Constitutional Law Ii Outline, Spring 2009

CONSTITUTIONAL LAW OUTLINE Hofstra Law, Professor Ku, Spring 2009

The Bill of Rights & The Civil War Amendments ........................................................................................................3 Constitutional Protection...............................................................................................................................................3 Theories of Incorporation..........................................................................................................................................6 Due Process & Individual Rights...................................................................................................................................7 Substantive Protection of Economic Interests...........................................................................................................7 Substantive Due Process: The Right of Privacy........................................................................................................7 II.Abortion ............................................................................................................................................................8 III.Physician-Assisted Suicide.............................................................................................................................10 IV.The Autonomy of Private Sexual Choices......................................................................................................11 Procedural Due Process in Non-Criminal Cases.....................................................................................................13 Equal Protection...........................................................................................................................................................15 The Traditional Approach: Rational Basis...............................................................................................................16 Discrimination on the Basis of Race/Ethnicity........................................................................................................18 Discrimination Based on Gender.............................................................................................................................26 Fundamental Rights.................................................................................................................................................29 Religion........................................................................................................................................................................30 I.The Establishment Clause ................................................................................................................................30 II.Aid to Religion ................................................................................................................................................30 III.Official Acknowledgement.............................................................................................................................32 IV.Free Exercise Clause ......................................................................................................................................33 Free Expression............................................................................................................................................................33 II.Advocacy of Illegal Action..............................................................................................................................34 III.Libel ...............................................................................................................................................................35 IV.Fighting Words, Hostile Audiences, Offensive Words and Hate Speech........................................................36 V.Obscenity .........................................................................................................................................................37 1

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THE BILL OF RIGHTS & THE CIVIL WAR AMENDMENTS I. The Bill of Rights A. PURPOSE i. To guarantee and codify widely accepted rights ii.Conceived of as protections against the federal government iii.For the “People” I – Freedom of religion & free speech/press; right to peaceably assemble II – Right to bear arms III – No quartering of soldier during peacetime IV – No unreasonable search & seizures; warrant requirement V – No deprivation of life, liberty, property w/o due process; double jeopardy; the “5th” VI – confrontation clause (confront your accuser); trial by jury in criminal; right to speedy & public trial VII – Right to trial by jury in civil proceeding (>$20 in controversy) VIII – no cruel & unusual punishment IX – enumerated right of the Constitution doesn’t exclude any implied rights X – powers not delegated to the federal government are reserved to the states II. Civil War Amendments A. PURPOSE i. To end slavery and guarantee rights of freedmen ii.Conceived of as protections against state governments, and private oppression iii.Empowers Congress XIII - No slavery XIV - Equal Protection Clause XV – Right to vote (can’t be denied right b/c of race, color or b/c you were a slave before)

CONSTITUTIONAL PROTECTION WHO IS PROTECTED? I. The Scope of Constitutional Rights A. Reid v. Covert – Δ (US citizen) kills her husband, who is in the military, abroad. At the time of the offense, she was in England, and there was a treaty btwn U.S. & UK which permitted US military courts to exercise exclusive jurisdiction over offenses committed in UK by US servicemen or their dependents. Δ tried by US military & given the death sentence. Δ challenges this, claiming that she was entitled to constitutional protection (5th & 6th Amendments) which she did not get. i. Ct held that the Constitution always trumps treaties, so Δ entitled to her constitutional rights. The constitution limits US actions against citizens abroad. a. Doctrine of enumerated powers 3

1.The federal government does not possess any power other than what is enumerated in the Constitution (for the most part). Since the constitution is source of all power, the federal government only exists because of the constitution and so they can only act because of the constitution. b. Texts of the 5th & 6th Amendments 1.5th – capital crimes by a grand jury, except in cases arising in the land or naval forces. (a)Civilian wives of soldiers not included in the exception 2.6th - trial by jury in criminal proceeding ii.Harlan’s Concurrence - the Constitution applies overseas, unless its application was "impracticable and anomalous." This requires a case by case analysis. a. Harlan thinks the constitution applies here b/c it’s a capital offense. Perhaps it wouldn’t have applied if not a capital offense, but it depends on the situation. B. Model’s of Constitution’s Scope Citizens in US Citizens outside Non-Citizens in US Non-citizens outside US territory US territory territory territory Constitution Fundamental Constitution always applies Depends on which right always applies rights of if non-citizens are part of a • Harlan says only Constitution “national community” fundamental rights apply, when not (permanent resident get Depends on the text impracticable or protection, but what about • as long as it’s the US anomalous illegals? Still unclear). actively doing something (Harlan in Reid)

THE STATE ACTION DOCTRINE II. "State Action" Doctrine - has long established that most provisions of the Constitution that protect individual liberty impose restrictions or obligations only on government. A. Private entities are bound by state and federal laws - which in some ways may be more restrictive than the Constitution. B. Civil Rights Cases – The Constitution and the rights guaranteed by the Constitution protect individuals against the government. The Civil Rights Act may only apply to government entities, but discrimination is being perpetrated by private entities. i. 14th Amendment – doesn’t allow Congress to make laws regulating private rights; only provides redress against the operation of state laws, and actions of state officers. a. Harlan’s dissent – certain individuals are in a practical sense agent of the state b/c of their public duties and functions, so they can be viewed as state actors (innkeepers, RR companies). ii.13th Amendment – “slavery shall not exist” so not just limited to government action, but also to individual action. 13th is only to end slavery, not to address social rights of people though. a. Harlan’s dissent – slavery rests on the inferiority of a race, so their freedom involves protection from private discrimination. III. Exceptions to the State Action Doctrine A. Government Function – Is the private actor performing a government function? i. Some Examples of Government Function a. Party Primary Elections or Caucuses 1.Smith v. Allwright (1944) – democratic party of Texas (private) performing a government function in conducting the primary elections (so can’t exclude blacks). 4

2.Terry v. Adams (1953) – Jaybirds a private organization run like a political party & had elections within the org. Held to be performing a government function b/c their candidates always will elections (uncontested), so effectively, this is where the real votes count. b. Company-owned town 1.Marsh v. Alabama (1946) – town owned by a shipbuilding company (private). Town looks like any other, so just b/c owned privately, their operation is essentially a public function (as a municipality), so it is subject to state regulation. c. Shopping centers and malls 1.Amalgamated Food Employees Union v. Logan Valley Plaza (1968) - a large, privatelyowned shopping center was the functional equivalent of a business district (municipality). d. Private parks 1.A private park is a government function if it is generally open to the public (so it is municipal in nature). e. Gated Communities ii.What is a Government Function? The question is "whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." a. Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) – private utility company is heavily regulated by the state. Providing power is not a traditional governmental function 1.State action b/c state has given the utility a monopoly. Ct disagrees. This is more of a "natural monopoly," which exists b/c of the nature of providing electricity. Regulation was imposed on such natural monopolies as a substitute for competition. 2.State action b/c the utility company provides an essential public service, so it is performing a "public function." Ct says this would be true, but this is not a traditionally state function. Statute imposes a duty on regulated utilities to provide service, but no duty for the State to provide those services. Too many business subject to regulation & they can’t be state function. 3.State action b/c the utility's service termination practice was authorized and approved by the State. The termination procedure was in place before state started regulating, so State never really considered it, they just let them keep doing it. B. State Entanglement or Encouragement - is the private actor sufficiently involved with or encouraged by the state so as to be held to the state's constitutional obligations? i. Shelley v. Kraemer, 334 U.S. 1 (1948) – restrictive covenant in community that limits selling property to whites only. Shelley owned a home & wanted to sell to a black couple. Neighbor (Kraemer) went to court to enforce the restrictive covenant. a. The covenant is not imposed by the local government, it’s a private covenant. Since this is a private agreement there is no state action. However, the court’s enforcement of the covenant constitutes state action, and this would be in violation of the 14th Amendment. b. Every private transaction enforced by courts will essentially be state action. Whenever the court enforces some private activity, they have to consider whether or not they are effectively violating a constitutional right. ii.Problems a. Will devising property on condition that if person marries a person "not born in the Hebrew faith" the property goes to someone else. 1.This is generally ok. This is a gift, rather than a sale. b. Child custody decree requiring private school tuition payments by father to a school that discriminates on the basis of race. 1.Formal distinction (not state action) - father required by court to give money to mother, but it’s the school that's discriminating. Probably not state action b/c not close enough nexus btwn state action and the discrimination. 5

THEORIES OF INCORPORATION th

I. Incorporation and the 14 Amendment A. Prior to the 14th Amendment, the Bill of Rights did not apply against the states. B. The 14th Amendment shifted from limit on federal government to limits on both federal and state government. i. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." (But see: Slaughterhouse Cases) ii."Nor shall any State deprive any person of life, liberty, or property, without due process of law."

II. Total Incorporation VS Selective Incorporation A. Note: some of the personal rights safeguarded by the 1st 8 amendments against federal action may also be safeguarded against state action, because a denial of them would be a denial of due process (Twining v. New Jersey). B. Total Incorporation view - that the 14th amendment made all the provisions of the Bill of Rights fully applicable to the states. i. Adamson v. California, 332 U.S. 46 (1947) [DISSENT - J. Black] supported total incorporation, b/c the original purpose of the 14th amendment was to extend to all the people of the nation the complete protection of the Bill of Rights. C. Selective Incorporation – Some rights are incorporated*** i. The test for which rights should be incorporated: a. Those rights implicit in the concept of ordered liberty (Palko v. Connecticut) b. Those rights deemed fundamental to the American scheme of justice (Duncan v. Louisiana) ii. Almost everything in the Bill of Rights is incorporated. a. Exceptions: 1.Amendment II - right to bear arms 2.Amendment III - quartering soldiers 3.Amendment VI - grand jury 4.Amendment V - civil jury 5.Amendment VI - no excessive bail

III. Selective Incorporation and Due Process A. Does the 14th Amendment have independent force? i. Rochin v. California, 342 U.S. 165 (1952) – Rochin involuntarily had his stomach pumped to find evidence of his possession of illegal drugs. a. Majority (Frankfurter): The conduct violated the 14th amendment due process. Due process prohibits using methods that "offend a sense of justice." Police cannot extract by force what is in someone's mind, therefore, they may also not extract by force what is in his stomach. This activity “shocks the conscious.” b. Concurrence (Black): 5th amendment's protection against compelled self-incrimination applied to the states and a person is compelled to incriminate himself when incriminating evidence is forcibly taken from him. 1.Disagrees w/ majority: Don’t look at 14th, and instead look at bill of rights, because it "insures a more permanent liberty."

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DUE PROCESS & INDIVIDUAL RIGHTS SUBSTANTIVE PROTECTION OF ECONOMIC INTERESTS I. Lochner v. New York, 198 U.S. 45 (1905) – court held invalid NY statute forbidding employment in a bakery for more than 60 hours a week or 10 hours a day – b/c violates the 14th Amendment. A. The right to contract is a substantive liberty interest covered by the due process clause. When the state interferes with this right to contract, it infringed on the constitutional right of due process i. Rationale Basis Test a. If the state's regulation infringes on your life, liberty or property interests, the state must have a rationale purpose for interfering with it. b.In addition, the state must use rationale means to achieve that purpose. Must be a rationale way for state to accomplish that rationale purpose. B. The Abandonment of Lochner i. Nebbia v. New York (1934) – state interfering w/ right of milk sellers to contract with buyers of milk. Court uses rationale basis test & finds it fine. Reason it comes out diff from Lochner, is that the court won't second-guess. They will defer if rationale, and unless there’s a clearly arbitrary & unreasonable, then it’s reasonable.

