CONSTITUTIONAL LAW II OUTLINE

SCOPE AND INTERPRETATION OF CONSTITUTIONAL RIGHTS

These rights are framed in extremely open-ended and vague terms such as:  “due process of law,”  “privileges and immunities,”  “cruel and usual punishment,”  “equal protection of the laws,” etc. Requires a lot of interpretation by the courts and affords a great amount of power to the federal courts combined with the institution of judicial review from Marbury v. Madison. Language of the Constitution does not give specific, case-related answers, rather it raises questions that must be answered by the government, primarily through the courts.  Rights can be read broadly or narrowly. o Read too broadly, they interfere with the operation of Government, its ability to protect the people from threat or operate in an efficient manner. o Read too narrowly, infringe on the rights of the people, so cherished the Framers found fit to include in the Constitution. o How to balance these concerns? Morality, safety & security, privacy, personal liberty.  Interpretation can turn on one’s theory of statutory/constitutional interpretation (NOTE: In class we returned to these modes of analyses TIME AND TIME AGAIN!!): o Originalist – Look to the meaning at the time the Constitution was written or the Amendment ratified. Like a written contract with a fixed meaning. Permit unelected and politically unaccountable judges to change the law. Strong supporters: Scalia & Thomas. o Textualist – Attempts to interpret solely on the basis of the text. Usually tied to originalist school of interpretation, but not always. The literal text is controlling, it is the final product of the legislature. But it can take on different meanings as new situations or technologies arise. o Non-originalist – Constitution was drafted w/ language broad enough to be flexible and applicable over time. Interpretation permits the “living Constitution” to adapt to problems and crises that did not exist at the time of the Framers. Don’t believe they are interpreting it differently than originally intended, rather interpreting the same text and rights in the context of an evolving society. o Common Law & Precedent – Look to the common law evolution of the law on the matter. Identify cases decided on similar matters and analogize or distinguish them from the current case. Closely associated with the “non-originalist” mode of interpretation. o Political-process – Based on Caroline Products FN 4. View that judiciary’s role is as guardian of the political process. Requires greater scrutiny for actions that undermine the political process or burden discrete and insular minorities who are unable to defend themselves via the political process.

PRE-CIVIL WAR INTERPRETATION OF CONSTITUTIONAL RIGHTS

Early view: Bill of Rights does not apply to the states.  Barron v. Baltimore (1833) – Owner of a wharf accused the City of Baltimore of changing the river flow and thereby and rendering the wharf property virtually worthless. Claimed a taking under the Fifth Amendment of the U.S. Constitution. o Marshall did not reach the Takings claim, because he held that the Bill of Rights does not apply to state or municipal action. Applicable only to federal government actions. o Constitutional arguments for Marshall’s view: . Historical – BoR was created in a historical context  concerns of anti-federalists and fear over the new federal government, not local government. . Structural – Points to the fact that the Constitution is a compact between the people of the U.S. and the new federal government they created. It has nothing to do with citizens’ relationships with the state or local governments.

1 . Textual - There is a specific section prohibiting state action in the Constitution, and this is made explicitly applicable against the states. Thus the BoR, which are generally worded, apply only to the Federal government.  Odd decision for Marshall, because he was usually one to decide cases in a way to enhance the federal government’s power! But here at the end of his career, he gutted the ability of the BoR to apply to the states. o Following this case, the state governments were free to jail people for undesireable speech, search w/o warrants, discriminate based on religion etc.  Marshall writes that it is a very “easy case.” But that did not have to be true. Even some state courts had held that the BoR limits state power. o Two ways a judge could come out the other way: . Textual – First Amendment applicable specifically to Congress (and so not the state governments). The rest are written in the passive voice, and could be read as broad prohibitions applicable to any U.S. governments. But runs up against Marshall’s textual arguments... . Natural Law (Inalienable Rights) – Look back to the Declaration of Independence, “We hold these truths to be self-evident ... life, liberty, and the pursuit of happiness.” Natural law rights. BoR is a partial explication of these natural law rights and therefore are applicable to all levels of government. o But natural law theory had been rejected for a more positive approach that had taken hold by 1833. No longer in vogue. . Natural law theory has not disappeared. It lives on in international human rights law, which postulates that all people naturally have these inalienable rights, regardless of being born into a society that does not recognize them. . Some commentators still draw upon natural rights themes in supporting the basis of some liberties and rights. Abuses following (or continuing after) Barron v. Baltimore  Slavery  Crime to form or join a pro-abolitionist party, felony to publish or distribute abolitionist material.  Criminalize free blacks in the South (prevent role models)

14TH AMENDMENT – POST-CIVIL WAR

Historical background  Force the South to join the Union and force them to do away with slavery: o Set up puppet governments in the South. President appointed by proclamation the governors of the southern states. North dictated how they would vote. o Conventions were convened to ratify the 13th Amendment, but only those southerners who supported the abolition were permitted to attend.  13th Amend = constitutionalization of the Emancipation Proclamation.  Radical Republicans took over Congress. Envisioned a reconstruction that went far beyond what Lincoln had in mind. They sought full citizenship for Afro-Americans.  RR pass a civil rights bill over the veto of President Johnson, who believed it went beyond Congress’ power. Fed government did not have the authority for civil rights laws. This upsets the RR and they nearly impeach and remove him from office.  Even the anti-slavery forces, cherry-pick pro-Union representatives in the South felt the 14th Amendment and the Civil Rights Act went far too far. So the prospect for ratification by ¾ of the states was looking dim.  RR struck back w/ a vengeance. Reconstruction Act ignores the new governments in the South and put them under military control and occupation. Conditioned readmission on adopting 14th Amendment, permitting full voting rights to black Americans, etc. All gave in by 1870.  The first interpretation of the 14th Amendment strictly construed the language to apply only to issues related to involuntary servitude and end-runs around the abolition of slavery. o Primary purpose was to enforce the Emancipation Proclamation. o Get around the Black Codes Construction of the 14th Amendment’s Privileges and Immunities Clause 2  The Slaughter-House Cases (1873) – LA butchers challenged a law that granted a monopoly to one corporation to engage in the business of operating a slaughterhouse. Only certain butchers are permitted to operate. Some butchers were not permitted to practice their craft in their hometown. Claimed this law infringed on their fundamental constitutional right to practice their trade. o Interpreted both 13th & 14th Amendments as designed solely to achieve the goal of emancipating and protecting former slaves. o 13th Amendment argument: Involuntary servitude b/c law forces them to sell labor in another manner. Court rejects on historical grounds 13th amend only about race-based slavery. Added “involuntary servitude” to cover slavery by another name. Tortured reading in any case b/c law does not force the butchers to work in any particular manner. Throw-away argument by Ps. o 14th – P & I argument: Heart of P’s argument. But court distinguished btw state P & I and federal P & I. Hard to follow b/c argument is nonsense. Colby: “Festering garbage.” . Distinguishes the previous interpretation of P&I from Art. IV, § 2 as the P&I of “the citizens in the several states,” rather than the “P&I of citizens of the United States.” The state-level P&I are the broad natural law rights. But the federal P&I rights are narrow and severely limited. . Does not specifically enumerate all federal P & I, but gives some limited examples. o 14th – EP argument: Expressed doubt that any action of a state not directed at discrimination against “the negroes as a class” will ever come w/in the purview of EP. (Obviously mistaken!) o 5th – Takings: Dismissed as w/o precedent.  DISSENT: Claims 14th amend P & I is broad and meant to be broad. To apply natural rights protected by federal constitution to the state governments and ensure those states no longer infringe these fundamental, inalienable, God-given rights. In part, this includes the BoR, but even more broadly than that! Gives practical effect to Declaration of Independence. o Pressing argument that did not win the day in Barron. o Points to Art. IV, § 2, which also uses the P & I language. Those words mean the same thing in 14th Amend. Thus the amendment is designed to protect the same rights in citizens against infringement by their own state government, as Art. IV, § 2 does for out-of-state U.S. citizens in a foreign state. o Interpretation by majority makes 14th Amend P & I redundant! States can never interfere with federal prerogatives or federal rights anyway. The Supremacy Clause takes care of that. State’s could never take away, for example, the right to  Difference in interpretation: WHOSE rights are at stake? (Dissent). Or WHAT rights are at stake? (Majority). Dissent seems to be a more natural reading. The majority is twisted.  Why the warped reading? o Preserve the institution of federalism. Concern that the 14th Amendment will bring about a sea change in Constitutional law. o Err on the side of conservatism. Federal power would be radically enhanced. (As it is today.) Unless the language was crystal clear that the Framers wished such a massive change in the structure of the U.S. government, court would avoid reading the language in that way. o Don’t want to take responsibility for all the civil rights of the people, which up until that time, was the province of the state governments. o Did not believe the framers of the amendment had such a sea change in mind. The history was recent and unobscured by time, and (allegedly) reflected a narrower intention of extending basic rights to afro- Americans. . Sort of originalist argument, only done almost contemporaneously, rather than by dusting off the arguments of centuries ago as is common today.  Intention of the sponsors o Both House and Senate sponsors specifically referenced protection against state government intrusion on natural law fundamental rights and the first 8 amendments!! Restrain the powers of the States and force them to recognize at all times these fundamental guarantees. o Thus significant evidence that, even accepting an originalist methodology, the majority still got it wrong, as it would seem the framers did desire to effect a sea change in the balance of powers in our federal system. Paid for these changes in blood. But then Slaugher-House case read the federal P&I right out of the 14th Amend. 3 o BUT the intention of the sponsors is not necessarily the intention of all of Congress.

