Constitutional Law IIProfessor Peter J. SmithFall 2011

Outline

Introduction

Background

1. Originalism v. Non-Originalisma. Originalism

i. Characteristics1. Historical inquiry.2. Original meaning of Constitution; intent of Framers; application by first

Congress is authoritative.ii. Scalia is a big proponent.

1. Liberals, e.g., Stevens, occasionally employ originalist methods.iii. Criticisms

1. Original meaning/intent/application of Constitution/Framers is subject to differing interpretations. See DC v. Heller (Scalia and Stevens reach different conclusions using originalist methods.).

b. Non-Originalismi. Characteristics

1. Original meaning, etc. is not singularly authoritative.c. Originalism v. Non-Originalism is biggest constitutional law debate of past 40 years.

2. Structure v. Rightsa. Cases about individual rights are expressly or implicitly about structure or separation of powers.

E.g., incorporation of 2nd Amendment individual right to bear arms to states limits what state governments may do.

3. Judicial Role & Counter-Majoritariana. Court invalidating legislatively enacted laws, e.g., the DC handgun ban, NY baker law in Lochner,

expresses the counter-majoritarian nature of judicial review.4. Countervailing Precedent

a. Adhere to precedent and cite stare decisis.b. Overrule earlier decision.

i. Because it is so hard for Congress to amend the Constitution and negate an erroneous Supreme Court decision, there is a strong argument that the Court should overrule earlier erroneous decisions. After all, this is easier than ratifying amendments.

Individual Rights & the States

1. Natural Law v. Positive Lawa. Natural Law

i. Characteristics1. Universal, non-contingent standards for right and wrong. Do not change over

time.2. People have certain rights inherently, i.e., prior to any laws or the Constitution.

ii. Criticisms1. Values and norms evolve.2. Must trust judicial articulation of natural law.

b. Positive Lawi. Characteristics

1. Law enacted through defined law-making process.2. Limits judges to applying judgments of law-makers, not their own and thereby

avoiding judicial legislation.

3. Marbury v. Madison stated that the Supreme Court can invalidate state law that conflicts with the positive law in the Constitution.

ii. Criticisms1. Constitution/laws may be ambiguous. Interpretation requires reference to other

standards, e.g., natural law.2. Must trust judgment of legislatures.

c. Court rarely chooses between natural and positive law. Distinction is rarely stark.2. Early History

a. Barron v. Baltimore (1833)i. Facts – Baltimore drained harbor, making the water in his wharf too shallow to be used

by most vessels. Claimed a 5th Amendment taking of property without just compensation.

ii. Holding (Marshall)1. Baltimore argues that the Takings Clause applies only to actions of the federal

government, not state governments, and Court agrees.a. Nature of Constitution – States established their own constitutions to

limit their governmental actions. Federal constitution created the federal government and limits only the federal government.

b. Text – Art. I, § 10 lists limitations on state power. By negative implication, one could argue that the Takings Clause does not apply to the states because this is not stated expressly, as in Art. I, § 10.

c. History – Members of state ratifying conventions were concerned with limiting the federal government in ratifying the Bill of Rights. They were not concerned with excessive state power.

2. Criticismsa. Our norms and ideals evolve, so why should we be bound by 18th-

century ideas?b. This approach forces judges to act like historians, which they may not

do well. Many judges are not trained in history.3. For several decades, no significant limitations on state authority because Bill of

Rights did not apply to states.3. Privileges or Immunities

a. Slaughter-House Cases (1873)i. Facts –

ii. Holding (Miller) – 4. Incorporation

a.5. Guns

a. District of Columbia v. Heller (2008)i. Core of the individual rights in the 2nd Amendment is the use of guns for self-defense,

particularly in the home.ii. Does not speak directly to whether the DC handgun ban or trigger-lock requirement in

constitutional.iii. DC handgun ban is unconstitutional. Handguns are the most popular self-defense

weapon. The federal government cannot ban people from possessing them.1. Cannot possess a dangerous or unusual weapon. Which are dangerous or

unusual is determined, in part, by reference to the popularity of particular weapons.

iv. Some gun regulations remain categorically constitutional and others are categorically unconstitutional.

1. Scalia’s dissatisfaction with interest balancing.v. Miller – Protected ownership of a gun only in relation to military service.

1. Court ignores this precedent.vi. Breyer, Dissenting

1. Interest balancing.

2

2. Scalia: No other enumerated constitutional rights are subject to an interest-balancing approach.

3. In reality, every constitutional right is subject to an interest-balancing approach. E.g., rational basis review, under which most laws survive. The individual right in the 2nd Amendment, according to Heller, is exempted from this sort of review.

4. Deference to local policymaking/judgment of DC Council, which believes the handgun ban is necessary to promote public safety.

b. McDonald v. City of Chicago (2010)i. Facts –

ii. Holding (Alito) -

Fundamental Rights (Substantive Due Process)

Introduction

1. Constitutional Texta. 5th Amendment – “No person shall . . . be deprived of life, liberty, or property, without due

process of law.”b. 14th Amendment – “No State [shall] deprive any person of life, liberty, or property, without due

process of law.”c. DPC of 5th and 14th Amendments are interpreted in the same way. Buckley v. Valeo (1976).

2. Procedural Due Process – Adequate procedural protections before depriving someone of an important interest. E.g., 5th and 6th Amendments.

3. Substantive Due Process – Extent to which “liberty” in the Due Process Clauses, 5th and 14th Am., is protected from government deprivation. E.g., 1st Am.

a. DPC protects forms of liberty that government cannot impair even after providing procedural protections.

b.4. DPC Analysis – Two Questions

a. Is a fundamental right at stake?i. How does a state determine what is a fundamental right?

b. Is interference with the right justified?5. Strict Scrutiny – Usually invoked for restrictions on constitutional rights.

a. Undue Burden Test, Casey – Sui generis.

Economic Liberty

1. Constitutional Provisionsa. Contract Clause, art. I, § 10, cl. 1 – “No state shall pass any Law impairing the Obligation of

Contracts.”i. Court has interpreted narrowly.

b. Takings Clause, amend. 5 – “Nor shall private property be taken for public use, without just compensation.”

c. Show that people have long been concerned with protecting private property.d. Could argue that Framers meant no more about economic liberty than contained in these two

clauses.2. Standards of Review

a. Strict Scrutiny – Narrowly tailored to achieving a compelling government interest.b. Rational-Basis – Rationally related to legitimate state interest.

i. Very deferential.ii. Court will uphold law unless there is no conceivable legitimate government objective that

it may advance. Need not discern actual legislative objective. Any possible legitimate government objective will suffice.

iii. Allows post hoc justification.iv. Helps to ensure consistency of constitutional interpretation.

3

3. Dred Scott v. Sanford (1857) – Origin of idea that Due Process Clauses protect economic rights.4. Lochner v. New York

a. Facts – NY law barring bakers from working more than 10 hours per day or 60 hours per week. Employer violated this statute.

b. Holding (Peckham)i. UNIVERSALLY CRITICIZED.

ii. DPC protects rights not mentioned in the Bill of Rights/fundamental rights. Court cited “liberty of the individual.”

1. Fundamental Rights – Many are contained in the Bill of Rights, but the range of fundamental rights far exceeds the scope of the Bill of Rights. DPC protects all fundamental rights, whether or not contained in the Bill of Rights.

a. Substantive Due Process – Substantive component of “liberty” of DPC that cannot be deprived regardless of adequacy of process.

2. Key Fundamental Right – Right to contract for labor. (More generally, freedom of contract.)

iii. State police power acts as a limit on fundamental rights.iv. Standard of Review – Heightened scrutiny. Showed no deference to NY legislature.v. State’s Interests – Health and safety of bakers. Public health, i.e., health and safety of

people that buy goods from bakers. Preventing exploitation of bakers’ labor.1. Not a valid labor law.2. Will not affect public health, i.e., quality of bread.3. Not necessary to protect bakers’ health and safety.

vi. Effect – Court invalidated almost 200 labor laws interfering with freedom of contract. Laissez-faire economics reigned. Came to an end during Depression and with West Coast Hotel Co.

c. Harlan, Dissentingi. Should have used a more deferential standard of review.

ii. Counterargument – If there is a constitutionally protected right, i.e., freedom of contract, then it should not be subjected to deferential review. Court should afforded it more protection. Constitution is designed to protect certain rights from majoritarian infringement, i.e., NY law.

d. Holmes, Dissentingi. States interfere with liberty all the time, and many such interferences are permissible.

Constitution does not incorporate a libertarian ideal.ii. No constitutional right to freedom of contract searching review is not appropriate.

1. DPC protects procedural rights, not substantive rights, and freedom of contract is a substantive right.

2. DPC protects only rights enumerated in the Bill of Rights. It protects no unenumerated rights, i.e., rights not alluded to in the Constitution. Freedom of contract is not enumerated in the Constitution.

3. DPC is not limited to procedural rights or enumerated rights, but freedom of contract is not one of the unenumerated rights that it protects.

a. Holmes agrees with this theory. Believes that some unenumerated rights should be protected from state infringement, but freedom of contract is not one of them.

iii. Constitution embodies no economic theory.5. Nebbia v. New York (1934)

a. Facts – NY law setting prices for milk.b. Holding (Roberts)

i. Questioned Lochner premises.ii. Neither property nor contract rights are absolute.

iii. Deference to legislatures in choosing economic policies to promote public welfare. Not heightened scrutiny of Lochner.

c. McReynolds, Dissentingi. Cannot curtail constitutional rights, even for public good.

6. West Coast Hotel Co. v. Parrish (1937)

4

a. Facts – Minimum-wage law for women and minors.b. Holding (Hughes)

i. Overruled Lochner.ii. Constitution does not speak of freedom of contract. Not a fundamental right.

iii. Acknowledged exploitation of women, minors, and workers. Allowed government to legislate to equalize bargaining power.

iv. Rational Basis – Government may regulate for legitimate purposes, and courts will defer to reasonable choices.

1. No searching review of social and economic regulation.c. Sutherland, Dissenting

i. States cannot restrict freedom of contract, which is constitutionally protected.ii. Judges should not de facto amend Constitution. Solution is through amendment process.

7. United States v. Carolene Products Co. (1938)a. Origin of rational-basis review.b. When courts should employ strict scrutiny:

i. If a law infringes a specific (federal or state) constitutional right. Court must invalidate these laws.

ii. If a law infringes the political process. We must be able to trust the political process to reflect democratic concerns.

1. Footnote 4 – Political Process Theory of judicial review.2. E.g., gerrymandering, voting exclusions, Baker v. Carr, McCulloch v. Maryland

(when MD tries to tax nonresidents, the nonresidents have no say in the political process).

3. Premised on two assumptions:a. Democracy is good. Antidemocratic judicial review should be used

sparingly.b. Democracy is an effective tool for securing rights.

iii. If a law targets discrete and insular minorities, and judicial intervention might be necessary to secure their rights. Majoritarian action, almost by definition, cannot protect discrete and insular minorities. Political process does not respond to them.

c. Commonalities – Democratic action is particularly problematic. Constitutional protections are designed to secure unpopular rights.

8. Williamson v. Lee Optical Co. (1955)a. Facts – OK law barring opticians from fitting, duplicating, or replacing lenses without a

prescription.b. Holding (Douglas)

i. Rational-Basis Review1. Law was under- and over-inclusive.2. Court no longer uses DPC to strike down laws regarding economic theory or

social policy.a. Since 1937, Court has not invalidated one economic or social law on

the basis that it is inconsistent with DPC. Relation between economic freedom and market regulation should be determined by democratically elected bodies.

ii. Possible State Interest – Citizens having up-to-date prescriptions. Will achieve public-health goals, e.g., encouraging more frequent eye exams.

1. Purpose probably was political.2. Because there was a possible legitimate government objective, Court upheld.

Contraception

1. Meyer v. Nebraska (1923)a. Overturned conviction of parochial schoolteacher for violating a law prohibiting teaching in any

language other than English.b. Violated right of parents to make decisions for children.c. Liberty protected by DPC denotes numerous unenumerated/fundamental rights.

5

d. Decided during Lochner era.e. Never overruled.

2. Pierce v. Society of the Sisters (1925)a. Invalidated law requiring children to attend public schools.b. Violated right of parents to direct education and upbringing of children.c. Decided during Lochner era.d. Never overruled.

3. Skinner v. Oklahoma (1942)a. Opinion by Douglas.b. Invalidated OK law requiring sterilization for repeat convicts of crimes of moral turpitude.

i. Does not satisfy strict scrutiny.c. Right to Procreate – Fundamental right.

4. Griswold v. Connecticut (1965)a. Facts – CT law criminalized using contraceptives or aiding and abetting the use of contraceptives.

Doctors could not give contraceptives to anyone, including married couples.b. Holding (Douglas)

i. Violated 14th Am., DPC.ii. Strict Scrutiny

1. (1) Compelling state interest and (2) as narrowly tailored as possible to achieving that interest.

2. Warranted only for discrete and insular minorities, political breakdown, or if the statute interfered with a constitutionally protected right. Carolene Products.

a. No constitutional provision addressing marital privacy.b. Penumbral Right – Provisions in Bill of Rights have penumbras and

innovations that embrace a broader right to privacy. E.g., 3rd, 4th, and 4th Am. are premised on privacy.

3. Purpose of strict scrutiny is that the government should not interfere with constitutionally protected rights.

4. CT law fails.iii. Purported State Interest – Preventing illicit sexual relations, e.g., premarital sex and

adultery.1. Rationale – Lack of contraceptives may discourage illicit sexual relationships

because, if contraceptives are out there, married people might use them during adulterous affairs. Law will curtail premarital sex because, if condoms are not available at home, unmarried teenagers will not be able to steal them.

2. Other means of achieving state interest. E.g., criminalize adultery; school abstinence programs; etc.

iv. Fundamental Rights – Limit consideration to specific constitutional provisions and construe them generously.

1. Limits recognition of unenumerated rights to rights that we have recognized as protected. Makes the leap to, e.g., a general right of privacy less problematic.

2. Fails the Lochner test because there are constitutional provisions that would have supported the right of contract.

3. Test will not constrain judicial discretion in recognizing unenumerated rights.v. Lochner is dead. Deference to legislature on policy matters.

1. But Right to Contract – May be discernable from Takings Clause and Contracts Clause. Penumbras.

c. Goldberg, Concurringi. Marital privacy is protected by concept of “liberty” in DPC. Due Process Clause alone.

ii. 9th Amendment – Rule of construction. Constitution protects unenumerated rights.d. Harlan, Concurring

i. Same as Goldberg, but does not rely on 9th Amendment.e. White, Concurring

i. CT law does not satisfy rational basis. Banning married couples from using contraceptives does not reduce illicit sexual relationships.

f. Black, Dissenting

6

i. Constitution does not mention privacy no constitutional right.ii. DPC incorporates only rights specified in the Bill of Rights.

iii. Finding other rights is policymaking—similar to Lochner.g. Stewart, Dissenting

i. [Same]5. Eisenstadt v. Baird (1972)

a. State cannot prohibit use of contraceptives by unmarried persons.b. If right protected is to be free from government intrusion into decision whether to bear or beget a

child, it makes no sense to limit it to married couples.i. Unmarried persons possess this right too.

Which liberties does DPC protect against state infringement? (Griswold)1. Douglas – Bill of Rights (first 8 amendments) and their penumbras.

a. Each enumerated right acts as a vehicle for incorporating unenumerated rights.b. Does not sufficiently limit judicial discretion/activism. Interpreting Bill of Rights necessarily

entails value judgments.c. Best: Disingenuous about difference between enumerated and unenumerated rights. Worst: No

different than Goldberg’s and Harlan’s approach.d. Not followed subsequently.e. Determining Fundamental Rights – Limit inquiry to specific constitutional provisions.

Construe provisions generously.i. Historical recognition suggests that a right is fundamental.

2. Goldberg, Harlan – (1) Some rights in Bill of Rights and (2) all unenumerated fundamental rights.a. Prevailing approach.b. Benefits

i. Allows protection of unpopular rights.ii. Avoids unpleasant consequences. E.g., OR law mandating abortion and sterilization

easily would be found to be unconstitutional although these rights are not expressly mentioned in the Constitution.

iii. Gives courts sufficient flexibility to include some rights and exclude others.iv. Has a basis in history, reflecting intent of drafters of 14th Amendment.

c. Problemsi. Problems about discerning which rights are fundamental and inherent in “liberty” and

thus part of substantive due process.ii. Transfers important policy questions to courts, which determine those rights in an anti-

democratic fashion.iii. Fundamental rights are in the eye of the beholder. One person’s Griswold is another

person’s Lochner.d. Determining Fundamental Rights

i. Goldberg – Look to historical recognition of a right. If found, Ninth Amendment protects it.

1. Criticismsa. Judges are not (good) historians.b. Does not account for evolving conceptions of fundamental rights.c. Does not account for new technologies/factual settings.d. Long history of right of contract Lochner would withstand.

2. Contrast with Lawrence v. Texas.ii. Harlan

1. Premisesa. DPC – Reflects popular balance between liberty and needs of organized

society.b. Evolution – Needs of society change. Balance changes.

Fundamental rights change.i. Accounts for recognition of privacy, Griswold, and overruling

of Lochner (right of contract).

7

c. Most provisions of Bill of Rights have proven to be enduringly fundamental.

2. Process – Analyze balance between (1) liberty and (2) needs of organized society in a contemporary context.

a. Backward-Looking – Consult precedent to (1) identify rights and (2) see what Court has said about traditions.

b. Forward-Looking – Look for relevant changed circumstances.3. Criticisms

a. Fundamental rights are time-specific and changeable.b. Art. III Case or Controversy – Requires different idea of liberty.c. Difficult to identify a basis for calling a right fundamental.

3. Black – Only rights specified in the Bill of Rights.a. Benefits

i. Arguably—but not definitively—consistent with drafters’ of 14th Amendment’s intent to incorporate the protections of the Bill of Rights.

ii. Firm, textual basis for rights entailed by substantive due process. (Rights actually are listed.)

iii. Avoids improper judicial discretion/activism/anti-majoritarian policymaking.1. Allows judicial review only on firm, textual grounds.

b. Problemsi. Bill of Rights itself must be interpreted.

ii. Overly Formalistic – Bill of Rights does not mention many rights that we want to protect, e.g., right of privacy.

1. Consequences – States may curtail rights that we want to protect.c. Response to Goldberg/9th Amendment – Structural amendment specifying only that federal

government is one of limited powers. Confers no additional rights.i. Counterargument – Makes 9th Amendment redundant with 10th.

ii. History1. Bill of Rights might negatively imply that federal government’s powers were

broader than they are.a. 10th Amendment responds to this.

2. People might construe protections of Bill of Rights to be exclusive.a. 9th Amendment responds to this. Ensures that Bill of Rights is not

exclusive.d. Appeal – Simplicitye. Democratic Remedies to Government Infringement

i. Change law through ordinary legislative means.ii. Amend Constitution.

iii. Problem – Minorities have difficulty doing so. Carolene Products.f. Determining Fundamental Rights – Limit inquiry to specific constitutional provisions.

Construe provisions narrowly.4. No substantive rights and only procedural rights.

a. McDonald v. City of Chicago (Thomas, J., concurring).i. Not argued in Griswold.

b. Text of DPC focuses on procedural rights, not substantive rights.c. Origin of substantive due process is Dred Scott. Don’t want to advocate because of such dark

origins.d. Privileges and Immunities Clause, not DPC, protects substantive rights. McDonald v. City of

Chicago (Thomas, J., concurring).e. Substantive due process is not sufficiently definitive and affords judges too much discretion.f. Criticism – People want substantive restrictions on state action; not willing to accept view that

DPC protects no substantive rights.

Abortion

1. Roe v. Wade (1973)

8

a. Facts – TX law prohibiting all abortions except those necessary to save mother.b. Holding (Blackmun)

i. Invalidated TX law.ii. Purported State Interests

1. Protecting actual or potential fetal life.a. State interest becomes “compelling” at viability.b. Conceptual Problems & Implications

i. All fetuses have potential to become human life. Thus, viability seems to be arbitrary or unrelated.

ii. At viability, fetal life is no longer potential, but is actual. Thus, a different state interest is at issue, i.e., a state interest in actual fetal life.

1. State has a compelling interest in protecting actual fetal life.

iii. If life begins at conception, then TX law seems to survive strict scrutiny because it would be acting to protect actual human life.

iv. By saying that state’s interest in protecting fetal life becomes compelling at viability, it seems to be deciding the question of when life begins.

1. Suggests answer despite Court’s stated refusal to do so.

v. If NY and TX have different ideas of when life begins, then different bans on abortion could be constitutional.

vi. Could argue that individuals who believe that life begins at viability are a discrete and insular minority (in TX) who require protection by the Court. Carolene Products.

vii. Could argue that Court had to decide this question because deferring to state legislatures as to when life begins also defers what rights an individual has. If an individual has a right to terminate a pregnancy, a state could infringe this right by, e.g., determining that life begins at conceptions and that abortions are therefore illegal.

viii. Viability line may not remain medically constant over time. As technology allows fetuses at earlier gestations to survive outside womb, viability line will move up, and abortions could be banned earlier and earlier.

2. Protecting health of mother.iii. Strict Scrutiny – Because right to terminate pregnancy is fundamental.iv. Right of privacy encompasses right to terminate a pregnancy.

1. Founded in “liberty” in DPC or 9th Amendment.2. Not founded in penumbral rights of Bill of Rights.

v. Trimester Framework1. Balancing fundamental right to terminate pregnancy with interests in protecting

actual or potential fetal life and health of the mother.2. Framework

a. 1st Trimester – State cannot regulate abortion in any meaningful way, including outright ban.

b. 2nd Trimester – State can regulate abortion to protect health of mother.c. After Viability/3rd Trimester – State can regulate and may even ban

abortion in the interest of protecting fetal life. Only instance in which it cannot disallow abortion is when there are risks to the health of the mother.

c. Rehnquist, Dissentingi. Would have applied rational-basis review.