SUBSTANTIVE DUE PROCESS: THE RIGHT OF PRIVACY Fundamental Rights Analysis 1. Identify a Fundamental Right 2. Identify the Source of Constitutional Protection 3. Subject state purpose for regulating or restricting this right to scrutiny

I. Introduction to the Right to Privacy A. "Several select liberties have attained the status of fundamental or preferred, with the consequence that the Constitution permits a state to abridge them only if it can demonstrate an extraordinary justification." B. Griswold v. Connecticut, 381 U.S. 479 (1965) – Δs arrested for violating a statute making it a crime for giving information, instruction, and medical advice to married persons as to the means of contraception. i. The law violates the individual right to privacy. It prohibited giving advice to married person as to means of preventing conception. The right to privacy encompasses marriage and having children; these decisions are sacred. ii.Constitutional Source - Right to privacy isn’t specifically mentioned in the Constitution. Where does it come from?

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a. Penumbra of enumerated rights – if you look at the Constitution as a whole, it looks like the framers were really concerned about protecting privacy, so you can imply that they meant to protect it. b. 9th Amendment (catchall) – says rights not enumerated are still protected. But we don’t know what these rights are. The right of privacy in marriage is so basic and fundamental and deeprooted in our society - so it can't be infringed. c. Due process clause of the 14th Amendment - Violates due process clause of the 14th amendment b/c it violates basic values "implicit in the concept of ordered liberty." iii.Since the right emanates from specific fundamental rights, the right to privacy is also fundamental. Therefore, its infringement is suspect and calls for strict scrutiny. A state can still encroach on a fundamental right as long as there is a compelling state interest, and the law is narrowly tailored to serve that interest. C. Griswold's Aftermath - Court extended Griswold beyond marriage i. Individual's right to use contraception a. Eisenstadt v. Baird, 405 U.S. 438 (1972) – state law made it a felony to distribute contraceptive materials, except in the case of registered physicians and pharmacists furnishing the materials to married persons, found unconstitutional. Violated the Equal Protection Clause, single vs. married persons. Married couples were entitled contraception under Griswold. b. The seed from which Roe grew 1.J. Brennan in Eisenstadt made a passing remark about the right of the individual to be free from unwarranted governmental intrusion into such matters "as the decision whether to bear or beget a child." 2.So both Eisenstadt and Griswold stand for the proposition that there is a "constitutional protection of individual autonomy in matters of child-bearing." ii.Where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it will be subject to strict scrutiny. a. Carey v. Population Services Intern., 431 U.S. 678 (1977) - invalidated a NY law which allowed only pharmacists to sell non-medical contraceptive devices to persons over 16 and prohibited the sale of such items to those under 16. 1.Court read Griswold to hold that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State. 2.Restriction on minors under 16 - (less rigorous test than above) restrictions inhibiting privacy rights of minors are valid "only if they serve any significant state interest that is not present in the case of an adult.

II. Abortion A. The fundamental right to privacy encompasses a woman’s decision whether or not to terminate her pregnancy. Since this is a fundamental right, state regulation of abortion must be analyzed under strict scrutiny. i. Roe v. Wade, 410 U.S. 113 (1973) – TX statute makes procuring an abortion a crime except by medical advice for the purpose of saving the life of the mother. a. Majority (J. Blackmun): The right to abortion is a fundamental right, found under the right to privacy. 1.There is a fundamental right to an abortion - Under the concept of liberty guaranteed under the 14th amendment - only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" are included in this guarantee of personal privacy. This right of privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. 8

2.Since the right to abortion is a fundamental right, state regulation is subject to strict scrutiny. (a)What is the compelling interest? ♦ Protection of life of the fetus –Court doesn’t resolve the question of when life begins b/c they can’t if others in the fields of medicine, theology, & philosophy cannot agree. So they don’t use this interest in the strict scrutiny analysis. ♦ The compelling interest in preserving and protecting the health of a pregnant woman. The compelling point is at the end of the 1st trimester (b/c medical knowledge shows that until the end of the 1st trimester, mortality in abortion is less than mortality in childbirth). Therefore, after this point, a State may regulate abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of the mother. ♦ The compelling interest in protecting the potentiality of human life. The compelling point is at viability (at approx 28 weeks, b/c the fetus then presumably has the capability of meaningful life outside the womb). So after the point of viability, the State may regulate as far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. (b)Narrowly Tailored? Under the framework the Court gave, the TX statute is too broad and is held unconstitutional. b. Dissent (JJ. White & Rehnquist) - This has nothing to do with privacy (what you do in your own home). Abortions are done by doctors, and the dissent says this isn't really private. Therefore the statute should be reviewed under traditional scrutiny (rational basis). Also, look at long history of abortion laws. This is a strong indication that the right to an abortion is not so rooted in the traditions and conscience of the people as to be ranked as fundamental. B. The link between right to privacy and right to an abortion - the right to privacy - a person belongs to himself/herself and not others nor to society as a whole. i. Few decisions are more basic to individual dignity and autonomy or more appropriate to the private sphere of individual liberty than the uniquely personal, intimate and self-defining decision whether or not to continue a pregnancy. ii.Abortion restrictions keep a woman from "belonging to herself." iii.Deprive a woman of bodily self-possession (changes in the body as a result of pregnancy, medical risks, labor & other physical demands) iv.Intrude on bodily integrity - body should be used as you want it to be used. C. The Court reaffirms the essential holding of Roe, that the right to an abortion is a fundamental right, but places an undue burden standard on laws regulating abortion before viability. i. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) – state abortion law required that (1) informed consent and a 24 hour waiting period prior to the procedure, (2) a minor seeking an abortion required the consent of one parent, (3) a married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. a. Court (O’Connor, Kennedy, Souter) reaffirms the essential holding of Roe. 1.Stare Decisis - there is a need to stand by prior decisions even if they were unpopular, unless there had been a change in the fundamental reasoning underpinning the previous decision. Also acknowledged the need for predictability and constancy in judicial decision making. 2.Constitutional protection of a woman's right to an abortion derives from the Due Process Clause of the 14th amendment. This liberty is not a specific guarantee in the Constitution, but a rational continuum which includes a freedom from all substantial arbitrary impositions and purposeless restraints. As stated in Roe, the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, as well as bodily integrity. The Constitution affords protection to matters 9

involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, which are central to the liberty protected by the 14th amendment. b. Undue Burden Standard - Court replaces strict scrutiny of abortion regulations with an undue burden standard. A law that imposes an undue burden on the woman's decision before fetal viability is unconstitutional. 1.A legal restriction posing an undue burden was defined as one having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." 2.Under the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. 3.Court rejects Roe’s trimester framework. Viability is the time at which there is a realistic possibility of maintaining and nourishing a life outside a womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that would override the rights of the woman. Then, the State has an interest in the protection of potential life. 4.Applying the Undue Burden Standard (a)Spousal Notification – creates an undue burden, b/c it gives husbands too much power over their wives and could worsen situations of spousal abuse. (b)The court upheld the State's 24 hour waiting period, informed consent, and parental consent requirements, holding that none constituted an undue burden. c. Concurrence (J. Stevens) 1.The fact that the state's interest is legitimate does not tell us when that interest outweighs the pregnant woman's interest in personal liberty. 2.The State may not express a preference for childbirth and serious questions arise when a State attempts to persuade a woman to choose childbirth over abortion. 3.A burden may be undue either because the burden is too severe or because it lacks a legitimate, rational justification. The 24 hour waiting period & the counseling provisions fail no evidence that the delay serves a useful & legitimate purpose and it burdens the mother. d. Concurrence/Dissent (Blackmun) - Abortion regulations should be subject to strict scrutiny. The Roe trimester framework is much more administrable and less manipulable than the undue burden standard. All the restrictions at issue here are unconstitutional. e. Concurrence/Dissent (Rehnquist) - Roe was wrongly decided & this case is the same. 1.Right to abortion is not a fundamental right because it wasn’t historically protected. It is however, a form of liberty protected by due process, but it’s just not fundamental. So Court should use the rational basis test. 2.Undue burden standard - "plucked from nowhere" and at least Roe's strict scrutiny standard has some basis in constitutional law (b/c it's a fund right). It's not clear what a "substantial obstacle" is. f. Concurrence/Dissent (J. Scalia) - Issue is whether it’s a liberty protected by the Constitution says it's not. The Constitution says absolutely nothing about it & the longstanding traditions of American society have permitted it to be legally proscribed.

III. Physician-Assisted Suicide A. Washington v. Glucksberg, 521 U.S. 702 (1997)- WA prohibitions against causing or aiding a suicide. Physicians challenge the law b/c they want to assist terminally ill, suffering patients in ending their lives. They argue that it violates the 14th amendment b/c the liberty interest protected by the 14th extends to the personal choice of a mentally competent, terminally ill adult to commit physician assisted suicide. Majority (Rehnquist) held the prohibition doesn’t violate the 14th Amendment. 10

i. Substantive due process analysis – Not a fundamental right a. Glucksberg test - that a fundamental right be carefully described and that there be objective evidence the right is deeply rooted in our nation's history and tradition. 1.There is a consistent and almost universal tradition in rejecting this right. Also, almost every state has a prohibition against this. 2.The requirements of the Glucksberg test reflect an effort to ensure that the Court is enforcing the kind of genuine social consensus that is required for provisions that actually make it into the text of the Constitution. The test assures that rights protected by substantive due process have long standing and overwhelming support. ii.Standard of scrutiny - rational basis test a. Rationally related to legitimate governmental interests. Court holds that the ban implicates a number of state interests, which all are rationally related to the ban: 1.Preservation of human life 2.Protecting life 3.Suicide as a public-health problem - b/c the wish to commit suicide is often caused by depression or mental illness, which may be difficult to diagnose, allowing physician-assisted suicide would make it more difficult for the State to protect depressed or mentally ill people from suicidal impulses. 4.Protecting the integrity and ethics of the medical profession - physician-assisted suicide contradicts the physicians role as a healer. 5.Protecting vulnerable groups (poor, elderly, disabled) from abuse, neglect or mistakes protects people from coercion, prejudice, negative and inaccurate stereotypes, and societal indifference, which might encourage them to end their lives 6.Fear that this will lead to involuntary euthanasia - recognizing one due process right might lead to recognizing the next. B. Vacco v. Quill, 521 U.S. 793 (1997) - court rejected the argument that because NY permit competent persons to refuse lifesaving medical treatment, and the refusal of such treatment is "essentially the same thing" as physician-assisted suicide, the state's assisted suicide ban violates the Equal Protection clause. i. Competent, dying persons have the right to direct the removal of life-sustaining medical treatment and thus hasten death. ii.There is a distinction between refusing treatment (permitting death to occur) and actively assisting in suicide (causing death to occur). a. Causation & intent - The intent is different. C. Abortion vs. physician-assisted suicide – The difference can only be explained in terms of practical and political concerns, and not in terms of the vague general principle offered in Casey.