MODERN 14TH AMENDMENT PRIVILEGES & IMMUNITIES

The decision in the Slaughter-House Cases has essentially gutted the Privileges and Immunities of the 14th Amendment, limiting them to a few narrow incidents of U.S. federal citizenship.  Some have argued for a revitalized 14th Amend P & I clause as the locus of substantive federal civil rights. (Rather than dividing due process into substantive and procedural?)  Right to travel between states and out of the country has not been grounded well in any particular constitutional doctrine and may fit in the 14th Amend P & I clause. Edwards v, California (1941) (anti-bum entry to CA law). But in the same case it was argued that it should be grounded in the Commerce Clause instead. o But durational requirements for welfare have erratically been grounded in the Equal Protection Clause! Shapiro v. Thomson (1969) (striking one-year residence requirement before welfare benefits distributed); Dunn v. Blumstein (1972) (striking one for voting); Starns v. Malkerson (1971) (upholding for in-state tuition); Memorial Hospital v. Maricopa County (1974) (striking for free medical care); Sosna v. Iowa (1975) (upholding for bringing divorce proceedings against a nonresident). Revival of the 14th Amend P & I Clause?  Saenz v. Roe (1999) – SCOTUS struck down a CA law that established a lower welfare benefit for recent arrivals than to those who had resided in the state for more than 1 year. o Violates federal P&I clause to pay less welfare benefits to new residents than to residents meeting a durational requirement. o Distinguished welfare benefits from the type of “portable benefits” that may encourage outsiders to enter the state on just long enough to gain them and then return to their own state: in-state tuition and divorce. . But what about free medical care? That too could be portable!  Caused a lot of excitement in the legal community. But since then the hysteria has died down completely. Realized it was a very narrow decision. o The right to travel btw the states is one of those rights that did not exist before the federal government, did not exist prior to the Union. o Thus it falls within the Slaughter-House rule. Took a rare opportunity to enforce the limited “federal P&I” that were distinguished from the general, plenary power over P&I vested in the states.  J. Thomas’ dissent far more interesting: Suggests a willingness to accept the theory of the dissent in Slaughter- House. “Open to reevaluating...” 3 components of the right to travel  Right to leave and enter another state. (Edwards)  Right to be treated as a welcome visitor, not an unfriendly alien. (U.S. Const. art IV, § 2)  For travelers who elect to become permanent residents, the right to be treated like other citizens of that state. (Saenz)

DUE PROCESS AND THE “INCORPORATION” CONTROVERSY

Over time, the basic liberty guarantees of the BoR were made applicable to the states, but through an unlikely legal basis: the due process clause of the 14th Amendment.  Theories for incorporation under 14th Amend. DP: o Has its own force and does not require any incorporation of the BoR or other constitutional amendments. (JJ. Frankfurter & Harlan) o Incorporates fundamental rights, some of which are listed in the BoR. Only those that are fundamental will be incorporated and enforceable against the states. (J. Cardozo) o Totally incorporates the BoR (J. Black)  Sporadic incorporation o Takings clause – Chicago, Burlington & Quincy RR (1897). o Recognition of possibility of incorporation of BoR via DP Clause – Twining (1908). o 1st Amend. free speech clause – Gitlow v. New York (1925).

4 Partial incorporation view [Palko-Adamson Doctrine]  Palko v. Connecticut (1937) – Challenge to state criminal law permitting the state prosecution to take appeal and subject a criminal defendant to double jeopardy. o Only “fundamental” rights, “essential to ordered liberty” are incorporated into the DP clause of 14th amend. Found that the 6th Amendment was fundamental in capital cases and essentially incorporated it against the states. o Advocates a fact-based approach. Start from the facts of the case, determine whether the actions violate a fundamental right, then that finding will guide decision to incorporate the corresponding BoR provision into the 14th Amend. DP. o Cardozo finds that action that is intended to correct an error in the judicial process, not to harass a criminal defendant, and so the rule against double jeopardy is not a “fundamental” one. Can imagine fair and free societies (Europe) that have no such protection.  Adamson v. California (1947) – Criminal defendant challenged conviction where prosecutor commented on his refusal to take the stand. o J. Reed that 14th Amend DP guarantees only a “fair trial” and that does not extend to the right against self-incrimination that is enjoyed at the federal level.  Evolutionary view of DP. “Independent potency” of DP Clause. A twist on the selective incorporation view. o J. Frankfurter’s concurrence in ???? . Should encompass new rights that are appreciated in our society. Cardozo wanted only to apply to traditional natural law rights. Today there may be others that should be recognized. . Supported by open-end language of the Constitution. Living Constitution view. o Problem is that if too flexible, grants no predictability to the law + judicial activism

Total incorporation view  J. Black’s dissent in Adamson o Believe in a total incorporation of the BoR by the DP clause of 14th Amend. All of the BoR are enforceable against the states. o Other rights not codified in the Constitution are not protected by DP. Textualist and originalist approach. Rejects the natural law approach.  Effect of total incorporation o Expands protections of liberties . Unconcerned about “tying the hands” of the states by enforcing these rights. Written words of the Constitution trump. o Restricts judicial activism . Natural rights view permits judges to legislate their own constitutional rights and gives them a free hand to legislate based on own mores/opinions. . “I further contend that the natural law formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence in our Constitution.” . More predictable for state legislators and executive authorities. . Federalism argument

Graphs 1. 2. 3. 4. 5. 6.

 Key to graphs above. Models for incorporation of BoR and scope of 14th Amendment DP o Bill of Rights o Coverage of 14th Amendment Due Process Clause  Views of various justices and schools of thought concerning 14th Amendment 5 o G1: Cardozo view, partial incorporation based on natural rights theory. Some BoR are fundamental & are protected by DP Clause, but some aren’t. In addition, there are some fundamental rights that are not enumerated in BoR but still protected by DP. o G1: Black view - Total incorporation. Co-extensive and no more. . But if DP was shorthand for all of the BoR, than why is there a DP clause in the 5th Amendment? It would seem that the 5th is all you need! o G3: FF/Harlan – Independent potency, evolving theory of rights. Some overlap, but large body of rights outside the BoR and these rights are not only the historically recognized ones. Also, some contradictions of a right in BoR may on the facts n . Didn’t view it as incorporation, but as overlap on the basis that both happen to protect a specific fundamental right. o G4: Murphy: Everything in BoR is fundamental, otherwise they would not have been incorporated into the BoR. But the DP covers other unenumerated rights. Total incorporation and then some. o G5: Brennan: DP Clause incorporates virtually all of the BoR w/ minor exceptions and has a substantive component that protects a vast array of other liberty interests. Rights, if incorporated, must be incorporated in full. If clause is incorporated against the states, it is done so wholesale. . This view has WON OUT. Only a couple of rights in the BoR has been incorporated against the states, and done so in full. . All doctrine accompanying the incorporated right are ALSO brought in against states  Prevents the dilution problem that worried Black. . Other rights outside the BoR have also been found to be fundamental and protected by the 14th Amend DP Clause itself. o G6: Ultra-conservative view: DP clause does not incorporate BoR except for those that deal with PROCESS. Three primary issues of debate between total and selective incorporationists:  History and drafters’ intent  Federalism  Appropriate role of the judiciary Rectifying past mistakes?  Strongest rationale for broad incorporation of BoR and other “fundamental” rights through the 14th Amend DP Clause: Following the emasculation of the P&I Clause in Slaughter-House, the Court used another clause, textually inappropriate, to effectuate the original understanding and purpose of the 14th Amend. Thus the incorporation through DP is really just a compensation mechanism for the loss of the P&I Clause o J. Thomas suggested it may be time to stop reading DP to mean what it doesn’t mean, and revive the P&I and employ it to cover much (all? more? much less?) of the rights now covered by DP.  On the other hand, perhaps most of the legislators may not have understood that their vote for the 14th Amendment would be construed as broadly as it is applied today. o Example: 7th Amend right to jury in civil controversy with AIC over $20!  Incorporation today is taken for granted. o It is hard to imagine a nation in which the States are free to infringe on a person’s freedom of speech, religion, or criminal procedural protections. Revoking the incorporation of the BoR would be unacceptable to virtually any Supreme Court justice. o The battle today is over the scope of the unenumerated rights. The incorporation of the BoR is safe from attack. Content of Incorporated Rights  Is the provision of the BoR as incorporated against the states identical to the federal version? SCOTUS has not been clear on this issue. o First Amendment applicable to the same extent. No “watered down, subjective version.” o BUT a couple of exceptions: SCOTUS has upheld the constitutionality of 6-person juries (rather than 12) and nonunanimous jury verdicts in criminal cases.

LEVELS OF SCRUTINY

6 Definition and purpose  Instructions for balancing. Informs courts as to how to arrange the weights on the constitutional scale in evaluating particular laws.  The choice of level of scrutiny is often outcome-determinative. o Area involving great suspicion of the government or a fundamental right at stake = high burden. o Area of general deference to the legislature = minimal burden on the government.

Caroline Products Footnote 4  Articulated the idea that different constitutional claims would be subjected to varying levels of review. Also gave rise to the “political process” theory for distinguishing which claims should be subject to those higher levels of scrutiny. Extremely influential.  “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . . . It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment. . . . Nor need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”  Thus, three situations giving rise to heightened inquiry: o Violates or implicates one of the protections set forth in the Bill of Rights. o Undermines or restrictis the political process o Affects a discrete and insular minority Levels of Scrutiny Defined  Rational basis test o Law will be upheld if it is rationally related to a legitimate government purpose. o The purpose of the law need be the actual goal – any conceivable legitimate purpose will do. o Means chosen needs only be a reasonable way of achieving that purpose. o Burden on plaintiff to show that the law fails this very deferential test.  Intermediate scrutiny o Law will be upheld if it is substantially related to an important government interest. o Both the government’s objective (important) and the means (substantially related) must meet a higher bar. o Government has the burden of proving the action/law meets intermediate scrutiny.  Strict scrutiny o Law will be upheld if it is necessary to achieve a compelling government purpose. o Government interest must be vital – compelling. o Means must be show to be the “least restrictive” or least discriminatory alternative. o Government has the burden of proof under this intensive review.