1. Deference to legislature.

9

ii. Right to privacy and parental rights, but no right to terminate a pregnancy.1. Key: these topics are not related.2. Cites historical evidence, 19th-century state laws.

iii. Constitution does not really protect unenumerated rights. “Liberty” in DPC means only that laws must pass rational-basis.

2. Webster v. Reproductive Health Services (1989)a. Scalia, Concurring – Advocated overturning Roe.

3. Planned Parenthood of Southwestern Penn. v. Casey (1992)a. Facts – Concerned PA law requiring a 24-hour waiting period, detailed information about the fetus

and procedure, and official reporting and recording; spousal consent; and parental consent before performing an abortion.

b. Holding (O’Connor, Kennedy, Souter)i. Plurality Opinion

ii. Reaffirmed Roe. Explicitly stated right to an abortion.1. Fundamental Rights – Rights to personal dignity and autonomy; and to

personal decisions relating to family and parenthood and bodily integrity.a. Protected although not mentioned in Constitution same for abortion.

2. Right to abortion is particular to women (biology).iii. Trimester Framework – Overruled

1. Viability – Retaineda. Before viability state may not ban.b. After viability state may ban except to protect life or health of

mother.iv. Undue Burden Test

1. Between rational-basis and strict scrutiny.2. “A finding of an undue burden is a shorthand for the conclusion that a state

regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

3. “To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.”

4. Undue Burden – Regulation whose purpose or effect is to place a substantial obstacle in the way of a woman seeking an abortion.

a. Scalia – Standard-less; invites judicial activism.i. Correct that some judicial discretion is at play.

ii. Counterarguments1. Will become clearer over time.2. Impossible to remove all judicial discretion.

v. Governing Law1. Undue Burden Test – Most narrow position with which five justices agreed (or

would have agreed).vi. 24-Hour Waiting Period

1. Upheld2. Not an undue burden; just makes process take longer.3. Counterarguments – Purpose is to discourage abortions, not provide informed

consent; normal informed consent does not require 24-hour waiting period.vii. Spousal Notification

1. Invalidated – Gives husbands dominion over wives; may prevent significant number of women from getting abortions.

viii. Stare Decisis1. Sometimes, it is better to settle the law than to get it right.2. Important so that people know what rights they have and how to exercise them.

a. Court is concerned with the reliance on Roe of the generation of women growing up in its wake.

10

3. Overturned Plessy and Lochner because their factual underpinnings had eroded.4. Stewart in Griswold and Roe – Once a matter has been decided, the debate is

over. The right to an abortion flows inexorably from the right recognized in Griswold.

ix. Legitimacy of Court1. Affirms Roe partly to avoid back-and-forth. Public would conclude that all the

Court does is politics, and its legitimacy would be severely undermined.c. Stevens, Concurring in Part, Dissenting in Part

i. Strict Scrutiny – More protection for right to abortion.ii. Affirm trimester framework.

d. Blackmun, Concurring in Part, Dissenting in Parti. [Same]

e. Rehnquist, Dissentingi. Rational-Basis

ii. Overrule Roe.iii. Stare Decisis

1. Less important in constitutional law cases.2. Court is effectively the only actor that can influence constitutional law because

it is so difficult to amend the Constitution, etc. Thus, the Court is interested in getting constitutional law cases right and should be more willing to overturn erroneous decisions in constitutional contexts.

f. Scalia, Dissentingi. [Same]

ii. Legitimacy of Court1. Creating “desirable” rights not in Constitution poses a great danger of

undermining legitimacy of Court.a. Would mark a return to Barron v. Baltimore and The Slaughterhouse

Cases.2. Abortion is a political issue that people are debating, and the Court should not

make up language (i.e., undue burden test) and put its thumb on one side of the scale.

4. Gonzales v. Carhart (2007)a. Facts – Concerned federal law prohibiting intact D&E (“partial-birth abortion”) with no exception

for the life or health of the mother.b. Holding (Kennedy)

i. DPC of 5th Amendment because it is federal law.ii. Test – Undue Burden Test

1. Applied deferentially, like rational-basis.2. Not an undue burden for a “large fraction of women.”

iii. Purported Government Interests1. Respect for human life.

a. Does not save any fetuses because there are other methods of late-term abortions available. Advances government’s interest in potential life only if unavailability of intact D&E would prevent women from obtaining abortions.

b. Other late-term abortion procedures involve fetus dismemberment.2. Protecting integrity and ethics of medical community.3. Ensuring that “so grave a choice is well-informed.”

a. Does not inform because intact D&E is banned regardless of information given.

4. Protecting health of mother, including from adverse psychological effects of a regrettable abortion.

a. Intact D&E is only option for many women.5. PRINCIPLE STATE INTEREST – Protecting actual life.

iv. Beginning of Life

11

1. Intact D&E is a second-trimester procedure, i.e., before viability. So if state’s primary interest is protecting actual life and it has banned this second-trimester procedure, Court possibly is saying that actual life may begin before viability.

a. First step to overruling Roe.2. Court may be saying that state has an interest in protecting the culture of life—

whether or not a pre-viability fetus is an actual life. By banning intact D&E, state is protecting the culture of life.

a. Short leap to banning other abortion procedures.v. Room for as-applied challenge, i.e., woman arguing that ban on intact D&E is an undue

burden for her.c. Thomas, Concurring

i. No right to abortion in Constitution.d. Ginsberg, Dissenting

i. Medical uncertainty law may pose an undue burden.ii. Stenberg v. Carhart (2000) – Invalidated state intact D&E ban for lacking exception for

health of mother.iii. Majority relies on baseless and antiquated notions of women’s rights and social role.iv. As-applied challenge will not help a woman needing an abortion now.

Marriage & Family

1. Precedenta. Pierce – Right of parents to direct education and upbringing of children.b. Griswold – Right of privacy in marriage (Douglas; Goldberg); freedom of married persons

(White).i. Poe – Right of intimacy in marriage (Harlan, J., dissenting).

2. Loving v. Virginia (1967)a. Facts – VA law prohibited a white person from marrying a non-white person. Interracial couple

married in DC, returned to VA and pled guilty, and Supreme Court of Appeals of Virginia upheld law.

b. Holding (Warren)i. Invalidated law.

1. Equal Protection Clause – Unconstitutional.ii. Standard of Review – Not stated explicitly.

iii. Right to Marry – Fundamental right under “liberty” of DPC.1. “One of the vital personal rights essential to the orderly pursuit of happiness by

free men.”2. “One of the ‘basic civil rights of man.’”

iv. Only direct and substantial restrictions on right to marry invoke strict scrutiny.1. Permissible Restrictions – Age; siblings; polygamy; same-sex marriage; etc.2. Loving – Invidious racial discrimination.

3. Zablocki v. Redhail (1978)a. WI law requiring court’s permission for a person obligated to pay child support to obtain a

marriage license invalidated as interfering directly and substantially with right to marry.4. Moore v. City of East Cleveland (1977)

a. Invalidated ordinance using narrow definition of “family” to dictate who could live together under one roof as applied to grandmother sharing a house with two non-sibling grandchildren.

b. Heightened Review – Regulations of choices concerning family arrangements.5. Troxel v. Granville (2000)

a. Parents have fundamental right “to make decisions concerning the care, custody, and control of their children.”

6. Michael H. v. Gerald D. (1989)a. Facts – Concerned CA law that created an irrebuttable presumption that a married woman’s

husband is the father of her child if they were cohabitating and if the husband was not sterile. Confirmed biological father challenged.

b. Holding (Scalia)

12

i. Upheld – No fundamental right to be legal father of an illegitimate child.ii. Liberty interest must be (1) fundamental and (2) traditionally protected by society.

iii. Defining Fundamental Rights – Level of Generality1. Scalia

a. No tradition of protecting natural father’s rights when mother is married to someone else no right.

b. DPC protects a right only if there is a tradition stated at the most specific level of abstraction.

i. Constraint – History and tradition act as constraints on judges’ actions/discretion.

ii. Slippery Slope – If you define rights at a broad level of generality, there is no logical stopping point and judges will be able to do whatever they want under the guise of defining rights.

iii. Democracy/Deference to Legislature – Defining constitutional rights takes certain legislative choices/democratic action off the table. Courts should adopt this approach cautiously.

2. Brennan, Dissentinga. Natural father has right to custody of child.b. In a diverse, pluralistic society, parental rights arise in many different

family arrangements.c. More general definition of right; not so restrictive in defining tradition

when determining scope of right.i. Takes discretion to determine when a tradition becomes

relevant to definition of “liberty.”ii. Rights need not be frozen in time.

iii. Constitution is a broad/ambiguous/living document, meant to be interpreted and applied.

iv. Who does CA law benefit by awarding paternity to the husband?1. Husband – Gets the benefit of legally recognized paternity.2. Mother – Protected from social condemnation of adultery.3. Child – Protected from social condemnation of illegitimacy.4. CA – Protects institution of marriage.

1. Some degree of discretion involved in the process of defining rights (Brennan).a. A level of analysis between 1 and 2 may be equally as justified as a level of analysis between 2

and 3.2. Good deal of subjectivity (Brennan), but this is simply what judges and lawyers do. Not inherently

unprincipled.3. Any right can be defined broadly or narrowly enough so as to fall inside or outside the scope of

constitutionally protected fundamental rights.

Sexuality

13

1. Eisenstadt v. Baird (1972)a. State cannot prohibit use of contraceptives by unmarried persons.

2. Bowers v. Hardwick (1986)a. Upheld GA law criminalizing sodomy in as-applied challenge.b. “Homosexual sodomy” is not a fundamental right under DPC.

i. Not supported by Constitution’s text.ii. Traditional and contemporary anti-sodomy prohibitions.

iii. No connection to rights to family, marriage, or procreation.c. Blackmun, Dissenting

i. Right to Control Intimate Interpersonal Associations – “[T]his case is about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone.’”

d. Overruled by Lawrence v. Texas.3. Lawrence v. Texas (2003)

a. Facts – Two men were convicted under TX law prohibiting “deviant sexual intercourse” when officer found them engaged in sexual activity while investigating apartment on an unrelated tip.

b. Holding (Kennedy)i. Overruled Bowers.

ii. Standard of Review – Not stated explicitly, but seems to be rational-basis.1. No “Legitimate State Interest” rational-basis language.

a. Implication: majoritarian morality is not legitimate state interest difficult to disaggregate moral interests from many laws, e.g., murder.

2. No fundamental right to gay sex no strict scrutiny.a. Reluctant to articulate fundamental right to gay sex.

3. Scalia, Dissenting – Rational-Basisa. No fundamental right no strict scrutiny.b. Majoritarian sexual morality legitimate state interest.c. Two Challenges

i. States often legislate for morality. E.g., bigamy, incest, bestiality, pedophilia, prostitution, etc.

ii. Slippery Slope – No legitimate state interest many laws will fall.

1. Response – Majority puts a lot of stock in the fact that the present case involves two consenting adults. Pedophilia and bestiality do not involve consenting adults, and therefore, laws banning them need not fall for the same reason that the TX law fell.

a. Adultery – State arguably has an interest in protecting institution of marriage.

b. Fornication – Ban on fornication probably would not survive Lawrence (or Griswold).

2. Court extends precedent in a measured way, asking whether its previous holdings imply holding in present case.

iii. Stare Decisis – Difference between Roe and Bowers.1. Level of Generality

a. Roe – Right to privacy broad.b. Bowers – “Homosexual sodomy” narrow.

i. Other specific, recognized rights do not involve “homosexual sodomy.”

ii. Blackmun, Dissenting – Right to be left alone broad.2. Reliance Interest

a. Roe – Generation of women following Roe.b. Bowers – No individual or societal reliance.

3. Uncertaintya. Roe – Affirmed in Casey.

14

b. Bowers – Undermined by Casey; Romer.4. Changed Premises Since Bowers

a. Historical Error – Laws prohibiting oral and anal sex, but not gay sex.b. Now know that homosexuality is not freely chosen.c. Societal values concerning sex have evolved (more progressive). E.g.,

DADT, AIDS awareness, acceptance in business and media, gay adoption, etc.

i. But see Matthew Shepherd, WBC, same-sex marriage bans, etc.

ii. Constitutional protections are necessary only when some segments of society do not view certain rights are worth protecting.

iii. Current social trends reach Court very slowly.d. International acceptance of homosexuality.

i. Responds to traditional anti-sodomy prohibitions. Bowers.ii. No regulation society will not crumble.

iii. Suggests Constitution does not have static meaning.iv. Scalia, Dissenting – Objects.

1. Judges are not comparative legal scholars.2. Constitution has meaning independent of

international law.3. Offensive to democracy.

iv. Equal Protection1. Court does not employ EP rationale because it does not want to suggest that a

law banning sodomy among both straight and gay couples would be constitutional under EPC.

2. O’Connor, Concurring – Equally applicable law would be valid, but political process would prevent such laws from coming into being.

v. Significance1. Affirmation of fundamental right to privacy.2. Important recognition of GLBT rights.3. Possibly libertarian approach to fundamental rights. State cannot invade liberty

interest without a convincing reason to do so.4. Court may engage in more balancing in future. Would require more searching

scrutiny than rational-basis review.

Equal Protection

Introduction & Framework

1. Equal Protection Clause, amend. XIV, § 1 – “[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”

2. Fundamental Question – Some government classifications are unobjectionable (e.g., wealth, technical competence, age, etc.) and others are problematic (e.g., race, gender, etc.). How do we distinguish between them?

3. Framework for Review – Nature of classification government’s interest in regulation relationship between government’s interest and classification.

4. Standards of Reviewa. STRICT SCRUTINY – Classification upheld only if narrowly tailored to advance a compelling

government interest.i. Scope – Race; national origin.

ii. Over-Inclusive Laws – By definition, not narrowly tailored.iii. Under-Inclusive Laws – Do not effectively accomplish compelling government interest.

b. INTERMEDIATE SCRUTINY – Classification upheld only if substantially related to important government interest.

i. Scope – Gender; legitimacy.

15

c. RATIONAL-BASIS REVIEW – Classification upheld only if rationally related to legitimate government interest.

i. Scope – Most other classifications.ii. Very deferential.

iii. Step 1 – Legitimate Government Interest1. Court may make up interest/identify interest uncontemplated by legislature.

Railway Express Agency; Williamson.2. Virtually every state interest is legitimate.3. Not an illegitimate interest.

a. Illegitimate Interests – Those prohibited by constitutional provision or norm. E.g., protectionist impulses violating Privileges and Immunities Clause; malicious discrimination; adherence to a particular religious faith; etc.

iv. Step 2 – Rational Relation1. Under-inclusive law is OK under rational-basis review. Railway Express

Agency.2. Over-inclusive law is OK under rational-basis review. Beazer.

5. Heightened Scrutinya. Applied when:

i. Fundamental rights are interfered with; orii. Suspect class is targeted.

b. Carolene Products – Law targets discrete and insular minority, and judicial intervention might be necessary to secure their rights.

i. Political Process – Discrete and insular minority cannot harness political process, which typically responds to majoritarian action.

6. Bolling v. Sharpe (1954)a. Facts – Companion case to Brown. Concerned segregation of D.C. schools.b. Holding (Warren)

i. Strict Scrutiny – Race is a suspect classification.1. Adarand Constructors (1995) – Race always raises strict scrutiny.

ii. D.C. school segregation violates DPC of 5th Amendment.1. “Liberty” in 5th Amendment is a broad concept. It invokes the substantive due

process analysis that Court already had adopted.2. DPC of 5th and 14th Amendments are interpreted in the same way. Buckley v.

Valeo (1976).iii. Reverse Incorporation – EPC of 14th Am., which applies only to states, is incorporated

into DPC of 5th Am., which applies only to federal gov’t.1. Impossible to argue that Constitution and 5th Am. originally entailed any notion

of racial neutrality. E.g., Dred Scott; Three-Fifths Compromise; constitutional prohibition on abolishing slave trade for 20 years; Fugitive Slave Clause.

c. Black v. Bork – Correct to stray from precedent in Bolling?i. Black – Yes (more defensible in 1950s setting)

1. Subsequent amendments may modify constitutional provisions that have come before them.

2. Law is supposed to achieve justice, and if straying from precedent is necessary to achieve justice, then so be it.

ii. Bork – No1. Judges do not make law; legislators do. Should exercise deference.

7. Railway Express Agency v. People of State of New York (1949)a. Facts – Concerned NY law prohibiting operation of “advertising vehicles,” except for those

engaged in usual business of owner and not used mainly for advertising.b. Holding (Douglas)

i. Upheld law.ii. Rational-Basis Review

1. Legitimate Government Interest – Traffic safety/protecting drivers and pedestrians.

16

a. Legitimate even if uncontemplated by legislature.2. Rational Relation – That law is UNDER-INCLUSIVE is not fatal.

a. Government need not show that all similarly situated parties are treated the same. Enough that government chose to address some evils.

c. Jackson, Concurringi. More aggressive judicial review under EPC without threatening democratic process.

Aggressive review under DPC threatens it.1. EPC – Violation does not mean that government cannot regulate in that area; it

only means that gov’t must regulate more broadly.2. Lower costs of judicial intervention.3. Process-Based Theory of Judicial Review – Easier for legislatures to pass unjust

laws if they burden small minority that cannot fight back through political process. Carolene Products.

4. Similarly treated persons should be treated equally.8. New York City Transit Authority v. Beazer (1979)

a. Facts – Concerned NYC Transit Authority policy of not employing persons using narcotics, including methadone for heroine treatment.

b. Holding (Stevens)i. Upheld policy.

ii. Rational-Basis Review1. Legitimate Government Interest – Safety and efficiency.2. Rational Relation

a. Under-Inclusive – Did not address alcoholics, diabetics, epileptics, or those currently using tranquilizers. Not fatal.

b. Over-Inclusive – Excluded safe drivers using methadone. Not fatal.c. Line-Drawing – Necessary for equal and consistent application.

i. Lines are neither unprincipled nor invidious.iii. Lesson – Under-inclusiveness and over-inclusiveness are not bases for invalidation under

rational-basis review.c. White, Dissenting

i. Policy singles out narcotics users and ignores similarly situated groups, e.g., alcoholics, diabetics, epileptics, or those currently using tranquilizers.

ii. Represents invidious choice forbidden by EPC.

Facial Discrimination on Basis of Race

1. Facial Discrimination – Very terms of provision treat members of one or more minority races differently from members of other races.

2. Dred Scott v. Sandford (1857)a. Facts – Concerned whether Scott, a slave, had been made free when his owner carried him into the

free state of IL.b. Holding (Taney)

i. Slaves – Not citizens; cannot invoke diversity of citizenship jurisdiction; cannot sue U.S. citizens in federal court.

1. Dismissed for lack of jurisdiction.ii. Missouri Compromise – Invalidated infringed property rights protected by DPC of 5th

Amendment.iii. Precipitated Civil War.

3. The Slaughter-House Cases (1872)a. Primary purpose of 14th Amendment is to protect African Americans.b. EPC may be used only to protect blacks.

i. No protection from unequal treatment (1) for butchers or (2) generally.4. Strauder v. West Virginia (1879)

a. Facts – Concerned WV law that allowed only white men to serve on juries.b. Holding (1879)

i. Invalidated law.

17

ii. Purpose of 14th Amendment – Securing civil rights for blacks.iii. EPC forbids all discrimination on basis of race, which is highly suspect.

1. Note that holding is broader than The Slaughter-House Cases.iv. Permissible Juror Distinctions – Sex, wealth, citizenship, age, education.

5. Korematsu v. United States (1944)a. Facts – Concerned a Japanese-American remaining in an area from which persons of Japanese

descent had been excluded following the attack on Pearl Harbor.b. Holding (Black)

i. Upheld exclusion order.1. Only case to uphold facially racially discriminatory provision.

ii. Racial/National Origin Classifications1. “Immediately suspect.”2. Trigger heightened scrutiny.

iii. Strict Scrutiny1. Compelling Government Interest – Public necessity/national security.

a. Racial antagonism is never a compelling interest.b. Deference to military judgment.

2. Narrow Tailoring – Administrability: justified because it is impossible to separate loyal from disloyal Japanese-Americans.

c. Murphy, Dissentingi. Based on racist assumptions about Japanese-Americans.

ii. Over-Inclusive – Applies to all Japanese-Americans even though only a small number are (a) disloyal to U.S. and (b) willing and able to act on that disloyalty.

iii. Under-Inclusive – Does not account for other disloyal ethnic groups.d. Jackson, Dissenting

i. Judicial Realism1. Unrealistic to think that every military command will comply with strict

constitutionality.2. Acceptable because of overriding consideration of military victory.3. Court should not review military policy during wartime. Rationalizing

military action and declaring it to be constitutional sets a dangerous precedent and may facilitate future unconstitutional military action.

6. Categorical Ban on Racially Discriminatory Laws (not law) v. Strict Scrutiny (law)a. Categorical Ban

i. Pro1. Would stop legislatures from passing racially discriminatory laws.2. Expressive Impact – Repugnancy of racially discriminatory laws.

ii. Con1. No room for pushing the boundaries, for expanding a rule, or for nuance in the

law. E.g., no analogizing to gender discrimination.b. Strict Scrutiny

i. Pro1. May be legitimate reasons for racial discrimination. E.g., airborne virus carried

only by African Americans.ii. Con

1. Allows (slight) room for repugnant racially discriminatory laws.

Racial Discrimination in Purpose & Effect

1. Yick Wo v. Hopkins (1886)a. Facts – Concerned ordinance requiring laundries to be located in brick or stone buildings unless a

waiver was obtained. 200 petitions by persons of Chinese ancestry had been denied, and all but one petition filed by non-Chinese persons were granted.

b. Holding (Matthews)i. Facially Neutral Law – Neither classifications (brick/wood; permitted/unpermitted) nor

purported purpose (preventing fires) referenced race.

18

ii. Facially neutral laws with (1) discriminatory purpose and (2) discriminatory effect Strict Scrutiny

1. Presumptively unconstitutional.iii. Impact of law may be so clearly discriminatory as to allow nothing other than an

impermissible purpose. Fails strict scrutiny.1. Discriminatory purpose deduced from discriminatory effect.2. Statistics [above] were unmistakable discriminatory purpose.

