see if and when gay marriage could be recognized in the US. C. Minister of Home Affairs v Fourie (SA, 2005) 1. Relevant Law: a. 9(1): Everyone is equal before the law and has the right to equal protection and benefit of the law. b. 9(3): The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including. . .sexual orientation. 2. Facts: The c/l defines marriage as b/t men and women. The Marriage Act has been interpreted to mean that marriage officers can only marry men and women. There’s no provision to allow for gay marriage. 3. Held: a. Sec 9(1) and 9(3) on equality have been violated. (Use Hugo-Harksen) b. Sec 10 on dignity has been violated. c. Sec 36 doesn’t justify the violations. Thus the remedy is to issue a suspended declaration of invalidity whereby the legislature has 1 year to decide how to recognize gay marriage. 4. The state cannot penalize people for being who they are. Equality doesn’t mean that you extol some people as superior to others. 5. Marriage is a significant decision; exclusion from it has major impx. 6. Sec 9 Equality and the Hugo-Harksen Test a. Yes a distinction has been that amounts to discrimination. The relevant discrimination is b/t gays/lesbians or same-sex couples (individual or group discrimination). b. Yes it’s on a prohibited ground AND/OR a comparable ground 1) Specified: sexual orientation  unfairness is presumed 2) Comparable ground: dignity  must show unfairness c. State must rebut the unfairness by showing fairness: 1) Vulnerability of the group A) Very vulnerable, historic legacy of prejudice 2) Nature of the harm and dignity implications A) Stigma: denies them respect as equals B) Sexual conduct is bound up with identity; thus the intangible harm of not being allowed to marry really harms dignity b/c it strikes at the core of sexual identity. Also represents the notion that gays are outsiders and the need to protect their intimate relationships is less valuable than for heterosexuals. 3) Interests affected A) Hetero marriage people argued that traditional marriage is best b/c it’s based on procreation, respect for religion, international law, and Sec 15’s limitations on the meaning of “diverse” families. 30

Comparative Con Law 2009 B) Sachs rejects: C) To make procreation the touchstone would be demeaning to couples who can’t or choose not to have kids. D) Religion can’t inform the constitutional distribution of rights. E) International law says it’s not necessary to recognize gay marriage under international law. That doesn’t prohibit SA from allowing it therefore. F) Sec 15 on marriage is about acknowledging diversity in marriage. While it does not itself provide a gateway to gay marriage, it does confirm the general constitutional value of diverse marriage systems. It is not however, a bar to gay marriage. 7. Sec 36: given the violations of both dignity and equality, does the law pass Sec 36? a. State argued: gay marriage would undermine the institutions of marriage and offend strong religious tendencies of the public. b. Sachs summarily dismisses these arguments: 1) Gay marriage will in no way attenuate the capacity of heterosexual couples to marry according to their religious views. 2) The institution of marriage will not be undermined and anyway this is extremely demeaning to gay couples. c. Sachs doesn’t engage the opponents more deeply b/c it will affect the meaning of the institution of marriage. He could say that objectively, your dignity hasn’t really been affected but that would deny the legitimate debate that rages over this issue. 8. The remedy a. There are several options as to what the law ok’ing gay marriage could be and Sachs equivocates over the possible options. b. The tricky thing here is that the Court doesn’t want to antagonize the ANC who is easily in the position to amend the constitution prohibiting gay marriage. So it would be very bad for the stability of the country and the court potentially. Thus the court is pushing Parliament as far as it can w/o going over the line. c. Having the legislature help to draft and pass the law ensures democratic values are instilled in the process plus the Court wants the legislature to acknowledge some of the blame by forcing them to correct the situation. 9. O’Ragan dissent: This doesn’t provide a solution to the claimants or to people in the interim. D. Canada 1. In 2005, Canada passed the Civil Marriage Act which legalized same-sex marriage. 2. Re Same-Sex Marriage a. SCC issued advisory opinion saying that the Parliament of Canada, which has legislative authority over “marriage” had the power to legalize same-sex marriage. b. Sec 15(1) of the Charter contains the equality provisions. 1) Egan: sexual orientation is a deeply personal characteristic that is unchangeable or changeable at great personal cost. Public pension schemes that make benefits available to the spouses of hetero couples but not homosexual couples violates Sec 15  sexual orientation is an analogous grounds of prohibited discrimination 2) Vriend: Omitting sexual orientation from a state law that provided for employment discrimination remedies from a list of prohibited grounds violates Sec 15. 3) M v H: Dignity violation occurred when law excluded same-sex relationships from spousal support obligations but included opposite-sex relationships 4) Little Sisters: customs officials violate Sec 15 when they discriminate against homosexuals by preventing the importation of gay obscene materials into the country. c. Provincial cts then, in a series of cases, held that prohibitions on same-sex marriages violated Sec 15. d. Parliament then begins discussing a federal gay marriage law. In this advisory opinion, SCC ok’s it. e. SCC had to address the issue of whether Sec 91(26) of the Constitution Act would authorize a law that defines marriage as include same-sex unions. The SCC held that legislative competence over “marriage” was vested w/ the Parliament b/c the “pith and substance” of the law is “capacity for marriage.” Thus, only Parliament (or the legislature) has the jurisdiction to define “marriage.” f. SCC was also asked to address whether gay marriage was consistent w/ the Charter of Rights. SCC refused to answer this question. 1) Out of a desire to get Parliament to play a role in the legalization of gay marriage, the SCC bowed out. 2) If Parliament acted, this couldn’t be claimed to be the work of unelected activist judges who were skirting the democratic process. g. The Civil Marriage Act picked up on this ruling by enacting a definition of marriage that includes same-sex couples. 31