IV. The Autonomy of Private Sexual Choices A. Bowers v. Hardwick, 478 U.S. 186 (1986) – statute criminalized sodomy. Δ violated statute by having sex with another adult male in the bedroom of his home. Δ challenges the statute. The Majority (White) held there is no fundamental right to consensual homosexual sodomy i. Fundamental right - those fundamental liberties that are implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed; those liberties that are deeply rooted in this Nation's history and tradition. a. (Defining the fundamental right narrowly) Neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. 1.Bans on this have ancient roots - always has been criminalized. ii.Rationale Basis – Constitutional. Although the law's only basis is that homosexual sodomy is immoral and unacceptable, the court says that laws are constantly based on notions of morality. 11

iii.Dissent (Blackmun): This is not about recognizing the fundamental right to engage in homosexual sodomy (narrow), but about the "fundamental interest all individuals have in controlling the nature of their intimate associations with others" (broad). a. The proscription against homosexual sodomy in history has religious roots, so it shouldn’t matter that there's a such a long tradition. "The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine." iv.Dissent (Stevens): [note: this is cited by the majority opinion in Lawrence] a. The fact that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice 1.Example: Loving v. VA - just b/c miscegenation was always proscribed, didn’t save it from constitutional attack. b. Individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by due process (Griswold). And this protection extends to unmarried as well as married persons. (as long as done in private). You can't treat the two groups separately. B. The Level of Generality in Defining Rights i. In asking whether a particular right forms part of a traditional liberty, it is crucial to define the liberty at a high enough level of generality to permit unconventional variants to claim protection along with mainstream versions of protected conduct. The proper question is not whether homosexual sodomy is a protected right, but whether private, consensual, adult sexual acts partake of traditionally revered liberties of intimate association and individual autonomy. C. Lawrence v. Texas, 539 U.S. 558 (2003) - police got a call about a weapons disturbance, and entered Lawrence's home where they found him having consensual sex with another man. The two men were arrested under the state's sodomy law (proscription only of homosexual sodomy). i. Majority (Kennedy): The court overturns Bowers - Bowers viewed the liberty interest too narrowly. Held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment. a. Kennedy does not declare any fundamental rights, but only demonstrates that same-sex sexual freedom is a legitimate aspect of liberty (as opposed to actions that violate the rights of others, which are not liberty, but license). 1."Liberty protects the person from unwarranted government intrusions into a dwelling or other place private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expressions, and certain intimate conduct." 2."It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." (Casey). b. Standard of Review - something like rationale basis - "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." ii.Concurrence (J. O'Connor) - did not agree that the court should overturn Bowers, but said that the statute is unconstitutional under the equal protection clause b/c it only applies to homosexual and not heterosexual sex. iii.Dissent (J. Scalia) - The majority does not declare homosexual sodomy as a fundamental right under the due process clause. He also notes that the law isn't being reviewed under strict scrutiny (as would be applicable for a fundamental right). So although the majority is overruling Bowers, they find no fundamental right, but only that respondents are exercising their liberty. He also criticizes the majority for applying "an unheard-of form of rational basis review that will have far-reaching implications beyond this case." 12

D. Commentary on the Lawrence Case i. Focusing on the Relationship not the Conduct a. Focusing on the centrality of the relationship in which intimate conduct occurs rather than one the nature of the intimate conduct itself, the Court emphasized its view that "to say the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it be said marriage is simply about the right to have sexual intercourse. Scalia, in his dissent, says "Not once does it describe homosexual sodomy as a fundamental right or a fundamental liberty interest." Scalia was missing the point here - it's not about the sodomy, it's about the relationship! ii.Same-sex marriages a. Just as Brown lead to Loving, it follows that Lawrence will lead eventually to a presumptive judicial ban on all classifications based on sexual orientation. Lawrence denies that morality is a legitimate state interest and it is difficult to identify a state interest other than moral disapproval that would convincingly justify banning same-sex marriages. iii.Lawrence and prostitution a. "Prostitution is not just about 2 consenting adults in a room. It implicates all sorts of other issues ranging from crime to the quality of the neighborhoods, to the subjugation of women. And these are not an issue when you're talking about consenting adults alone in their own home engaged in non-commercial intimate association with the people they're close to." iv.After Lawrence a. Need non-moral justifications for banning certain things like: 1.Sexual relations - adultery, fornication, prostitution 2.Adultery - promoting marriage 3.Fornication - avoiding illegitimate children that become wards of the state 4.Prostitution - social reasons 5.Intimate associations - marriage (gay, polygamy, polyandry) 6.Bodily integrity - marijuana, tobacco b. State needs to come up with a legitimate interest - burden is on the state to show this legitimate, non-moral interest 1.However, there are some things (like slavery) that are banned purely for moral reasons, and this isn't a bad thing. So Lawrence may be a problem. v. Substantive Due process after Lawrence a. History/Tradition/Narrowly define right (Rehnquist) b. Right of privacy (Souter) c. Generalized liberty interest (Kennedy)

PROCEDURAL DUE PROCESS IN NON-CRIMINAL CASES Federal government and state cannot deprive you of life, liberty, property w/out due process.

I. Substantive VS Procedural Due Process A. Substantive rights – individual right, and state cannot interfere, or can interfere in a very limited way B. Procedural rights – the process the court has to give you before they infringe on your right i. Process - A chance to be heard & go to court. This is valuable b/c (1) Likelihood of your right being protected is higher with due process, and (2) We think process is helpful for fairness. 13

C. Due Process requires that the government give you process before taking away your property or other rights. D. Framework: i. Is there a liberty or property interest at stake here which is recognizable under procedural due process? ii.If there is a liberty interest or right, what kind of process do you get/deserve? II. Is there a liberty or property interest at stake here which is recognizable under procedural due process? A. To determine whether an interest deserves due process, the court will assess its importance to the individual, and then see it this interest outweighs the governmental interest. i. Goldberg v. Kelly, 397 U.S. 254 (1970) – court held that due process requires that welfare recipients be afforded an evidentiary hearing (process) prior to the termination of benefits. a. Welfare benefits are a matter of statutory entitlement for persons qualified to receive them. The extent to which due process is afforded depends on the extent the individual will suffer a grievous loss and the recipient’s interest in avoiding the loss outweighs the governmental interest in summary adjudication. ii.Bell v. Burson - State could bar issuance of license until person's insured, but they couldn’t suspend it after he already had it. The individual's livelihood was at stake here w/o the license. B. Requirements of procedural due process apply only to the deprivation of interests under 14th amendment protection of liberty & property. i. Property Interests a. Board of Regents v. Roth, 408 U.S. 564 (1972) – different approach. Roth was hired by state university and they didn’t rehire him after a year. No due process required b/c his interest didn’t implicate a liberty or property interest. 1.Liberty - he could get a job somewhere else - they didn’t limit him, or damage his reputation. (a)Where a reputation is at stake, "notice & opportunity to be heard are essential." 2.Property – need a reasonable expectation to have a property interest. Like if they had promised to rehire him, etc. b. Castle Rock v. Gonzalez, 125 S.Ct. 2796 (2005) – Jessica Gonzalez case; bad facts b/c police’s failure to enforce the restraining order leads to her children being killed by estranged husband. 1.A benefit is not a protected entitlement if government officials may grant or deny it in their discretion. The order said that "law enforcement personnel shall use every reasonable means to enforce the restraining order, or if arrest would be impractical, seek a warrant when probable cause exists." Arrests, etc., are always in the police's discretion. c. Arnett v. Kennedy, 416 U.S. 134 (1974) – federal employee dismissed from his position after he made recklessly false & defamatory statements about other employees. 1.Since the employee could only be discharged for cause, he had a property interest which was entitled to constitutional protection. 2.However, there was a procedure in place already for him to reply to the charges, and that procedure satisfied due process. If when you accept a civil service job, there are policies set in place to which rights you get. (a)You got to take the bitter with the sweet ♦ Bitter - all the restrictions on the procedures ♦ Sweet - you get the job (b)If you accepted the job, you waived your right to those procedures (c)Since you knew the restrictions when you took the job, your expectations of property rights are according to those restrictions. 3.There's a constitutional minimum – procedure still has to comply to some standards,even if you accepted them when you took the job. 14

d. Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532 (1985) ii.Liberty Interests a. Paul v. Davis, 424 U.S. 693 (1976) – Δ arrested for shoplifting (w/ constitutional protection). But then police distributed a picture of him saying he’s a shoplifter. Δ argues his liberty is being impinged b/c of the stigmatization & also that he can no longer go into the store. Court says not enough of a liberty interest to trigger procedural due process (should bring a libel claim instead) III. If there is a liberty interest or right, what kind of process do you get/deserve? A. Mathews v. Eldridge, 424 U.S. 319 (1976) – disability benefits terminated before hearing would take place. Eldridge challenged this – need hearing before benefits taken away. Court said this didn’t violate due process. Due process is “flexible” and called for “such procedural protections as the particular situation demands.” You don’t need the same level of due process for everything. i. In determining the amount of process due, the court should weigh three factors: a. Private Interest Affected. The interests of the individual in retaining their property, and the injury threatened by the official action b. Risk of an erroneous deprivation. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards; c. Government Interest. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication

EQUAL PROTECTION INTRODUCTION TO THE EQUAL PROTECTION CLAUSE No State shall ... deny to any person within its jurisdiction the equal protection of the laws. I. Almost all legislation discriminates in some way. So the question is: Under what circumstances do legislative classifications violate the 14th amendment's command that no state shall "deny to any person within its jurisdiction the equal protection of the laws"? A. Traditional Approach - under the Equal protection Clause to general economic and social welfare regulations. B. Strict Scrutiny - this is given to explicit racial & ethnic classifications, which the court has deemed suspect. C. Basic Questions i. What is the classification? (underinclusive/overinclusive, both) ii.What is the proper level of scrutiny? (rational basis, strict scrutiny) a. Rational basis - whether government's classification of law is related to the important government interest b. Strict scrutiny - law is narrowly tailored to the compelling governmental interest 1.This shifts burden to the government to prove iii.Does the governmental action meet the level of scrutiny? (government purpose) 15

a. Look at government's purpose in adopting this classification. Needs to be a legitimate government purpose, etc. II. Equal Protection and the federal government A. The Equal Protection Doctrine applies only to the States. However, the Court has held that it also applies to the federal government. i. Bolling v. Sharpe - court held that the 5th amendment due process clause incorporates equal protection norms which are binding on the federal government. Basically, the approach to 5th amendment equal protection claims is precisely the same as to equal protection claims under the 14th amendment.

THE TRADITIONAL APPROACH: RATIONAL BASIS I. Underinclusive Classification A. Underinclusive Legislation - The one step at a time approach to legislation i. Underinclusive legislation doesn’t include all classifications necessary to completely solve the problem or in general meet the purpose of the legitimate interest. But courts will say it’s ok b/c it’s up to the legislature to decide what needs to be done. Sometimes there aren’t enough resources to deal with the entire problem or legislature thinks it’s not wise to have a certain policy and the court defers heavily to the legislature to decide this. B. Railway Express Agency v. New York, 336 U.S. 106 (1949) - NYC regulation that you can't advertise on a vehicle unless it's your own business your advertising. i. Classification - ppl advertising their own business vs ppl advertising other businesses a. EP issue- The problem here is not that they're banning advertising, but that they are banning the same advertising for one group of ppl, and allowing that same advertising for another. ii.Level of Scrutiny – Rationale Basis a. NYC's purpose - prevent distractions to drivers & pedestrians (safety) 1.But how does the classification fix the problem? There are still ppl advertising that might be distracting. b. Court gives a lot of deference to the government. They say that it may be that those who advertise their own business do not present the same traffic problem in view of the nature/extent of the advertising they use. The classification is related to the purpose for which it is made. C. New Orleans v. Dukes, 427 U.S. 297 (1976) - New Orleans ordinance banned all pushcart food vendors in the French Quarter except those who had continuously operated there for 8 or more years. i. When local economic regulation is challenged solely as violating the EP Clause, the Ct will defer to the legislature & presume it constitutional, and require only that the classification be rationally related to a legitimate state interest (unless the classification is suspect). a. States are afforded wide latitude in the regulation of their local economies under their police powers. b. Underinclusiveness - State can adopt regulations piecemeal, which may only partially fix the problem, and this is fine. ii.Level of Scrutiny – Rational Basis a. Legitimate state purpose - to preserve the appearance and custom valued by the Quarter's residents and attractive to tourists. b. Classification - The grandfather provision 16