2. Gomillion v. Lightfoot (1960)a. Concerned redistricting of Tuskegee, AL, from square into 28-sided figure, which excluded all but

four or five black voters while not removing a single white voter.b. Facially neutral.c. Discriminatory purpose deduced from discriminatory effect.

i. “Mathematical demonstration” of discriminatory purpose.ii. Statistical pattern explicable only by discriminatory purpose.

3. Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977)a. Facts – Concerned city’s refusal to rezone land to allow construction of low- and moderate-

income housing.b. Holding (Powell)

i. Methods of Proving Discriminatory Purpose1. Impact of law may be so clearly discriminatory as to allow nothing other than an

impermissible purpose.a. Unmistakable Statistics – Rare. Yick Wo; Gomillion.

2. Context – May reveal invidious purpose.a. Historical Backgroundb. Sequence of events leading to challenged decision.c. Procedures Used

3. Legislative or Administrative Historya. Especially relevant with legislators’ contemporaneous

statements/minutes/reports/etc.b. Legislators’ Testimony – Only in extraordinary contexts.

ii. Discriminatory purpose need be only one motivating factor, not dominant one. If shown, then burden shifts to government.

1. Reflects difficulty of discerning a single legislative purpose.iii. Burden Shifting – Plaintiff shows discriminatory purpose gov’t must show same

effect would have resulted absent any impermissible purpose.4. Hunter v. Underwood (1985)

a. Facts – Concerned AL law that permanently stripped franchise from persons convicted of crimes of “moral turpitude.”

b. Evidence of (1) discriminatory purpose and (2) discriminatory effect: disenfranchising blacks.c. Burden Shifting – No persuasive evidence that law would have been adopted absent

discriminatory purpose. Unconstitutional.5. Palmer v. Thompson (1971)

a. Facts – City closed its previously segregated public swimming pools rather than allowing integration. Whites had money to open private segregated pools.

b. Holding (Black)i. Upheld city’s decision.

ii. Rational-Basis Reviewiii. Facially Neutral Policy – No reference to race.iv. No Discriminatory Effect – Pools were closed to blacks and whites.

1. But arguably discriminatory stigmatizing effect on blacks.v. Discriminatory purpose without discriminatory effect is insufficient to prove that a

facially neutral law constitutes a race classification.1. If invalidated only for discriminatory purpose, legislature could reenact same

law for neutral reasons.6. Washington v. Davis (1976)

a. Facts – Black applicants for D.C. police failed required exam significantly more often than whites.

19

b. Holding (White)i. Facially Neutral Policy – No discriminatory purpose.

1. Discriminatory purpose requires affirmative intent to burden racial or ethnic group; mere knowledge of likely effects is insufficient.

ii. Discriminatory Effect – Disproportionately disqualified black applicants.iii. Rational-Basis Review

1. Discriminatory effect without discriminatory purpose is insufficient to show racial classification.

2. EPC violation requires discriminatory purpose and effect.iv. What if discriminatory effect alone triggered strict scrutiny?

1. EPC would require equal results, as opposed to equal opportunity.2. It “would raise serious questions about, and perhaps invalidate, a whole range of

tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”

3. States would have had to ensure equality of resources, wealth, etc.4. Judicial involvement in politics and ordering of society would have been great.

7. Standards of Reviewa. Facially Neutral Law – (1) Discriminatory purpose and (2) discriminatory effect.

i. Plaintiff proves both. Government must show that law would have been adopted absent discriminatory purpose.

1. If government shows permissible purpose rational-basis review.2. If government fails to do so strict scrutiny.

a. Law is (1) race/national origin classification and (2) unconstitutional.b. Discriminatory purpose forecloses possibility of compelling

government interest.b. Facially Neutral – (1) No discriminatory purpose and (2) discriminatory effect.

i. Rational-Basis Review. Washington v. Davis.ii. Plaintiff may prove discriminatory purpose. Village of Arlington Heights.

c. Facially Neutral – (1) Discriminatory purpose and (2) no discriminatory effect.i. Rational-Basis Review. Palmer v. Thompson.

Race-Specific but Facially Symmetrical Laws

1. Plessy v. Ferguson (1896)a. Facts – Concerned LA law providing segregated train cars for blacks and whites.b. Holding (Brown)

i. Upheld law as a facially symmetrical burden on people of different races.ii. Rational-Basis Review

1. Not expressly stated but seemed to be applied.2. Legitimate Government Interest – Public peace; good order.3. Very Deferential – Legislature may consider social norms, traditions, and public

comfort.iii. Approved “Separate, but Equal”

1. Unlike Strauder, law burdens blacks and whites equally.2. 14th Amendment – Contemplates civil/political equality, not social equality or

elimination of personal prejudices.3. Blacks impute a feeling of inferiority; law does not convey one.

c. Harlan, Dissentingi. Purpose of Law – Invidious discrimination: enforcing white supremacy.

ii. Invoked “color-blind” Constitution.1. Possible Interpretation – All references to race are impermissible—even if their

purposes are benign.iii. As pernicious as Dred Scott.

2. Missouri ex rel. Gaines v. Canada (1938)

20

a. Invalidated MO law (1) prohibiting blacks from attending public law schools and (2) subsidizing their education at out-of-state schools.

b. Focus – Opportunities that MO furnishes to white students and denies to blacks solely on racial grounds.

c. Response – MO created separate law school for black students.3. Sweatt v. Painter (1950)

a. Court ordered all-white TX law school to admit a black student because the separate, all-black TX law school did not offer substantial equality in education opportunities, i.e., fewer full-time faculty; smaller library; etc.

4. Brown v. Board of Education of Topeka (1954)a. Facts – Concerned segregation of public schools in Topeka, KS.b. Holding (Warren)

i. Strict Scrutinyii. Invalidated “separate, but equal” in context of education.

1. Did not invalidate “separate, but equal” globally.2. Plessy – Distinguished, but did not expressly overrule.3. Harmful psychological effects of segregation on black children.

a. Understanding of psychology has evolved since Plessy.b. Footnote 11 – Cites social science/psychological studies.

i. Criticisms – (1) Studies were methodologically unsound; (2) future research may offer different conclusions; (3) Court should have expressed moral judgment condemning segregation.

iii. Constitutional Law Decision-Making Methodology1. Precedent – Immaterial. Court distinguished Plessy.2. Constitutional Text – Unhelpful since it is phrased so generally.3. Original Meaning/History

a. Inconclusive – 14th Amendment obtains of different meanings.i. Exemplifies Non-Originalism.

ii. Unpersuasive – History suggests that 14th Am. was not drafted to prevent segregation of public schools.

b. Anachronistic – Compulsory public education has changed.i. Powerful objection to Originalism.

ii. Unpersuasive – Drafters of 14th Am. talked about its probable effect on segregation of public schools.

c. Irrelevant – Must consider issue in present context.i. Outright rejection of Originalism.

ii. Constitutionality of laws evolves over time.iv. Societal Changes Since Ratification of 14th Amendment

1. Societal values had evolved, but not to point to influence democratic process. Substantial prejudice remained

2. Court must lead, not follow, country.a. States would not have ended segregation in 1950s.b. Blacks constituted a discrete and insular minority.

3. Unlike Plessy, justices saw segregated schools as subjugation.v. Non-Originalism – Robust non-originalist decision.

1. No convincing originalist justification for Brown.2. Most people prefer result in Brown to principles Originalism.3. Central Challenge of Non-Originalism – Determining neutral constitutional

principles once detached from original meaning of text.5. Incremental Invalidation of Segregation

a. New Orleans City Park Improvement Ass’n v. Detiege (1958) – City parks.b. Gayle v. Browder (1956) – Buses.c. Holmes v. City of Atlanta (1955) – Golf courses.

6. Loving v. Virginia (1967)

21

a. Facts – VA law prohibited a white person from marrying a non-white person. Interracial couple married in DC, returned to VA and pled guilty, and Supreme Court of Appeals of Virginia upheld law.

b. Holding (Warren)i. Strict Scrutiny

1. Discriminatory Purpose – Prohibited interracial marriage only between whites and non-whites—not between, e.g., blacks and Asians. Reveals purpose of preserving integrity of white race.

a. Racial Purity – Not a permissible government interest.2. Discriminatory Effect

a. Accepts that law has no discriminatory effect.b. But stigmatized non-whites as unfit for marriage to whites.

ii. Expressly reject argument that law was permissible because it burdened both whites and minorities.

7. Palmore v. Sidoti (1984)a. EPC violation when state court denied mother custody of her child because she married a man of a

different race.b. Lesson – Government action using race as basis for burden/disadvantage is unconstitutional as

impermissible race discrimination.8. Johnson v. California (2005)

a. Facts – Concerned CA policy of segregating new prisoners according to race for 60 days to prevent violence from prison gangs, which are organized by race.

b. No Discriminatory Purpose – Preventing violence.c. No Discriminatory Effect – All new prisoners are housed with same race.d. Express racial classification “Immediately suspect.”e. Strict Scrutiny – All racial classifications must meet strict scrutiny; they will be upheld only if

government can prove that its action is necessary to achieve a compelling purpose.i. Cited Brown.

f. Remanded for application of strict scrutiny.

Race-Based Affirmative Action

1. Regents of the University of California v. Bakke (1978)a. University may constitutionally consider race as one factor in admissions process.b. Powell – Deciding, fifth vote.

i. Racial/ethnic classification strict scrutiny.ii. Compelling Government Interest – Diversity.

iii. Quotas are impermissible, but using race as a “plus” factor is permissible.2. Grutter v. Bollinger (2003)

a. Facts – Concerned University of Michigan Law School using race as a “plus” factor (among other factors) in its admissions calculus.

b. Holding (O’Connor)i. Upheld admissions policy.

ii. Strict Scrutiny1. Compelling Government Interest – Diversity/enrolling “critical mass” of

minority students.a. Unusual deference to university.

i. Dissent challenged deference under strict scrutiny.b. Virtues of Diversity – Cultural understanding; lively discussion;

reflection of pluralistic society; preparation for work and military.c. Does not suggest remedying past discrimination.

2. Narrow Tailoringa. Not a quota system.

i. But “critical mass” suggests a floor below which minority enrollment should not drop.

22

b. “Plus” Factor – Flexible; allows individualized assessment; multifactor; race is not dispositive.

c. Requires “serious, good faith consideration of workable race-neutral alternatives.”

i. Does not require exhaustion of alternative means.ii. Does not require school to compromise elite status.

c. Thomas, Concurring in Part, Dissenting in Parti. Not a recognized circumstance permitting race-conscious law:

1. National Security2. Remedying Past Discrimination

ii. Maintaining elite status is not a compelling interest.iii. Alternative, non-race-conscious methods to achieving diversity.iv. Diverse students will face insurmountable competition and stigmatization.v. Invokes “color-blind” Constitution.

1. But 14th Amendment was not originally “color-blind.”d. Rehnquist, Dissenting

i. Policy amounts to a quota system.3. Gratz v. Bollinger (2003)

a. Facts – Concerned University of Michigan undergraduate college assigning race 20 points in its multifactor, numerical admissions calculus. All applicants receiving 100 or more points were admitted—with a total of 150 points possible.

b. Holding (Kennedy)i. Invalidated admissions policy.

ii. Strict Scrutiny1. Compelling Government Interest – Diversity.

a. Does not suggest remedying past discrimination.2. Narrow Tailoring – FAILS.

a. No individualized assessment.b. Race is a dispositive factor.

c. O’Connor, Concurringi. No individualized assessment.

ii. Race is a dispositive factor.d. Souter, Dissenting

i. Not a quota system.ii. Race is not a dispositive factor.

iii. “Percentage plans” are just as race-conscious but mask their intent.e. Ginsburg, Dissenting

i. Race is suspect when used for exclusion/maintaining inequality.ii. Race should not be suspect when used for inclusion/achieving equality.

4. Summarya. Affirmative action policies at universities are subject to strict scrutiny.b. Diversity is a compelling government interest.c. Race may be used as a factor to ensure diversity.d. Policies can survive if race is not used as a proxy for something else—i.e., not used as a quota

system—and there is individualized assessment.i. No quotas or numerical quantifications of race.

5. Affirmative Action – Traditional Constitutional (EPC) Arguments (no definitive answer)a. Text

i. Could read “protection” to mean that text is concerned with bringing up minorities to same level of legal protection that other groups enjoy.

ii. Problematic – “Any person.” Text is focused on individual, not groups. If affirmative action focuses on groups, then this does not comply with EPC’s focus on individuals.

b. Historyi. Robust Historical Argument – Much evidence that EPC was not understood to impose a

constitutional norm inconsistent with action to benefit certain minorities expressly on the basis of race—that is, there were early versions of “affirmative action” in 19th century.

23

ii. Political Process Rationale, Carolene Products – Affirmative action seems to be permissible. If majority thinks that affirmative action is unfairly burdening them, then it has recourse to the political process to correct this.

c. Precedenti. Strauder – Law that applies to blacks could apply to Celtic Irishmen.

ii. Brown 1. Brown as About Subjugation – When majority seeks to mistreat a minority on

the basis of race, Court may intervene to redress such action.2. Brown as Inconsistent with Affirmative Action – Affirmative action and racial

classifications are inconsistent with Harlan’s “color-blind” Constitution. Plessy.6. Costs of Affirmative Action

a. Stigmatizes all minority students. Some will struggle because they cannot keep up, and those that can will be marked as otherwise unqualified. Grutter (Thomas, concurring in part, dissenting in part).

b. Affirmative action discriminates against a different class, viz. students excluded from school who played no part in contributing to past discrimination.

i. But adverse effects on majority members have been exaggerated.c. Short- and Long-Term Line-Drawing Problems – If school lowers standards at the outset, it will

have to lower standards later, e.g., for journal admissions, for job offers, etc. Grutter (Thomas, concurring in part, dissenting in part).

d. Affirmative action causes minorities not to try their hardest and does not bring out the best in them. Very old argument and not just a modern, conservative trope.

7. Remedying Past Discrimination as a Compelling Government Interesta. Pro

i. Historical Pattern of Institutionalized Discrimination – Official gov’t discrimination need affirmative action to counter this force, which still is present in large ways today. Studies consistently show that blacks face much more discrimination and hardship than whites.

b. Coni. Insufficient to prohibit current discrimination.

ii. Powell – Criticized affirmative action because its costs fall on people that played no part in past discrimination that it seeks to redress.

c. Current Lawi. Constitutional – Directed at entities proven to have engaged in illegal discrimination and

limited to proven victims of discrimination.ii. Unconstitutional – Remedying long history of racism throughout society. Wygant v.

Jackson Board of Education (1986).

50 Years of Desegregation

1. Brown v. Board of Education (1955) (“Brown II”)a. Reluctance to Prescribe Remedy in Brown I

i. Internal Court politics/disagreement on appropriate remedy.ii. Possibility of massive resistance.

iii. Practical complications of desegregation.b. School authorities have primary responsibility for assessing and solving problems.

i. Must make “good faith implementation of the governing constitutional principles.”ii. Must act with deliberate speed.

iii. May rely on equitable principles; take into account “public interest.”c. No significant progress toward desegregation until passage of the Civil Rights Act of 1964.

i. Real desegregation required involvement of political branches.ii. Authority of Court – Not super strong.

2. Swann v. Charlotte-Mecklenburg Board of Education (1971)a. District courts have broad authority to formulate remedies in desegregation cases.

i. E.g., gerrymandering of school districts; interdistrict busing.

24

b. Districts with History of De Jure Segregation – Presumption against desegregation when there is substantially disproportionate racial composition.

c. Race-Based Policies – Permissible only when directly remedying past discrimination.i. If a race-based policy is not directly remedying past discrimination, then it is

impermissible.3. Milliken v. Bradley (1974)

a. Interdistrict Remedy – Requires (1) interdistrict violation and (2) interdistrict effect.b. Schools remain segregated because of residential segregation. However, no remedy, e.g.,

interdistrict busing, is available unless district policies or state law caused interdistrict segregation.i. Effect – No remedy, e.g., interdistrict busing, for de facto segregation.

4. Milliken v. Bradley (1977)a. “Constitution is not violated by racial imbalance in the schools, without more.”

5. Missouri v. Jenkins (1990)a. District courts cannot order districts to raise taxes to finance desegregation.

6. Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007)a. Facts – Concerned public school systems in Louisville and Seattle that used race as one factor in

assigning students to schools to achieve greater racial diversity. Louisville previously had been segregated by law and subsequently subject to judicial desegregation. Seattle never had been segregated by law.

b. Holding (Roberts)i. Invalidated both programs.

ii. Racial Classifications Strict Scrutiny1. Compelling Government Interest – FAILS

a. Two Valid Reasons for Racial Classifications in Schoolsi. Remedying Past Intentional Discrimination

1. Not present.2. Louisville had remedied past discrimination.

a. Conflicts with Swann presumption.3. Seattle never had experienced it.4. School cannot use race-based policies to achieve

racial balancing once it has achieved unitary status.ii. Diversity in Higher Education

1. Not present.2. No individualized assessment.3. Race is a dispositive factor.

a. Effectively determinative, like quota.4. Other notions of diversity not considered.

2. Narrow Tailoring – FAILS.a. Operate as Impermissible Quotas – Working backward to achieve

community racial balance implicates impermissible numerical quantification.

b. Minimal Role of Race – Classifications are unnecessary; no reason that community demographics = best racial balance.

i. Benefits of diversity are amorphous. Racial balancing solely to achieve diversity is not permissible in public schools because school cannot show that any particular racial balance in best suited to achieving optimal classroom diversity.

c. No evidence that districts considered non-race-conscious alternatives.i. Kennedy, concurring, lists many alternatives.

iii. Core EPC Principle Justifying Race-Conscious Policies – “Color-blind” Constitution.1. “The way to stop discrimination on the basis of race is to stop discriminating on

the basis of race.”2. All uses of race are suspect.3. Brown – About constitutional status of government actions deviating from

“color-blind” ideal.4. Four justices (without Kennedy) joined this portion.

25

iv. Distinguishing Grutter – Grutter involved higher education; present case involved primary education.

c. Thomas, Concurringi. “Color-blind” Constitution.

ii. Racial imbalancing is not unconstitutional in and of itself.1. Cyclic If unconstitutional, it would require an ongoing remedy.

d. Kennedy, Concurringi. Diversity – Compelling government interest in public schools.

ii. Race-conscious policies may be employed to achieve diversity.1. Impermissible – Quotas or race as a dispositive factor.2. Permissible – Using race as one of multiple factor.

iii. Alternative, non-race-conscious means were available.iv. Indirect means present fewer dangers than racial classifications, e.g., offense to human

dignity; permanent labeling; divisiveness; etc.e. Stevens, Dissenting

i. Less searching review than strict scrutiny.ii. Deference to school districts.

iii. Brown did not prohibit racial classifications at issue.f. Breyer, Dissenting

i. Deference to Districts – Schools have broad authority to formulate remedies in desegregation cases. Swann.

ii. Distinction between racial classifications used for exclusion and inclusion.1. Exclusion – Original purpose of EPC; strict scrutiny.2. Inclusion – Less searching review than strict scrutiny.

a. Present case.iii. Brown – About constitutional status of government actions predicated on racial

subordination or exclusion.iv. Holding will jeopardize many effective desegregation programs.

Gender Discrimination

1. Precedenta. Bradwell v. People of the State of Illinois (1872)

i. Upheld law barring women from being licensed to practice law.ii. Did not consider gender discrimination.

iii. Bradley, Concurring – Justified by natural law; proper domains of men and women; women’s timid and delicate constitutions.

b. Strauder v. West Virginia (1880)i. Upheld law confining selection of jurors to males.

ii. 14th Amendment was not intended to prohibit gender discrimination.1. View persisted for first two-thirds of 20th century.

2. Reed v. Reed (1971)a. Facts – Concerned ID law specifying hierarchy of persons to be appointed as administrators of

estate when a person died intestate and preferring males over equally qualified females.b. Standard of Review – (Purportedly) Rational-Basis

i. Gender is irrelevant to ability to administer estate unconstitutional.1. Did not identify gender as suspect classification.

ii. “Arbitrary legislative choice forbidden by EPC.”iii. Unusually searching rational-basis application.

3. Frontiero v. Richardson (1973)a. Facts – Concerned federal law allowing military men automatically to claim wives as dependents,

but requiring military women to show that husbands depended on them for over 50% of support.b. Holding (Brennan) – Plurality

i. Invalidated gender distinction.ii. Classifications based on sex are inherently suspect strict scrutiny.

1. NOT FIVE VOTES FOR STRICT SCRUTINY.

26

2. Level of scrutiny remained uncertain.3. Rational-Basis Would not matter whether policy was over- or under-

inclusive, i.e., that some husbands were dependent on their wives or that some wives were not dependent on their husbands.

iii. History – Women are victims of “romantic paternalism.”iv. Similarity to Race – Contemporary pervasive discrimination based on an immutable

characteristic.4. Craig v. Boren (1976)

a. Facts – Concerned OK law allowing women to buy low-alcohol beer at 18, but not allowing men to buy low-alcohol beer until age 21. Challenged by men.

b. Holding (Brennan)i. Intermediate Scrutiny – “Classifications by gender must serve important governmental

objectives and must be substantially related to achievement of those objectives.”1. Important Governmental Objective – Traffic Safety2. Gender discrimination is not substantially related.

a. Small empirical disparity: 0.18% of females and 2% of males arrested for DUI between 18 and 21.

3. Pivot to Intermediate Scrutinya. Expected ERA to be ratified.b. Knew there were not five votes for strict scrutiny.c. Willing to compromise for incremental progress.d. Actually appropriate to gender discrimination.

i. Some distinctions, e.g., bathrooms, are unproblematic.ii. Motivated by animus less frequently than racial

discrimination.c. Rehnquist, Dissenting

i. Rational-Basis Reviewii. Critical of intermediate scrutiny.