Scrutiny spectrum: No scrutiny ----/---Rational basis ---/--- Intermediate ---/--- Strict ----/--- Total scrutiny

Govt can do Need not achieve Later? State must have Nothing can justify anything & governmental interest compelling govt state infringement no rights will but have some rational interest and be be protected justification and serve some strictly tailored to serve legitimate purpose (CC) that govt interest (DCC)

SUBSTANTIVE DUE PROCESS

Historical precedents

7  Natural law tradition viewed a written constitution, not as the initial source, but as a reaffirmation of a social compact preserving preexisting fundamental rights. There rights were entitled to protection whether they were explicitly listed in the Constitution or not. o Calder v. Bull (1798) – For: J. Chase opinion, pg 487. Against: J. Iredell, pg. 488  During the Marshall Court era, the natural law view declined and basing judicial judgment on “general principle, on the reason and nature of things” went out of vogue. (Hence Barron.)  Slaugher-House’s reading out of the P&I clause from the 14th Amendment blocked the most obvious avenue to challenge the substance of state laws infringing on fundamental, but unenumerated, rights. This delayed protection against state infringement in federal courts for many years.  Continuation on debate concerning the interpretation of DP Clause to cover substantive rights, rather than just the process afforded before rights are taken away by the state. o Conservative view: Covers only the process required. . Substantive process is an oxymoron. Better internal logic. . However, seems unacceptable to permit the states to roam free w/o substantive o Liberal view: Covers also substantive rights . No legal process in the world can authorize the state to take away a fundamental liberty right, such as the freedom of speech. Cannot say that states can abridge the fundamental . DP Clause incorporates these fundamental rights against the state, because it would necessarily be a violation of process to enact legislation that violates a fundamental natural human right. (?) . Only reason we have SDP is b/c of the Slaughter House cases. They read the P&I cases out of the 14th Amendment altogether. Forced to cram these rights into DP Clause where textually they do not fit in. Backdoor method to achieve the original purpose of the 14th Amendment.  Despite the clearer logic of the conservative view, the current jurisprudence recognizes SDP. The real question involves the scope of SDP protections.  Historically though, it is not that easy. Some courts had interpreted DP to have a substantive element long before the 14th Amendment!! o Famous examples of courts deciding on the basis of SDP even before the Lochner Era: . Wein... – NY Court interprets NY Constitution DP Clause, reads it far broader than to cover only legal process. This would be throwing entire restraint away. A bill that takes away a fundamental freedom should not be considered a law at all.  Very high profile case, all knew about it. . Dred Scott – SCOTUS invalidates a fed law that made any slave transported into a free states becomes free. Strikes down the law as a violation of 5th Amendment DP. Slaves are the property of slaveowners. Fed govt cannot take that away, no matter how much process of law is afforded them. Fundamental right to ownership.  Don’t forget this case. Striking example of the evils of SDP. Dangers of the doctrine. o The sharp distinction btw procedure and substance was not so clear in that time. Was not consider illogical. Only with the advent of the FRCP and the Erie Doctrine did this mindset arise. Thus, it is not unreasonable to think that the framers of 14th understood SDP and intended it to have that effect. o Still it is only after Slaughter House did the DP Clause’s “substantive” aspects really grow.

LOCHNER ERA: JUDICIAL INTERVENTION AND ECONOMIC REGULATION

Hints of economic liberty before Lochner  Economic liberties generally refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess, and convey property.  Leading up to the Lochner decision, the Supreme Court made increasing references to the limits of state action under the DP clause. Though the Court upheld all those laws, the threat of the use of a substantive economic rights protection based in DP became clearer. o First articulation of SDP right of “liberty of contract.” Allgeyer (1897). Establishing a SDP “right to contract.”

8  Lochner v. New York (1905) – NY law prohibited the employment of bakers for more than 10 hours a day or 60 days a week. NY justified the law on the basis of public health: health bakers make better bread. Baker challenge the law as infringement of economic freedom. o HELD: J. Peckham opinion struck down the law based on SDP because the statute interferes with the right to contract btw EE and ER. Effectively expanded the protection for liberty of contract outside the scope of the Contracts Clause, which protects against impairment of existing contracts, to prohibit extensive government regulation even of contracts not yet made! o But still recognized that the state has legitimate police powers to enact legislation to ensure the health, mores, security etc. of the population. Majority simply claimed that this power was outweighed by the EE-ER liberty to contract for labor. . Labor: Disbelieved that bakers had no bargaining power and needed labor law protection. Interjected their own subjective view of bakers’ bargaining power. Or believe that even if true, were ideologically against interference in the market. . Public Health: Did not believe that the profession of baker was so harmful as to require protection. The “common understanding” is that baking is not dangerous. Once again, w/o citation. Interjected own opinion on the matter. . Safety & Sanitary Practices: No reasonable basis to believe that reduced hours would somehow improve the food quality, because the state has the authority to do sanitary checks and control the use of equipment etc. o Found the real goal was to regulate the Baker-ER relation, not protecting the public from unsafe food. To alter economic and market forces, not ensure safe bread or healthy bakers. Concerned that anybody’s hours could be regulated: lawyers, physicians, and any other profession. o Applied a heightened (strict?) scrutiny to the infringement of this right. The language at the start of the opinion has a ring of rational basis review (fair, reasonable, etc.). But in reality the court was second guessing the legislature in the face of a determination about which reasonable persons could differ. Requires proof that the infringement on the right to contract be compelling (such as in the coal mine context in which they upheld a similar law.) o Inspired by a philosophy of strong commitment to laissez-faire economy and protecting business from government regulation.  J. Harlan DISSENT: Agreed that there is a right to contract protected by the 14th Amend. However, the court should do what it claimed it was doing, review only for irrationality. Court should defer to legislature’s judgment so long as reasonable men can differ as to whether a law achieves valid police power goals. (Rational basis review). Why? o Legislature better situated to gather evidence and make and informed decision on the topic. o Strict judicial review subverts democracy.  J. Holmes DISSENT: (Classic – most famous opinion). Judges should not interject their own political or economic theories into their interpretation of the Constitution. This right of freedom to contract for one’s labor is not a fundamental right w/in the Constitution, but a conclusion based on the judges’ private belief in the laissez faire theory. There can be other fundamental rights besides those enumerated in the Constitution, but only when they are grounded in tradition and consensus.  3 themes from Lochner o Freedom of contract is a right protected by DP clause of 5th & 14th amendments o Govt can interfere w/ this right only to sever a valid police purpose: protecting public health, safety, morals. o Court will carefully scrutinize legislation to ensure it truly served such a purpose.

Aftermath of Lochner  Lochner in effect prohibited the states from passing health regulation for workers except in those rare cases in which the profession is widely considered dangerous. Many labor and safety laws were struck down o Minimum wage, anti-union contracts (“yellow dog”), maximum hours, restraints on business entry o But the problem is that a law stood or fell based upon the judges’ opinion about the matter. So in some cases the Supreme Court upheld laws within the above categories o Bitterly contested: Many of the decisions of the Lochner Era were 5-4. 9  Court was constitutionalizing the old order, even while the vast majority of the people sought a new solution in progressivism.  Struck down state laws such as the baker’s maximum hour law on SDP, and scores of federal laws as beyond the authority granted by the Commerce Clause, claiming that these matters were for the states! Thus both federal and state progressive laws were under attack from the Court! Thus CC and SDP combined to prohibit o Federal laws stuck down as unauthorized under Commerce Clause . Schecter Poultry (1935) . Coal Mines (1936) o New Deal legislation that was struck down by the court under SDP freedom to contract: . Minimum wage regulations for women (Adkins), laws protecting unionizing, consumer protection legislation, laws regulating business entry.  But there were exceptions: o Muller v. Oregon (1908) – Upheld the constitutionality of safety statute regulating the labor conditions for women. Court found that they were sufficiently frail and helpless and required state protection. . Origin of the Brandeis brief – practice of submitting detailed factual briefs in support of a particular (or against) a regulation. . The original Brandeis brief was 113 pages long and detailed the harmful effects of long hours at nondomestic work on the reproductive health of women.  Became apparent to the White House that SCOTUS would strike down all New Deal legislation, whether implemented at the federal or state level. o Fireside Chat (1937) – Famous radio address to the nation. Criticized the Supreme Court as acting as a superlegislature, reading in words that are not in the Constitution, and being a third legislature. Want a “government of laws, not of men.” Proposed the court packing plan. o American people were initially skeptical of this plan, but no so against it as one might think. There was a significant chance that the people would come around to sanctioning the other two branches to gut the power of the Supreme Court.  A few weeks after the radio address, SCOTUS decided West Coast Hotel (1937) – which expressly reversed the Adkins decision and permitted minimum wage regulations for women. Today Lochner is one of the handful of despised, hated, and disparaged decisions in Supreme Court precedent.  Why is Lochner so despised? What was so wrong? o Dishonesty – claimed it was engaging in rational basis review when in fact it was applying a much higher standard. o Poster child for excessive judicial interventionalism o Majority inappropriately injected their own economic and political theories into their interpretation of the Constitution. o Very inconsistent in the application of these rights.  Ways to criticize Lochner o No such thing as SDP o There is SDP, but covers only those rights enumerated in the Constitution o There is SDP, and rights beyond the BoR, but not this one. Need more consensus. o There is SDP, and this is a right protected, but still afford only rational basis.