Comparative Con Law 2009 E. US 1. In 2000, CA, as a result of an ordinary ballot initiative (requires 5%), passed Prop 22 which limited marriage to heterosexuals only. 2. In re Marriage Cases (CA SC, 2008) a. Held: CA granted marriage rights to same-sex couples by finding Prop 22 to be unconstitutional. b. There’s a fundamental right to marry. c. Sexual orientation is a suspect classification like race or sex, thus that sort of govt classification is presumptively invalid b/c it usually relies on stereotypes about people who as a group, have long been victims of discrimination. d. CA SC subjected the CA law that only allowed heterosexual marriage to SS. It failed. 3. But CA also allows for constitutional ballot initiatives (8%) to amend the state constitution. At the time of the article (May 2008), supporters of Prop 22 were organizing signatures to turn this into a constitutional ballot initiative. 4. Might imply pressure for the USSC which can be seen as more strongly counter-majoritarian whereas CA SC is more weakly counter-majoritarian due to the ease of amending the state constitution. 5. DOMA might limit the force of the CA SC’s decision. 6. Highlights the point about judges needing to be sensitive to the prevailing social climate. Forcing change might effectively galvanize the opposition and lead to backlash. F. Summary 1. Sachs seems to deliberately equivocate: a. Intentionally deep on granting the right to marriage b. But not quite so for the remedy c. Intentionally creating some ambiguity in case there’s pushback; there’s a real risk of pushback given how permissive it is to amend the Constitution so don’t want to be too counter-majoritarian d. O’Ragan: would grant the remedy right away 2. Benefit of a delayed remedy; a. Democratic input from the legislature esp when: 1) More than 1+ constitutionally permissible solution 2) Choosing b/t them should be done by popularly elected people 3) Inertia: the unwillingness to adapt might change if court squarely puts the issue on the legislature’s docket 3. Fourie highlights the importance of religious objections.