1. No history or pattern of past discrimination supporting heightened scrutiny.2. Too elastic; invites subjective judicial policymaking.

5. United States v. Virginia (1996)a. Facts – Concerned the exclusion of women by VMI, a state-supported, military-style college. VA

had created the all-women Virginia Women’s Institute for Leadership at May Baldwin College in response to a Fourth Circuit order.

b. Holding (Ginsburg)i. Intermediate Scrutiny – Challenged classification serves important governmental

objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.

1. Qualificationsa. Proffered justification is exceedingly persuasive.b. Burden is demanding and rests entirely on the state.c. Justification must be genuine, not hypothesized or invented post hoc.

Must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.

2. Little deference to legislature.3. Purported Important Governmental Objectives

a. Diversity in educational approaches.i. Rejected – Long coeducation history in VA.

b. Preserving adversative method.i. Rejected

1. Based on outmoded conceptions of female ability and psychology. Reed.

2. Women are in military, and it is OK.ii. Rejects separate school for women insufficient remedy.

1. Unequal – Would employ cooperative, not adversative method.2. Not the same opportunities, e.g., no reputation or extensive alumni network.

27

3. Based on outmoded conceptions of female ability and psychology.4. That most women may not want to participate in the adversative method or that

many women may not be able to survive it are not constitutionally significant as long as some women wish to participate.

iii. Lesson – Court will searchingly review distinctions between men and women, even when there may be plausible biological bases for them.

c. Rehnquist, Concurringi. Truly equal all-female school would eliminate constitutional defects.

d. Scalia, Dissentingi. Court applies “intermediate scrutiny plus.”

1. “Intermediate scrutiny has never required a least-restrictive-means analysis, but only a ‘substantial relation’ between the classification and the state interests that it serves.”

ii. Would apply rational-basis review.1. Women are not a discrete and insular minority, Carolene Products, in need of

judicial protection.6. Michael M. v. Superior Court of Sonoma County (1981)

a. Facts – Concerned CA statutory rape law, which defines unlawful sexual intercourse as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” Men alone may be criminally liable.

b. Holding (Rehnquist)i. Upheld law against EPC challenge.

ii. Men and women are not similarly situated in this context.1. Men

a. Fewer and less serious consequences of statutory rape.b. No risk of pregnancy need external deterrent.

2. Womena. Harmful and inescapable consequences of statutory rape.b. Risk of pregnancy substantial deterrent.

3. “Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.”

iii. Law is substantially related to goal of preventing teen pregnancy.1. Purpose of Law – Deference to CA Supreme Court.

iv. Gender-Neutral Law – Less Effective1. Girls would be less likely to file complaints or be witnesses if they faced

criminal liability.c. Brennan, Dissenting

i. Based on sexual stereotypes. (Female chastity must be protected. No similar attitude toward men.)

d. Stevens, Dissentingi. [Same]

ii. Not substantially related to important governmental objective.7. Nguyen v. INS (2001)

a. Upheld law making it more difficult for child born abroad out of wedlock to one U.S. parent to claim citizenship if parent was father, rather than mother.

i. Maternity is easier to demonstrate.1. Mother must be present a birth.2. More likely to develop relationship with child.

b. Allowed gender classification benefiting women based on biological differences between men and women.

c. Questionsi. Are gender classifications real or social constructs?

ii. Should they matter?8. Personnel Administrator of Massachusetts v. Feeney (1979)

28

a. Facts – Concerned MA law giving hiring preference to veterans despite substantial discriminatory impact on women. 98% of veterans were male.

b. Holding (Stewart)i. Upheld law.

ii. Facially Gender-Neutral Law Two Requirements for EPC Violation:1. Discriminatory Impacts; and2. Discriminatory Purpose.

a. Affirmative discriminatory intent, not just knowledge of adverse effects.

iii. Proving discriminatory purpose based on gender = Proving discriminatory purpose based on race.

c. Marshall, Dissentingi. Foreseeable impact of facially neutral policy is really disproportionate state must show

absence of discriminatory intent.9. Rostker v. Goldberg (1981)

a. Law requiring registration of males, but not females, for draft did not violate EPC of DPC of 5th Amendment.

b. Deference to Congress in national defense and military affairs.c. Important Governmental Objective – Raising and supporting armies.

i. Purpose of registration is drafting combat troops. Women are excluded from combat. Congress could exclude them from registration.

d. Based on sexual stereotypes.i. Women are not physically fit for combat to the extent that men are.

ii. Including women in combat divisions would affect troop morale. Presence of women would distract men from jobs. If women were taken prisoner, they would be at greater risk for sexual assault than men.

10. High School Sportsa. Justifications for Gender Distinctions

i. Biological differences between men and women. E.g., football pads are not designed for women.

ii. Implicit – Some sports are so physical that women just cannot hang.b. No separate and equal analog to an all-male high school football team. There is field hockey,

which women often play, but field hockey is not football.11. College Sports

a. Funding – Men’s teams usually are much more popular and better funded than women’s teams. Cuts against having separate teams and suggests that women should be able to play on men’s teams.

b. If there aren’t separate men’s and women’s teams, women may be excluded from athletic activities because men usually will perform better (and make the team).

c. United States v. Virginia – Just because most women may not be able to cut it, this is not a reason for excluding them from participating.

d. Everyone assumes that men may be excluded from women’s teams because of the intuition that men are biologically stronger than women.

e. Separate Men’s and Women’s Teams – Constitution because it probably would be difficult to prove a discriminatory purpose to exclude women.

Age Discrimination

1. Massachusetts Bd. of Retirement v. Murgia (1976)a. Facts – Concerned a mandatory retirement policy for police officers that had reached age 50.b. Holding (Per Curiam)

i. Upheld law.ii. Rational-Basis Review

1. Age – Not a suspect classification.2. Justifications

29

a. Elderly – No history of purposeful unequal treatment or subjection to unique disabilities on the basis of stereotyped characteristics not truly indicative of abilities.

i. But see stereotypes about elderly.b. Not a discrete and insular minority requiring judicial protection.

Typically vote in strong numbers.c. Everyone will be elderly one day.

3. Legitimate State Interest – Protecting public by assuring preparedness of police.4. Rational Relation – Fitness for police work presumably declines with age.

a. Individual assessment would be cost prohibitive. Use age as proxy for physical preparedness.

iii. Immutable Characteristic1. Visible2. Cannot voluntarily change.

a. But changing all the time.iv. Over- and Under-Inclusive (not fatal under rational-basis)

1. Over-Inclusive Retirement of physically fit officers.2. Under-Inclusive Employment of physically and mentally unfit younger

officers.c. Marshall, Dissenting

i. Heightened Scrutiny1. Justification – Repeated and arbitrary employment discrimination.

ii. Invalid for gross over-inclusiveness.

Disability Discrimination

1. Cleburne v. Cleburne Living Center (1985)a. Facts – Concerned ordinance requiring a special permit for operation of group home for the

mentally disabled.b. Holding (White)

i. “Rational-Basis Plus”1. Purported to apply rational-basis, but actually applied a more searching

standard.2. City’s justifications were not “legitimate purposes,” or ordinance was not a

“rational” way to achieve legitimate purposes.3. Under-Inclusiveness – Cited under-inclusiveness in rejecting four of five

purported “legitimate purposes.”a. Under rational-basis, under-inclusiveness usually is not problematic,

and government may proceed incrementally.4. Justifications for Heightened Scrutiny

a. Discrete and insular minority.b. Problems protecting interests through political process.c. History of discrimination.

5. Ultimate Justifications for Rational-Basisa. Significant line-drawing problems because mentally disabled

population is so large.b. Real differences among people sometimes justify different treatment,

and that is the case here.c. Government has acted to protect mentally disabled. Government

actions singling out mentally disabled should not be assumed to be discriminatory.

c. Marshall, Concurring in Part, Dissenting in Parti. Identifies “rational-basis plus.”

ii. Would have applied intermediate scrutiny.1. History of discrimination.2. Based on stereotypes.

30

2. Board of Trustees of University of Alabama v. Garrett (2001)a. Applied Cleburne “rational-basis plus” to discrimination against individuals with physical

disabilities.

Sexual Orientation Discrimination

1. Romer v. Evans (1996)a. Facts – Concerned CO Amendment 2, which repealed all state and local laws prohibiting

discrimination against GLBT persons and prevented future laws protecting them. Popularly enacted.

b. Holding (Kennedy)i. “Rational-Basis Plus”

1. Purported to apply rational-basis, but actually applied a more searching standard.

2. No Legitimate State Interest – Imposes broad and undifferentiated disability on gays and lesbians. Invalid form of legislation.

a. Two Purported Interests (Rejected)i. Protecting liberties of landlords or employers that find

homosexuality repugnant/freedom of association.ii. Conserving resources to fight discrimination against other

groups.3. No Rational Relation – Breadth far exceeds purported state interests.4. Failing Rational-Basis Explicable only as GLBT animus.

a. Never a legitimate basis.ii. Excluded GLBT Persons from Political Process

1. State’s Argument – Only withdrawing “special” rights.a. Rejected.

2. Normally, to redress a grievance, one might attempt to pass a local ordinance or urge state legislature to pass a law. Unavailable to gays and lesbians.

3. Singled out no other group. Singled out gays and lesbians not to receive ordinary political protection without a supermajority.

iii. Per Se Violation of EPC1. Per Se Violation – Group identified by a trait cannot use political process or the

law to redress discrimination.2. Did not find per se violation because no precedential value.

c. Scalia, Dissentingi. Accepts that Amendment 2 only withdraws “special” rights.

ii. Actual State Interest – Preserving traditional sexual mores.1. Court took sides in culture war. (Somewhat true.)2. Moral disapproval of an action is insufficient to justify judicial deference when

heightened scrutiny is applied—even though it may be sufficient to justify deference when rational-basis review is applied. Lawrence v. Texas.

a. Court did not defer to a possible “preserving traditional sexual morality” interest. Suggests suspect class.

3. Conclusion – “Moral” justifications/GLBT animus cannot survive “rational-basis plus.”

iii. Politically Powerful Minority – GLBT ≠ discrete and insular minority.1. Yes

a. 29 State Amendments Banning Same-Sex Marriage – Difficulty in using political process. Carolene Products.

b. Immutability – Not necessary for finding suspect class. Need not resolve the debate.

i. Religion – Both mutable and immutable.2. No

31

a. Gays and lesbians have been part of society without being identifiable (in the closet), and this suggests at least that they do not form a discrete minority.

b. Sexual orientation is not a visible trait, unlike race, gender.2. Same-Sex Marriage

a. Two Constitutional Bases for Challenging Same-Sex Marriage Bansi. Equal Protection Clause

ii. Fundamental Rights of Due Process Clause1. Marriage must be fundamental right available for gays and lesbians.2. Must be substantial interference with fundamental right.

b. Due Process Clausei. Defining Fundamental Right

1. Level of Generality – Broadly or narrowly? Michael H.ii. Narrow Definition – Marriage between a man and a woman. Oldman (Harlan).

iii. Broader Definition – Loving (not always defending strictly traditional conception of marriage).

iv. Lawrence Argument – Protection for same-sex marriage could derive from protection for intimate relationships between consenting adults.

c. Equal Protection Clausei. Gender Discrimination – “I cannot marry a man because I am a man,” or, “I cannot

marry a man because he is a man.”1. Special Case – Gender discrimination is not statically applied, but it is dynamic.

Whether gender discrimination exists depends on genders of parties to the marriage.

ii. Sexual Orientation Discrimination1. State interest in banning homosexual conduct cannot be maintained after Romer

(and Lawrence, perhaps).2. State interest in promoting traditional sexual mores may prevail.3. Interests Allegedly Advanced by Ban on Same-Sex Marriage (Are they

legitimate?):a. Encouraging procreation.

i. Griswold ; Roe; Casey – Key: ability to choose not to have a child. Suggests that encouraging procreation might not be a legitimate state interest.

ii. But broader tax base in the long run; other economic reasons; maintaining population replacement rate.

b. Preserving traditional conception of marriage as between man and woman.

i. Related – Promoting nuclear family/two-parent household.c. Promoting traditional sexual morality.d. Protecting children.

i. Legitimate4. Narrow Tailoring

a. Uncertain what level of scrutiny Court would apply.b. Heightened Scrutiny – Lawrence (searching rational-basis); Romer

(“rational-basis plus”).c. Rational-Basis – Over- and under-inclusiveness are not constitutionally

problematic.

Freedom of Speech

Introduction

1. First Amendment – “Congress shall make no law . . . abridging the freedom of speech.”a. Constitution does not define “speech.”

2. Freedom of speech is not absolute; some regulation is possible. Virginia v. Black (2003).

32

3. Theories of Freedom of Speecha. Government Accountability – Government remains accountable and responsive to will of the

people. Popular sovereignty; self-government.i. Instrumental – Freedom of speech permits advancement of other important goals.

ii. History – Reaction to England criminalizing criticism of the government.iii. Two Effects

1. We expect public officials to make better decisions if they have exposure to more information.

2. Helps voters to make better decisions vis-à-vis electing politicians and voting on issues.

iv. Problems1. Should First Amendment protections be limited to political speech, as opposed

to commercial speech?2. Could government ban works that display nudity or sex because these topics are

not political? E.g., Lolita.b. Quest for Truth/Robust Marketplace of Ideas – Expression of every possible view permits

individuals to assess relative merits of competing views and to decide which view is worth of adherence.

i. Instrumental – Freedom of speech permits advancement of other important goals.ii. Most widely held view.

iii. Problem – Domination by media conglomerates and corporations. Money in politics and lax campaign-finance laws. Not all voices are equally represented in the marketplace.

1. Does this justify greater regulation?c. Maintaining freedom of expression in private communications.

i. E.g., libel, slander, defamation, etc. Non-government communication.d. Promoting Public Order – Allowing people to express themselves nonviolently makes it less

likely that people’s passions will erupt in a violent manner.e. Natural Rights – Freedom of speech is an inherent right and essential to personhood, and

government cannot rescind it. i. Non-instrumental, unlike the other justifications.

ii. Problem – Must every single form of expression be protected?f. Court has never adopted a single justification for protecting speech.g. All justifications support strict scrutiny for content-based restrictions.

4. What counts as speech and is worthy of First Amendment protection?a. Speech; music; dancing; nude dancing; etc.

5. Freedom of Press – Court has applied generally the same analysis to freedom of the press.a. Freedom of the press may not add anything to the First Amendment.

6. Free Speech Problemsa. Content-based restriction or content-neutral (TPM) restriction?

Content-Based Restrictions

1. Definition – Restraint based on content of what is being said. Boos v. Barry (1988).a. Must not discriminate against viewpoints, i.e., ideology of the message (e.g., pro- or anti-choice).

i. Regulation does not favor either side of a political controversy nevertheless imposes a content-based restriction if it prohibits public discussion of an entire topic. Consolidated Edison Co. v. Public Service Comm’n (1980).

ii. Law that prohibits statements in favor of any candidate for political office, regardless of political party.

b. Must not discrimination against subject matter, i.e., topic of speech (e.g., labor unions, regardless of one’s position on the debate).

2. Strict Scrutiny – Government may enforce content-based restriction in a public forum only if (1) regulation is necessary to serve a compelling state interest and (2) regulation is narrowly drawn to achieve that end.

a. Why strict scrutiny for content-based regulations?

33

i. There is something troubling about the idea that government can single out certain ideas for restriction.

ii. Content-neutral regulations do not single out particular ideas.1. Content-neutral regulations become problematic when the right to speak is

restricted too far for too many people.3. When Content-Based Restrictions Are Permissible – If they:

a. Satisfy strict scrutiny; orb. Apply to non-protected categories of speech.

i. E.g., obscenity, pornography, blackmail, perjury, solicitation of bribes, copyright infringement.

4. Why may government impose content-based restrictions?a. Prohibitions do not turn on a desire to censor a particular message. These are crimes and only

incidentally involve speech.b. Not essential to furtherance of any discussion in the marketplace of ideas.

i. Tenuous justification. Do romantic-comedies further discussion in the marketplace of ideas? Do we want to allow government to regulate them?

c. Government regulates speech to protect individuals, e.g., people that do not want to see nudity.i. However, taken to its logical conclusion, this justifies banning all controversial speech,

and First Amendment protections apply primarily to controversial speech.d. Historical Argument – Bribery, blackmail, libel, etc. were proscribed at time that the First

Amendment was adopted and therefore were never entitled to its protection.i. More fruitful theory of exclusion under First Amendment.

ii. However, confining First Amendment to the status quo in 1791 would allow the government to restrict a lot of speech that we view as protected today, e.g., criticism of the government.

e. Court never has fully explained why certain categories of speech are exempted from First Amendment protection.

5. Showing Content-Based Discrimination – Two means:a. Face of the legislation; orb. Purpose of facially content-neutral legislation.

6. Boos v. Barry (1988)a. Facts – Concerned D.C. ordinance that prohibited display of signs critical of a foreign government

within 500 feet of its embassy.b. Invalidated as content-based restriction on speech.

i. Content-Based – Could determine whether particular signage was prohibited only by reading the sign and seeing what it said.

ii. Viewpoint Discrimination – Distinction based on viewpoint expressed. Critical signs were prohibited, but all others were allowed.

7. Republican Party of Minnesota v. White (2002)a. Facts – Concerned MN constitutional provision prohibiting candidates for elected judicial office

from making statements about disputed legal or political issues.b. Holding (Scalia)

i. Content-Based – Could determine law’s applicability merely by considering what a candidate wanted to say. (It did not apply to statements about candidates’ training, education, professional experience, or sport preferences.)

ii. Strict Scrutiny1. Compelling State Interest

a. Preserving impartiality of state judiciary.b. Preserving appearance thereof.c. Impartiality means open-mindedness; only compelling definition of

“impartiality.”d. No valid compelling interest.

2. Narrow Tailoringa. Under-Inclusive – Individuals could express legal/political opinions

until the day before declaring candidacy.c. O’Connor, Concurring

34

i. Address problems of judicial impartiality by not electing judges.d. Kennedy, Concurring

i. If restrictions on protected speech do not fall within recognized exceptions, then they are per se invalid.

ii. Articulated by Justice Black.e. Ginsburg, Dissenting

i. Uphold MN constitutional provision.ii. Maintaining health of state judiciary is a compelling state interest.

Time, Place & Manner Restrictions

1. Definition – Directly regulate expressive activities, but are reasonable regulations on time, place, or manner of speech.

a. May prohibit more speech than content-based regulation.i. Content-Based – Illegal to post a sign on public property if that sign supports a candidate

for public office.ii. Content-Neutral – Illegal to post any sign on public property.

1. Prohibits more signage than content-based regulation.2. Less Searching Scrutiny – Permitted if (1) content-neutral; (2) narrowly tailored to serve a significant

governmental interest; and (3) leaving open ample alternative channels for communication of information.a. Court generally will uphold TPM restrictions if they further “an important or substantial

governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien (1968).

3. Government may have more power to impose TPM restrictions on its own property than on private property.

a. E.g., easier for government to regulate posting of fliers/posters on public property than on private property.

i. Problems with Regulating Private Posting – No alternative means of communication; suggests content-based regulation.

4. Ward v. Rock Against Racism (1989)a. Facts – Concerned NY law requiring that any concert using band shell in Central Park had to use

city sound engineers and city sound equipment.b. Holding (Kennedy)

i. Upheld law.ii. Facially Content-Neutral – Applies to all performers, regardless of content of concert.

1. May be aimed at suppressing a certain kind of speech if legislators had an unspoken, illicit purpose in enacting the regulation.

a. Context can reveal desire to suppress a particular message, and Court can invalidate such a content-neutral regulation if it discovers an illicit purpose.

b. Just because a regulation is content-neutral does not mean that the Court must regard it as such.

c. No impermissible purpose here.iii. TPM Restrictions – Two Characteristics

1. Content-Neutrala. Distinguishes them from content-based restrictions.

2. By their terms, they are directed at protected forms of expression.a. They apply to traditional ways of expressing messages, e.g., fliers,

door-to-door, amplifying sound, etc.b. Distinguishes them from generally applicable regulations that only

incidentally burden expression.iv. Test for Permissibility of TPM Restriction – Heightened Scrutiny

1. Content-Neutral2. Narrowly Tailored

35

a. “Requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.”

i. Focus is on efficacy of means chosen, not burden on protected speech.

b. May not “burden substantially more speech than is necessary to further the government's legitimate interests.”

c. “So long as the means chosen are not substantially broader than necessary to achieve the government's interest, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.”

3. Serving a significant government interest.a. “Significant” ≠ “compelling” or “important.”

4. Ample alternative avenues of communication.v. Test Applied

1. Content-Neutrala. Yes.

2. Narrowly Tailoreda. Other Ways of Limiting Noise – Imposing a permissible decibel range;

pulling the plug when concerts become too loud.3. Significant Government Interest

a. Protecting nearby non-concertgoers from unwanted noise; ensuring that concertgoers are able to hear concerts.

4. Ample Alternative Avenues of Communicationa. There are many, and NY need not maintain a band shell.

vi. First Amendment protects forms of communication and expression.1. E.g., speech, writings, music, interpretative dance, moments of silence, marches,

etc.c. Marshall, Dissenting

i. Interest in controlling noise is substantial, but government cannot advance that interest by actually asserting control over amplification equipment and thus over private expression itself.

Generally Applicable Regulations That Incidentally Burden Speech

1. Incidental Burden Problemsa. Is the facially neutral law content-neutral?b. Is the restriction no greater than is essential to further the important or substantial governmental

interest?2. United States v. O’Brien (1968)

a. Facts – Individuals burned their draft cards to protest Vietnam in violation of a federal law making it a crime to knowingly “destroy” or “knowingly mutilate” draft registration certificates.

b. Holding (Warren)i. Upheld law.

ii. “When ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”

1. Government may incidentally burden protected speech.2. If government burdens an expressive component of an action, this is a content-

based regulation triggering heightened scrutiny.3. Law in question did not specify anything about speech.

iii. O’Brien Test – “A government regulation is sufficiently justified (1) if it is within the constitutional power of the Government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of

36

free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

1. Similar to intermediate scrutiny. Watered-down version.2. Not very searching; stacks in favor of government.3. “Unrelated to the suppression of free expression” Does not apply to content-

based regulations.4. Court never has invalidated a content-neutral, generally applicable restriction on

conduct under O’Brien scrutiny for the reason that it placed an impermissible burden on expression.

iv. Important or Substantial Governmental Interest1. Justifications of law were roughly administrative/unrelated to expression.