c. Rationally Related? Yes. Instead of proceeding by the immediate and absolute abolition of these vendors, the city could have rationally decided that newer businesses were less likely to have built up substantial reliance interests, & the older businesses had become part of the distinctive character & charm of the area. 1.Note: the court is coming up with their own rationality of the law, & not necessarily asking the state to explain themselves. II. Overinclusive Classifications - subject an entire class to regulation, even though not every person within the class may pose the problem that the legislature seeks to address. A. Overinclusiveness VS underinclusiveness i. Over poses less danger than Under in terms of political accountability. Over does not ordinarily exempt potentially powerful opponents from a law's reach. ii.However, while Under fails to impose the burden on some who should logically bear it, Over actually does impose the burden on some who do not belong in the class. B. New York City Transit Auth. v. Beazer, 440 U.S. 568 (1979) – NYC excluded all methadone users from any Transit Authority employment. City’s Purpose – methadone use related to illicit drug use, and there is a concern for safety & job performance. i. Classification is overinclusive – some methodone users would have presented none of the risks associated with illegal drug use. ii.Ct held that creating more precise rules (so not so overinclusive) creates an undue burden on TA. Too costly for such a big employer to make an individualized evaluation of each applicant. Also, there's always a degree of uncertainty for ppl on methadone (not sure if they will stay free of illicit drugs). No difference in the degree of rationality of the classification if it were only part of the class rather than the class as a whole. III. Actual v. Plausible Purpose A. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980) – Congressional retirement act enacted to phase out certain benefits (both RR & social security benefits). i. Classification: Those who worked >10 yrs & >25 yrs vs. those who worked in between 10-25 yrs. a. Those who worked 10-25 yrs don’t get certain benefits ii.Scrutiny - rationale basis of a legitimate governmental purpose a. Legitimate purpose – Ct says if there are plausible reasons for the legislation, then it’s constitutional. Court comes up with some plausible reasons. b. As long as there could be a rational/plausible reason, then it’s ok. Court doesn’t require legislature to explain themselves. Doesn’t matter that it’s not the actual purpose. iii.Dissent: look at the actual purpose when enacted, not post hoc justifications. It does matter the real reason behind legislation. IV. No Rational Basis A. United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) – Food stamp act excluded any household containing an individual who is unrelated to any other member of the household. i. Legislature’s Legitimate Purpose – held that state acted for impermissible purposes a. Purpose of the act was to raise level of nutrition among low-income households. But court said the classification is totally unrelated to this purpose. Looks at legislative history – intended to exclude hippie communities. Not a legitimate purpose. b. State argues issue of fraud which is the purpose behind the exception – But court said too underinclusive. If ppl were to commit the fraud, then they would just change their living arrangements to receive the benefits. The provision only excludes those ppl who are so poor they can’t change that. c. Moreno can be read narrowly to hold that "a bare congressional desire to harm a politically unpopular group" is not a constitutionally permissible purpose. 17

B. Logan v. Zimmerman Brush Co. (1982) - statutory discrimination against claimants who did not get a timely hearing (b/c of the statute of limitations), through no fault of their own. i. State terminated a claim which the State itself had misscheduled. This is not rational for the purpose of expediting the resolution of disputes. C. Alleghany Pittsburgh Coal Co. v. County Comm'n, 488 U.S. 336 (1989) – property valuation for taxes i. Classification: property recently sold vs. property not recently sold a. Differing ways to calculate value of property for the two classifications, resulting in recently sold property to be a higher value than neighbors’, resulting in higher taxes. ii.Purpose: all property of the same kind to be taxed at a rate uniform throughout the state according to estimated market value iii.Not rationally related – the actual assessment isn’t uniform.

DISCRIMINATION ON THE BASIS OF RACE/ETHNICITY I. Discrimination Against Racial and Ethnic Minorities A. Historical Background - Racism & race discrimination are deeply imbedded in American constitutional history. i. Dred Scott v. Sandford, 60 U.S. 393 (1857) – Dred Scott born a slave in VA. Traveled with his master to IL, a free state where slavery illegal. Returned to MO, slave state. Dred later argued that he attained his freedom under the law of IL, b/c slavery illegal there. Brought suit in federal ct based on diversity of citizenship. a. Diversity jusidication – Ct says slaves not considered citizens under Constitution, so he couldn’t being the federal claim under diversity. b. Slaves were private property – so a state could not “take” a citizen’s private property w/o due process (5th). Ct says free state law prohibiting slavery was unconstitutional b/c it sought to take away private property.

Neither slavery nor involuntary servitude . . . shall exist within the United States. No State shall make any law which [denies] to any person the equal protection of the laws. B. Separate But Equal i. Plessy v. Ferguson, 163 U.S. 537 (1896) – LA law required that RR passenger cars have "equal but separate accommodations for the white, and colored races." Plessy (7/8 white; 1/8 black) was arrested when he refused to vacate a seat in a coach for whites. a. Plessy’s Arguments 1.Violates 13th Amendment– these laws are a legacy of the slavery era and attempts to enforce slavery 2.Violates 14th Amendment– segregation implies an inferiority of blacks, and effectively gives one race less protection ins laws than another. b. Majority (7:1): Separate but Equal is constitutional. Court uses reasonability in its scrutiny of the law, and hold that legislation to separate the races in RR cars is reasonable. 1.Government purpose - public welfare (a)Tradition – they’ve done it in the past (b)People have grown accustomed to segregation, and it keeps good order in our society 18

2.Although the 14th amendment requires the state to guarantee equal protection, they say that separate is ok as long as it’s equal, and there are equal accommodations. c. Dissent (Harlan) - "Our Constitution is color-blind." What else can arouse hate and distrust more than to perpetuate the idea that there is a difference in the races that we need to separate them. "Equal" is misleading. The problem is that although separate can be equal, in reality, it is not. ii.A Racist Decision a. The problem is that at that time, the racism in the South was terrible (worse than while slavery existed), and there was a lot of aggression. Maybe the court could not have decided a different way. "Given the background of race relations at the turn of the century and the limited capacity of the Supreme Court generally to frustrate public opinion, it may be implausible to think that the Justices realistically could have reached different results, since among other things, political officials especially in southern states might simply have ignored a Court ruling that mandated equal treatment of the races." C. Racial/ethnic classifications are subject to strict scrutiny. The classification must be narrowly tailored to a compelling governmental interest. i. Korematsu v. United States, 323 U.S. 214 (1944) [First case to apply strict scrutiny to racial classifications]- After the Japanese attack on Pearl Harbor, the Government started taking people of Japanese ancestry and sending them to relocation centers; no evidence of involvement in any sabotage. Korematsu (of Japanese ancestry) was convicted for not relocating. ‘ a. Majority: (Black) – All legal restrictions which curtail the civil rights of a single racial group are immediately suspect, and can only be constitutional if they pass strict scrutiny. 1.Held that the need to protect against espionage outweighed Korematsu’s rights. Compulsory exclusion, though constitutionally suspect, is justified during circumstances of “emergency and peril.” Gov’t doesn’t have the time to sort through everyone to figure out who is actually dangerous. 2.If there's any evidence that the purpose of the order was just animosity towards ppl of Japanese descent, then this would be unconstitutional. There's a lot of evidence of that here, but the court accepted the other purpose given - there's a legitimate threat that the U.S. is trying to protect citizens against. Problem is no serious evidence that U.S. citizens of Japanese ancestry were dangerous. b. Dissent (Murphy): Unlikely that citizens of Japanese ancestry are actually dangerous, and actually not one of those individuals was accused or charged with espionage or sabotage. c. Dissent (Jackson): Court should not have interfered with military decisions b/c it’s not their place to. "Military decisions are not susceptible of intelligent judicial appraisal." ii.Ex Parte Endo, 323 U.S. 283 (1944) - basically same facts as Korematsu, except the government had conceded that the individual of Japanese ancestry was not a threat, so the Court ordered Endo's release. The decision was not based on the constitutionality of the government's action, but rather that there's no reason to hold Endo if there's no security reason for holding her. iii.Criticism of Korematsu – This was not justified by military necessity, and the decision was not driven by analysis of military conditions. The real reasons were race prejudice, war hysteria, and the failure of political leadership. D. Separate but Equal is Inherently Unequal i. "Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect. Liberty extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective." 19

ii.Brown v. Board of Education, 347 U.S. 483 (1954) - a bunch of black children want admission to the public schools of their community on a nonsegregated basis. a. Separate but equal violates the 14th amendment, b/c it is inherently unequal. Court moves for the desegregation of public schools. 1.Stigma of inferiority. Studies show a stigma in young children, and they are being punished in this environment. Segregation denotes an inferiority of blacks, & this affects the motivation of children to learn. (a)Note: Psychological studies always change. Not clear is studies are correct. b. Originalist argument - Not clear if framers of the 14th amendment had schools in mind when they wrote it. But the Court gets around the originalist argument. 1.Public education has changed since that time. Back then, schools were mostly private and not as important as they are today. Today, this is more fundamental & important. iii.Brown v Board and Social Consequences a. With All Deliberate Speed – Brown v Board did not by itself integrate public schools; segregation still continued for a while. The SC gives states/lower courts time to transition into desegregation. But this means that some people won't have their rights given to them at all because they will grow out of public school. But looking at it from the perspective of the entire race, the change will eventually come, vindicating the race as a whole. 1.Why the slow transition? The Court understood the social consequences of their decision (initiating a social revolution), and they feared certain people were completely unprepared for immediate desegregation, and anything too quick would lead to violence. But the reality is that the slow pace encouraged violence by "allowing enough time for opposition to desegregation to build while holding the hope that the decision would be reversed." b. The Civil Rights Movement 1.Brown did not lead directly to racial desegregation, because it was little enforced for over a decade, it nonetheless played a large indirect role in advancing civil rights. Brown created a massive backlash among southern whites, radicalized politics, and fomented violence. Although Brown failed to achieve immediate school desegregation, that violence produced a counter-backlash in the form of the Civil Rights Movement, which ultimately lead to vast strides for the cause of racial equality. c. After Brown, the Supreme Court became more confident on its role in shaping society. This case raised the profile of the Supreme Court. Ppl being supportive of the broader goals of the Court. iv.Legal Consequences of Brown a. Essentially, it's seen as a repudiation of Plessy, even though they didn’t actually overturn it. Brown said Plessy doesn’t apply in public education. Later cases say Plessy doesn’t belong in any context. E. Mere equal application of a statute containing racial classifications is not enough to remove the classification from the 14th amendment's proscription of all invidious racial discrimination. Therefore, the statute is not immunized from the "heavy burden of justification" (strict scrutiny) that 14th amendment requires. i. Loving v. Virginia, 388 U.S. 1 (1967) - The Lovings, a black woman and white man, were married in DC, and returned to reside in VA. They were convicted under a VA statute that prohibited whites marrying nonwhites. a. Purpose: the state's purpose was to "preserve the racial integrity of its citizens, and to prevent the corruption of blood, and the obliteration of racial pride" (white supremacy argument). b. State's equal application argument- State argues that the meaning of the EP Clause is only that the state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes, and this law punishes both the same. c. Holding: (Warren) 20

1.Organic purpose of the 14th amendment was to eliminate all official state sources of invidious racial discrimination in the States. At the very least, the EP Clause demands that racial classifications be subject to the most rigid scrutiny. (a)There is no legitimate purpose other than invidious racial discrimination which justifies this classification. The measure is designed to maintain White Supremacy. Under strict scrutiny, we must look at the real purpose. The real purpose here was racism. (b)Also, the statute deprives them of liberty without due process. Marriage is one of the basic civil rights of man. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes surely denies due process.