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Comparative Con Law 2009

Part IV: RELIGIOUS FREEDOM 1. Sacraments, Burial and Religious Accommodation A. Prince 1. Facts: Prince wants to practice law but he can’t pass the last step in the application process unless he promises to stop using marijuana. Prince says he can’t foreswear marijuana use b/c it’s required by his Rastafarian religion which uses marijuana in various ways other than just smoking it. Prince claims that the criminal prohibition on possession and use of marijuana w/o a religious exemption violates Sec 15. If he can prove a violation, then burden shifts to state to justify under Sec 36. 2. Majority: Yes Sec 15 FoR has been impaired. But under Sec 36 balancing, the state’s objectives outweigh granting an exception for the religious rights of Rastafarians. a. Cites Smith b. The validity of the general prohibition on possession and use of marijuana is valid. c. Sec 36 balancing comes out for the state. If it were allowed, the state’s ability to police the marijuana trade and use would be severely hampered since it seems to largely depend on self-disciplined use of it. 3. Dissents: Ngcobo and Sachs 4. Ngcobo: w/ the majority on Sec 15 FoR, dissents on Sec 36 analysis a. Sec 15 FoR is violated. b. Freedom of religion means: 1) Freedom to believe; freedom to announce beliefs publicly w/o fear of reprisal; freedom to worship and practice, teach and disseminate 2) Thus forcing people to act contrary to their religion violates FoR c. Majority will not get into evaluating the “centrality” of a practice to religion: 1) Competence prob: cts not good at doing that; plus minority religions are likely to get more secondguessing 2) The very process of saying that something isn’t actually that important to your religion is more insulting to dignity than to say that your conduct should be subordinate to a gen law 3) Making calls on the centrality of practice turns the judge into a pseudo-priest—too much govt-rel entanglement. 4) Belief is very protected but the conduct distinction is trickier. d. Sec 36 Analysis 1) Test: A) Importance and purpose of the limitation? B) Rational connection b/t the limitation and the purpose? C) Is it minimal impairment or are there less restrictive means to accomplish the same ends? D) Proportionality 2) Application A) Importance and purpose of the limit: i) Health harms, dependence harms ii) International obligations to curtail marijuana trade B) Rational connection: Yes clearly. C) Impairment i) Prince argues for an exemption; says a permit system could be a narrow way of granting exemptions ii) State: can’t tell true adherents from fake ones; admin expenses would be high; marijuana is harmful D) Proportionality: nature of the right vs nature of the limitation E) Proportionality i) Legitimate interest but have to find an accommodation; international obligation is downplayed b/c domestic constitution is a higher order law ii) Permit system could work Ngcobo Sachs • Would force the govt to prove justification on the • Takes intersectional approach to rights violations limitation for all the diff ways that Rastafarians use • Connects religion to equality and equality to dignity, marijuana, and not just consumption thus religion = dignity • More evidence on workability—state hasn’t proven • Equality: the drug laws undermine tolerance and that the scheme is impossible or that it will totally respect for diversity 33

Comparative Con Law 2009 • •

undermine the objective This makes practicing Rastafari criminal He is willing to get into the centrality of the marijuana to the Rastafari religion b/c he argues that since it’s a key part of their religion, they should be stigmatized as criminals—pluralism and tolerance for others

• •

•

Dignity: forces religionists to choose b/t respecting the law and respecting their faith Contextualizing the balance: this has to do w/ African identity and pride; the Rastafarians have been denigrated and mocked but b/c it’s part of the African heritage, it should be allowed to flourish. It’s used to achieve an Afro-centric communion w/ nature and religious practice. To denigrate Rastafarianism as worse than Catholicism is to be a white colonial snob. To denigrate Rastafarianism is to denigrate African culture and nationalism. So allow for discretionary application of the law w/ the pragmatism of a permit system and humility about other religions vis a vis this Afro-centric one