Requiring presence of draft cards facilitates emergency military mobilization, aids communication with draft board, and reminds holder to notify draft board of any changes in address or other relevant information.

a. Questionable – Government never prosecuted anyone for destroying his draft card for non-protest reasons, e.g., by leaving it in his laundry.

b. Actual Purpose – Stopping draft card burning as a form of protest.c. Court did not inquire into legislative motive.

i. “This Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”

ii. “Inquiries into congressional motives or purposes are a hazardous matter.”

v. Incidental Restriction Is No Greater Than Is Essential1. If government’s interest is that registrants keep their draft cards intact, then a

ban on destroying one’s draft card helps directly to accomplish that end.2. Alternative Means – Someone could make a copy of his draft card, and then all

of the relevant information would have been preserved. He then could destroy his draft card without losing any important information.

vi. Alternative Means of O’Brien’s Expression – Make a speech; make a banner; burn a copy of his draft card; etc.

1. But burning draft card was particularly expressive because it was illegal. Civil disobedience.

c. Harlan, Concurringi. If a regulation of non-expressive conduct incidentally burdens speech enough, it may

violate the First Amendment.3. Barnes v. Glen Theatre, Inc. (1991)

a. Facts – Concerned IN law prohibiting public nudity for the purpose of arousing the sexual desires of a person or another person.

b. Holding (Rehnquist) – Pluralityi. Upheld law.

1. No law has ever failed to satisfy O’Brien scrutiny.ii. Nude dancing is protected expressive conduct, but “only marginally so.”

1. Worthy of First Amendment protection.2. Whether a message is inarticulate (as in paintings or ballet) cannot determine

whether it is worthy of First Amendment protection.iii. Applied O’Brien scrutiny.

1. Important or Substantial Governmental Interesta. Not to protect a captive audience, as park patrons, because everyone

chooses to enter a strip club.b. Not to protect children.

2. Interest Unrelated to Suppression of Free Expressiona. Discerning Purpose of Law

i. Could not have used law to prevent the showing of an R-rated movie with a sex scene in a public theater or a musical containing a nude scene.

37

ii. Could have applied law to men running naked through a public park.

1. But very few men do this.iii. Lesson

1. Very few instances in which IN would attempt to enforce this law.

2. Sheds light on its purpose and suggests that we should be skeptical that it is a conduct-neutral regulation.

b. Central Disputei. Majority – Generally applicable law content-neutral.

ii. Dissent – Targets an erotic message content-based.c. Scalia, Concurring

i. Generally applicable law not subject to First Amendment scrutiny.1. Similar to his majority opinion in Employment Div., Dep’t of Human Resources

of Oregon v. Smith (1990) (concerning Free Exercise Clause).ii. Purpose of Law – Prohibiting immoral conduct.

1. No need to determine whether nude dancing is expressive conduct because law is a general prohibition on conduct based on morality.

2. Law would be violated if 60,000 consenting adults gathered in Hoosier Dome and exposed their genitals to each other.

iii. Agrees that law is content-neutral, generally applicable, and only restricts expression incidentally.

1. Such laws should not trigger First Amendment scrutiny at all. They should trigger rational-basis review only.

2. There are several rationales for this position—notably that no law has ever failed O’Brien scrutiny.

iv. Counterargument to Rational-Basis – Governments wanting to censor speech will do so through means such as IN law.

1. Response – We should not go through the charade of applying intermediate scrutiny when we should not be doing so.

d. Souter, Concurringi. Law is justified because it furthers IN’s interest in “preventing prostitution, sexual

assault, and associated crimes.”e. White, Dissenting

i. Invalidate law.ii. Law suppresses an erotic message. Content-Based Strict Scrutiny

iii. Nudity is an expressive component of the dance, not merely “incidental” conduct.4. Tinker v. Des Moines Independent Community School Dist. (1969)

a. School policy forbidding wearing of black armbands, which some students had done to protest Vietnam War, was unconstitutional.

b. Conduct contained strong expressive element; conveyed a message.

Prior Restraints

1. Prior Restraint – Executive or judicial order prohibiting a communication before it has occurred.a. Content-Based Restrictionb. Seek to prevent communication at the outset, not simply punish it after it has occurred.

i. Different from laws that make it a crime to communicate in some way.1. E.g., Espionage Act.2. Powerful means of censorship.3. (1) Communicate content. (2) Face punishment.

c. Problems – First Amendment provides more protection against prior restraints than it does against subsequent liability for speech.

i. Scope – If speech has not taken place, it becomes difficult to define what can be permissibly enjoined.

38

1. Response – Court may review speech in camera.ii. Chilling Effect – Prior restraint prevents speech from entering marketplace of ideas.

1. This is different from espionage acts, where speech first enters the marketplace of ideas before punishment is executed.

iii. Censorship – Something intuitively dangerous about the government deciding what content is permissible to disseminate and what is censorable.

iv. Extreme Content-Based Restriction – It is not a category of speech that is banned, but your particular content.

v. Accountability – With a law banning speech, Congress (accountable to electorate) has weighed its merits and harms. Judiciary is not accountable to electorate and may be seen as imposing its will through a prior restraint.

vi. Prosecutorial Discretion – With espionage acts, we will learn whether the forecasted harms occur after the information is published. This will determine to some extent whether the discloser will be prosecuted. With prior restraints, we will not learn whether the forecasted harms will occur because the discloser is prevented from publishing the information.

d. Why should we expect compliance with a prior restraint when an actor is willing to violate a law making it a crime to communicate in some way?

i. First Amendment can be an adequate defense to a violation of a statute based on speech. ii. Could be held in contempt for violating a judicial order.

1. Anyone that violates a judicial order can be held in contempt even if it is later determined that the judicial order was illegitimate or unconstitutional. As long as an order stands—whether or not it is constitutional or otherwise valid—one must comply with it.

2. May appeal (1) prior restraint and (2) holding of contempt.e. Executive Prior Restraints

i. E.g., city permits use of sound trucks as long as one has obtained a permit. Police chief has unreviewable discretion to issue permits.

1. Looks like prior restraint because the risk that authority to grant or deny permits will function as a means of content control.

2. While municipalities can require permits, they cannot vest absolute discretion in an authority to issue them. Courts have classified these schemes as prior restraints.

a. To be valid, permitting regimes need to have objective criteria and avenues for judicial review.

b. Absolute discretion in executive is the hallmark of a prior restraint.f. “It is always difficult to know in advance what an individual will say, and the line between

legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.” Southeastern Promotions, Ltd. v. Conrad (1975).

2. New York Times Co. v. United States (1971)a. Facts – Concerned NYT’s and Washington Post’s publication of the Pentagon Papers. Federal

government sought to enjoin further publication on national security grounds.b. Holding (Per Curiam)

i. Denied injunction. Government had not met its heavy burden.1. “Any system of prior restraints of expression comes to this Court bearing a

heavy presumption against its constitutional validity.”2. “The Government ‘thus carries a heavy burden of showing justification for the

imposition of such a restraint.’”ii. Level of Scrutiny – Not defined.

1. Six justices agreed that it had not been satisfied (whatever it was).iii. Lesson – To the extent that prior restraints can be justified by compelling government

interests, it seems that they can be justified only in cases of national security.c. Black, Concurring

i. First Amendment absolutist (for the most part). First Amendment trumps incompatible laws regardless of government interest at stake.

ii. Argued for a categorical rule against prior restraints.

39

iii. Freedom of press must be unrestrained.d. Douglas, Concurring

i. [Same as Black.]e. Brennan, Concurring

i. First Amendment is a bar on prior restraints.ii. Level of Scrutiny – Searching form of strict scrutiny for prior restraints.

iii. National Security Exception – Ban on prior restraints may be overridden in interest of national security only when nation is at war.

1. Requires actual evidence of adverse consequences, not conjecture.2. Government had not met burden here.

f. White, Concurringi. Concerned about separation of powers.

ii. Emphasized absence of statutory authority for courts or president to issue prior restraints.1. Even if a statute had existed, it would have made no difference. First

Amendment binds Congress, courts, and president.g. Marshall, Concurring

i. [Same as White.]h. Burger, Dissenting

i. Would have issued injunction to provide more time for review of material.i. Harlan, Dissenting

i. [Same as Burger.]j. Blackmun, Dissenting

i. Potential Harm – Dire risks of national security consequences weighed in favor of issuing the injunction.

k. Postscripti. Contents of Pentagon Papers did not justify a prior restraint.

1. Suggests that Black and Douglas or Brennan were right.ii. Because of the scope of the Vietnam War, there was good reason for requiring a clear

showing from government before issuing a prior restraint.3. Two Hypotheticals

a. Facts – Nazi Party of America wants to schedule a march through a town including thousands of Holocaust survivors.

i. If a court enjoined the march, would this constitute a prior restraint?1. Yes. It is preventing a particular rally with a particular message before it has

occurred.ii. What is the government’s interest?

1. Protecting People Against Offense – Not sufficient. Purpose of First Amendment is to protect unpopular speech.

2. Preventing Damage to People and Property – Justification depends on the (possibly violent) reaction of the townspeople. Do we want to allow a “heckler’s veto” here?

iii. City could hire extra police and require protestors to remain a specified distance from the march.

iv. To justify a prior restraint, city would need to show that it was necessary to prevent definite harm that would occur.

b. Facts – Person is convicted of a crime, and police secured a confession by force. Newspaper wants to publish an account of defendant’s confession. Court issues an injunction against newspapers printing any account of her confession during pendency of her trial.

i. Qualifies as a prior restraint.ii. What is the government’s interest?

1. Integrity of Judicial Process – Want to avoid prejudicing jury pool.2. Preserving defendant’s right to a fair jury trial.

iii. Is this a permissible prior restraint?1. Interest advanced by prior restraint is constitutionally protected. How does this

affect the determination of whether the prior restraint is permissible?

40

a. Because there are other means of protecting defendant’s right to a fair jury trial, the prior restraint probably is not justified.

i. E.g., striking jurors, voir dire, sequestration, etc.b. If the media will report on the prior restraint anyway and the public will

learn of it (and the protected information), a prior restraint is not justified.

2. Brennan’s Test – Probably not justified. It has no relation to any of the very specific national security interests that he mentions.

Incitement

1. Precedenta. Schenck v. United States (1919)

i. Upheld conviction under Criminal Espionage Act.ii. Clear and Present Danger Test – “The question in every case is whether the words used

are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

b. Abrams v. United States (1919)i. Upheld conviction under Criminal Espionage Act.

ii. Clear and Present Danger Testiii. Holmes, Dissenting

1. Would not have upheld conviction.2. Punishment, if any, should be nominal.3. “I think that we should be eternally vigilant against attempts to check the

expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

c. Gitlow v. New York (1925)i. Upheld conviction based on Communist party affiliation.

ii. Rational-Basis Reviewiii. Holmes and Brandies dissented and eventually were vindicated by Brandenburg.

d. Whitney v. California (1927)i. Upheld conviction based on Communist party affiliation.

ii. Holmes and Brandies concurred and eventually were vindicated by Brandenburg.e. Dennis v. United States (1951)

i. Upheld convictions of alleged Communists.ii. Decided during Red Scare.

iii. Harm of government overthrow would be massive, and this negated the extreme unlikelihood that it actually would occur.

f. Brandenburg implicitly overruled these cases and replaced them with robust constitutional protection for contentious speech.

2. Brandenburg v. Ohio (1969)a. Facts – Concerned conviction of KKK leader that had burned a cross, made a hateful speech, and

advocated “revengeance” under OH criminal syndicalism law prohibiting advocacy of violent or unlawful overthrow of the government.

b. Holding (Per Curiam)i. Invalidated OH law.

ii. Brandenburg Test – “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

1. Court does not discuss extensively origin of the standard; required no explanation or justification.

iii. Brandenburg Test – Three Prongs

41

1. “Directed” – An intent requirement. Speaker must intentionally urge others to imminent lawless action through her words.

2. “Imminent” – Temporal requirement. Speaker must urge action right now or in the immediate future.

a. “We’ll burn this city down later!” does not meet this requirement.3. “Likely to incite or produce such action” – Likelihood requirement. Even if

speaker directs her comments to inciting imminent crime, Brandenburg test is not satisfied if her comments are not likely to have any effect.

a. A nut yelling about imminent violent revolution on the street with no one paying attention does not meet this requirement.

4. Qualification: “Serious” – Lawless action advocated must be serious, not a trivial offense. See Whitney v. California.

a. Implicitly applied by most courts.b. Not Sufficiently Serious – Speeding; civil disobedience.

iv. Most speech-protective test ever announced by any court anywhere.1. Has not been curtailed by subsequent opinions.

3. Arguments in Favor of Brandenburg Testa. Conceive a spectrum along which subversive ideas are discussed: philosophical discussion

advocacy incitement. Brandenburg test is somewhat neutral along this continuum.b. Sort of speech implicated here is unpopular, and really, only unpopular speech requires First

Amendment protection.c. Historical hindsight reveals inadequacy of Court’s earlier restrictions on seditious speech. Court

is unwilling to stand up to popular demagogues like Joseph McCarthy and often overestimates the risk that seditious speech poses.

i. Brandenburg tries to over-protect speech.ii. Under the old standard, but not the Brandenburg test, Thomas Jefferson could have been

imprisoned for advocating revolution.4. Risks of Brandenburg Test – Does it go too far in protecting speech?

a. Directed Requirement – Someone still can incite a crowd without expressly calling for violent action. Winks and nods can be effective too.

i. E.g., Matthew Hale – Convicted for soliciting murder of a federal judge. Someone then posted on the Internet the name and address of a juror alleged to be instrumental in his conviction. Could not indict poster of the information because it did not satisfy the directed requirement, even though the context was clear.

b. Imminence Requirement – Might require government to wait too long before it can act.c. Likelihood Requirement – Similarly might prevent government action until it is too late.

5. Brandenburg should prevent imprisonment of citizens professing loyalty to Al-Qaeda, as long as they do not advocate violence.

Defamation

1. Generallya. Defamation – “A communication is defamatory if it tends so to harm the reputation of another as

to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Rest. 2d Torts § 559.

b. Libel – “Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words.” Rest. 2d Torts § 568(1).

c. Slander – “Slander consists of the publication of defamatory matter by spoken words, transitory gestures or by any form of communication other than those stated in Subsection (1).” Rest. 2d Torts § 568(2).

d. Public official, political candidate, or public figure may not recover in tort for a defamatory statement relating to his official conduct unless the statement was both false and made with “actual malice.” New York Times Co. v. Sullivan.

42

e. Private figure may not recover for a defamatory statement regarding a matter of public concern unless the statement was both false and made knowingly or at least negligently. Gertz v. Robert Welch, Inc.

f. Actual Malice – “A term of art denoting deliberate or reckless falsification.” Masson v. New Yorker Magazine, Inc.

g. Public Officiali. Includes “at the very least . . . those among the hierarchy of government employees who

have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt v. Baer.

ii. Person holding a position of such “apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it.” Rosenblatt v. Baer.

iii. Broad definition. Arguably includes any police officer or government employee exercising any authority at all.

h. Public Figure – E.g., movie star or celebrity, who has voluntarily become the subject of public attention.

i. Does not include a person that has merely become “involved in or associated with a matter that attracts public attention,” like a criminal suspect. Wolston v. Reader’s Digest Ass’n, Inc.

i. Matter of Public Concern – “Something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” City of San Diego v. Roe.

i. No precise definition.j. Balancing Interests – Between protecting reputations and interest in free speech.k. First Amendment does not allow recovery for reputational harm solely on the basis of what was

said, i.e., the speech itself.i. Potential Reasons

1. Addresses with government action, not private action.2. Historical Explanation – Libel and slander actions were recognized in the years

before and after ratification of the First Amendment. Thus, the First Amendment did not touch defamatory speech.

3. False speech may be entitled to a lesser degree of constitutional protection.4. First Amendment may be concerned only with matters of public importance, and

private defamation is not in this class.ii. Actual Reasons

1. First Amendment was not intended to abolish common law torts of defamation.2. Certain categories of speech are not entitled to First Amendment protection.

2. New York Times Co. v. Sullivan (1964)a. Facts – Concerned defamation suit brought by AL police commissioner over a full-page ad in

NYT allegedly targeting him and making allegations about treatment of civil rights demonstrators, criminal acts against African American students, and arrests of MLK. Many statements in the ad were inaccurate.

b. Holding (Brennan)i. Reversed award of damages in libel judgment.

ii. Background of First Amendment – Profound national commitment to an open and robust dialogue, which includes attacks on government officials.

1. Criticism of government/officials is at core of First Amendment.2. False statements do not contribute to search for truth and thus are not entitled to

First Amendment protection.iii. Actual Malice Standard

1. Public official/candidate for public office.2. Official Conduct – Statement must relate to official conduct, as opposed to

private conduct.3. Actual Malice – Recovery only if plaintiff can prove that defendant made

statement with “actual malice,” i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.

43

4. Plaintiff bears burden of proving (1) falsity of statement (2) by clear and convincing evidence.

5. Very high bar for recovery.iv. Application

1. Not clear that statements were about Sullivan.2. Even if they were, it seems that they may have been made negligently, not with

“actual malice.”v. Burden Shifting

1. Once actual malice standard has been met, defendant may defend only by showing truth of statement.

vi. Justifications for Actual Malice Standard1. News cycle moves very quickly, and statements occasionally will be erroneous.

Do not want to impose liability on press for false statements because there will be many of them.

2. Chilling Effect – “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship.’”

a. Dampens the vigor and limits the variety of public debate.c. Black, Concurring, with Douglas

i. Absolute First Amendment protection to criticize public officials for official conduct.ii. Justifications

1. As long as there is some possibility for liability, there will be some chilling effect, however small.

2. Smaller paper may be less likely to publish potentially defamatory statements because it does not have as many litigation resources, as NYT does.

iii. That Court does not adopt this position seems to indicate that it is engaging in implicit interest balancing: reputational interest versus First Amendment protection.

d. Goldberg, Concurring, with Douglasi. [Same as Black.]

3. Extensions of Actual Malice Standarda. Candidates for public office. Monitor Patriot Co. v. Roy.b. Public Figures

i. Gertz v. Robert Welch, Inc. – Two Kinds1. “For the most part those who attain this status have assumed roles of special

prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.”

a. E.g., Al Gore, Bill Gates, etc.2. “More commonly, those classed as public figures have thrust themselves to the

forefront of particular public controversies in order to influence the resolution of the issues involved.”

a. E.g., Bono w/r/t to his music or campaign in Africa.ii. Involuntary Public Figure – Did not thrust oneself to forefront of public controversy.

1. E.g., Monica Lewinsky, Joe the Plumber, etc.2. Circuits are split on whether it is possible to be an involuntary public figure.3. Arguments for More Protection

a. Did not place their reputations into public domain. Seems unfair to force them to face severe reputational costs.

b. They often can get attention from press, e.g., call a press conference to clarify any outstanding issues, but the last thing they want is more media attention.

c. Private interest in reputation is stronger when an individual does not thrust herself into a debate.

d. But if we offer too much protection, Jon Stewart would not be able to make jokes about Monica Lewinsky. Do we want this?

44

c. Intentional Infliction of Emotional Distress – Public officials/figures that are targets of parody cannot recover for IIED unless there is proof of actual malice. Hustler Magazine v. Falwell; see also Snyder v. Phelps (below).

4. Public Officials & Matters of Private Concerna. E.g., Obama’s physical exam; Golf Summit with Boehner and Kasich; Clinton’s sex life; etc.b. Questionable with extensive reach of modern media whether anything falls into this category.

Everything that Obama does may be of public interest.i. May be more clarity for public figures. E.g., it is more compelling that Brad Pitt has a

private life that is not of public concern.ii. Argument is even stronger for limited public figures, e.g., Monica Lewinsky.

5. Private Figuresa. Matters of Public Concern – May recover for defamation if there is proof (1) that statement was

false and (2) of negligence by defendant. Gertz v. Robert Welch, Inc.b. Matters of Private Concern

i. Presumed and punitive damages do not require proof of actual malice. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

ii. No additional First Amendment protection against defamation. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

c. Justification – Stronger reputational interest.d. No clear demarcation between matters of public and private concern in these cases.

i. E.g., unclear whether a newspaper publishing a story about a man having an affair in order to illustrate decline of fidelity in marriage in America is a matter of public or private concern.

6. Snyder v. Phelps (2011)a. Facts – Father argued that picketing of his son’s military funeral by WBC caused severe emotional

and physical injuries, giving rise to five tort claims, three of which (IIED, intrusion upon seclusion, and civil conspiracy) are reviewed here.

b. Holding (Roberts)i. Applied actual malice standard. See Hustler Magazine v. Falwell.

1. Shows applicability of Sullivan standard to IIED claim.2. Cannot avoid Sullivan standard by dressing up a defamation claim as IIED.

ii. Private Figure1. Father – Court did not determine whether publicity following lawsuit made him

a public figure. 2. Deceased Snyder – Not a public official/figure despite being a member of the

military.iii. Matter of Public Concern

1. Political/moral conduct of U.S. and its citizens; fate of nation; homosexuality in military; and scandals involving Catholic clergy.

2. Intended to reach broad audience, unlike in Dun & Bradstreet.a. Took place on public street public debate forum.

3. Controversial character is constitutionally immaterial.a. Offensive character emphasizes need for First Amendment protection.

4. Few signs directed at deceased Snyder do not change overall public thrust.iv. Falsity

1. Cannot prove falsity because many WBC statements do not obtain of truth or falsity.

2. Court will not determine what constitutes truth.v. Protected speech may be subject to reasonable TPM restrictions.

1. WBC complied with police orders concerning distance from funeral.2. Not unruly.3. MD subsequently enacted a law imposing restrictions on funeral picketing.