DECLINE OF SUBSTANTIVE DUE PROCESS FOR ECONOMIC RIGHTS

Reduced judicial scrutiny of economic regulations  Nebbia v. New York (1934) – Challenged a regulation setting the minimum price for milk. Nebbia owned a small grocery store and was prosecuted. Deferred to the state legislature. o Economic scholars point out that the statute really made little sense. If you have an over-supply problem, the last thing you want to do is artificially raise the prices. o But Nebbia stands for the proposition that it is the legislature’s job to figure out the best way to deal with the problem. Courts should not strike it down just because it was unwise. Still economic SDP was not dead yet. The Court came back and struck down other New Deal legislation for 2 more years. Switch in time that saved the nine 10  West Coast Hotel (1937) – Another challenge to minimum wage laws for women. This time Justice Owen Roberts switched sides, making a 5-4 majority for abandoning the Lochner doctrine. Dramatic shift. Majority opinion went so far as to say, “What is this freedom of contract? The Constitution does not speak [of this].” True rational basis review  Carolene Products (1938) – Court upheld a federal law that prohibited the interstate sale of “filled milk” on the basis that it was less nutritious and adulterated. Some question as to the actual detrimental effects of this processed milk. o Upheld the law under a very deferential review. Dismissed the evidence that the law might be unwise or based on insufficient evidence. o Economic regulations should be upheld if there is any conceivable rational basis, even if cannot be proved that it was the legislature’s actual intent.  Famous FN 4. (Justice Stone) o Most famous footnote in constitutional law history. Gave rise to Political Process Failure Theory: Distinguishing the situations in which the deferential review of Carolene Products would not be appropriate. These include laws that interfere with: . General prohibitions of BoR and 14th Amend.  Per se breakdown – Constitution is the supreme law of the land so a law enact that contradicts a specific rights in the BoR, which is not permitted, is already a breakdown.  Actual textual support infers that they are fundamental. Court must aggressively enforce rights the framers believe would not be adequately protected by the political process. . Attacks on the political process itself  Right to vote  Dissemination of information  Activities of political organizations  Particular religious groups or discrete or insular . Laws directed at “discrete and insular minorities.” o All these rights are unprotected by the political process because the laws either affect minorities, free speech, or attack the democratic process itself. Situations in which the political process may break down. o Role of the courts is to protect the political process. If it can be shown that the case deals with the kind of minority that cannot protect itself in the political process, then the court may more closely scrutinize the law in question. . Ex. Baker v. Carr – Failure to redraw districts despite grossly unproportional representation. . Ex. McCullock v. Maryland – Cannot tax the federal bank. Would break down the political process as it would result in taxation w/o representation by taxing the money of a bank that benefits the country as a whole. High taxes on the bank would be good for MD, bad for everyone else. And those outside of MD would have no power to change the result. Here the court must step in to make the correction. Modern court’s view for reviewing the constitutionality of economic regulation. Review for any conceivable rational basis  Williamson v. Lee Optical (1955) – Opticans challenged a law that prohibited them from fitting of lenses to a face, or duplicate or replace lenses into frames w/o a recent prescription from an ophthalmologist or optometrist. Clearly a very wasteful law. Unfair to the optician who is clearly qualified simply to grind and replace lenses in existing glasses. Pretty stupid law. o HELD: Not the province of the courts to balance the pros and cons of a law, will not second guess or substitute their judgment. Need only a rational basis, and possible rational bases include: catching glaucoma, ensuring o But the court did NOT cite any support for this supposed reason. Doesn’t require any evidence. Court doesn’t care about the actual underlying reasons for the law, so long as the law itself is not totally irrational. Based . In Lochner Era wouldn’t even take at face value the stated reasons for the laws they struck down. o In reality, rent-seeking by politically influential and wealthy ophthamologists and their lobbying group!  Supreme Court has not struck down an economic regulation on SDP grounds since FDR’s chat. o Celebration of Democracy o Rebuke of the excesses of the Lochner Era. 11 REVIVAL OF SDP TO PROTECT NON-ECONOMIC RIGHTS

 Lochner Era antecedents to non-economic SDP o Meyer v. Nebraska (1923) – Liberty protected by 14th Amend extends not only 14th Amend protects all rights necessary to the “orderly pursuit of happiness” o Pierce v. Society of Sisters (1925) – Struck down a law requiring all children to attend public school. Parents have a fundamental right to educate their children as they see fit. o Unlike Lochner, we continue to praise these cases, despite the fact that they were decided during the same era and on the same grounds: SDP. . In Meyer, the law really targeted Germans. In Pierce, it was targeting Catholics who sent their kids to private schools. At the time these were discrete and insular minorities, so SS should apply. . But this is a cop-out because all languages and private schools were targeted – the SCOTUS did not strike them on those grounds, but b/c they violated independent “fundamental rights.”  Griswold v. Connecticut (1965) – Court struck down a CT law that criminally prohibited the use of contraceptives, even by married couples in their own home. 7-2. Case involved the prosecution of Estelle Griswold of Planned Parenthood opened a clinic and openly distributed contraceptives. o What exactly was unconstitutional about this CT law? Violates the right to privacy. J. Douglas “found” this unenumerated fundamental right and proceeded to apply strict scrutiny. . State claimed that the law is necessary to ensure against extramarital and premarital sex – idea is that without access to contraception, people will be deterred from doing so. But there were already laws against adultery and fornications, so not least restrictive means. o But where is this right of privacy in the Constitution? . Douglass (Maj.) – Penumbras of the more narrowly focused 1st, 3rd, 4th Amendments. “[S]pecific guarantees in the BoR have penumbras, formed by emenations from those guarantees that help give them life and substance.” Claims not to rely on the 14th Amendment or SDP, but the broad scope of the BoR itself. . Goldberg – 9th Amendment evidence that there are other fundamental rights . Harlan – 14th DP Clause itself protects the right to privacy.  Black’s view is naïve because it is just as easy for a judge to impose his personal view or policy preferences within the (highly flexible) construction of an expressly enumerated right. o Dissents pointed out that this is the same theory as espoused in Lochner. . J. Black –. Although there are some privacy protections in the BoR, this is not one of them. Only the rights of the BoR are fundamental liberties. But doesn’t this view violate the 9th Amendment which was designed just for this purpose?  Yes. His view is inconsistent with both the text and history of the 9th Amendment (below)  But still has a powerful force to it, because it is anti-democratic to “find” unenumerated right. It puts the power to strike down democratically enacted laws in unelected judges.  It’s one thing to use the anti-democratic tool of judicial review by striking down a popular law  But what is the history of the 9th Amendment? o Madison and the federalists did not feel that the BoR was necessary b/c the structure of the government was designed. Anti-federalists were unsatisfied and demanded the BoR. o Madison and the federalists thought the BoR was dangerous and a bad idea! . Wanted a federal government of limited powers. By listing specific rights, there will be a negative implication that BUT FOR those prohibitions, the Congress would be able to do those things. People will infer a broader scope of federal power than granted by the Constitution as adopted. . Another danger is that people would take that list to be exclusive or exhaustive. The federalist thought that would be disastrous. It is impossible to list them all, and then those left out would become fair game for regulation.

12 o In the debates, Madison believed he came up with an answer to these concerns: the combination of the 9th and 10th Amendments. . 10th Amendment – all powers not given to the federal government are retained by the states. (That didn’t work!) . 9th Amendment – “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other remained by the people.” o The history and text of the 9th Amendment along w/ the history and text of the 14th Amendment are powerful evidence to rebut the notion that the whole enterprise of recognizing fundamental unenumerated rights were intended by the framers. o Do we need the unenumerated rights of the 9th Amendment to protect against the tyranny of the majority? . Highly unlikely that it would be possible to amend the Constitution to overrule a law that is an affront to an unenumerated right if there is a political faction strong enough to get the law passed in the first place.  Counter-majoritarian problem with discovery of unenumerated fundamental rights. o Judges were not elected in the first place. Do not stand for office. And yet have the last word on issue. Thus, every time the judges hold that some right is fundamental, they trump the will of the people. o Can only be overturned with a constitutional amendment or upon the death and replacement of the justices. Those and the crude checks of impeachment, stripping of jurisdiction, threats of expanding the number of justices (Fireside Chat). o Thus the SCOTUS justices are very circumspect and careful when they decide to recognize a new fundamental right. o Attempts to circumscribe scope of unenumerated fundamental rights while recognizing that some exist. . Penumbras emanating from the BoR  Wants to somehow tie the expansion of personal rights to the BoR. But penumbras can emanate wider or narrower as the judge views appropriate (Douglas).  J. Douglas was a New Deal judge and hated Lochner. So he could not bring himself to ground the right to contraceptives in SDP.  Still, it is useful as a basis for looking to the enumerated rights as guides and compare a putative fundamental rights to them to see how the new one stacks up to those. . SDP + 9th Amend, but so rooted in the history of the people as to be classified as fundamental in the collective conscience (Goldberg concurrence in Griswold).  But how does this permit the recognition of new rights? Doesn’t account for the possibility of change.  If the right is so recognized and branded into the collective conscious, how did the offending law get passed? . DP is just the balance struck as a society between liberty of the individual and the power of the government (Harlan). Can change over time. Tradition is one aspect, but “tradition is a living thing... and not restricted to rules in the past.”  B/c our tradition is a changing thing, new rights become fundamental; others can wane and fall out of fundamental status.  Example of new right: Right to privacy in Griswold.  Example of a fundamental right falling out of favor: Economic rights in Lochner.  Problem 1: Even if we accept this theory, does that mean that unelected judges are supposed to be the guardians of these evolving, amorphous rights?  Problem 2: Doesn’t the fact that the law was passed by duly elected legislators, enforced, not repealed, and the legislators not thrown out of office suggest that there was no consensus? Won’t it always be the case? Must always be a “case or controversy” before the matter can come before the court. o But none of these approaches really provides a principled foundation for distinguishing the fundamental right to contraception in Griswold from the fundamental right to freedom of contract in Lochner.  How does the Court identify a new fundamental right? Example: Griswold and its progeny. o What is it about the CT law that makes it so offensive? . Focuses on intruding into the bedroom and regulating the “use” by married couples. 13 . But Court suggested that CT could regulate or prohibit the sale of condoms.  So is there really a fundamental right to contraception? Or is the right something else? It doesn’t seem like this case answers that question.  Later the Court struck down a contraception sale ban, even to nonmarried people. . Protection seems to extend only married couples. The Court seems to take for granted that the state could regulate the use by minors or unmarried.  Seems like unmarried couples and those having affairs have an even greater interest in keeping their privacy.  Later the court expanded Griswold’s holding to all heterosexual, and eventually to homosexual intimate relationships. o So what is the method? . Something of a common law method of derivation. Relies very heavily on precedent. . In its essence a conservative institution, but one that allows for slow evolution of the law. . Other proposed theories for a method to finding fundamental rights:  Political process theory.  Natural law.  Deeply embedded moral consensus.  Eisenstadt v. Baird (1972) – Expands the holding in Griswold to strike down a law banning the distribution of contraceptives to unmarried persons. Denied EP to unmarried persons + right to control repo = fundamental right