B. Employment Division v Smith 1. Smith: drug rehab workers; don’t get unemployment compensation b/c they used peyote and don’t get an exemption from that. 2. Scalia a. Beliefs aren’t regulated. b. Practice does have a close connection to belief and is protected but there’s a gap b/t that and how much cts will enforce prohibitions that encroach on the practice. c. If the law has the purpose of burdening religious practice, then SS. d. But if it’s the mere effect of burdening religious practice, then RBR, effectively. e. (has the Washington v Davis idea: diff b/t intent and disparate FX) f. Purpose: look at whether religion is targeted or if the law is neutral towards religion. g. O’Connor: 1) A la Casey: if petitioner can show substantial burden on your religious practice, then heightened scrutiny of some kind. She’s trying to avoid having to look at every law of gen applicability infringing on religion in some way. h. He rejects O’Connor’s approach—that approach would create unpredictability; it’s a std not a rule. Calls into question the importance or validity of all kinds of laws. AND competence is a big part of his worry. Doing the minority’s approach would contradict common sense and the constitution. 1) O’Connor’s response: the 1stAmendment guarantees more than what Scalia is giving to Smith. The purpose of the FEC was precisely to protect the minority religious practices that were viewed w/ hostility. You can’t tell whether something’s an undue burden unless you test. Unlike Scalia, she thinks cts are competent to do this. i. Rule: laws of gen applicability that have an incidental burden on religion are ok j. Purpose: a. Differential impx is so severe that you can infer intent—Yick Wo b. City of Hialeah: purpose is clear and that we can infer that religion was targeted. k. Not overruling: 1) Unemployment benefits or has set up a system of individualized exemptions—you might have a disparate impact claim 2) Hybrid rights cases—if something else is implicated like free speech rights A) This looks like Sachs—intersectional analysis—liberal B) Conservative: might be that only free speech is the one that gets you to SS (half plus half equals a whole) C) Alternative: need an independent violation of the free speech clause to get this exception (This is Scalia’s way of saying that these other things are free speech cases really; cts are split on this) C. Boerne v Flores: RFRA (which reinstates Sherbert/Yoder style SS) only applies to the USFG at best; cannot apply to the states. Smith as compared to Prince 1. RFRA looks more like the courts in South Africa. There was national support for cts getting their hands dirty. 2. Congress w/ RFRA looks more like the cts in South Africa (less Sachs) 3. Pluralism and Scalia: minorities have to be prepared to give up some rights; pluralism makes exemptions unmanageable! Ngcobo—we should work harder when it comes to religion. 4. Sachs: pluralism commits us to celebrate it and go out of our way to protect it. 34

Comparative Con Law 2009 5.

3 positions: A. Scalia B. O’Connor + center SAC C. Sachs 6. Sympathetic plaintiff 7. Judicial competence A. Major explanation of the diff B. Discomfort w/ balancing for Scalia 8. Diffs b/t countries: all SAC members are liberals; all appointed by the ANC 9. Centrality: both US and SA reluctant to get into what’s “central” to a religion or how important it is from a religious perspective. A. But sometimes SA finds that it’s unavoidable b/c it comes up in the balancing B. O’Connor: is willing to look into it a bit 10. Extent to which diff judges have diff notions of pluralism: A. Explains majority/minority in both countries B. Pluralism 1: let it play out in the civil sphere (Scalia in Smith) C. Pluralism 2: pluralism requires effort on behalf of the state to give max protections to diff religions in the way of accommodations; tries to treat groups equally to allow religion to flourish. 11. What role do cts play in all of this? A. Judicial competence i) Scalia: judges are bad at this; due to dem concerns, let the legis figure it out ii) Everyone else: judges should do this kind of balancing B. US: rule-likeFEC is only violated when the state has the purpose of burdening the free exercise of religion as its practice. Otherwise it gets RBR. Exceptions: i) Unemployment comp/individualized exemptions system ii) Hybrid rights Schools, Free Exercise and Freedom from Coercion Germany Article 6: Rights of the Family 1. Marriage and family enjoy the special protection of the state. 2. Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them. The state watches over the performance of this duty.