If WBC had violated law/content-neutral restrictions, it may have been subject to liability.

vi. Lesson – In Sullivan, Hustler, and other cases, Court has permitted liability in tort for speech only when speaker knowingly lied or acted with reckless disregard for the truth.

45

These cases thus can be read to stand for the proposition that the First Amendment might not protect false speech uttered with knowledge of its falsity, but that it generally protects truthful speech.

c. Alito, Dissentingi. Speech did not contribute toward discovery of truth. Not protected.

ii. Directed at deceased Snyder. Not a matter of public concern.1. Although public matters were implicated, this does not immunize unprotected

speech.iii. Unique Character of Funerals “In this setting, the First Amendment permits a private

figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.”

Obscenity & Child Pornography

1. Generallya. First Amendment does not protect obscenity. Roth v. United States.

i. Government regulate or ban obscene materials.b. Miller Test – “The basic guidelines in determining whether material is obscene are: (a) whether

the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California.

i. Material in question must both arouse (i.e., appeal to the prurient interest) and disgust (i.e., be offensive).

c. Justifications for Not Extending First Amendment Protectioni. Historical

1. First Amendment was never intended to protect all speech.2. When First Amendment was ratified, criminal speech included profanity, libel,

obscenity, etc.ii. Obscenity is without any redeeming social importance.

1. Does not advance purpose of First Amendment, which is promoting interchange of ideas for social/political change. Roth.

2. Fails SLAPS prong of Miller test.d. Government Interests – Content-Based Regulations of Obscene Material

i. Preventing Lustful Thoughts1. Problems

a. Lustful thoughts may not be a bad thing.b. Something unsettling about removing First Amendment protection

from speech based on the thoughts that it creates.2. This purported government interest seems to be unsatisfying.

ii. Protecting people that might accidentally see obscene material (e.g., grandma) from offense.

1. Snyder v. Phelps – Everyone was offended by WBC’s message, but this was not sufficient to exclude it from First Amendment protection.

2. State may have an interest in protecting captive audiences.a. However, captive audience doctrine is construed narrowly.

3. If government were able to ban offensive speech, we would not be able to talk about much outside the weather—and even then, not climate change.

4. This purported government interest seems to be unsatisfying.iii. Protecting children from exposure to obscene materials.

1. Why do we need a complete ban? Once obscene material is in marketplace and in hands of consumers, children will find ways to get ahold of it. Enforcement problem.

2. Balancing interest in protecting children against interest in the right of consenting adults to possess certain materials.

46

3. We restrict children from smoking, driving, drinking alcohol, etc., and thus, we can restrict children from seeing obscene materials.

a. We do not restrict adults’ activities only to those that are appropriate for children. Although we want to restrict children’s activities, we do not attempt to make the world G-rated overall.

b. See CA violent video game case. State cannot limit speech to only that which is appropriate for children.

iv. Protecting Morals1. Government could not ban publication of a scholarly paper arguing that DPC

should be read to protect non-intimate sex, even though the paper undermines “traditional morality” (as obscenity does).

2. What is different about obscenity?a. Obscenity appeals to people on a more visceral level. It usually does

not appeal to higher brain functions.b. Obscene materials may urge people to want to have sex immediately,

but a paper about sex probably will not.3. Interest generally is sufficient if there is no heightened constitutional protection

for the regulation.a. When there is another constitutional interest at issue, e.g.,

contraception, consensual sex between consenting adults, speech, interest is protecting morals usually does not suffice.

4. Problemsa. See Douglas, dissenting, in Roth.b. See problems with reasonable community standards in Miller test

(below).v. Protecting women, i.e., the subjects of the obscene material, from harm and crime

and subordination.1. Problems

a. Must have a paternalistic sense of consent to say that women cannot consent to participate in creating obscene materials.

b. If this is a legitimate reason for banning expression, it would be under-inclusive. What about songs with misogynistic songs; pornography?

i. If you want to minimize harm to the people that might see the obscene materials (e.g., men watching porn), then this implicates Brandenburg. The test must be satisfied, and it is very, very unlikely that a song with misogynistic lyrics could meet it.

2. Raises many concerns, but largely because of the Brandenburg problem, it has not justified banning obscene materials.

vi. At bottom, Court has said that government may ban obscene material because the majority of the population does not like it.

2. Roth v. United States (1957)a. Facts – Concerned constitutionality of CA and federal criminal obscenity statutes, which were

content-based restrictions.b. Holding (Brennan)

i. Obscenity is not protected by First Amendment.ii. Justifications

1. Historical a. First Amendment was never intended to protect all speech.b. When First Amendment was ratified, criminal speech included

profanity, libel, obscenity, etc.2. Obscenity is without any redeeming social importance.

a. Does not advance purpose of First Amendment, which is promoting interchange of ideas for social/political change.

b. Close Call – Playboy with its in-depth interviews.iii. Sex & Obscenity

47

1. “Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.”

iv. Prurient Interest1. Definition – Having a tendency to arouse lustful thoughts; arousing an unusual

sexual desire.2. Must be dominant theme of material.

a. May apply to many kinds of sexual depictions—all books, movies, etc. appealing dominantly to the prurient interest.

b. Under Roth test, a law could not ban books or movies containing sex or nudity unless their dominant themes were to appeal to the prurient interest. E.g., Lolita.

v. Roth Test – “The test to determine whether material is obscene is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

c. Douglas, Dissentingi. Obscene material should be protected by First Amendment.

ii. Prevailing/community moral standards should be irrelevant to First Amendment inquiry.3. Paris Adult Theatre I v. Slaton (1973)

a. Brennan, Dissentingi. Significant vagueness problems no workable obscenity standard.

ii. Reversal of position in Roth.4. Miller v. California (1973)

a. Miller Test – “The basic guidelines in determining whether material is obscene are: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

i. Current test for obscenity.ii. Material in question must both arouse (i.e., appeal to the prurient interest) and disgust

(i.e., be offensive).b. Three Components

i. Prurient Interest1. Measured according to reasonable community standards.2. Prurient – Not that which would arouse a normal sexual response, but only that

which would arouse an abnormal or lustful sexual response.ii. Patently Offensive

1. Measured according to reasonable community standards.iii. Lack of serious literary, artistic, political, or scientific value.

1. Objective Not measured according to reasonable community standards.a. Not objective because people value materials differently.b. Standard is inherently subjective and individualized. Not easily

administrable.2. Very idea of government deciding the intrinsic merit of speech is problematic

and in tension with First Amendment.a. For this reason, Brennan later determined that a workable obscenity

standard is not possible. Paris Adult Theatre I v. Slaton.c. Lack of Serious Literary, Artistic, Political, or Scientific Value

i. Obscenity fails SLAPS prong. No First Amendment protection.ii. Why do we protect other speech lacking SLAPA value?

1. Skeptical that government can draw lines accurately regarding social value.2. Intrinsic worth in determining what we want to read or watch for ourselves.3. Harms of obscenity outweigh the benefits of affording it First Amendment

protection. Harms of Miley Cyrus, however, do not outweigh the benefits of affording it First Amendment protection.

48

a. Both forms of expression may be of little social value, but the balancing of interests is different.

d. Reasonable Community Standardsi. National standard either lets most restrictive community (e.g., OK) or most permissive

community (e.g., San Francisco) determine what material is offensive.ii. Problems

1. Wide variety of views in any single community or state.a. E.g., VA outside of DC v. VA elsewhere.

2. Level of First Amendment protection depends on where one lives.a. First Amendment rights differ across country.b. First Amendment grants least protection in communities in which

content-based restrictions are greatest.3. Internet Complications – Company producing a video in CA could be

prosecuted when someone in IA streams it.a. Might produce a national standard. Porn must be made in accordance

with most prudish standards in the country.b. Court has tried to minimize this problem with the SLAPS prong.

5. New York v. Ferber (1982)a. Facts – Concerned NY law prohibiting any person knowingly producing, promoting, directing,

exhibiting, or selling any material depicting a “sexual performance” by a child under age 16.b. Holding (White)

i. Upheld definition of “child pornography” in NY law.ii. Government may prohibit exhibition, sale, or distribution of child pornography even if it

does not meet Miller test for obscenity.1. Deviations from Miller Test – “The Miller formulation is adjusted in the

following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.”

a. Possible that materials classified as child pornography under NY law would not satisfy the Miller test.

2. “Non-obscene” child pornography is not protected under First Amendment.iii. Compelling Government Interest – Protecting physical and psychological well-being of

minors.1. Participation in child pornography is harmful to physical and psychological

well-being of minors.2. Children cannot give consent.3. Closely related to child abuse.4. Permanent record of abuse.5. Market for child pornography will create more demand.

iv. Test for Child Pornography – Implicit balancing of (1) the de minimis “value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct” and (2) government’s interest in protecting the physical and psychological well-being of minors.

1. Balancing weighs heavily in favor of protecting physical and psychological well-being of minors.

2. “Evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.”

a. Balancing is set in stone; no case-by-case adjudication.3. “When a definable class of material bears so heavily and pervasively on the

welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the protection of the First Amendment.”

a. Amounts to a categorical exclusion of child pornography from First Amendment protection.

4. No exception for works of predominant social value.

49

5. Savings – “Distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.”

6. Ashcroft v. Free Speech Coalition (2002)a. First Amendment prohibits government from banning non-obscene, virtual child pornography.b. If virtual child pornography can lead to harm, it can be banned under Brandenburg if it will lead to

imminent child abuse.7. United States v. Williams (2008)

a. Government may criminalize distribution of virtual child pornography as though it were real child pornography.

Symbolic Conduct

1. Generallya. Conduct may be “sufficiently imbued with elements of communication to fall within the scope

of the First and Fourteenth Amendments.” Spence v. Washington.b. Tinker v. Des Moines Independent Community School Dist. (1969)

i. School policy forbidding wearing of black armbands, which some students had done to protest Vietnam War, was unconstitutional.

ii. Conduct contained strong expressive element; conveyed a message.iii. Government seeks to regulate “conduct” because of expressive elements of conduct

searching scrutiny.c. O’Brien Scrutiny

i. Not strict scrutiny important/substantial, not compelling, interest.ii. Regulation must be content-neutral.

2. Texas v. Johnson (1989)a. Facts – Concerned TX law prohibiting any person to “deface, damage, or otherwise physically

mistreat” a flag in a way that the actor knows “will seriously offend one or more persons likely to observe or discover his action.”

b. Holding (Brennan)i. Invalidated TX law.

ii. Test for Whether Conduct Possesses Sufficient Communicative Elements for First Amendment Protection

1. Speaker must have intended to convey a particularized message.2. Likelihood must have been great that those who viewed it would understand the

message.iii. Flag & Expressive Activity

1. Flag is a symbol, and so flying a flag under ordinary circumstances is a traditionally expressive activity.

2. Burning a Flag (Typically Non-Expressive Activity)a. At a protest clearly expressive of a certain message.b. At a military flag-retiring ceremony may or may not be expressive

of a certain message.i. Probably not an expressive activity. Average observer

probably could not say what message soldier was trying to articulate.

iv. Did not apply O’Brien scrutiny.1. TX law: content-based restriction (related “to the suppression of free of

expression”) targeted offensive messages/protests.2. In some cases, Court applies no scrutiny at all. Think of McVeigh.

v. Strict Scrutiny (because content-based)1. Purported Government Interests

a. Preventing Breaches of Peace (e.g., riots)i. Not sufficient to sustain conviction.

50

ii. Since law is content-based, it is not sufficient that speech may be prohibited if other people probably will react violently. Brandenburg requires that speech be directed to incitement, but that is not the case here.

iii. Johnson was not arrested for breaching the peace.b. Preserving the Flag as a Symbol of National Unity

i. Content-Based – Related to suppression of free expression because TX wants to preserve a certain, popularly well-received and government-approved message.

c. Neither purported interest is compelling.2. Regulations of non-expressive conduct can trigger strict scrutiny if government

singles out only those instantiations intending to communicate a particular message.

c. Kennedy, Concurringi. First Amendment compels result here, regardless of how distasteful it may be to the

Justices who announce it, because defendant’s acts were speech in both the technical and the fundamental meaning of the Constitution.

d. Rehnquist, Dissentingi. Because flag is a unique symbol in American culture, Court should make an exception

and place flag burning in same box as defamation, etc.1. Acknowledges expressive element of flag burning.2. Pure Antagonism – Flag burning is uniquely divisive, and this is the justification

for creating a categorical exclusion from First Amendment protection.a. But flag burning is inherently political speech. Communicates an idea

central to First Amendment. As Kennedy said, flag protects those that hold it in contempt, so it would be strange to carve out an exception for flag burning.

ii. Burning flag is of little social value.iii. Equivalent of an inarticulate grunt.

1. Many other means of expressing this sort of message.e. Stevens, Dissenting

i. Sanctioning desecration of flag will tarnish its value as a national symbol, a tarnish that is not justified by trivial burden on free expression that is occasioned by requiring that alternative modes of expression be employed.

ii. Flag-desecration law does not prescribe orthodox views or compel any conduct or expression of respect for any idea or symbol.

iii. Defendant was prosecuted not for his criticism of government policies, but for method he chose to express those views, and a prohibition against that method is supported by a legitimate interest in preserving the quality of an important national asset.

Traditionally Expressive Activities Typically Non-Expressive ActivitiesContent-Based Boos (holding a sign); White

(making a speech)

Strict Scrutiny (except for categorical exclusions, e.g., defamation, obscenity, child pornography, incitement, etc.)

Johnson (burning a flag typically is not expressive of a certain message).

Strict Scrutiny

Content-Neutral Ward; (Barnes)

Intermediate Scrutiny for TPM Restrictions

O’Brien

O’Brien Scrutiny (which in practice looks like Intermediate Scrutiny—or something less deferential)

Provocative Speech

51

1. Distinction from Incitementa. Incitement – Speech might cause audience to follow speaker in lawlessness.b. Provocative Speech – Audience might react lawlessly to speaker’s speech.

2. Chaplinsky v. State of New Hampshire (1942)a. Facts – Concerned NH law prohibiting anyone from addressing “any offensive, derisive or

annoying word to any person lawfully in a public place.” Jehovah’s Witness was distributing literature on a street corner, denouncing other religions, passersby, and the government of Rochester.

b. Holding (Murphy)i. Upheld conviction.

ii. Right of Free Speech1. “Not absolute at all times and under all circumstances.”2. Categorical Exclusions – “Certain well-defined and narrowly limited classes of

speech, the prevention and punishment of which have never been thought to raise any constitutional problem.”

a. E.g., the lewd and obscene, profanity, libel, and insulting or fighting words.

iii. Insulting or fighting words are unprotected by First Amendment.1. Definition – “Those which by their very utterance inflict injury or tend to incite

an immediate breach of the peace.”2. Fighting words are “no essential part of any exposition of ideas, and are of such

slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

a. Slight social value is outweighed by social costs.3. Justifications for Categorical Exclusion

a. Inflict injury by very utterance.b. No essential part of any exposition of ideas.c. Likely to cause average addressee to fight.

4. Questionable Contemporary Rationale for Exclusiona. Fighting words doctrine seems foreign to us because, today, we usually

respond to fighting words by walking away without fighting. This is what we are taught.

b. Other words still provoke us as fighting words. E.g., racial epithets.iv. Two Situations Where Speech Constitutes Fighting Words

1. Likely to cause violent response against speaker (i.e., provocation).2. Likely to inflict immediate emotional harm (e.g., hate speech).

v. Chaplinsky has never been overturned.1. But Court never has upheld another restriction on fighting words.

a. Unlikely that a fighting words law could survive on review.2. Professor Smith – Fighting words doctrine is offshoot of incitement doctrine.

3. Cohen v. California (1971)a. Facts – Concerned CA conviction for disturbing the peace for being in a courtroom with a jacket

that said, “Fuck the Draft.”b. Holding (Harlan)

i. Overturned conviction.ii. Invalid Arguments for Upholding Conviction

1. Conduct – Did not satisfy O’Brien scrutiny because conviction rested solely on speech.

2. Obscenity – Not obscene under Roth test.3. Fighting Words – Speech was not directed at a particular person/audience that

would understand it as provocation.a. “No individual actually or likely to be present could reasonably have

regarded the words on [Cohen’s] jacket as a direct personal insult.”

52

b. Heckler’s Veto – Banning speech that would be likely to offend a large group would be tantamount to a heckler’s veto. Do not want to ban speech simply because it will offend one person in a large group.

4. Protecting Captive Audiencea. Presence of unwitting listeners/viewers does not automatically justify

restrictions.b. Government may properly act to restrict unwelcome speech from

intruding privacy of home, but not outside home.c. “The ability of government, consonant with the constitution, to shut off

discourse solely to protect others from hearing it is dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.”

i. Cohen could not have stood outside a private home and screamed, “Fuck the draft!” There is a reasonable expectation of privacy inside the home, but courthouse is a public place where there is no expectation of privacy.

ii. Cf. Snyder v. Phelps (Speech was not “fighting words” because protesters were far away and in public, and funeral goers did not see signs.).

d. Difficult to be a captive audience outside home.iii. Justifications

1. Court is willing to cede public spaces to people like Cohen, who are willing to offend other people, because limiting public dialogue according to the sensibilities of the most sensitive would be overly restrictive.

2. Government cannot ban uniquely offensive words having a special power to end the conversation and thereby limit speech because there is no principled way to differentiate these words from other less, but still substantially, offensive words.

a. Banning words is a slippery slope. Principled line drawing is very difficult and is itself a form of censorship.

iv. Lesson – Government may not prohibit or punish speech simply because others might find it offensive.

1. Jacket conveyed a political message. No other language would have been as succinct or forceful.

2. Profanity communicates powerful and unique emotive component.3. However a content-neutral regulation having incidental effects on speech may be

permissible as long as it is directed at achieving a legitimate government interest, e.g., proper functioning of Supreme Court in the case of banning the wearing of jackets saying, “Fuck the Supreme Court,” in Court proceedings.

v. Strongest declaration of First Amendment protection for unpopular speech (or profanity). Court declined to suggest that certain profanities are beyond protection of First Amendment.

vi. Did not overrule Chaplinsky. Provocative speech directed at a particular person/audience that would understand it as provocation conceivably still may be banned.

4. R.A.V. v. City of St. Paul, Minn. (1992)a. Facts – Concerned city ordinance that prohibited hate speech based on race, color, religion, or

gender that was likely to “anger, alarm, or cause resentment.”b. Holding (Scalia)

i. Invalidated ordinance for impermissibly drawing content-based distinctions among fighting words (i.e., viewpoint discrimination), e.g., by prohibiting expression of hate based on race, but not based on political affiliation.

ii. Strict Scrutiny1. Viewpoint discrimination (which is content-based discrimination) within a form

of categorically excluded speech strict scrutiny.2. Two Exceptions

a. Content-based distinction is permissible if it directly advances reason why the category of speech is unprotected.

53

i. Distinctions are permissible if forms of speech singled-out are most likely to cause harms that categorical exclusion is meant to prevent.

ii. E.g., obscenity law could ban most sexually explicit material without having to ban everything obscene.

b. Law is not content-based if it is directed at remedying secondary effects of speech and is justified without respect to content.

i. But are anger, alarm, and resentment secondary effects?iii. Even categorically excluded speech gets some First Amendment protection.

1. Not true that fighting words have “at most a ‘de minimis’ expressive content or that their content is in all respects worthless and undeserving of constitutional protection.”

2. Constitute a nonessential part of exposition of ideas.a. Still playing some part.

3. But see Roth and Chaplinksy (affording no First Amendment protection).iv. Government cannot draw lines within the category of excluded speech.

1. E.g., government cannot differentiate between kinds of libel and prohibit some (no First Amendment protection) and allow others (First Amendment protection).

2. Lines are not only content-based, but also based on viewpoint, and viewpoint discrimination is a particularly problematic form of content-based discrimination.

3. No problem if MN banned all fighting words instead of only a specific subset. Would be more narrowly tailored than statute in force.

a. Does not make sense. Court is saying that MN could have accomplished its objective by banning more speech.

v. No absolute prohibition on content-based discrimination within categories of unprotected speech.

1. Valid Bases for Such Discriminationa. “When the basis for content discrimination consists entirely of the very

reason the entire class of speech at issue is proscribable.”b. If restrictions were designed to prevent secondary effects so that “the

regulation is justified without reference to the content of the regulated speech.”

vi. Significance for Fighting Words Doctrine1. Fighting words laws may not include content-based distinctions among types of

speech.2. Difficult to craft legislation without being vague or overly broad.

vii. Significance for Hate Speech1. Hate speech is not entirely outside First Amendment protection.2. Difficult for hate speech restrictions to survive judicial review.

a. Prohibit only some discrimination invalidated as impermissible content-based restrictions.

b. Expansive and general invalidated on vagueness and overbreadth grounds.

c. White, Concurringi. Unconstitutional for overbreadth. Court has long held that it may facially invalidate a

law under First Amendment if it is overly board, i.e., banning both protected and unprotected speech.

1. Banned Protected Speech – E.g., wearing swastika on jacket. Cf. Cohen (protecting such speech).

2. Did not matter that petitioner could have been convicted under other laws, e.g., trespass; he could not be convicted under this law.

ii. “Should the government want to criminalize certain fighting words, the Court now requires it to criminalize all fighting words.”

d. Blackmun, Concurring

54

i. Government should have latitude to draw distinctions within categories of unprotected speech.

ii. “Court has been distracted from its proper mission by the temptation to decide the issue over ‘politically correct speech’ and ‘cultural diversity,’ neither of which is presented here.”

1. Professor Smith thinks case is about political correctness.e. Stevens, Concurring

i. Government should have latitude to draw distinctions within categories of unprotected speech.