II. De Jure vs. De Facto Discrimination A. De facto discrimination - laws that explicitly discriminate against racial and ethnic minorities B. De jure (or intentional) discrimination - the law may be racially neutral on its face, but ends up being racially discriminatory i. may be deliberately administered in a discriminatory way ii.may have been enacted with a purpose (or motive) to disadvantage a "suspect" class C. Facially neutral law that is deliberately administered in a discriminatory way is subject to strict scrutiny analysis i. Yick Wo v. Hopkins, 118 U.S. 356 (1886) – SF ordinance made it unlawful to operate a laundry w/o the consent of the Bd of supervisors, except in a brick or stone building. Yick Wo, a Chinese alien, had operated a laundry in a wood building for 22 years & had certificates from health and fire authorities, but was refused consent by the board. Although the law is neutral on its face (doesn’t mention race), the reality was that only Chinese laundries were negatively impacted by it. a. The legislature had a very good purpose – preventing fires. The problem here is with the law’s application – the law is applied so unequally and oppressively as to amount to a practical denial by the State of equal protection. D. Facially-neutral law that has a racially discriminate impact doesn’t trigger strict scrutiny unless there is a purpose/intent to discriminate. i. Washington v. Davis, 426 U.S. 229 (1976) – test administered to applicants to become police officers. About 4 times as many blacks as whites failed the test. Other than this test, the police dept had affirmatively sought to enroll black officers. So there's no allegation that the Dept acted with discriminatory intent, but only that the test had a discriminatory impact. a. The purpose of the EP Clause is to prevent government from discriminating on the basis of race. Although disproportionate impact is not irrelevant, it shouldn’t be the sole reason to trigger a strict scrutiny review of the law. b. No evidence of a purposeful device to discriminate, even with the disproportionate impact. So, the court applies rational basis. The test is neutral on its face and rationally may be said to serve a purpose the government is constitutionally empowered to pursue (to make sure it's employees have verbal communication and writing skills). c. Concurrence (Stevens): "Frequently, the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor." ii.Why the Court disfavors the "effects" test: a. For the court to use strict scrutiny for every instance of a statute's disproportionate impact would infringe too far on governmental decision-making. Also, this open-balancing of all governmental acts would invite too many inquiries into impact that is not determined by legal rules. iii.Discriminatory impact due to prior history of discrimination? a. The racially disproportionate impact like in Washington may have been due to prior discrimination. So maybe it should trigger a heavier burden of justification. 21

1.Look at past discrimination and make causal connections to why there is a difference in test scores among different races. 2.Differing perspectives of what racism means, and this makes a difference when looking at the history and context of racially discriminatory impact. (a)Whites see racism as an exception - something that happens on an individual basis and is brought on by conscious & explicit behavior on the basis on racial superiority (b)Blacks on the other hand see racism as ingrained in society, and are a pervasive condition in American life. It's more of a set of practices and institutions that result in oppression. (c)Washington adopts the white view of racism, where it's not discrimination unless there's some explicit, invidious intent. It rejects the perspective of minorities that they are victims of pervasive discrimination. 3.Carolene Products held that courts have a special role in protecting "discrete and insular" minorities. Traditional minorities have suffered 2 types of disadvantage in the political and legislative process: hostility and indifference. The court's approach gives no protection against indifference. iv.What is a discriminatory purpose? a. Personnel Administrator v. Feeney, 442 U.S. 256 (1979) – MA had an "absolute lifetime preference to veterans" for civil service positions. This preference overwhelmingly advantaged males. Court found that the distinction of veterans vs. nonveterans was not a pretext for gender, & was enacted for legitimate and worthy purposes. There are too many men who are nonveterans to infer that the statute is a pretext for preferring men over women. 1.Discriminatory purpose implies that the decision-maker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Of course, if adverse consequences of a law upon an identifiable group are inevitable, a strong inference that adverse effects were desired can reasonably be drawn. 2.Dissent – Difficult to know for sure the subjective state of mind of decision-makers, so the burden should rest on the State that no discriminatory consideration played a part in the particular legislation. b. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) - held that a Village's refusal o rezone land from single-family to multiple-family so as to permit construction of racially integrated housing did not violate EP. 1.To determine whether invidious discriminatory purpose was a factor, the court should inquire into circumstantial and direct evidence of intent. The impact of the action is an important starting point, but since it’s not always clear, other circumstances to look at are: (a)Historical background of the decision (b)Specific sequence of events leading up to the challenged decision (c)Departures from the normal procedural sequence (d)Legislative or administrative history - minutes of meetings, reports 2.However, even if a discriminatory purpose is found, this doesn’t automatically invalidate the law. Instead, the burden shifts to the legislature to prove that the same decision would have resulted even absent the impermissible purpose. If so, then the complaining party could no longer attribute the injury to improper consideration of a discriminatory purpose.

III. Benign/Remedial Discrimination A. Affirmative Action in Higher Education

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i. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) – Univ. CA reserved 16/100 places in its entering class for members of minority groups. Bakke was a rejected white male applicant who challenged the constitutionality of this. (Ct split down the middle here). a. (4 justices, Powell) 1.Level of Scrutiny – Any kind of racial or ethnic classification is subject to strict scrutiny. Doesn’t matter that whites are not a suspect class. (a)Carolene Products Co., n.4 - defined a suspect class as a “discrete and insular minority requiring extraordinary protection from the majoritarian political process.” 2.Compelling Interest: obtaining the educational benefits that flow from an ethnically diverse student body. Court says this is a permissible goal. Academic freedom, though not enumerated, has long been viewed as a special concern of the 1st amendment. (a)Court also rejected three other interests the school gave: ♦ Reducing the historic deficit of traditionally disfavored minorities in medical schools and the medical profession. Court says preferring members of any one group for no reason other than race or ethnic origin is discrimination. ♦ Countering the effects of societal discrimination. Too broad. More narrow - there is a compelling interest in ameliorating or eliminating the disabling effects of identified discrimination. Need actual findings of past discrimination for this to be a compelling interest. ♦ increasing the # of physicians who will practice in communities currently underserved. No evidence that the program is geared to promote this goal; no assurance that minority doctors will work in those communities. 3.Not Narrowly Tailored. (a)The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single but important element. This program here focuses solely on ethnic diversity, and would hinder rather than further attainment of genuine diversity. (b)Need an individualistic application review - look at each one, and you can use race/ethnicity as a factor. b. Concurrence/Dissents: 1.(Brennan): Whites are not a suspect class so classifications which disadvantage them are not subject to strict scrutiny. (a)Level of Scrutiny – Intermediate scrutiny: racial classifications designed to further remedial purposes "must serve important governmental objectives and must be substantially related to achievement of those objectives." (b)Several important government interests. Also this program no different than if making individualized assessments of the applications, with race being a positive factor. 2.(Marshall): Long history of pervasive discrimination against blacks, and not that a state want to remedy its effects, the Constitution should not stand as a barrier. (a)Remedial discrimination is a very important state interest, and if we don’t do it, "America will forever remain a divided society." (b)History – Framers if 14th also proposed the 1866 Freedman's Bureau Act which gave special relief to blacks, so it’s clear they intended for there to be some remedial relief. 3.(Blackmun) - hopes for a time when an affirmative action program is unnecessary, but "in order to get beyond racism, we must first take account of race. And in order to treat some persons equally, we must treat them differently. We cannot let the EP Clause perpetuate racial supremacy." ii.Grutter v. Bollinger, 539 U.S. 306 (2003) – MI law school using race as a factor in student admissions; white applicant is rejected and sues. The school would enroll a "critical mass of 23

underrepresented minority students." Critical mass was defined as meaningful representation - a number that encourages underrepresented minority students to participate and not feel isolated. They would have daily reports that kept track of minority student applications. a. Majority (O'Connor): 1.Level of Scrutiny - Strict scrutiny applied to smoke out illegitimate use of race classification 2.Compelling interest - attaining a diverse student body (a)Studies show student body diversity promotes learning outcome & better prepares students for real world. 3.Narrowly tailored? Yes. There's no quota. Daily reports don’t amount to a quota b/c race only used in the final stages of the admissions process after the individualized review. (a)Although there might be a problem with having any preference on the basis of race, for the time being, this is necessary. b. Concurrence (Ginsburg): there is pervasive racial discrimination on our society which impedes our highest values (equality). Minorities experience inequalities in early education, but despite that, some are able to meet the requirements of the finest schools. Hopefully, the quality of lower school education will improve, and we will progress toward nondiscrimination & genuine equal opportunity, so that we no longer need affirmative action. c. Dissent (Rehnquist): not narrowly tailored – the critical mass is a veil for discrimination. If you look at the numbers, only blacks really enjoy a preference, not other minorities, so not necessarily tailored for the interest of diversity. d. Dissent (Thomas): (1) Blacks are not necessarily benefited by affirmative action, and it might actually infer an inferiority that they cannot succeed without this help. (2) There is evidence that this kind of diversity impairs learning among blacks. (3) Under-qualified applicants are accepted b/c of race, and then they cannot succeed among the competition. iii.Parents Involved in Community Schools v. Seattle School District, 127 S.Ct. 2738 (2007) - School District allowed students to apply to any high school in the District. When some schools got overfilled (b/c too many students chose it) the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. The Court applied strict scrutiny and found the District's racial tiebreaker plan unconstitutional under EP. a. Plurality (Roberts): 1.Compelling Interest: Although Grutter held that diversity is a compelling interest, the situation is different here. Unlike the cases pertaining to higher education, the District's plan involved no individualized consideration of students, and it employed a very limited notion of diversity ("white" and "non-white"). 2.Not Narrowly tailored: Also not narrowly tailored b/c the tiebreaker plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity. iv.Gratz v. Bollinger, 539 U.S. 244 (2003) – White female denied admission to MI Univ, & she challenges their affirmative action program. Admissions program followed a point system, where points were accumulated by regular academic achievements, but you could also get 20 points for being a minority (also get these points based on socioeconomic status, if you were an athlete, etc.) Max 150 points, % # of points determined whether you got it. a. Majority (Rehnquist): Court holds that there is a compelling interest of educational diversity, but that the admissions program is not narrowly tailored. 1.Not Narrowly Tailored. You can't prefer someone on the sole basis of race or ethnicity. The school must have an individualized assessment of each applicant. Here, the automatic distribution of the 20 points has the effect of making the factor of race decisive. 24

b. Dissent (Souter): this isn't like in Bakke where a specific# of seats were reserved only for minority students. Here, points are given on the basis of race, where the same points are also given for various other soft factors. The program is permissible in awarding value to racial diversity. c. Dissent (Ginsburg): race is a suspect class not because race is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality. But where race is considered for the purpose of achieving equality, no automatic proscription is in order. v. Political Representation: When the majority, the group that controls the decision making process, classifies so as to advantage a minority and disadvantage itself, the reasons for a racial classification being suspect are not present. So strict scrutiny is not necessary. vi.Strict Scrutiny? - The court seems to apply a less strict level of scrutiny to racial classification benefitting minorities than those that burden them. B. Affirmative Action in Employment i. Wygant v. Jackson Bd. Of Educ., 476 U.S. 267 (1986) - there was a minority preference when laying off teachers, and the white teachers laid off brought the suit. a. Plurality (Powell): held unconstitutional (under strict scrutiny) 1.No Compelling Interest: The school board had no compelling interest in remedying societal discrimination b/c there was no prior history of discrimination by the school. 2.Not Narrowly Tailored: But even if there was prior discrimination to find a compelling interest, it's not narrowly tailored. Future employment is much less burdensome and intrusive than a loss of an existing job. b. Dissent (Marshall): found the school's interest in preserving levels of faculty integration justified. Also - another reason was the education benefits of the students that they would not get with an all-white faculty. ii.Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) - City Council adopted regulations that required companies awarded city construction contracts to subcontract 30% of their business to minority business enterprises. a. Majority (O'Connor): unconstitutional 1.Compelling Interest: remedying past racial discrimination 2.Not narrowly tailored: general assertion of past racial discrimination cannot justify the rigid racial quotas established here. The 30% quota could not be tied to any injury actually suffered by anyone. b. Concurrence (Scalia): Remedying past discrimination is only a compelling interest when acting to eliminate their own maintenance of a system of unlawful racial classification. (ex: after Brown, need actual measures to desegregate). c. Dissent (Marshall): classifications based on race that are remedial should be analyzed under intermediate scrutiny. iii.Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) - federal affirmative action program that gave contractors on highway construction projects a financial incentive to employ subcontractors controlled by minorities. a. Note: EP doesn’t apply to federal government, so the challenge is based on the 5th amendment due process clause. Any legal restrictions which curtail the civil rights of a single racial group are immediately suspect & courts must apply strict scrutiny - same as under the 14th. b. Previously held that benign federal racial classifications subject only to intermediate scrutiny. But there's no way to determine whether classifications are benign and which are motivated by illegitimate notions of racial inferiority. Therefore, any kind of racial classifications must be analyzed under strict scrutiny. 25