The Right to Abortion  Roe v. Wade (1973) – Strikes down a TX law prohibiting all abortions except those necessary to save the life of the mother. The question in the case boils down to: does this law infringe on a fundamental constitutional right? If so, what right? Even if it infringes a fundamental right, does it survive strict scrutiny? o Yes. The right at issue here is the right to privacy. Court locates it in the “substantive part” of the DP right in the 14th Amendment and its guarantee of “liberty.” o But what kind of “privacy” is this? . Not one of being viewed or someone busting down the door like in Griswold. Really talking more about autonomy, the right to make certain private and touchy personal decisions. . Substantially expands the scope of Griswold. But that scope was already expanded by Eisenstadt. So Roe does not flow directly from Griswold, but it is a much smaller leap from Eisenstadt. . Also the concept of the right to bodily integrity plays into this expanded scope of the right of privacy. The right to control one’s own body and make decisions concerning it has long been cherished. . Based the right of privacy either on 14th Amend. DP or the 9th Amend. No penumbras! o Does the law survive strict scrutiny? . The answer to this question is more difficult. Even if there is fundamental right to privacy, the state can infringe on that right if it has sufficient justification. TX give two reasons: (1) protecting the health and welfare of the mother, (2) protecting the life of the fetus. . Court balances the privacy interest of the mother with the state’s interest above and found that:  Concerning mother’s heath: State cannot regulate in the 1st trimester, b/c level of risk of the abortion procedure is lower than the dangers at birth. After 1st trimester, state can regulate how the procedure is done.  Concerning the “potential human life”: State can regulate, even proscribe, abortion procedures after the point of vitality of the fetus, or about the time of the 2d trimester. o But does that make sense? If the state has an interest in protecting potential human life, why is the point of viability important? Wouldn’t Griswold also interfere with potential human life? o It seems that the state’s interest is actually in protecting not potential, but actual human life of a being that could possible survive w/o the support of the mother. But this means the Court decided when life begins!

14 . But pro-life proponents believe that a fetus, even embyo or zygote, is a full human life. So they argued that they had a compelling interest in protecting that life. Court held that the state cannot adopt one view of life to the exclusion of all others. . Court claims that it cannot decide when life begins – that such a question is a matter for theologians, philosophers, and medical researchers to discover. But it does seem to be deciding, at least in the eyes of the law, that full human life does not begin at conception. o Roe’s trimester framework: . First trimester: No regulation. Decision left to the pregnant woman and her physician. No government interference greater than regulation for other medical procedures. . Second trimester: Cannot prohibit abortion, but state can regulate in ways reasonably related to protecting the health of the mother. . Third trimester: State can regulate, even proscribe, abortion except where necessary to save the mother’s life. o Rehnquist DISSENT: The whole complicated system seems like legislation! This kind of horse-trading and balancing is what legislators do, attempt to make everyone happy. Not a slow, evolution, but an abrupt break and a creation of a comprehensive framework for abortion. Finally, strict scrutiny is not supposed to be about balancing and splitting the difference. Supposed to be black & white.

Analysis of the Roe decision  What gives them the right to make such a determination? o Necessity – the Court is called on to decide “cases and controversies” o Values are intrinsic to constitutional rights – Cannot be completely value-free in constitutional interpretation.  Delegating the decision o Perhaps rather than deciding when life begins, the Court is simply delegating the decision to the individual, rather than to the state. . But Court cannot delegate the right to murder to the woman, so the Court must naturally decide that full-fledged human life does not begin at conception. o Deeply difficult moral questions must be left to the individual, not imposed from above by the government.  Concern among the pro-choice w/ the viability standard o Some birth defects are detectable only in the later stages of the pregnancy. If the fetus has reached the point of viability before detection, the pregnancy cannot be terminated. o Viability depends on the state of medical science. As science advances, the right of privacy of the woman shrinks.  Poorly reasoned and written opinion. So what went wrong? o Attempt at balancing two conflicting interests. The interests are absolute and nonnegotiable on both sides. The Court is concerned that this matter cannot be left to democracy, because once one side gets a slight majority, it will crush the other side and violate what they consider o Good old fashioned judicial balancing act. Best possible compromise. But is this acceptable? Is this the function of the court? o Court did not want to say that they were defining, even only as a legal matter, when life begins. So it wrote about “potential life” instead. Perhaps they thought that in doing so they could coax those who were pro-life into accepting the opinion as less of an affront to their beliefs.  Perhaps the Court had hoped to strike a bargain that would placate both sides. If so, they were greatly mistaken. The views on each side are too strong. Pro-life – abortion = murder. Pro-choice – state-coerced baby incubators.

Summary: The case makes far more sense as a legal and constitutional determination of the beginning of actual human life. Leaves open whether science, religion, or philosophy determines a different time for the beginning of life. It is within its power to determine when life begins at law – and they did so, but they were too chicken to come out and say it. o Consistent with the traditional common law view of separate life beginning at the quickening. After that point the woman assumes legal responsibility o Consistent with the majority of Americans’ view at the time, as well as today. 15  Three options besides Roe assuming there is a fundamental right to bodily integrity. Looking at how compelling the state’s countervailing interest is: o The state’s interest in protecting potential life is not compelling, protecting actual life is. And a fetus is not actual life until viability. (Effectively what the Court decided, but did not admit.) o Fetus is not an actual human life before birth – Right to abortion throughout the pregnancy. o Judges not qualified to decide when life begins, so leave it up to the state. So if Texas’s democratically elected legislature decides that life begins at conception, it can ban all abortion. . All three will be quite unsatisfactory to a large percentage of the population. . But how can the court avoid deciding the question? The controversy was before them.

RECASTING ROE – UNDUE BURDEN TEST

Abortion Regulation from Roe to Casey  The reaction to Roe included attempts to amend the Constitution to permit the states to enact laws regulating/prohibiting abortion or to create a constitutional definition of life as beginning at conception. None were successful.  Since 1976, opposition to Roe became a central plank of the Republican platform. Continuing Republican efforts to appoint anti-Roe Supreme Court justices. Regan promised to appoint justices who would overturn. o However, in the 19 years between Roe and Casey, Republicans has dominated the presidency. Only the 4- year term of President Carter intervening, and he had the distinction of being the only president to serve a full 4-year term w/o appointing a single Supreme Court justice.  Court continued to strike down laws designed to limit the availability of abortions by other means: o Spousal consent requirements – struck down in Danforth (1976). o Parental consent requirements – Blanket consent resulting in 3P veto of abortion for mature minors – struck down in Bellotti I (1976). But can involve parents in the decision so long as it does not result in an “absolute, and possibly arbitrary, veto.” Bellotti II. o Procedure that requires either parental consent or a judicial determination regarding minor’s maturity to make a decision to abort. Ashcroft (1983). o Parental notification also acceptable. Matheson (1990). But struck down a law that requires both parents be notified 48 hours prior to the abortion is performed. Hodgson v. MN (1990). o Regulation of medical practices: protection of viable fetuses. . Requirement that abortions performed in the first trimester must be performed in a hospital, rather than an outpatient clinic, unconstitutional. Akron (1983). Hospitals much more expensive and resulted in “significant obstacle in the path of women seeking an abortion.” Court struck down a variety of other procedural hurdles placed in front of abortion or that otherwise would “chill” the practice. o Government refusal to fund abortion. . Sustaining Medicare benefits for childbirth, but not for nontherapeutic abortions. Maher v. Roe (1977). Court held that the funding decision did not interfere with a fundamental right, so applied a rational basis test. . Extended to apply to a restriction on abortion counseling for any project receiving federal funding. Rust v. Sullivan (1991). But President Clinton rescinded them before they went into effect.  Judicial questioning of Roe – in the years between Roe and Casey, several Justices express doubt about certain aspects of the decision. o Undue burden approach – First articulated by J. O’Conner in her dissent in Akron, was proposed as an alternative to the trimester approach. Rationale: As medical science progresses, the two ends of Roe, medical danger to the mother and viability of the fetus were on a collision course somewhere in the 2nd trimester. Not a long-term viable framework. o Others have called for the end of the trimester approach or to overrule Roe altogether. The strong criticism of Roe in Webster v. Repoductive Health Svs. (1989) caused some commentators to pronounce the end of Roe and the right to abortion was near.

16  After years of Republican appointees and retirements of nearly all liberals on the Court. Only two justices were openly for upholding Roe. Thus, for Roe to survive, 3 of the 5 new Reagan appointees had to vote in favor of upholding. o This seemed like a long shot, if not impossible. o On the last day of the term, the Court had still not handed down the opinion. o Pro-choice movement had already scheduled its protest march o In the voting conference, Kennedy voted with the conservatives to overrule Roe 5-4. Rehnquist had already begun o Blackmun was writing a dissent when he received a note from J. Kennedy, who had been meeting secretly with JJ. Souter & O’Connor and decided to change his vote.

The Undue Burden Standard and the modern right to abortion.  Planned Parenthood of Se. Pa. v. Casey (1992) – Challenge of an abortion law that required a physician to inform a woman planning to have an abortion about the nature of the procedure, health risks, “probably gestational age” of the child at least 24 hours prior to the procedure. o Reaffirms the central legal principle of Roe, that a woman has a fundamental privacy interest in controlling her reproductive autonomy. However, abandons the trimester approach as outdated and no longer supportable by medical knowledge. . Direct abortion restrictions: Instead, focuses on the State’s interest on the potential human life. Holds (?) that the point of viability is the point at which the State’s interest in life can outweigh the mother’s autonomy rights. . Regulating abortion pre-viability: Adopts the Undue Burden Standard to apply to measures other than outright bans on abortion – unconstitutional where a state regulation has the purpose or effect of planning a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. o Undue burden standard in action: . Informed consent – Overrules prior cases that struck down statutes that required physicians give truthful, nonmisleading information prior to an abortion procedure (when designed to dissuade the mother from continuing). State can enact legislation to ensure the decision is mature and informed, even when the policy is clearly to encourage childbirth rather than abortion. (OK) . Mandatory 24-hour waiting period – Required reflection period not unreasonable. Finds the fact that some women must travel long distances to get an abortion, and may not be able to afford two trips, to be a closer question, but in the end finds that it is not a “substantial burden.” (OK [on these facts])  But even for very serious surgeries, the state does not require such a waiting period.  Really, the state is attempting to discourage women, hope that a certain percentage of women would change their minds.  Conscious effort by the state to discourage a citizen from exercising a fundamental constitutional right. Is this okay? o The plurality says yes. It is a burden, but not an undue one. o State is protecting its interest in the potential life. Can vindicate that right by making sure the woman is sufficiently sure that she wants to exercise that right. o State can discourage citizens from exercising a wide variety of constitutional rights: Ex. Right to assembly burdened by a public awareness campaign designed to discourage Neo-Nazi membership.  Concerning the travel burden, the Court looked to the record and the findings of fact. “On this record” they found that it was not an undue burden. Thus, it left open the possibility that in other places the burden could be too great. (??)  Thus, it is a fact-based inquiry. Any new abortion law will be litigated in the courts. . Spousal notification – Court pointed to the prevalence of domestic abuse as a reason the spousal notification provision created a substantial obstacle. (UB)  But what about the judicial bypass procedure?