5. Threatsa. Watts v. United States (1969)

i. True threats receive no First Amendment protection.ii. Threats in the form of political hyperbole do not qualify as true threats and so receive

First Amendment protection.b. Virginia v. Black (2003)

i. Cross burning is symbolic expression and thus protected speech.ii. Cross burning done with intent to threaten or intimidate, i.e., constituting a true threat,

receives no First Amendment protection.iii. Must be proof in each individual case that cross burning was a true threat.

c. Lesson – Government can ban true threats, and hate speech may qualify as such.6. Should hate speech be considered a category of speech categorically beyond protection of First

Amendment?a. Court has not decided this.b. Hate speech does not seem to have much social value.c. Court usually engages in a balancing of value of speech against its potential harm.d. Harm of Hate Speech

i. Fanning generalized racial hatred, which may perpetuate subordination.ii. Bullying has led to suicide among newly “out” students.

iii. Undermines other values, e.g., nondiscrimination, equality of opportunity, diversity, etc.e. Generally, the mere fact that most people find speech loathsome is not sufficient to remove it from

First Amendment protection. Cohen.7. United States v. Stevens (2010)

a. Facts – Concerned federal law that prohibited creation, sale, or possession of depictions of animal cruelty.

b. Holding (Roberts)i. Invalidated law.

ii. Refused to create a new category of unprotected speech.1. Government’s argument for creating new category:

a. High social costs.b. Low to nonexistent social value.

2. Test for Creating a New Category of Excluded Speech – Balancinga. Ferber – Court engaged in explicit balancing.

i. Law banning creation, sale, or possession of child pornography would apply to relatively few instances of protected speech.

ii. Dealt with on case-by-case basis, rather than invalidating law for overbreadth.

b. Stevens – Court stated that it did not engage in balancing; calls an ad hoc balancing test “startling and dangerous.”

3. Ferber a. Categorical exclusion for non-obscene child pornography was created

not on basis of balancing alone.b. Created to address the secondary effects of this category of speech, i.e.,

violations of valid criminal statutes involving sexual abuse of children.iii. Unconstitutionally overbroad.

55

1. “Text of the statute's ban on a ‘depiction of animal cruelty’ nowhere requires that the depicted conduct be cruel.”

2. Statute applies to any illegal conduct. Would prohibit hunting videos because hunting is illegal in some states.

iv. Lesson – Court does not want to expand categorical exceptions to First Amendment protection.

1. Very uncomfortable with them in the first place.2. Only real possibilities for increased application of categorical exceptions are in

areas in which categorical exceptions have long historical precedent. See R.A.V.; Ferber.

Religion

Establishment Clause

1. Establishment Clause, amend. I – “Congress shall make no law respecting an establishment of religion.”a. Prohibitions

i. No national church or national religion.ii. No taxes directly funding religion.

iii. Going to or remaining away from church.iv. Professing belief or disbelief in any religion.v. Being punished for beliefs or non-beliefs, or church attendance or non-attendance.

b. Incorporated by Cantwell v. Connecticut (1940).i. Questioned by Thomas. Newdow (2004) (concurring).

ii. Supported by Brennan. Schempp (1963).c. Original Meaning

i. Historical evidence is inconclusive. Justices are divided.2. Separationism v. Non-Preferentialism

a. Separationismi. Separation of Church and State. Reynolds v. United States (1878).

1. Separate spheres. Government is secular; church and clergy have no governmental authority.

2. Historical Evidencea. Jefferson’s letter to Danbury Baptistsb. Roger Williams and Rhode Islandc. Madison’s “Memorial and Remonstrance”

ii. Government may not prefer religion over irreligion.iii. Protects:

1. Minority religions;2. Nonsubscribers and atheists; and3. Religious institutions (from political corruption).

b. Non-Preferentialismi. Government may not prefer one religion over another, but need not be neutral between

religion and non-religion.ii. Wallace v. Jaffree (1985) (Rehnquist, J., dissenting).

3. No Support Principlea. No direct or indirect support of religious institutions.b. Strict Rules

i. Government support only for secular institutions.ii. No tax breaks for parents of parochial school children. Would free up money for parents

to send children to parochial schools.iii. Tax breaks would be available only for donations to secular charities. No tax breaks for

donations to religiously affiliated charities.iv. No police or firefighter aid for religious institutions.

4. Neutrality Principle

56

a. No preference among religions or between religion and irreligion. State power may not work to favor or handicap religions. Everson.

b. Problemsi. Government must be neutral among religions.

ii. Some support may be given to religious institutions, as long as it is given to secular institutions too. Conflicts directly with the no support principle.

c. Relied on more frequently than No Support principle. Mitchell; Mueller; Rosenberger.5. Lemon Test

a. Three Prongsi. Secular purpose;

ii. Primary effect neither to advance nor inhibit religion; andiii. No excessive entanglement.

b. Problemsi. Vague and open-ended. What is primary? What is excessive?

ii. When a state attempts to avoid supporting religion, it creates excessive government entanglement.

iii. Incorporates tension between No Support and Neutrality Principles. Does not resolve.1. “Neither advance” language – No Support.2. “Nor inhibit” language – Neutrality. This language says that the government

cannot punish people for their religious activities. (This also may implicate the Free Exercise Clause.)

3. Second prong of Lemon test addresses tension between the two principles. It does not resolve the tension, but rather it simply incorporates the tension into the Lemon test.

a. Court vacillates between the two principles.c. Heavily criticized. Sometimes followed; sometimes not. Never repudiated.

6. Testsa. No Support Principleb. Neutrality Principlec. Lemon Test

Government Aid to Religious Institutions

1. Case law concerning constitutionality of government aid is mixed. See p. 1091.2. State cannot provide direct or indirect funding for actual religious proselytizing.

a. Neutral programs were invalidated if they had the effect of promoting actual religious proselytizing. E.g., subsidized busing for religious school field trips was found to be unconstitutional.

3. Testsa. Neutrality Principle. Everson; Mitchell; Mueller; Rosenberger.b. Lemon Test. Lemon.c. Modified Lemon Test. Zelman.d. No Support Principle. Rosenberger (Souter, J., dissenting); Zelman (Souter, J., dissenting).

4. Everson v. Board of Education of Ewing Township (1947)a. Facts – NJ law authorized public bussing of children to parochial schools. Tax money used to

reimburse parents.b. Holding (Black)

i. Upheld law.ii. Test – Neutrality Principle: “[First] Amendment requires the state to be a neutral in its

relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.”

1. Applicable Establishment Clause test.2. Neutrality between religion and irreligion State could pay for bussing of

parochial school children, as well as children attending public schools.3. Problems

57

a. Government must be neutral among religions.i. Jackson, Dissenting – Applies only to parochial schools, not,

e.g., Episcopal schools.b. Some support may be given to religious institutions, as long as it is

given to secular institutions too. Conflicts directly with the no support principle.

iii. Concerned with separation of church and state and government preferring religion over irreligion.

iv. All justices agreed with the general separation principle, i.e., no government support for religion or religious practice.

1. Disagreed as to application.v. Support for Catholic Church – Tax provided tangible benefits to Catholic churches. It

functioned as both a direct an indirect subsidy to the parochial schools. (Money is fungible.)

c. Jackson, Dissentingi. Violates Neutrality Principle: Bussing for parochial school students government

support for Catholicism over other religions.1. Concerned more primarily with separation of church and state.

d. Rutledge, Dissentingi. Dissented because tax supported a religious institution.

ii. State may be able to give less money to parochial schools.5. Mitchell v. Helms (2000)

a. Neutral aid to religious schools is permissible so long as no “religious indoctrination that occurs in those schools could reasonably be attributed to governmental action.”

b. No violation in providing computers to all schools, secular and religious.c. Neutrality prevails over No Support.

6. Lemon v. Kurtzman (1971)a. Facts – Involved challenges to PA and RI laws supplementing nonpublic teacher salaries and

allotted for the purchase of secular educational instruction materials.b. Holding (Burger)

i. No Support – Violated because some nonpublic schools receiving aid were religious.1. Not directly addressed.

ii. Neutrality – Not violated because laws allowed for payment of the salaries of teachers at nonpublic schools, both secular and religious.

1. Not directly addressed.iii. Test – Lemon Test. Three Prongs:

1. Secular legislative purpose;2. Principal or primary effect must be one that neither advances nor inhibits

religion; and3. No excessive government entanglement with religion.

iv. PA and RI laws failed to satisfy “entanglement” prong. E.g., making sure that the schools were spending funds only on secular subjects required the states to closely scrutinize schools’ activities.

7. Mueller v. Allen (1983)a. Facts – MN law permitting taxpayers to deduct expenses incurred for tuition, textbooks, and

transportation for education of their children. Available to all parents: public, nonpublic, and parochial schools. Deduction went to parents, not schools.

b. Holdingi. Law upheld.

ii. Neutrality prevails over No Support.iii. No message of government support parents made independent choices as to support

religious institutions.8. Rosenberger v. Rector & Visitors of the Univ. of Virginia (1995)

a. Holding (Kennedy)i. Held unconstitutional university’s refusal to disburse student activity funds to Christian

group to publish an expressly religious magazine.

58

ii. Program is neutral. No violation to allow access to university facilities on a religion-neutral basis.

iii. Neutrality prevails over No Support.b. Souter, Dissenting

i. Emphasizes No Support Principle.ii. Evenhanded application is not enough.

Neutrality Principle triumphed in era before Zelman.

9. Zelman v. Simmons-Harris a. Facts – OH program authorizing $2,250 checks to parents for purpose of sending children to

public schools, nonreligious private schools, or religious private schools. 96% of participating parents sent kids to religious private schools.

b. Holding (Rehnquist)i. Test – Variation on Lemon Test.

1. Secular Purpose – Yes: providing educational assistance.2. Primary Effect/Excessive Entanglement – Satisfied.

a. Excessive entanglement is part of primary effects prong.b. Lemon test has two- and three-prong versions.

ii. Neutrality – “Where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.”

1. True Private Choice – Intervening, genuine choices of parents.2. Incidental advancement of religion is not constitutionally significant.3. Theoretical Neutrality – Heavily religious application does not make it

unconstitutional.iii. Lesson – Government funding of religious activities is permissible as long as such

funding is available for nonreligious activities.1. Reflects Non-Preferentialism – Evenhanded.

c. Souter, Dissentingi. Majority ignored Everson.

ii. Emphasizes No Support principle.iii. Program must be neutral in practice, not just in theory.iv. Parents have no genuine and free choice about where to send kids.

1. No other options.2. Two-thirds of parents did not embrace schools’ religions.3. Because of subsidies from affiliated churches, parochial school tuition was

significantly cheaper.

Religion in Schools & Public Land

1. Testsa. History. Engel.b. Coercion. Lee.c. Neutrality Principle. Epperson.d. Lemon Test. Edwards.e. Historical evidence for longstanding practice. Marsh.

2. Prayer in Public Schoolsa. Barred if prayer is an official or approved part of school activities.

i. Whether prayer is spoken or heard, denominational or nondenominational, silent or spoken, or voluntary or involuntary.

b. Release Timei. Illinois ex rel. McCollum v. Board of Education (1948)

59

1. Invalidated school policy of allowing students to be released, with parental permission, to religious instruction classes conducted during regular school hours in school building by outside teachers.

2. Violated separation of church and state.a. Allowed use of tax-supported buildings for religious dissemination.b. Impermissibly aided sectarian groups.c. Compounded by compulsory public school attendance.d. Reflects Separationism.

ii. Zorach v. Clauson (1952)1. Upheld policy allowing students to be released during school hours for religious

instruction outside the school.a. All students were released during this time.

2. All religious education occurred off school premises.3. Mere accommodation of religion, not establishment.4. Reflects Non-Preferentialism.

3. Engel v. Vitale (1962)a. Facts – Concerned nondenominational school prayer devised by State Board of Regents, which

school policy required students to voluntarily read aloud every day.b. Holding (Black)

i. Official prayers in public schools are unconstitutional. Amounts to establishing religion.1. Schempp (1963) – Requiring public school students to read Bible verses every

day as part of official curriculum violates Establishment Clause.a. Religious subjects may be taught secularly. E.g., Bible as Literature.

2. Government-composed prayers are especially problematic. Major reason why people came to the colonies and why First Amendment was adopted.

3. State can no more require an inclusive/nondenominational prayer than it can require a sectarian one.

4. Coercion – Not a necessary element of Establishment Clause violation.a. Shows that dissenting students could not simply opt out.b. But see Barnette (1943) – State cannot coerce uniformity of opinion

and require children to salute and recite pledge of allegiance.5. Cannot set aside time for private prayer/moment of silence in public school.

Wallace v. Jaffree (1985).ii. Test – History surrounding Establishment Clause.

iii. Strong separationist principle.4. Lee v. Weisman (1992)

a. Facts – Rabbi led nondenominational prayer at graduation ceremony. Chosen by principal and given guidelines to follow.

b. Holding (Kennedy)i. Invalidated policy.

ii. Prayer at Issue1. Characteristics

a. Rabbi is not a member of religious majority in community.b. Prayer is seemingly nondenominational and inclusive.

2. Problems Under Establishment Clausea. Prayer endorsed monotheistic religion over polytheistic religions.

i. Problem from a Non-Preferentialist perspective.b. Government invited rabbi to speak and gave him guidelines for his

prayer.c. Prefers religion over irreligion.

i. Problem from a Separationist perspective.d. Court advanced Separationism.

iii. Establishment Clause Problems1. Potential harm to people that disagree with message. May feel unrepresented or

isolated.2. Seems to be establishing a particular orthodoxy.

60

a. Violates the Separationist and Non-Preferentialist views.iv. Coercion – First Amendment prevents the government from forcing someone to

participate in religious activities.1. Coercion is not necessary for a violation of Establishment Clause. Engel.2. Important event in a person’s life.3. Psychological/peer pressure to attend and participate. No genuine choice not to

attend.a. Fleshes out coercion allegation.b. Sources – Peers; government (links between principal and rabbi).c. Cited many sociological studies, as in Brown. Indicates that peer

pressure is real/overwhelming.4. Unfair to require students to convey impression that they were participating in

the ritual.5. Heightened Concern/Context – “Heightened concerns with protecting freedom

of conscience from subtle coercive pressure in the elementary and secondary public schools.”

v. Government argues that graduation would lack meaning without recognition of spiritual essence of human achievement.

1. Heart of case.2. Scalia agrees.

c. Blackmun, Concurringi. Coercion is not a necessary element, but is sufficient for Establishment Clause violation.

ii. Separationismd. Souter, Concurring

i. [Same]ii. Violates Non-Preferentialism.

iii. Reading a coercion element into Establishment Clause would make Free Exercise Clause superfluous, as it already prohibits coercion.

iv. History1. Jefferson and Madison disagreed with Scalia.2. Devastation to First Amendment jurisprudence if Founders practices were

dispositive on constitutional interpretation.a. E.g., Alien and Sedition Acts would be constitutional. Freedom of

speech would be much narrower.3. Difference between graduation prayers (personal; captive audience) and

ceremonial invocations of God (impersonal; rarely noticed).e. Scalia, Dissenting

i. No Establishment Clause violation.ii. History – E.g., opening prayers at congressional sessions; Thanksgiving proclamations;

etc.1. Shows that there is no constitutional violation.

iii. Coercion – Establishment Clause prohibits only coercion by force of law or threat of penalty, and Court should confine its jurisprudence as such.

iv. Interests of religious majority trump those of dissenting minority. They suffer “minimal inconvenience.”

1. Harm to Dissenters – Isolation; lack of representation; disrespect.f. Should a few nonconformists/nonbelievers be able to deprive the rest from engaging in voluntary

prayer?i. Whitewashing religious doctrine to make it palatable to nonbelievers may be offensive to

believers.ii. Scalia and government argue that balance of harms tilts in favor of believers, such that

they should be able to engage in voluntary prayer over the objections of a few dissenters.iii. Empirical Fact – Many more Americans are bothered by excluding prayer at graduation

than by including it.iv. Bill of Rights is not meant to give voice to majority but to protect rights of minorities.

5. Good News Club v. Milford (2001)

61

a. School could not exclude religious group from using school facilities after school.b. Because school opened its facilities to community groups to conduct activities for students after

school, the ban constituted viewpoint discrimination, which was not required to avoid violating Establishment Clause.

6. Santa Fe Independent School District v. Doe (2000)a. Student-delivered prayers at high-school football games violated Establishment Clause.b. Prayer at school functions is impermissible if government encourages or facilities the religious

activity.7. Epperson v. Arkansas (1968)

a. Invalidated a law forbidding the teaching of evolution in public schools and universities.b. Neutrality Principle (Lemon had not been decided yet.)

i. Purpose of Law – To discredit evolution, which is inconsistent with the religious views of those who promulgated the anti-evolution law.

ii. Violated Establishment Clause because motivated by a religious purpose.iii. Would have failed “secular purpose” and “primary effect” prongs of Lemon test.

8. Edwards v. Aguillard (1987)a. Facts – LA law requiring evolution and creationism to be taught together, if at all. b. Holding (Brennan)

i. Test – Lemon Test1. Secular Purpose – Failed because its “primary purpose was to change the

public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety.”

a. Court is not deferential to purposes that are shams.2. Did not examine “primary effects” and “excessive entanglement.”

ii. Violated Establishment Clause because motivated by a religious purpose.iii. Context – Primary and secondary schools are unique.

1. Parents entrust children; do not expect/desire religious indoctrination.2. Children are impressionable.3. Mandatory attendance coercive power of state.

c. Scalia, Dissentingi. Quest to discern legislative purpose is a fool’s errand.

ii. Would have abandoned the secular purpose prong of the Lemon Test.9. Marsh v. Chambers (1983)

a. Facts – Concerned NE’s practice of opening legislative sessions with paid chaplains.b. Holding (Burger)

i. Upheld practice of paid chaplains.ii. Test – Historical argument about the original understanding or application of the First

Amendment.1. Longstanding tradition going back to Founders.

a. But Alien and Sedition Acts were unconstitutional. Actions of Framers are not always dispositive.

2. “Unique history” leads to this interpretation of no violation.3. Did not apply Lemon Test.

a. Secular Purpose – To solemnize occasion—hardly a secular purpose.b. Primary Effect – Perhaps prayer simply quiets everyone down. Still, it

hardly seems not to have the effect of promoting religion.c. Excessive Entanglement – Legislature must hire chaplain (interview);

review prayers for sufficient neutrality; and perhaps fire chaplain.d. Fails all three prongs.

iii. Lesson – Court need not apply Lemon Test if there is strong historical support for a particular government practice of supporting religion.

1. Exception to normal procedure.2. Threatens to swallow rule. E.g., prayer in school was common in early

America.c. Brennan, Dissenting

i. Would have applied Lemon test and invalidated.

62

ii. Two Kinds of Excessive Entanglement1. Government monitoring and overseeing religious affairs.2. Divisive political potential of a government statute or program.

10. Lynch v. Donnelly (1984)a. Facts – Concerned a Christmas display owned by the city and erected in a park maintained by a

nonprofit. Display contained Santa Clause, Christmas tree, lights, and a crèche.b. Holding (Burger)

i. Crèche poses no Establishment Clause violation.ii. Test – Lemon Test, but acknowledged that Court sometimes uses others.

1. Secular Purpose – Yes: celebrate and depict origin of Christmas.a. But crèche illustrates “the reason for the season.”

2. Primary Effect – Satisfied: similar to effects of many other permissible, constitutional activities, e.g., a museum housing religious paintings.

a. But city erected crèche not because of its artistic merit, but rather because of specific message conveyed. Unlike museums exhibiting art for its artistic merit without endorsing message that it conveys.

3. Excessive Entanglement – Satisfied: little government supervision; little government money.

4. Not a persuasive application. Counterarguments at each step.iii. Two Plastic Reindeer Rule – Government may display a religious object as long as it is

surrounded by two plastic reindeer.iv. Marsh Test – [NOT APPLIED IN CASE.]

1. Burger may have found that it passed.2. Actually would have failed because Christmas was not officially recognized or

widely celebrated in early United States.v. Notable – Many aspects of Christmas tradition are not expressly religious, at least not in

origin. Borrowed from Pagan traditions and pre-Christian winter festivals. Santa Clause originated with Saint Nicholas.

1. Christmas is a very secular holiday these days. Most Americans do not view Santa Clause, Rudolph, etc. as religious.

2. A plurality of American atheists celebrates Christmas.3. Many non-Christians also celebrate Christmas.

c. O’Connor, Concurringi. Endorsement Test – “Proper” application of Lemon Test.

1. First Two Prongs – Is the government practice intended to endorse or disapprove religion, or does it have the effect of endorsing or disapproving religion?

2. Adjudged from perspective of reasonable observer, i.e., someone familiar with the community and government practice.

a. Reasonable observer is someone familiar with community and government practices.

i. Probably would view crèche as endorsement.ii. Most Americans (80% Christian) would not. Crèche is just

part and parcel of Christmas, which is largely a secular holiday today.

b. Problems in Determining Reasonable Observeri. Central problem with endorsement test. Like asking a white

person whether segregation imposes a badge of inferiority on black people.

ii. Different upbringings w/r/t religion shape our notions of reasonableness. No view is “unreasonable.”

iii. Conclusions1. Probably cannot be discerned.2. Majority applied majoritarian notion of

reasonableness.3. Application

63

a. Government wants to celebrate holiday by displaying a common symbol. No impermissible advancement or endorsement of religion.

b. Context negates any message of government endorsement.c. Similar to other acknowledgements of religion, e.g., “In God We

Trust,” which have long history, secular purpose, and convey no endorsement.

d. Brennan, Dissentingi. Applies Lemon Test and finds constitutional violation.

ii. As a Catholic, he is offended that majority discounts religious aspects of Christmas.iii. Three Principles of Government Acknowledgement of Religion

1. May accommodate to some extent opportunities of individuals to practice their religion.

2. May pursue once-religious practices when they now have secular purposes.3. Cannot be prohibited from recognizing Americans’ religious history and culture.