Article 4: Freedom of faith, of conscience and of creed 1. Freedom of faith and of conscience, and freedom of creed religious or ideological, are inviolable. 2. The undisturbed practice of religion is guaranteed. <practice>

Article 7: Education 1. The entire education system is under the supervision of the state. 3. Religious instruction forms part of the ordinary curriculum in state and municipal schools, excepting secular schools. Without prejudice to the state's right of supervision, religious instruction is given in accordance with the tenets of the religious communities. No teacher may be obliged against his will to give religious instruction. A. Van Orden v Perry 1. Some notes in the display: a. Eagles concerned w/ eliminating juvenile delinquency, so one thing to do is promote the 10 C’s b. Ok so then which version? B/c the Eagles aren’t a sectarian group. The version chosen is some kind of mix of versions or is ‘original’ but is translated from the Hebrew text 2. It’s constitutional: 4-1-4 3. But no judge says that these rules lack religious content at all. (Except for Blackmun on the menorah in Allegheny County) 4. Renquist’s 4 35

Comparative Con Law 2009 a.

“Passive”1) It’s possible that no monument can be “active” 2) Proselytizing: advocacy, promoting, pushing, “actively promoting” 3) This is passive for the court that people wander by, and it’s not in your face. 5. Meaning of the monument: (Thomas) a. The monument doesn’t mean that you should be Christian etc. b. This has a social conduct/moral message 1) Breyer, concurring in the judgment: key opinion of the case 6. The monument + message is not just religious, but also historical and moral message 7. It’s also one monument of 22 (framing issue: it’s 1/22, whereas dissent says 1 monument)—the selection of the frame will influence the meaning you get out of it. 8. The fact that the entire display seems to consist of arbitrarily selected monuments works in its favor—it’s part of the big mix and so is our culture. 9. So if govt tries to reflect that mix, that’s generally ok. 10. Sees no test to tell how to decide this test. 11. Wants to judge this by general principle of what he thinks the EC is about, context judged in relation to the specific facts and consequences of this particular case and of the EC. a. Thus there are high floating principles: ie don’t favor one religion over another b. EC: the political battles should not be compounded by religious strife; so avoid religious strife. c. Removal of this monument will actually increase strife B. German Prayer and Crucifix Case (1979) 1. How do you treat prayer in public schools? a. Claimants are asserting their right to do their own religion and have their kids be free from religious persuasion—freedom from religion. The state is asserting a positive right to worship. 1) Christian religious majority has a positive right to practice their religion under Art 4(2). 2) Non-Christians asserting their right to be free from religion under Art 4. 3) So it’s Art 4 vs Art 4. b. Held: As long as the prayers are voluntary and non-adherents can opt out, the constitutional balance is struck. c. The fact that opting out leads to singling one’s self out as non-participants or might be difficult for young kids isn’t enough to get rid of the prayer. The role of the teacher and conditions in the school will protect against discrimination against the non-participants. d. Could you get rid of prayer altogether? 1) Probably not. If Christians have a positive constitutional right to prayer in public schools per Art 7, then Art 4 probably establishes a minimum for school prayer though voluntariness is the touchstone. Coercion into prayer is the upper bound. 2) Christianity is a state-preferred (not state-sponsored) religion. Thus Germany has a hybrid approach whereby the dominant religion can be recognized as the dominant religion but it’s not supported by taxes. 3) It’s also ok to affirm Christianity w/in the context of secular disciplines as a formative culture and educational factor in Western history. 2. German Crucifix Case a. Bavarian ordinance required posting crosses in public classrooms. b. GCC says this violates the Art 4 rights of nonadherents b/c they can’t “voluntarily opt out.” Crosses, unlike school prayer, have no opt out ability thus they seem closer to proselytizing whereas prayer has cultural and historical value. c. O’Connor would say that kids are more susceptible to coercion and that opting out singles one’s self out and makes one more of a target. C. German Headscarf Case (2003) D. Wallace v Jaffree

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