c. Concurrence (Thomas): "Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law." d. Dissent (Stevens): there is a big diff between laws that perpetuate racial inferiority and those that eradicate it. Remedial discrimination is used to foster equality in society & the government's duty to govern impartially should not ignore this distinction. 1.Distinction between federal & state government. "it is one thing to permit racially based conduct by the federal government - whose legislative power concerning matters of race were explicitly enhanced by the 14th amendment - and quite another to permit it by the precise entities against whose conduct in matters of race that amendment was specifically directed." e. Dissent (Ginsburg): court owes a large deference to "Congress' institutional competence and constitutional authority to overcome historic racial subjugation." iv.14th Amendment gives Congress the power to enforce the EP Clause. Since Adarand, the court has held that this power is exclusively a power to prevent or remedy state action that violates the Constitution and that federal statutes enacted under it must be "congruent" and "proportional" to the pattern of unconstitutional action to which they are addressed.

DISCRIMINATION BASED ON GENDER I. Defining the Level of Scrutiny A. Prior to 1971, court used the traditional approach to test the constitutionality of gender classifications. i. Reed v. Reed, 404 U.S. 71 (1971) - law preferred males to females when 2 persons were otherwise equally entitled to be the administrator of an estate. The law was too arbitrary. No rational basis for the classification. ii.Frontiero v. Richardson, 411 U.S. 677 (1973) - federal statute permitted males in the armed services an automatic dependency allowance for their wives but requiring servicewomen to prove that their husbands were dependant. a. Court departs from the traditional rational basis analysis. Classifications based on sex are inherently suspect and must therefore be subjected to close judicial scrutiny. 1.History of sex discrimination 2.Sex is an immutable characteristic which has no relation to ability to perform or contribute to society (unlike intelligence or physical disability). 3.However, woman do not constitute a small and powerless minority. b. Gov’t purpose – usually wives are dependent, not husband’s, so easier on the administration if we presume wives are dependent, but require proof that husbands are. 1.But the court says "any statutory scheme which draws a sharp line between the sexes, solely for administrative convenience violates EP." B. Gender Classifications will be reviewed under intermediate scrutiny – The classifications must serve important governmental objectives and must be substantially related to the achievement of those objectives. i. Craig v. Boren, 429 U.S. 190 (1976) - OK statute prohibits the sale of beer to males under 21 and females under 18. So males 18-20 can’t buy, while females 18-20 can. a. Majority: unconstitutional under intermediate scrutiny 1.Important government interest - enhancement of traffic safety. Court says this interest is an important governmental objective. 2.Not substantially related

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(a)Statistics - alcohol-related driving offenses of 18-20 yr olds. 2% of males in this age group arrested for this offense, but only .18% of females. Although the difference is not trivial, it is still a tenuous fit to say maleness serves as a proxy for drinking & driving. (b)The law only referred to "nonintoxicating" beer so it doesn’t address consumption of alcohol generally. (c)The law only restricted the selling of this beer, not the consumption of it once acquired. b. Dissent (Rehnquist): Level of scrutiny should be rational basis b/c the discrimination is against men, not women. ii.United States v. Virginia, 518 U.S. 515 (1996) - VMI was the only exclusively male public undergraduate higher learning institution. They proposed making an all-women version of VMI. a. Holding (Ginsburg): the all-male admissions policy is unconstitutional under the 14th amendment EP clause, b/c there was no exceedingly persuasive justification for it. 1.Level of Scrutiny – Intermediate Scrutiny. But court here uses different language – the school has to show an exceedingly persuasive justification for excluding women. (a)VA's interest in furthering educational diversity. ♦ The justification must be genuine, not hypothesized or invented post hoc in response to litigation. This interest would be fine except that, looking at the history of the school, there was no evidence this policy was created or maintained for this purpose. Rather, it was the tradition of keeping women out of higher education. (b)VMI's adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Changing the program to accommodate women would destroy the very essence of this program, and the reason why it's so good. ♦ The justification must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females. The notion that admission of women would downgrade VMI's stature is not proven, and rather it's more like a self-fulfilling prophecy (that women can't handle it the way it is). 2.Remedial plan - keep VMI all-male, & make a separate all-female version of it, VWIL. (a)Problem is that VWIL doesn’t afford women the opportunity to experience the rigorous military training for which VMI is famed. VWIL deemphasizes military education, & uses a cooperative method of education which reinforces self-esteem. ♦ VA argues that these are due to pedagogical diff between men and women in learning and development needs, psychological and sociological differences that are real, not stereotypes. ♦ Generalizations about the way women are, or what is appropriate for women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. Some women are fully capable of the meeting the standards of VMI. b. Dissent (Scalia): The court isn't using intermediate scrutiny language, and the exceedingly persuasive justification requirement is the only reason this was held unconstitutional.

II. Differences - Real and Imagined A. The court has assumed that differences between men and women sometimes justify different treatment. But the problem is to distinguish the real differences and impermissible reliance on and reinforcement of gender-based stereotypes. i. Geduldig v. Aiello, 417 U.S. 484 (1974) – state disability insurance system excluded "disability that accompanies normal pregnancy and childbirth" a. Just because only women can become pregnant doesn’t mean that any legislation concerning pregnancy is sex-based, unless there's a showing that distinctions involving 27

pregnancy is a mere pretext designed to effect invidious discrimination against members of one sex. b. Just like any other legislation on a physical condition, legislation may pass such laws, as long as it passes the rational basis test. ii.Dothard v. Rawlinson, 433 U.S. 321 (1977) - women prison guards excluded from duty in "contact positions" in all-male prisons. a. A woman's relative ability to maintain order in a male, maximum security, unclassified penitentiary could be directly reduced by her womanhood. Also risk of assault on female guards. iii.Michael M. v. Superior Court, 450 U.S. 464 (1981) - statutory rape law that punished the male, but not the female, party to intercourse when the female was under 18 & not the man's wife. a. The gender classification here is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. 1.Interest in preventing illegitimate teenage pregnancy. (a)Consequences of teenage pregnancy fall on the female (& serves as a deterrent for the female only), not the male, so law designed to balance out the deterrent effect. (b)Also, it would be impossible to prosecute if both would be charged, b/c the female would never report violations. b. Dissents: 1.(White) - court not applying intermediate scrutiny. Also, thinks a gender-neutral statute would be probably be more effective. It would help deter both males & females. 2.(Stevens) - b/c of the fact that a female confronts a greater risk is more so a reason to apply a prohibition to her. Also, a rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the constitutional requirement that the government must govern impartially. iv.Rostker v. Goldberg, 453 U.S. 57 (1981) - military provision authorizing the President to require the military registration of males but not females. a. Government Interest in raising and supporting armies, and the court should defer to Congress' judgment on how to they do so, long as it’s constitutional. The means of raising and supporting an army is a decision for Congress. Basis for Congress’s decision: 1.Since women were excluded from combat, in the event of a draft, they wouldn’t be needed. 2.Any need for noncombatant roles (much smaller number) could be met by volunteers. 3.Staffing noncombatant positions with women during mobilization would be detrimental to the important goal of military flexibility. b. Dissent: there no government interest served by not preparing for a draft by registering both men & women. The armed forces then decide who goes and who does what. v. J.E.B. v. Alabama, 511 U.S. 127 (1994) - State sued father for paternity and child support on behalf the mother of a minor child. The state used 9 out of 10 of its peremptory challenges to remove male jurors. a. Discrimination on the basis of gender in jury selection does not substantially further the State's legitimate interest in achieving a far and impartial trial. Gender-based peremptory challenges perpetuate a stereotype the law seeks to condemn. vi.Nguyen v. INS, 533 U.S. 53 (2001) - Immigration and Naturalization Act says American citizen mothers pass their citizenship automatically to their illegitimate children born abroad, but American citizen fathers must pass some procedural barriers before that can happen. a. Substantially related to an important governmental interest of assuring that a biological parentchild relationship exists and ensuring that the child. b. Dissent: with DNA testing, there should be no justification for the difference in treatment.

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FUNDAMENTAL RIGHTS I. Discriminatory classifications burdening "fundamental" rights will trigger strict scrutiny, even if they do not otherwise employ a suspect class. II. Voting -There's no right to vote in the Constitution - just an equal protection of the right to vote. Once you make voting available, it must be available to everyone. i. Harper v. Virginia State Bd. Of Elec., 383 U.S. 663 (1966) - poll tax of $1.50 prereq. for voting. a. The right to vote is a fundamental right, so any law restricting it will be analyzed under strict scrutiny. Held that it doesn’t pass. b. Dissent: Many non-invidious reasons for the poll tax - (1) collecting revenue, (2) those who pay the poll tax will be interested in furthering the State's welfare when they vote (3) ppl with money & property have a deeper stake in community affairs and are consequently more responsible, educated, knowledgeable when it comes to voting. ii.Kramer v. Union Free School District, 395 U.S. 621 (1969) – can only vote in the school district elections only if they or their spouse (1) own or lease taxable real property within the district, or (2) are parents of(or have custody of) children enrolled in the local public schools. a. Majority: Unconstitutional Doesn’t pass strict scrutiny. 1.Legitimate interest - limiting participation in the schools district elections to those primarily interest in such elections 2.Not narrowly tailored - permits inclusion of many ppl who have only a remote and indirect interest in school affairs, & excludes others who have a distinct & direct interest in school decisions. b. Dissent: Uses rationally related language. Argues against strict scrutiny because no fundamental right is being impinged upon - you elect the legislature who promulgated these voting qualifications - you had a say already as to how they were to run. III. Travel A. The people of the US constitute one nation, and implicit in the idea of nationhood is a prohibition against state interference with the right to travel from one state to another. (court didn’t point to a specific provision of Constitution though, Crandall v. Nevada (1867)) B. Shapiro v. Thompson, 394 U.S. 618 (1969) - state welfare statute denied benefits to people who had not lived in the state for at least one year. i. Majority (Brennan): Fundamental right to interstate travel, so analyzed under strict scrutiny. a. Although not in the Constitution, the court recognizes interstate travel as a fundamental right. B/c of the nature of our nation & constitutional concepts of personal liberty, it must be required that all citizens are free to travel throughout the land uninhibited by laws that resitrict or burden this movement. b. No compelling interest: the statute's goal was simply to prevent indigents from moving to their state so they wouldn’t become burdens. Someone on welfare cannot live a year without the assistance - that's why they need welfare. So the state is basically preventing them from moving to their state. ii.Dissents: a. (Warren): Congress has often restricted interstate travel via laws and taxes, so legislation is not invalid merely because it burdens this right. 1.Right to travel is not being prohibited here - the only burden is that a potential welfare recipient might take the loss of welfare benefits for a limited period into consideration on whether to move. Evidence that few welfare recipients have in fact been deterred. b. (Harlan): Shouldn’t apply the strict scrutiny of EP to this - it was intended for race discrimination, not all discrimination. Passes traditional rational basis. 29

B. Residency requirement vs durational requirement i. McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645 (1976) - PA fireman terminated after moving to NJ, per municipal regulation that employees of the city had to be residents of the city. Court held that this did not impair the right to travel interstate as defined in Shapiro. ii.A residency requirement does not burden interstate travel b/c any person is free to move to a State and establish residence there. Martinez v. Bynum, 461 U.S. 321 (1983) B. Zobel v. Williams, 457 U.S. 55 (1982) – statute said dividends from state fund (mineral royalties) would be distributed to the state’s adult residents depending on how long they were residents. i. Governmental services and benefits may not be apportioned according to past taxes or other contributions of the citizens involved, nor may a state favor established residents over new residents. ii.Dissent (Rehnquist): This is an economic regulation, so should use rational basis. C. Saenz v. Roe, 526 U.S. 489 (1999) – CA began limiting benefits in response to high welfare benefit payments it was making. First 12 months of a new citizen’s residency in the state would be the same level received by the individual in his previous state of residence. i. The 14th Amendment protects the right to travel in three ways: a. The right to enter and leave another state; b.The right to be treated as a welcome visitor; c. The right to elect to become a permanent resident and to be treated like other citizens of the new state ii.By paying first-year residents the same benefits they received in their state of origin, states treated new residents differently than others who have lived in their borders for over one year. It therefore unconstitutionally discriminated among residents.