11. County of Allegheny v. American Civil Liberties Union (1989)a. Crèche by itself – City could not display because it communicates only religious aspects of

Christmas.b. Crèche, menorah, and sign saluting liberty – City could display because it is not an endorsement

of any particular religious view.12. Stone v. Graham (1980)

a. Public schools may not display 10 Commandments.b. “Undeniably a sacred text in Jewish and Christian faiths.”

13. McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005)a. Facts – Concerned display of 10 Commandments in state courthouses. Erected by KY counties.b. Holding (Souter)

i. Unconstitutional because of impermissible purpose of advancing religion.ii. Purported Purpose

1. No deference to stated secular purpose “in those unusual cases where the claim was an apparent sham, or the secular purpose secondary.”

2. Monuments included Declaration of Independence, etc.a. Needed some secular content surrounding 10 Commandments.b. Original purpose had been to honor Christian God; other items were

added merely to make the monument palatable.3. Problems

a. Promoting origin of our laws using 10 Commandments is not a permissible purpose.

b. Claim that 10 Commandments are source of Declaration of Independence, Constitution, etc. is demonstrably false.

i. 10 Commandments1. Law comes from God.2. Prohibition on worshiping other gods contradicts

Free Exercise Clause.ii. Declaration of Independence

1. Law comes for consent of the governed.iii. Framers were deists, who rejected many claims of the Bible,

as well as organized religion.1. Jefferson – Very critical of Christianity, Bible.2. Madison – Almost certainly a deist.

c. Surrounding 10 Commandments with Lady Justice, etc. turns Lady Justice into a “plastic reindeer.” Lynch.

d. Calling 10 Commandments “not religious” may be offensive to devout Christians. Lynch (Brennan, dissenting).

iii. Did not apply Two Plastic Reindeer Rule.1. May be possible to display 10 Commandments without endorsing religion, but

that had not occurred here.iv. Breyer – Swing vote/in majority in both cases.

64

1. Two Factorsa. Context

i. Erected under auspices of county legislative body and county judge-executive.

b. Length of time that monument has been standing.i. Erected in 1999.

2. [See Van Orden v. Perry for full explanation of “Breyer Test.”]v. Lesson – Court has abandoned watered-down Endorsement Test that it had been using up

to this time.1. O’Connor applied the “real” Endorsement Test.2. Most members of Court were not trying to veil the religious content or nature of

the display.c. O’Connor, Concurring

i. Endorsement Test – “The purpose behind the counties' display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer.”

d. Scalia, Dissentingi. Nothing wrong with 10 Commandments conveying a religious message.

ii. Rejects Separationism – Government cannot prefer one religion to another—at least when government funding is at stake.

iii. Originalism – Scalia cites historical evidence. Souter cites other evidence.iv. Establishment Clause as Majority Protection

1. Acknowledges competing interests between majority of believers and minority of non-believers.

2. Disregard of non-monotheists is permissible because overwhelming majority of believers are monotheists.

a. But this does not mean that majority of believers want government-sanctioned religious displays.

3. Minority protection is unfair to majority of believers.4. Permissible interpretation because Free Exercise Clause provides protection

from majority rights of worship.5. Conclusion – Government may act with purpose and effect of endorsing the

monotheism of the Bible.v. Spectrum: Separationism Non-Preferentialism Preferentialism

1. Scalia – Gov’t preferentialism is OK in certain circumstances.2. Historically, majority has engaged in preferentialism. Permissible today to

invoke Establishment Clause to protect majority against minority.a. But requires a rationale as to why Establishment Clause should be read

differently than the other minority-protection provisions of the Bill of Rights.

b. Thomas – Establishment Clause should not have been incorporated to states through 14th Amendment.

vi. What if Americans adopted Hinduism as their preferred religion? Depends on how one interprets Scalia’s test.

1. Historical – Would not change fact that Judeo-Christian tradition was that that government had been permitted to endorse when Bill of Rights was ratified.

2. Raw Numbers – Endorsing Hinduism may be permissible.14. Van Orden v. Perry (2005)

a. Facts – Concerned display including 10 Commandments, eagle grasping an American flag, eye inside a pyramid, Star of David, etc. surrounding TX State Capitol. Donated by Fraternal Order of Eagles.

b. Holding (Rehnquist)i. Upheld display.

ii. Test – (1) Nature of monument and (2) American history.1. Monument

a. Religious and secular purposes. Government may display religious monuments with religious and secular purposes.

65

2. American Historya. Infusion of religion in American history and culture.

3. Did not apply Lemon test or (explicitly) endorsement test.c. Scalia, Concurring

i. Nothing unconstitutional in state (1) favoring religion generally, (2) honoring God through public prayer and acknowledgment, or (3) venerating 10 Commandments in a non-proselytizing manner.

d. Thomas, Concurringi. Argued for return to original meaning of Establishment Clause.

e. Breyer, Concurringi. Swing vote/in majority in both cases.

ii. Two Factors1. Context

a. Religious and secular messages, but secular dominates.b. Surrounding secular displays and monuments.c. Donation by Fraternal Order of Eagles.

2. Length of time that monument has been standing.a. 40 years.

iii. “Steven Breyer Test” – Monuments (1) that have been around for a long time and (2) that plausibly can be said to convey a secular message because of context probably are constitutional.

1. Principlesa. Government cannot place religious symbols on government property in

a manner symbolically endorsing religion.b. Determining Endorsement History, purpose & context.c. Case-by-case adjudication.

2. No test-related substitute for the exercise of sound legal judgment.3. Difficult for new monuments to satisfy this test.

a. Effect – Old monuments probably will satisfy this test, but new monuments almost certainly will not.

4. Not likely to endure as test of constitutionality of religious symbols on government property because of personnel changes on Court.

a. Alito for O’Connor (majority in McCreary).f. Stevens, Dissenting

i. Neutrality Principle1. Sectarian version of 10 Commandments.2. Alienated polytheists and atheists.

ii. Responded to majority’s arguments.1. Monument shows no concern for TX history.2. Not analogous to ceremonial deism (e.g., “In God We Trust”).3. Historical Counterarguments – Jefferson and Madison.

g. Souter, Dissentingi. Qualifies as endorsement.

ii. Monument is religious, and nothing detracts from religious nature.15. Elk Grove Unified School District v. Newdow (2004)

a. Question – Whether “under God” in Pledge of Allegience violated Establishment Clause?b. Dismissed on standing grounds.c. Lemon Test

i. Secular Purpose – “Under God” clearly does not have a secular purpose, considering motivation for adding it, i.e., to counter the godless materialism of Communism.

ii. Primary Effectiii. Excessive Entanglement

d. Marsh Testi. Thrust – Problematic religious practices common at time of Founders may be

constitutional.ii. No history of “under God” in Pledge because it was added in 1950s.

66

iii. History of prayer in schools may be relevant, however.e. Endorsement Test – Lynch (O’Connor, concurring)

i. Does inclusion of “under God” endorse religion or convey a message of endorsement (according to reasonable observer)?

ii. Look to purpose and effect, i.e., just a modification of the Lemon test.1. Addition of “under God” was intended to have a religious purpose.

iii. Justification for Endorsement Test – Establishment Clause is supposed to ensure that people of different religious beliefs all feel like members of political community.

1. This, however, is not the test itself.iv. Problem – Difficult to determine who the “reasonable observer” is.

1. A reasonable believer (i.e., a monotheist, per Scalia) might not view “under God” as endorsing any particular religion, but only as a general affirmation of religion.

f. Under all tests, “under God” is unconstitutional, but Court found no endorsement.i. Ceremonial deism is permissible/does not violate Establishment Clause. Four-factor

balancing test, O’Connor, concurring:1. History and ubiquity.2. Absence of worship or prayer.3. Absence of reference to specific religion.4. Minimal religious content.

Free Exercise Clause

1. Generallya. Free Exercise Clause, amend. I – “Congress shall make no law . . . prohibiting the free exercise

thereof [religion].”b. Scope – Not entirely clear because there have not been many Free Exercise cases in Supreme

Court.i. Applies to religious belief and religious practice.

c. Prohibitionsi. Government cannot punish people solely for holding religious beliefs.

ii. Government cannot punish expression of religious doctrines that it believes to be false.iii. Government cannot impose special disabilities on basis of religious belief or status.iv. Government cannot force profession of belief or disbelief in any religion.

d. Typical Free Exercise Claimsi. Law prohibits action that one’s religion requires.

1. E.g., Reynolds (concerning Mormons wanting to practice polygamy).ii. Law requires conduct that one’s religion forbids.

1. E.g., requiring nurses to attend to women pre- and post-abortion; payment of social security taxes despite antithetical Amish religious beliefs.

e. Free Exercise Clause protects only religious beliefs and practices, not secular ones. Wisconsin v. Yoder.

i. Court has developed no principled way of distinguishing religions from non-religious systems, whether secular or cultic.

f. Current Test – Smith and Hialeahi. Government may enforce a law that burdens a particular religious practice only if (1) the

law is both neutral and of general applicability or (2) the government has a compelling interest for imposing the burden and the law is narrowly tailored to advance that interest.

ii. Free Exercise Clause is not violated by a neutral and generally applicable law unless it fails rational-basis review, but a law that is neither neutral nor generally applicable violates Free Exercise Clause if it does not satisfy strict scrutiny.

g. Relationship with Establishment Clausei. Government may defend against Establishment Clause challenge by contending that it

permissibly sought to accommodate religious practice.ii. Government may defend against Free Exercise Clause challenge by contending that it

was seeking to avoid an Establishment Clause violation.

67

2. Braunfeld v. Brown (1961)a. Rejected Free Exercise challenge to Sunday closing laws.

i. Accepted legislature’s argument that Sunday closing laws served the compelling government interest of providing a uniform day of rest.

ii. “The statute before us does not make criminal the holding of any religious belief or opinion, nor does it force anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets.”

iii. “To strike down . . . legislation which imposes only an indirect burden on the exercise of religion . . . would radically restrict the operating latitude of the legislature.”

b. “Freedom to hold religious beliefs and opinions is absolute.”c. Indirect Effect May Be Unconstitutional – “If the purpose or effect of a law is to impede the

observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.”

3. Sherbert v. Verner (1963)a. Facts – Concerning SC denial of unemployment benefits to Seventh-day Adventist that quit her

job rather than work on her Saturday Sabbath. She could not obtain work because she refused to work on Saturday and businesses were closed on Sunday.

b. Holding (Brennan)i. Reversed determination that claimant was ineligible for benefits.

ii. Strict Scrutiny – Appropriate standard for a generally applicable and neutral law incidentally interfering with exercise of one’s religion.

1. Compelling Government Interesta. Purported Interest – No exception because “the filing of fraudulent

claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work.”

i. Slippery slope argument.ii. Court’s Response

1. Not a compelling interest.2. No supporting evidence.

2. Narrow Tailoring (i.e., no alternative means would have achieved interest equally well)

iii. SC law imposed impermissible choice between income and faith.c. Stewart, Concurring

i. Establishment Clause jurisprudence would require SC to deny unemployment benefits.ii. “The guarantee of religious liberty embodied in the Free Exercise Clause affirmatively

requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief.”

d. Harlan, Dissentingi. Claimant was unavailable for Saturday work just as anyone who refuses Saturday work

for personal reasons is unavailable.ii. Effect of Court’s decision is to require SC to make an exception in favor of those whose

unavailability for work stems from religious convictions.4. Goldman v. Weinberger (1986)

a. Air Force’s interest in uniformity of appearance and other factors justified a regulation prohibiting officer from wearing a yarmulke while on duty.

i. Court did not describe interest as “compelling.”5. Wisconsin v. Yoder (1972)

a. Facts – Concerned Amish parents’ desire for exemption from WI compulsory school-attendance law requiring children to attend public or private school until reaching age 16 for their 14- and 15-year-old children.

b. Holding (Burger)i. Affirmed granting of exemption.

ii. Constitutional Violations

68

1. Free Exercise Clause – Infringed Amish religious belief that “children’s attendance at high school, public or private, was contrary to the Amish religion and way of life.”

2. Due Process Clause – Infringed parents’ right to direct education and upbringing of children. Pierce.

iii. Two Ways to Compel School Attendance Without Free Exercise Violation1. State does not deny free exercise of religious belief by its requirement.

a. WI law is undeniably at odds with Amish religion.2. State interest of sufficient magnitude to override the interest claiming protection

under the Free Exercise Clause.a. Not present because education beyond eighth grade will not prepare

Amish children for Amish life, as the Amish are a reliant and self-sufficient community.

iv. Free Exercise Clause protects only religious beliefs and practices, not secular ones.1. Amish claims are rooted in religious belief.2. Court would not have affirmed for a secular group professing a progressive or

enlightened child-rearing process.c. Douglas, Dissenting in Part

i. Religious beliefs of children should be considered.ii. Children may want to leave Amish society, but this option may not be available without

sufficient education.6. Employment Div., Dept. of Human Resources of Oregon v. Smith (1990)

a. Facts – Concerned OR law prohibiting use of peyote. Native Americans challenged OR’s determination that their religious use of peyote, which resulted in their dismissal from employment, was misconduct disqualifying them for receipt of unemployment benefits.

b. Holding (Scalia)i. Held no Free Exercise violation.

ii. Standard of Review – Not heightened scrutiny (which suggests rational-basis review).1. Rejects use of strict scrutiny for challenges to laws of general applicability that

burden religion.2. An individual's religious beliefs do not excuse him from compliance with an

otherwise valid law prohibiting conduct that the state is free to regulate.iii. Constitutional Text

1. Court adopts a permissible reading of Free Exercise Clause, not one requiring a particular result.

2. Court does not read into history and does not seek to determine the original meaning of the Free Exercise Clause.

a. Weak originalist argument.b. History suggests that Sherbert approach (i.e., strict scrutiny for a

generally applicable and neutral law incidentally interfering with exercise of one’s religion) is correct.

iv. Precedent1. Precedent does not support deferential review. See Sherbert.2. Distinguishing Sherbert

a. Strict Scrutinyi. Applies only with respect to denial of unemployment benefits.

ii. Court rarely has applied Sherbert, and when it has, test has been satisfied.

b. Criminal Law – Present case involves a criminal conviction whereas Sherbert did not; Sherbert creates no basis for exemption from generally applicable criminal laws.

i. Claims for unemployment benefits lend themselves to individualized assessment, so exemptions may be warranted.

ii. With criminal sanctions, there is no room for individualized assessment.

69

1. Trial functions as opportunity for individualized assessment.

2. Prosecutorial Discretion – Individualized assessment. Here, prosecutor chose not to press charges.

iii. However, present case is about denial of unemployment benefits. No challenge to criminal convictions.

3. Yoder – Involved (1) free exercise claim and (2) due process claim regarding parents’ right to direct education of children.

a. Hybrid Claims – Only cases in which Free Exercise Clause bars application of a neutral, generally applicable law to religiously motivated action.

b. Possible Interpretationsi. Heightened scrutiny applies to accompanying claim, and Free

Exercise Clause is irrelevant.ii. Heightened scrutiny applies to Free Exercise Clause and

accompanying claim.c. Present case involves no hybrid claim.

4. Other Constitutional Law – Generally applicable laws incidentally burdening rights.

a. Equal Protection – Absent discriminatory purpose, a discriminatory effect is not enough to state a cognizable claim.

i. Rational-basis review.ii. Consistent with Smith.

b. Free Speech – O’Brien Scrutiny: incidental burdens trigger intermediate scrutiny.

i. Not consistent with Smith.v. Political Process

1. Majorities are unlikely to burden religious practice intentionally, and if they discover that they have, they will grant exemptions.

a. E.g., in order to stop hooliganism, town could enact a law prohibiting gatherings of more than 10 people on weekends. Law would pass muster under Smith, but no town probably would enact it.

b. E.g., state or town could ban all alcohol use with no exemptions of any kind. Probably would not enact such a law because about 25% of the population is Catholic.

2. Political process may function to protect Christians (majority), but it is not clear that it will work to protect religious minorities.

3. Aftermath – After Smith, OR created an exemption for religious use of peyote, and Congress passed RFRA (attempting to reinstate test of Sherbert and Yoder).

c. O’Connor, Concurringi. Invoked Sherbert test but used rational-basis review.

1. Compelling Government Interest – Preventing use of peyote.2. Recommended case-by-case balancing of competing constitutional interests.

a. OR criminal interest in controlling possession of peyote outweighed interest in allowing Native Americans to use it for religious purposes.

ii. Rejects hybrid theory and characterization of cases under it.iii. Rejects leaving protection of minority religions to political process.

1. “First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.”

d. Blackmun, Dissentingi. Accepts O’Connor’s balancing test but concludes that it weighs in favor of interest in

allowing Native Americans to use peyote for religious purposes.1. More like strict scrutiny; more consistent with Sherbert.2. Extended Application

70

a. Rastafarians’ Use of Marijuana – Bigger black market for marijuana than peyote. May justify across-the-board ban.

b. Pacifists’ Objections to Draft – Not impeded raising army.ii. Rejects hybrid theory and characterization of cases under it.

iii. Problems with Strict Scrutiny for Generally Applicable and Neutral Laws Incidentally Burdening Religious Exercise

1. More difficult to craft generally applicable and neutral laws.2. Court has no business determining what a religion actually believes.

Problematic for Establishment and Free Exercise Clauses.a. Court only may determine whether an individual sincerely holds her

religious beliefs.b. More exceptions granted will require judges to determine more often

the sincerity of religious beliefs.i. Administrability problem.

3. Risk of Undermining Rule of Law – More exceptions risk making each man a law unto himself.

a. Disparate treatment of individuals.b. Inconsistent legal rules.

4. Line-drawing problems are inconsistent with Establishment Clause. System of exemptions invites Court to accept some religious claims and deny others.

a. Smith avoids this problem, and this is strongest argument for the holding. It avoids the line-drawing problems that butt up against the Establishment Clause.

7. United States v. Lee (1982)a. Rejected claim by Amish individual that requirement to pay Social Security taxes violated Free

Exercise Clause.b. Restriction on religious freedom was “essential to accomplish an overriding governmental

interest.”8. Bob Jones University v. United States (1983)

a. Denial of tax-exempt status to private schools that racially discriminated because of sincere religious beliefs did not violate Free Exercise Clause.

b. “Government has a fundamental, overriding interest in eradicating racial discrimination in education [which] substantially outweighs whatever burden denial of tax benefits places on the exercise their religious beliefs.”

i. Compelling Government Interest – Eliminating racial discrimination.ii. Narrow Tailoring – No less restrictive means were available.

9. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)a. Facts – Santeria religion practices animal sacrifice as a principal form of devotion. Santeria

announced plans to establish house of worship, school, cultural center, and museum in Hialeah, and city adopted ordinances prohibiting ritual sacrifice of animals.

b. Holding (Kennedy) – 9-0 decisioni. Test

1. First Step – Smith Test: (1) neutrality and (2) generally applicable.2. Second Step – Laws failing Smith test must satisfy strict scrutiny.

ii. Neutrality – Ordinances were not neutral and purpose was to single out for disfavor Santeria practices.

1. Definition – “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.”

2. Context – Exemptions in all of the ordinances effectively make the ordinances applicable only to Santeria.

a. Ordinances speak of “sacrifice” and “ritual” (religious).b. Exemptions for other religions, e.g., kosher slaughter.c. Allowed killing of animals for nonreligious purposes.

3. Legislative History – Ordinances were created to target Santeria.a. Comments from residents, city council, and other officials exhibited

focus on Santeria and concern with maintaining Christian mores.

71

b. Scalia rejects legislative history generally.iii. General Applicability – Ordinances were not generally applicable.

1. Professor Smith is skeptical that this is a separate inquiry.2. Two Purported Interests – Under-Inclusive

a. Protecting Public Healthi. Does not regulate disposal of carcasses by hunters or

restaurants.b. Preventing Animal Cruelty

i. Allows many non-religious animal killings.iv. Neither neutral nor generally applicable Strict Scrutiny

1. No compelling interests; not narrowly tailored.2. Could achieve safe and sanitary disposal of animal remains without targeting

Santeria.c. Scalia, Concurring in Part

i. Purpose of law is irrelevant to determining whether it is neutral and of general applicability.

ii. Skepticism of discerning a single legislative intent.d. Blackmun, Concurring

i. Religious freedom is an affirmative, individual liberty.10. Locke v. Davey (2004)

a. Facts – Concerned WA scholarship program for students that qualify academically and financially and that attend college in state. Students may attend any public or private (or religious) college and pursue any course of study. But scholarship funds were not available for devotional courses of study.

b. Holding (Rehnquist) – 7-2 decisioni. Rejected challenge.

1. Claim – Free Exercise violation by allowing students to receive state scholarship assistance if they pursued secular, but not religious, studies.

ii. Scholarship Program – Barred all religious study. Nonsectarian.iii. Strict Scrutiny – Applies only when there is a really harsh burden on free exercise.

1. Compelling Government Interesta. Preventing tax dollars from funding religious instruction.

i. Strong separationist principle.ii. States historically have limited taxpayer money subsidizing

religious institutions.b. Avoiding Establishment Clause violation.

i. Establishment Clause Jurisprudence – If program makes no differentiation between funding of religious and secular programs, and there is the intervening private and free choice of individuals, there is no Establishment Clause violation. Zelman.

2. Restrictions on use of scholarship are not sufficiently harsh.a. Minor burden on scholarship recipients does not outweigh government

interest.b. Students may pursue religious instruction without scholarship (i.e.,

taxpayer subsidy).iv. Lesson – States may restrict their college scholarships to prevent them from being used

by those studying for the ministry.1. Government constitutionally may allow such use of scholarships but is not

required to do so. No Establishment Clause violation.v. Tension Between Establishment & Free Exercise Clauses

1. To be resolved by political process in each state.a. Both clauses are important.b. Unstable stasis.

2. Scalia – Free Exercise Clause should prevail.3. Souter [other cases] – Establishment Clause should prevail.

72

a. This view has not prevailed.c. Scalia, Dissenting

i. When a state makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured.

ii. When a state withholds that benefit from some individuals solely on the basis of religion, the state violates the Free Exercise Clause.

iii. True (not civic) religious believers are a minority deserving of constitutional protection.

73