17 o Abuse – could be under the psychological control of a physically abusive husband, so such battered women would not be able to make such a statement. In addition, there is verbal and psychological abuse, which is not accounted for by the statute. Also, based on fact-findings. o Women’s rights – more recognition of the women’s rights aspect of the abortion debate. Husband can have a sort of de facto veto power through psychological or socio-economic control. Informing him would be a great burden on the woman’s decision. . Parental notification – Affirmed past rulings that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided there is an adequate judicial bypass procedure. (OK) . Filing and documentation requirements – all permissible as in the interest of health research and tracking. Patient’s name is confidential. (OK)  SUMMARY: Split the difference. Had to strike one provision and uphold another to usher in a new era of balancing and striking a balance in the constitutionality of abortion law. o Stevens C&D in part – Would have struck the 24-hour waiting period and disclosure requirements. o Blackmun C&D in part – Would keep Roe’s trimester framework and strict scrutiny, but was clearly pleased that it was not overruled entirely. o Rehnquist (+3) C&D in part – Points out the joint opinions tortured application of the stare decisis and the fact that the new standard for review was made “out of whole cloth.” Believe that Roe should be overturned as not in tune with public sentiment and an unjustifiable incursion into the legislative process.  Two major issues from Casey: o What are the doctrinal rules governing abortion rights under Casey? o Was the Supreme Court correct to invoke the doctrine of stare decisis and not overturn Roe?  Issue #1 – Doctrinal rules governing abortion rights under Casey o Reassures that there is a SDP right to privacy and to abortion. But it is not unqualified and can be subject to the state’s interest in preserving life. o State can prohibit abortions (except where the mother’s health is at risk) from the point of viability. That is the point of “independent existence of another life.” No longer bound to the rigid trimester framework, so whenever viability happens is the point when the state’s compelling interest kicks in. o In protecting the health of the mother and the potential life of the fetus, the state can take steps to encourage birth over abortion from Day 1, but cannot create an undue burden on the right to abortion. . What kind of test is this? Strict scrutiny? It doesn’t seem so harsh as that. . More like an intermediate scrutiny level of analysis. How strong or weak is difficult to tell. Balancing test. (And for this uncertainty, the dissenters attack the opinion.) . The fundamental right of the mother’s privacy clashes with the “primary interest” of the state in protecting the potential life of the fetus. Thus, it is not like most cases of infringement of a fundamental right, where the countervailing state interest is usually not so strong. . But the undue burden test gets only 3 sure votes for the test.  Stevens uses the language “undue burden” but he believed that the test should be closer to the strict scrutiny side.  Blackmun believes strict scrutiny should be applied.  The other 4 justices believe Roe should be overturned and the Supreme Court should get out of the abortion regulation business. o What to do with a fractured court? . Take the position with which at least 5 people agree. . Extreme example  4 believe abortion should be banned, 1 in the middle, 4 believe abortion is an absolute right.  In this situation, if the middle person writes an opinion that incorporates parts of both views, that sole justice’s opinion will control with respect to all issues. Where lone justice sides with the pro-lifers, that will have 5 votes. Where s/he sides with the other side, the opinion has 5 votes too. 18 . In Casey, the joint opinion gets at least 5 justices to agree that some of the procedures amount to an undue burden. While two of the justices believe that a higher standard should be applied, the agree at least that the state regulations at issue unduly burden the right to abortion. Thus, the position of 3 justices of the joint opinion (with the help of 2 pro-Roe judges) trump the 4 dissenting judges.  Issue #2: Correct to invoke the doctrine of stare decisis and not overturn Roe? o “Liberty finds no refuge in a jurisprudence of doubt.” . Liberty depends upon a certain amount of certainty in the fundamental rights of citizenship. If you never know when the court will take away a particular right. Will always be insecure about whether. . With that quote, the Court invokes the doctrine of stare decisis. o Generally, state decisis has the most weight in commercial law. Acts to protect the reasonable reliance of commercial actors. Would be profoundly wasteful and unfair. In some situations, it is better to leave the law settled, than to get the law right! o But is there that type of reliance on the holding of Roe v. Wade? . De-legitimizes the abortions already had. Akin to a (retrospective) judicial determination that these women were criminals at the time they had the abortion. Stigma. . Cultural reliance – society has relied upon having the option of terminating a pregnancy. Women expect to have control over their reproductive destiny and thus they advance their careers and not have their professions . Court claims that the doctrine of stare decisis is especially important where grave, highly controversial constitutional issues are decided.  Rehnquist states that this is backwards. Conventional wisdom is strong s.d. in statutory interpretation (Congress can always amend if the courts get it wrong). Where as for constitutional issues, s.d. should have a weaker effect b/c a wrong decision is impossible to overturn except with a constitutional amendment.  Majority agrees that this is true as a general matter. But for the blockbuster issues must be aggressive with s.d. Otherwise the Court will lose its legitimacy. Why? o It would undermine the Court’s legitimacy in the eyes of the nation if it was in the business of overturning such blockbuster decisions. Legitimacy in the eyes of the people is crucial to maintaining the power of the court! o People have accepted the power of the court to protect the interests of the minority. Follow the decisions b/c we respect the right of the court to have the final say. But that legitimacy turns entirely on the perception of the people that the court is behaving neutrally, interpreting the law, not playing politics. For that reason the Court has to be extremely careful not to issue opinions that cause people to question its legitimacy. o Concern that overruling Roe may simply lead to a new pro-choice appointment that would overrule that case, and so on. Soon people would realize that the Court is not neutral, but political just like the legislature. Must guard the non- political nature of the judicial branch. Placing the law over political views.  Scalia & Thomas agree that the Supreme Court needs to be concerned about its legitimacy. That is why they believe the Court should get out of the abortion regulation business. o But what is more important: Getting it right? Or protecting the legitimacy of the Court? . Is this case any different from Brown v. Bd of Educ or West Coast Hotel?  Rehnquist: No difference.  Joint opinion: Not the type of fundamental change in factual, legal, or societal conditions to warrant such a break in stare decisis o In those cases, there was a lack of understanding of the factual underpinnings of the judicial reasoning. The legal reasoning was permissible has the situation actually panned out as the judges had thought: that separate facilities could not be

19 created equal, that laisezz fare economics would not make corrections for the poverty and generally be detrimental to society. o Plus law evolved enough such that the legal principles surrounding those decisions had change so that those decisions no longer fit in. o Societal views on this issue have remained remarkably consistent. . But the joint opinion discards the trimester framework, so was stare decisis actually applied? Can the Supreme Court invoke stare decisis and overrule a slew of cases at the same time?  Hiding behind the doctrine of stare decisis to deflect criticism? Unjustified application of stare decisis? o No. Keeps the core of Roe, that a fundamental right exists, but jettisons the parts that have been undermined by later developments. Factual underpinnings of the trimester system had become obsolete, so only that part of the opinion should be overruled. o Grounds the right of abortion in autonomy and bodily integrity. More explicit in this regard. o Gives a more detailed, less conclusory, history of the right to autonomy in matters of family and privacy. Incorporates the woman’s rights aspect of the right to terminate pregnancy.  Situations appropriate for overruling stare decisis (From Casey) o Earlier decisions had proved unworkable. o Evolution of legal principles had undermined the doctrinal foundation of the precedents. o Change in the factual predicate for the decisions.  Express adoption of the undue burden test by a majority of the Court. (Stenberg v. Carhart).  Re-emphasis of the deference to the state’s interest in protecting potential life. o Gonzales v. Carhart (2007) – Upheld a federal law prohibiting partial birth abortions that was almost identical to the one in Stenberg. Both sought to ban the same practice and did not contain a health exception for the woman. Though the federal law was drafted more precisely.

FAMILY RELATIONSHIPS

 Note: Did not really discuss all the family relationship cases in the book—seem to be unimportant.  Opinions in the case below directly focused on the basic question of how the Court should decide the content of fundamental rights: Is tradition determinative and, if so, must it be a tration stated at the most specific level of abstraction? Instead, discussion focused on the famous Scalia footnote on pg. 594.  Micheal H. v. Gerald D. (1989) – Adulterer biological father sought visitation rights with child. CA law gave a virtually irrebuttable presumption of legitimacy of any child born to a wife. Refused to recognize parentage of the adulterer despite paternity tests that showed a 98% correlation. o Justices were all over the place. But holding is unimportant for the class.  What is important is the debate in this case about from where SDP rights arise: o History and traditions? (Scalia) o Or contemporary societal values and understandings? (Brennan)  Also what is the appropriate level of specificity (in the individual claiming the right) that should be viewed when looking to history and traditions to determine the right: o The very narrow categorization: Adulterous natural father. (Scalia) . Narrowly construes a SDP right to apply only to well-accepted areas. Must look at the most specific level at which it is possible to identify a tradition in our culture as to identify whether there is or is not a recognized right for that group. . Most specific level at which the court can discern a tradition or history relating to the treatment or recognition of the right. . . (see book). . Higher levels of generality permit judges to dictate rather than discern the society’s view. o Broader abstraction when recognizing a right: Parent. (Brennan) . Defines the right broadly, at a high level of generality.