RELIGION Congress shall make no law respecting an establishment of religion or prohibiting [its] free exercise.

I. The Establishment Clause A. The central purpose of the Establishment Clause is to insure governmental neutrality in matters of religion. i. Early on, the establishment clause only limited the federal government. It protected the states from the national government, by preventing Congress from establishing an official church of the U.S. B. The Establishment Clause prevents the government from i. promoting or affiliating itself with any religious doctrine or organization, ii.discrimination among persons on the basis their religious beliefs and practices, iii.delegating governmental power to a religious institution, iv.from involving itself too deeply in a religious institution’s affairs.

II. Aid to Religion C. The Establishment Clause was intended to erect a wall between church and state. It does not prohibit a state from extending its general benefits to all its citizens without regard to their religious belief. 30

i. Everson v. Board of Educ., 330 U.S. 1 (1947) – NJ Bd of Ed authorized reimbursement to parents for costs of using public transportation to send children to school, whether public or parochial. a. This doesn’t violate the establishment clause. Reimbursement of transportation is intended solely to help children arrive safely at school, regardless of their religion. It does not support any schools, parochial or public. To invalidate this would handicap religion, which is no more permissible than favoring religion. b. Dissent: Ct should prohibit use of public funds to aid religious schools. ii.Walz v. Tax Com'n, 397 U.S. 664 (1970) – NY state grants religious organizations tax-exempt status for property and income. a. The establishment clause does not require the state to be hostile to religion. The statute authorizing the exemptions grants favorable treatment to educational facilities and charities as well, indicating that the state wants to encourage organizations that contribute to the well-being of the community. b. Dissent: economic aid to religion advances their cause by allowing them to obtain vast amounts of wealth and property w/o paying taxes. Impermissible subsidy that aids religion. D. The Lemon Test i. To determine the validity of state statutes granting financial aid to church-related schools, the statute must: a. reflect a clearly secular purpose b.have a primary effect that neither advances nor inhibits religion; and c. avoid “excessive government entanglement” with religion ii.Lemon v. Kurtzman, 403 U.S. 602 – RI provided salary supplements for nonpublic school teachers, and PA reimbursement to nonpublic schools for certain expenditures. Both had comprehensive auditing to ensure that the funds were used only for secular education. a. Court says these programs involve excessive government entanglement with religion, so unconstitutional. This type of assistance is not neutral like Walz (providing funds to everyone) because the continuing state surveillance requires the type of entanglement dangerous both to church and state. iii.Neutrality reflects a secular purpose. If the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further than purpose, then the aid going to a religious recipient only has the effect of furthering that secular purpose. a. Mitchell v. Helms, 530 U.S. 793 (2000) – grant which provided loans of education materials to public and private schools to implement secular programs. 30% of the funds were allocated for private schools, most of which were religious. Constitutional b/c neutral. E. Zelman v. Simmons-Harris, 536 U.S. 639 (2002) – state provided tuition aid for students attending certain public or private schools chosen by their parents. 96% of children who participated in the program attended religious schools. i. Valid secular purpose - providing educational assistance to poor children in demonstrably failing public school system. ii.Test for reviewing government neutrality (Whether it has the forbidden effect of advancing or inhibiting religion) a. Direct v. Indirect – distinction btwn programs that provide aid directly to religious schools & programs that allow, indirectly through the exercise of private choice, government aid going to religious schools. b. Neutrality/Non-endorsement – funding programs based on choice might lead to the incidental advancement of religion, but that advancement is attributable to the individual recipient who makes the choice, not the government. The program here does not infer that the government is endorsing religious schools. 31

1.More aid given to public schools – for private schools, families have to copay a portion of the school’s tuition. 2.Although 96% of children in private schools attend religious ones, only 20% of children total attend religious schools (if you count all schools in the program).

III. Official Acknowledgement F. Alleghany County v. ACLU, 492 U.S. 573 (1989) – county allowed the display of a nativity scene, Christmas tree, and Chanukah menorah in the county courthouse. i. Rather than requiring the government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society. However, there are two principles limiting government: a. Government may not coerce anyone to support or participate in any religion or its exercise b.Government may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact establishes a state religion or tends to do so. ii.Nativity Scene – it stands alone, nothing detracts from its religious message. In this setting and context, the display violates the Establishment Clause. iii.Christmas Tree/Menorah – it’s combined with a sign saluting liberty. This doesn’t suggest an endorsement of religion, but a secular celebration of the tradition. It simply recognized that Christmas and Hanukkah are part of the same winter-holiday season, which, the court found, has attained a secular status in U.S. society. G. When government acts with the predominant purpose of advancing religion, it violates that central Establishment Clause value of official neutrality. i. McCreary County v. ACLU, 125 S.Ct. 2722 (2005) – 10 commandments posted in courthouse violates Establishment clause b/c of the “predominantly religious purpose.” Problem was not that it was coercive, but that the purpose was religious. H. The Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise. i. Lee v. Weisman, 505 U.S. 577 (1992) – rabbi gives speech at graduation, which inclues nondenominational prayer, but acknowledges God. a. Prayer exercises in public schools carry a particular risk of indirect coercion. Even at the graduation ceremony, there is a pressure to stand and remain silent during the prayer, signifying a degree of adherence or assent. The government may not enact religious conformity from a student as the price of attending her own graduation. ii.Santa Fe Ind. School Dist. v. Doe, 530 U.S. 290 (2000) – school district allowed a student elected by the HS’s student council to give a prayer over the public address system before each home varsity football game. a. Although the message is private student speech, they are authorized by government policy & take place on government property at government-sponsored events. b. Coercion – there is an informal pressure to attend an athletic event, event if not mandatory, or as strong as attending graduation. The audience perceives the religious messages as a public expression of the majority view. I. There is no violation for government to enact neutral policies that happen to benefit religion. The test for endorsement of religion was either expression by the government itself (Lynch), or else government action alleged to discriminate in favor of private religious expression or activity (Allegheny). i. Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995) – KKK placed a cross on public property. Doesn’t violate establishment clause. The State did not sponsor this expression, the 32

expression was made on the government property that had been open to the public for speech, and permission requested through the same application process as for other private groups.

IV. Free Exercise Clause J. The Free Exercise Clause bars governmental acts that would regulate religious beliefs, interfere with its dissemination, impede the observance of religious practices, or discriminate in favor of one religion over another, where such acts are not justifiable in terms of valid governmental aims. i. You can prohibit conduct, but not the belief. But problem is belief requires certain conduct. K. Conflict with State Regulation - Religious activity may be regulated or prohibited by government if there is an important or compelling state interest that prevails when balanced against the infringement on religious freedom. i. Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987) – Hobbie was discharged when she refused to work on Saturday, which was the Sabbath day of e religion she converted to after she had begun working. Her application for unemployment was denied b/c she was terminated for cause. She claims the government is denying her unemployment benefits b/c of her religiouslymotivated conduct. a. Strict scrutiny applied where the state burdens religion by conditioning the receipt of an important benefit upon conduct proscribed by a religious faith, or by denying such benefit because of conduct mandated by religious belief. b. The government may give accommodations based on religion, and it doesn’t make a difference that the conflict between job and religion did not previously exist b/c then government would be singling out the religious convert for less favorable treatment ii.***Employment Division v. Smith, 494 U.S. 872 (1990) – State makes it a crime to use peyote. Smith was fired from his job at drug rehab for using peyote as part of his religious ritual as a member of the Native American Church. Drug rehab has a policy that people working there can’t use illicit drugs. The State denied unemployment benefits b/c he was fired for cause (misconduct). a. Using a different test here than in Hobbie (probably b/c there is a criminal prohibition here) 1.If prohibiting the exercise of religion is merely an incidental effect of a generally applicable and otherwise valid law, the 1st Amendment is not implicated. 2.This is more of a rational basis test, not strict scrutiny like in Hobbie. b. This is not about religious activity at all. Instead, this is about peyote, and about a secular purpose of banning peyote. As long as not about religion in general, but happens to impact religion in general, then it's different. 1.Legitimate government legitimate - regulating drug trafficking

FREE EXPRESSION Congress shall make no law … abridging the freedom of speech, or of the press.

I. Introduction A. Balancing Interests. The right to freedom of expression is not an absolute right to say or do anything you want. Rather, the interests of the government in regulating such expression must be balanced against the very strong interests on which this right is based. i. It’s a case-by-case analysis to determine whether restriction on speech is constitutional.

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B. Rationale behind freedom of expression. Such freedom will lead to discovery of truth and better ideas through the competition of differing viewpoints. Such speech and action are necessary for a free society that is to be governed by democratic principles. C. Two approaches to free speech infringement: i. It’s not speech. Or at least it’s not valuable speech a. Obscenity b. Libel/False Speech c. Private Speech d. Commercial Speech e. Fighting Words f. Content based regulation subject to strict scrutiny ii.Speech must give way to important governmental interest. a. Advocacy of illegal action with “clear and present danger”

II. Advocacy of Illegal Action A. The question is whether the words are used in such circumstance and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent - it is a question of proximity and degree. i. Schenck v. United States, 249 U.S. 47 (1919) - Δs convicted of a conspiracy to violate the 1917 Espionage Act by distributing material that was anti-draft to men accepted for military service (telling ppl they have a right to and should, refuse the draft). 1.The only intended effect this could have had was to influence those subject to the draft to refuse to go. 2.The court held that the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime. ii.Triggers of action. a. Masses Publishing Co. v. Patten, 244 Federal. 535 (1917) - Π was told by the postmaster that he couldn’t mail Π's magazines under the Espionage Act "because [some of the cartoons] tended to encourage the enemies of the United States and to hamper the government in its conduct of the war." Π sought an injunction against the postmaster. 1.There is a difference between political agitation (not agreeing with the government & expressing those beliefs) and calling for people to take unlawful action (where the freedom of expression can be curtailed). The cartoons were not triggers of action; the cartoons do not "directly counsel or advise insubordination or mutiny." iii.Justice Holmes - Dissenting in Abrams v. United States, 250 U.S. 616 (1919) a. Congress could only limit expression where there was the present danger of immediate evil or an intent to bring it about. 1.Both were lacking in this case. There was no intent to hurt America, but only to support Russia. Also, we weren’t at war with Russia, but with Germany, so no present danger. 2.Also, he argues that if we’re involved in a war, that should be a reason to allow for greater speech. iv.State Sedition Laws a. Gitlow v. New York, 268 U.S. 65 (1925) – law prohibiting language advocating, advising, or teaching the overthrow of organized government by unlawful means. 1.The state has determined that such activity is so inimical to the general welfare that it must be controlled through use of the police power and suppressed in its incipiency. B. Communism and Illegal Advocacy i. Dennis v. United States, 341 U.S. 494 (1951) – Several members of the Communist party of the U.S. convicted under the Smith Act, which made it illegal to advocate to overthrow the government. 34