20 . Points out that viewing matters at the level of specificity Scalia proposes Griswold and Loving and many other cases were wrongly decided. Inconsistent with this entire body of law. . Would result in a calcification of our rights and values in the 18th Century. “Not the living charter I have come to know our Constitution to be.”  “We must never forget that it is a Constitution we are expounding.” – Justice John Marshall.  Choosing the level of generality. o How does Brennan choose his level of abstraction? Essentially the judge decides what the outcome of the case, then applies the level of abstraction that gives the answer the judge seeks. Start with the result and work backwards. o At least Scalia has a methodology. Has the benefit of constraining judicial activism. o Brennan: Scalia is right that when you reject Scalia’s view there is room for subjectivity, and there is the potential for abuse by activist judges seeking to interject their own political views. But there is a way to constrain the level of abstraction: the case law and precedent. . This acts as a restraining force, because there would be conflicting precedent from other decisions. Infer principles from the previous decisions (both those defining freedom and those defining restraint), find controlling principles, abstract the application to new facts and cases. This is the common law method.

HOMOSEXUAL RELATIONSHIPS

 Lawrence v. Texas (2003) – Police broke into a house on a reported weapons disturbance. Inside they found two men engaging in homosexual sex. They were arrested and charged under law criminalizing homosexual sex. o 6-3 decision. Kennedy – Struck down the statute. SDP includes the rights of gays and lesbians to engage in consensual sexual acts, including o What about stare decisis? . In Bowers v. Hartwick the court had, relatively recently, held the opposite. Directly on point. Specifically stated that there is no fundamental SDP to gay sex. . What happened to “liberty finds no refuge in a jurisprudence of doubt”? Scalia goes ballistic. What about the excuse given for not overruling Roe? Also a high-profile case, far more recent o What are the factors the Court looks to in deciding whether to overrule or not? . Societal values had changed – For abortion, had not changed. For homosexuality, the values of society had changed.  Emerging awareness that liberty gives substantial protection  Not as prude as we were. Societal values have changed regarding sexual mores, but especially in regard with homosexuality. Society has changed despite Bowers. No reliance.  Clear trend in the law: o 5 state supreme courts rejected Bowers under their state constitutions. o European Court of Human Rights recognizing the right.  Increase in visibility of gay life in society.  Scalia argues that it is the role of the government is to protect the social mores of the country. Bowers recognized that right of the state. . Legal landscape has evolved – Bowers was an outlier. Did not fit within the legal landscape. Did not fit in precedent. It made a mockery of precedent.  Took a very narrow level of abstraction: Does tradition or history confer a fundamental right on individuals to engage in homosexual sodomy. o Example of Scalia methodology. Relied upon this decision in Michael H. o Essentially viewed the rights as free-standing and unconnected laundry list. Failed to synthesize these precedents to derive the common threat, theme, rationale.  Blackmun dissent stated that Bowers should have been viewed as the “right to be let alone.” o But this right is articulated way too broadly. 21 o Both sides engage in lawyer games. Neither of these formulations is really helpful in determining the existence of a fundamental right.  Appropriate analysis is the raise the level of generality to the point at which the prior body of cases on point (or a similar point) have analyzed similar rights. So the view in Bowers the Court should have taken the level from Griswold and analyzed it in the context of a right to privacy . No reliance – Homosexuals were virtually never prosecuted for these acts. . Factual underpinnings – Factual assumptions underlying the Bowers opinion (and to some extent the Roe decision as well w/ the trimester system).  Majority claims that Bowers more like segregation and like the decisions of the Lochner era.  But what factual underpinnings had changed since then or were wrong in Bowers? o No history of outlawing specifically homosexual sodomy. Long tradition of criminalize all non-procreative sexual acts such as fellatio, oral sex with opposite, etc. Only in the 1970s did the legislatures begin legislating against gays. o When Powell (the fifth vote) discussed the matter with his law clerks, he was bewildered. He told his law clerks that he had never met a gay person in his life. That law clerk was gay! Didn’t understand what it meant to be gay, thought it was something men resorted to when men weren’t very good at getting the ladies. Thought it was just a deviant sexual choice. o By 2003, the justices had a much better understanding of what it means to be gay. Natural intimacy of an entire group of people. o But what test was applied here? . Majority talks about the right to consensual adult sex as a fundamental right which causes one to think that strict scrutiny. But opinion states that the law does not serve a legitimate state interest. That it is irrational. This is the type of language that is used in rational basis scrutiny.  “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”  Scalia points this out in trying to make sense of the Kennedy opinion. Can only make sense of the opinion by viewing it as an attack on the discrimination of gays and that this rationale does not meet the rational basis test. . Does this mean that it is not legitimate to pass a law based solely on upholding societal moral values? That would seem to be the inescapable conclusion!  Majority distinguishes widely held moral values that have tended to condemn homosexuality and the role of the law, which is to protect the liberties of individuals.  Scalia points out that much in the criminal code is based upon moral values: polygamy, bigamy, underage sex, incest, beastiality etc. o For underage sex, most incest, and beastiality, there is a lack of legally valid consent that could be used to differentiate from consensual homosexual sex. o But bigamy and adultery would seem to be covered by the majority’s reasoning. These could be distinguished on the basis that these involve government recognition of certain relationships. It is one thing to bar the government from criminalizing something, it is entirely another to require it to validate a relationship.  Scalia asks who gets to decide – the unelected Supreme Court judge, or democracy and the people?  Kennedy counters that that is not the right question. The proper question is: who gets to decide, the government, or the individual? . Theme running though the opinion is that the law targets an unpopular group. Suggests that any law that singles out such a group is per se an illegitimate state purpose. . What would happen if the law outlawed all non-procreative sex?

22  Still would be invalid: “Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently say, to prohibit the conduct bother between same sex and different-sex participants.”  Would have a disproportionate impact on gays nonetheless.  Griswold line of cases seems to stand for the proposition that we all have certain fundamental privacy rights. . So why is there so much discussing of the discrimination against gays? . Why when these questions were raised by the circulating Scalia dissent did Justice Kennedy not clarify?  Sea change at hand? Court perhaps trying to distance itself from the SDP precedent and will adopt a more libertarian approach requiring the state to make a showing for all infringements into liberty, regardless of whether or not there was fundamental right at stake.  Or perhaps like Roe and later the Court will re-interpret the rationale of this case to better fit into the SDP doctrinal framework. o Upshot: Not very good opinion. Doctrinal framework is unclear. May be remembered for being the first time the Court has compassionately treats gays.  Roe and Casey and Lawrence may give one the impression that the Supreme Court has taken a very liberal stand when it comes to unenumerated “fundamental” rights. o European law is far more liberal in that it imposes affirmative rights on the governments such as the right to labor, shelter, and protection. o SDP gives rise only to negative rights. No SDP obligation on the part of the state to protect . This reflects the Framers’ vision of freedom. Limiting the power of government to interfere in the lives of citizens. Wanted a limited government. . But the CL rights evolving tradition could have given rise to new, affirmative SDP rights of the type that are granted in quasi-socialist Western o Roosevelt came closest to molding the country in this image during the New Deal. . Proposed a “Second Bill of Rights.” Included many of the economic and cultural rights that are protected as fundamental rights in Europe. . Many of these visions have been realized and continue today: Social security, FMLA, welfare o But as time when by, and people became to rely more and more on these affirmative rights, the question arose whether they have become incorporated into the constitutional SDP rights. o Many commentators believe that the Warren Court was about recognize FDR’s Second Bill of Rights through the operation of the Due Process Clause. o But then Nixon was elected and the Warren Court became the Burger Court, and the Court backed away from finding SDP protection for affirmative economic and social rights.  Rejection of the use of the SDP as source of such affirmative rights. o Deshaney v. Winnebago City (1989) – Father repeated beat son. State officials knew about this treatment and did nothing. Finally the father beat him so badly that he became retarded. Mother sued the state claiming a violation of SDP. When the state became aware of the abuse . Court rejected the claim. SDP only limits in which circumstance the state can act and does not impose an affirmative obligation to protect citizenry from harm.

EQUAL PROTECTION

ECONOMIC REGULATIONS UNDER E.P. – RATIONAL BASIS

 Rwy Express Agency v. New York (1949) – NY City ordinance that prohibited placing advertisements on the side of trucks. But made exception for trucks used primarily for own business. Challenged the ordinance on SDP grounds and Equal Protection grounds. Court quickly dismisses the SDP claim. Lochner era is over. o Court applies rational basis scrutiny to the E.P. Clause. Despite the argument that the law was irrational, e.g., ads for one’s own company are just as distracting as those for other companies, the Court upheld the law. The theory is that the legislature is entitled to say that if a company is spending the time to buy 23 advertising on a truck, the ad would be more flashy, eye-catching and professional. The owner of the truck is more likely to simply put a stencil w/ the company name. o Is that right? Maybe or maybe not. But that is not the question with rational basis. The question is whether there is any possible rational reason for the law. Very deferential.  Legislature, if it has the valid purpose, need not tackle the entire problem at once. o A law can be underinclusive and still comply with E.P. so long as the regulation marginally advances the government interest. Can tackle the little, easy issues before trying to take on the harder ones. o Other laws sweep too broadly, are overinclusive. (Ex. law prohibiting all motorcycles in a residential area after 10 p.m.) o Other laws are both at the same time. (Ex. Law barring former patients of a methadone from becoming bus drivers.)