They were teaching communist material to their members, and part of the ideology was to overthrow the government. a. Clear and present danger test: When the expression is a direct encouragement of illegal action, there must be a clear & present danger of the evil Congress is trying to stop. 1.Must be a tight nexus - there is a clear & present danger that the illegal action will occur as a result of the speech. 2.Court broadened the test, applying it to advocating (a)Illegal act here: advocating illegal action (the actual speech itself was illegal) advocating the overthrow of the government. (b)There is a danger that they will actually attempt, through the teaching of it, the overthrow of the government & it should be illegal. C. Modern Distinction between advocacy and incitement i. A state may not forbid advocacy of the use of force or lawlessness except where such advocacy (i) is directed to inciting or producing imminent lawless action and (ii) is likely to incite or produce such action. a. Brandenburg v. Ohio, 395 U.S. 444 (1969) - Ohio Statute bans "advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." KKK caught on film marching with guns and advocating violence. 1.No imminent threat - they were speaking in broad, general terms. Crucial fact - court kind of thought they were pathetic - only a few of them, no one listening, we can safely ignore them. 2.Did the court drop the clear & present test? Maybe they replaced it with the imminence test or incitement test. So either this is a new test, or a way to distinguish Dennis.

III. Libel A. Group Libel i. Beauharnais v. Illinois, 343 U.S. 250 (1952) - Statute prohibits public display of "depravity or criminality of a particular race." Leaflet distributed seeking to halt Negro immigration to Chicago and warning that whites will be "mongrelized" and that Negroes would commit "rapes, robberies, knives, guns, and" spread "marijuana." Prohibition constitutional. a. Libel is not the kind of speech that’s protected by the Constitution, so punishment of this type of speech does not violate the 1st amendment. Since the speech is of so little value, it doesn’t get the benefit of the clear & present danger test. b. Court applies a rational basis test. There were tense race relations at that time. The legislature can conclude that group libel tends to exacerbate these problems. B. Public Officials and Seditious Libel i. Criticism of public officials relating to their official conduct cannot result in either criminal or civil liability for libel unless made with actual malice. Public officials can normally refute false charges because they have access to the media. a. New York Times Co. v. Sullivan, 376 U.S. 254 (1964) – NY Times published several falsehoods about the repressive police conduct in Montgomery. Although his name wasn’t mentioned, the accusation could be read referring to the police commissioner, so he sued. 1.The Constitution expresses a commitment to uninhibited debate on public issues. Truth here is not required for constitutional protection because that would inhibit publications and suppress speech. If they’re not sure if it’s true, then they can always be sued. We want public officials to answer to the public for the democratic process. 2.However, if there was malice, reckless disregard for the truth, and on purpose, then no 1st amendment protection. 3.Private speech - spreading libel on your neighbor, you can face a lawsuit. Not protected. 35

IV. Fighting Words, Hostile Audiences, Offensive Words and Hate Speech A. Fighting Words i. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) - Statute forbids "offensive, derisive, or annoying word to any other person who is lawfully in any public place." Jehovah's witness in a public place & got angry at police officer, and said "You are a damned fascist," and was arrested. a. A state may forbid the use in a public place of words that would be likely to cause violence – “fighting words.” Don’t have to prove that it will actually lead to violence. b. Fighting words are not protected by the Constitution – other unprotected speech are bribery, perjury, and criminal solicitation. B. Hostile Audiences i. Terminiello v. Chicago, 337 U.S. 1 (1949) – peace statute included a restriction on speech that stirs the public anger, invites dispute, or causes unrest. a. Unfavorable response from the audience is not necessarily enough to render the speech unprotected. One of the functions of free speech is the invitation to dispute; free speech is often provocative and challenging. ii.Feiner v. New York, 340 U.S. 315 (1951) – Δ was addressing a street meeting and attracted a crowd. People didn’t like it and asked police to stop him. Police asks Δ to stop but Δ refused and was convicted of disorderly conduct. a. Δ was arrested not for his speech, but for the reaction it caused. Police preventing incitement of a riot, and were justified in acting to preserve peace and order. C. Offensive Words i. Cohen v. California, 403 U.S. 15 (1971) – Δ wore a jacket that said “Fuck the Draft” in a courthouse corridor (he took it off when entering courtroom). He was convicted a statute that prohibited "maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct." a. The government has the power to regulate speech that is obscene, constitutes “fighting words,” or intrudes on substantial privacy interests in an essentially intolerable manner. 1.Not erotic/obscene. 2.It wouldn’t violently provoke the common citizen like fighting words do. 3.Persons present in the courthouse were not unwilling captives of the offensive expression; they could simply avert their eyes, so no intrusion on privacy interest. b.The regulation fails because it would permit the state to outlaw whatever words officials might deem improper, thus running a substantial risk of suppressing ideas. Such power would permit official censorship as a means of banning the expression of unpopular views. D. Hate Speech i. R.A.V. v. St. Paul, 505 U.S. 377 (1992) – teenagers burned a cross on a black family’s lawn. Ordinance prohibited the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." a. Although some speech is of so little social value that they are not constitutionally protected speech, the government still can’t restrict that speech based on its content. Content-based speech is subject to strict scrutiny. 1.Although this is probably a fighting word (very likely to cause anger & retaliation), the constitution limits the government to what they can proscribe – basically, they cannot regulate based on the viewpoint of the speech without protecting the other side. It singles out speakers who express views on disfavored subjects. b.Content - Neutrality Exceptions 1.Allowed where basis for content discrimination is the reason all such speech proscribable (a)Ok to prohibit offensive obscenity, but not obscenity that includes political messages. 36

2.Allowed to regulate secondary effects of speech (a)Ex: prohibiting only obscene live performances that involve minors.

V. Obscenity A. Difficulty of defining obscenity i. Roth v. United States, 354 U.S. 476 (1957) – Δ convicted of mailing obscene material in violation of the obscenity statute. a. Obscenity has no social value, and is not protected by the Constitution. b. Obscenity is not synonymous with sex. Obscenity deals with sex in a manner appealing only to the prurient interest. Prurient - unwholesome desire; sexual desire c. The test for obscenity is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest, and utterly lacks social value. ii.What is obscenity? In one opinion, J. Stewart said, “I cannot define it, but I know it when I see it.” B. Moral Rationale for restricting obscenity i. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) – DA wants to stop the theatre from showing hardcore porn. The movies were available only to consenting adults – must be 21+ yrs, and there’s a sign telling you there is nudity (notice, so you consent to it if you go in). a. The states have power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, even if actual exposure is limited to a few consenting adults. b. The right to privacy precludes regulation of the use of obscenity in the home. But this is a commercial venture and is not private. C. A Revised Standard i. Miller v. California, 413 U.S. 15 (1973) – Δ convicted for knowingly distributing obscene material to unwilling recipients. a. The standard for regulation of obscene material: 1.Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. 2.Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable statute; and 3.Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. b. Under this test, material can be regulated w/o a showing that it is “utterly w/o redeeming social value.” c. Dissent (Brennan) – The difficulty in defining obscenity means that laws prohibiting it are necessarily vague. The best solution is to permit government to regulate the manner of distribution of sexually-oriented material to protect juveniles and unconsenting adults, but not to wholly suppress this material. 1.But this doesn’t address social harms (a)Child porno harming children (b)Idea that watching porn causes sexual violence

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Abrams v. United States, Dissent...........................34

Goldberg v. Kelly...................................................14

Adarand Constructors, Inc. v. Pena........................25

Gratz v. Bollinger...................................................24

Alleghany County v. ACLU...................................32

Griswold v. Connecticut...........................................7

Alleghany Pittsburgh Coal Co. v. County Comm'n ............................................................................18

Grutter v. Bollinger................................................23 Harper v. Virginia State Bd. Of Elec......................29

Arlington Heights v. Metropolitan Housing Dev. Corp....................................................................22

Hobbie v. Unemployment Appeals Comm'n..........33

Beauharnais v. Illinois............................................35

J.E.B. v. Alabama...................................................28

Board of Regents v. Roth.......................................14

Jackson v. Metropolitan Edison Co..........................5

Bowers v. Hardwick...............................................11

Korematsu v. United States....................................19

Brandenburg v. Ohio..............................................35

Kramer v. Union Free School District...................29

Brown v. Board of Education.................................20

Lawrence v. Texas..................................................12

Capitol Square Review & Advisory Board v. Pinette ............................................................................32

Lee v. Weisman......................................................32

Carey v. Population Services Intern.........................8 Castle Rock v. Gonzalez........................................14 Chaplinsky v. New Hampshire...............................36 Civil Rights Cases....................................................4 Cohen v. California................................................36 Craig v. Boren........................................................26 Dennis v. United States..........................................34 Dothard v. Rawlinson.............................................28 Dred Scott v. Sandford...........................................18 Eisenstadt v. Baird....................................................8 Employment Division v. Smith..............................33 Everson v. Board of Educ......................................31 Ex Parte Endo........................................................19 Feiner v. New York................................................36 Frontiero v. Richardson..........................................26

Lemon v. Kurtzman................................................31 Lochner v. New York...............................................7 Logan v. Zimmerman Brush Co.............................18 Loving v. Virginia..................................................20 Masses Publishing Co. v. Patten............................34 Mathews v. Eldridge..............................................15 McCarthy v. Philadelphia Civil Service Comm'n. .30 McCreary County v. ACLU...................................32 Michael M. v. Superior Court................................28 Miller v. California.................................................37 Mitchell v. Helms...................................................31 New Orleans v. Dukes............................................16 New York City Transit Auth. v. Beazer..................17 New York Times Co. v. Sullivan............................35 Nguyen v. INS........................................................28

Geduldig v. Aiello..................................................27

Parents Involved in Community Schools v. Seattle School District...................................................24

Gitlow v. New York................................................34

Paris Adult Theatre I v. Slaton...............................37

Paul v. Davis..........................................................15

Santa Fe Ind. School Dist. v. Doe..........................32

Personnel Administrator v. Feeney........................22

Schenck v. United States........................................34

Planned Parenthood of Southeastern Pennsylvania v. Casey................................................................9

Shapiro v. Thompson.............................................29

Plessy v. Ferguson..................................................18 R.A.V. v. St. Paul...................................................36 Railway Express Agency v. New York..................16 Reed v. Reed..........................................................26 Regents of Univ. of California v. Bakke................23 Reid v. Covert..........................................................3 Richmond v. J.A. Croson Co..................................25 Rochin v. California.................................................6 Roe v. Wade.............................................................8 Rostker v. Goldberg...............................................28 Roth v. United States..............................................37 Saenz v. Roe...........................................................30

Shelley v. Kraemer...................................................5 Terminiello v. Chicago...........................................36 United States Dept. of Agriculture v. Moreno.......17 United States R.R. Retirement Bd. v. Fritz............17 United States v. Virginia........................................27 Vacco v. Quill.........................................................11 Walz v. Tax Com'n.................................................31 Washington v. Davis...............................................21 Washington v. Glucksberg.....................................10 Wygant v. Jackson Bd. Of Educ.............................25 Yick Wo v. Hopkins...............................................21 Zelman v. Simmons-Harris....................................31 Zobel v. Williams...................................................30