SUSPECT CLASSIFICATION: RACE DISCRIMINATION

 First application of the E.P. clause of the 14th amend. came 7 years after the Slaughterhouse Cases. o Strauder (1880) – Struck down a WV law that prohibited blacks from serving on juries.  Infamous Japanese internship camp case. Wellspring of the “suspect classification” language and the first application of strict scrutiny. o Korematsu v. United States (1944) – Reviewed the constitutionality of the quarantine of Japanese- Americans pursuant to the military orders in detention centers. Those who did not choose to report to the detention center were arrested, like Fred Korematsu. He was born in the U.S. and raised here. . First part we still follow today: All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. . But application of the law to the facts is less sympathetic:  Very real fear that the Japanese-Americans would join the side of the enemy was very real. And the military must be granted great deference in periods of crisis.  Thus there is a pressing public necessity, and the law survives strict scrutiny. . Convicted not of failing to report to a detention center, but for being in an area where Japanese- Americans were not permitted. Thus the court could avoid the most egregious aspects of the law and focus on violation of a no-go zone. . Justice Murphy’s dissent:  Not necessary: Law born out of an erroneous assumption of racial guilt rather than bona fide military  Not strictly tailored: Both over- and under-inclusive. Covers all Japanese-Americans, many of whom are loyal citizens. But does not require the same treatment to German- Americans and Italian-Americans. . Justice Jackson (eloquent dissent)  Born in this country, citizen of the U.S. and California. No claim he has actually been disloyal. Convicted of being located in the same territory were he lived and was born. Only difference is that he was of “different racial stock.”  Understands that military decisions in times of war will not always conform to the Constitution. We may not like it, but its going to happen. But the real tragedy is when the supreme court of the land confers constitutionality on these actions. A judicial construction of the due process clause that sustains [the] order is a far more subtle blow to liberty than the promulgation of the order itself. o Essentially counsels for restraint of judicial review during times of war. Because the political realities force the Court to sustain a wartime order that is unconstitutional. This then becomes precedent and can be used as a weapon by future leaders. o Cannot avoid the unconstitutional action. That has already happened, and given exigencies of war, perhaps it was necessary. But the Court should not validate this wrong under the Constitution. 24  Unlike for economic regulations in which it is okay to be over- and under-inclusive so long as there is a rational basis for the law, here the law must be narrowly tailored b/c it deals with a suspect class.  Korematsu has taken on greater importance in recent years. While the backlash against Arab-Americans was nothing in comparison with the action taken against Japanese-Americans in 1940s. However, there still was a backlash, and it continues today. o Some proponents of Arab internment camps have pointed to this case as proof of the constitutionality of such a system. o Is strict scrutiny enough. Or should there be absolute scrutiny in cases where there is discrimination against a minority? What about a law that imposes heightened security checks on Arab-Americans in airports and other security checkpoints? Would that pass strict scrutiny? o Since Korematsu, the Supreme Court has never upheld a law that constitutes race discrimination.

SEGREGATION CASES

 Supreme Court upholding segregation. o Plessy v. Ferguson (1896) – [7-3] Challenge brought to legally imposed segregation on rail cars. Court upheld the law, found that it fell w/in the general police powers of the state. Did not seem to apply a heightened level of scrutiny. . But on the other hand, it did scrutinize as to whether the law actively discriminated specifically against the blacks like in Strauder. The law segregated, but did so for both races. Presumably, whites were not permitted to ride on the black trains either. . So while the law deprived blacks of the right sit in a certain wagon, a reciprocal burden was placed upon whites. . Social vs. Legal inequality. In Strauder blacks were entirely deprived of the legal right to serve on juries. Here blacks were permitted to ride cars, drink from fountains, eat in restaurants etc., the only inequality is the social status in each place. Court holds that the Constitution does not protect social status.  But the social equality is enforced by the law that perpetuates the social inequalities. . Court claims that so long as the facilities were equal in nature, then the stigmatization perceived by the blacks is simply a case of an overactive imagination.  Dissent points out that the discriminatory intent is obvious from the historical and current context. Clear from context that the law was passed to keep the black man down and to o DISSENT: Justice Harlan (I). The judgment this day rendered will, in time, prove to be quite as pernicious as the decision made [in] the Dred Scott case. Recognized that within the context the segregation laws are obviously discriminatory in effect and intent. States that the Constitution is “colorblind.”  End of segregation in public schools. o Brown v. Board of Education – A consolidation of several cases in which black schoolchildren challenged their segregation at the primary school level. Facial challenge to school segregation, rather than an attempt to secure equal facilities. . Court felt that there must be a unanimous decision due to the divisive nature of the question. Order a rehearing one year later to buy time. Chief Justice Vincent was a strong supporter of segregation, felt he had a consensus. But then he died unexpectedly. New C.J. Warren twisted arms until there was a consensus to strike down segregation. . Court proceeded on the presumption that the facilities themselves were equal. But found that separate is always unequal. . Narrowly limited the decision to education only. Distinguished by did not overrule Plessy. Education was unique in that young children are vulnerable and especially susceptible to the social conditioning of inferiority that arises from segregation. . Marshall and the NAACP took a broader approach than necessary to win. But they were not just going for a win, they were going for social change. But this was pretty dangerous, it could have come out the other way and reinforced segregation! Why did they not adhere to their previous, successful strategy?

25  Aspirations: NAACP wanted more than actually equal facilities. Wants the end of segregation and the ostracizing effect that it causes.  Cost: While successful, it requires concrete findings in each individual case that the facilities were not equal.  Wanted a bigger win. And this rationale of inherently inequality in segregation could be used as a springboard to strike down. o Brown’s importance cannot be overstated. It was the beginning of the end of segregation. o But it is also important in a strictly constitutional sense. Brown was the first time since the end of the Lochner era that the Court aggressively protected personal rights. Signaled the end of total deference to democratically enacted laws. Return of judicial scrutiny. Brown led the way to Griswold, Roe, Lawrence.  What was the basis of Brown’s ruling that the school segregation? o Unconstitutional because there is a detriment only to the black children, not the white ones. This detriment is the psychological inferiority complex instilled in black youth due to this separation. Psychologically insulting and damaging to that group. . Operating on the assumption that all the materials and conditions are the same. Of course, there really were quite different conditions. o Rejects the Plessy case’s presumption that if there was a stigma associated with the segregation of the race’s, then that is solely in the mind of the minority that views it that way. Court points to modern psychological authority that shows the inferiority complex among black children. . Famous FN 11 (FN 5 in casebook) – string cite to numerous sociological and psychological studies. . Should the court look to such studies in making their decision? Most of the studies in that footnote have been rejected by modern experts as methodologically unsound. o Looks to the history, context, and reality on the ground. Everybody knew by that time that segregation had the purpose of subjugating the blacks. That was the purpose of these laws. . But does not come out as say that segregation is intentionally racist. That would have been political suicide. . Made it seem that this was simply inadvertent effect that only now was coming to light in various sociological and psychological studies.  Was Brown wrongly decided? o Morally right, sure. But is it legally right? Is it a valid interpretation of the Constitution? What about the methodology of the case, the reasoning? o What justifies the Court’s rejection of democratically enacted laws? The case simply turns on the moral judgment of the Supreme Court justices. Dressed up with the studies. o No support from textualism, precedent, or originalism. It was a total break with precedent. (See Lawrence below for the factors to look for in making a total break w/ precedent.) o This flies directly in the face of West Coast Hotel. The Court, based solely on the individual morals of the justices, made the decision. What makes it different? . But here, the group was one that did not have sufficient political power to protect its interests. Therefore, the democratic process fails, and the courts need to step in. Grossly outnumbered and outgunned by the white majority. . Discrimination against discrete and insular minorities. See FN 4 of Caroline Products.  Brown is the ultimate non-originalist opinion. Rejected that view. Cannot turn the clock back.  Originalism has gained a lot of adherents in recent years. Partially due to Scalia’s fierce defense of this view and the fact that it makes great soundbites. But it has not become a dominant constitutional theory in part because it would require a different outcome in Brown. Any constitutional interpretation that could put us back into the era of Jim Crow laws is not acceptable to most.

SEGREGATION IN DC SCHOOLS

 Bowling v. Sharpe – Companion case to Brown brought by black schoolchildren in the District of Columbia. Could not apply the 14th Amendment because that was only applicable to the states. DC was a federal territory. Thus, the Court held that the due process clause of the 5th Amendment prohibits segregation as well. 26 o What does segregation have to due with due process of law? . Denial of a substantive due process right to be treated equally under the law. o In other words, equal protection is one of those rights that are required for ordered liberty even if it is not specifically mentioned in the Constitution as enforceable against the feds. . Reverse incorporation. The incorporation theory holds that the 14th Amendment incorporates many of the rights enforceable against . Most certainly in 1791, the 5th Amendment was not understood to protect the equal protection of rights among blacks and whites. The original Constitution expressly contemplates the use and preservation of the slave trade. It would have been unconstitutional!!!  How can the Court claim this? Basically no justification in the Constitution. But the Court had to come up with something to justify the finding that DC must also follow that law. It would be “unthinkable” to permit the feds to continue to segregate and prohibit the states from doing the same.  So the Court reached out and “evolved” a SDP right to be free of segregation. Living Constitution and evolutionary concept of rights. o Even though located in the EP chapter of the book, it is clearly a SDP case. . Bork got into trouble at his confirmation hearings by his adherence to Black’s view that there are no SDP rights outside of the BoR. . Senate could not permit a Supreme Court justice to sit on the bench who would permit Jim Crow laws in the District.  In DC the effect of o 60% white residents o Just after Bowling, dropped to 45%. Most who stayed, send their kids to private schools. 30% white, but only 4% go to public schools!!! o Only a few genuinely integrated schools in DC.

SEGREGATION CASES AFTER BROWN

 Immediately following Brown, the struck down segregation in all areas of public accommodation: swimming pools, drinking fountains, restaurants, train cars etc. These were done in brief per curiam opinions.  Brown I did not order a remedy. Thus, it did not order desegregation immediately. Rather it called for additional briefing.  Brown II forced integration. . Required that the defendants make a “prompt and reasonable effort” and “integration at all possible speed.” But in truth, was not immediately implemented. Resistence was widespread. 1966 a coalition of Southern congressmen called for resistence. AG of Southern states gather to make strategies for how to avoid the Brown decision:  Civil Rights Act of 1964 o Withheld federal funds from all schools that refused to segregate. o Only then with the firm support of the other branches of government did the SCOTUS feel secure to take a firm stand in enforcing Brown.  Why did the Court take it so slow? o Knew that there would be massive resistance. If they drew a line in the sand and ordered segregation tomorrow, the people would not have listened. They would have lost that tenuous authority they had. o Couldn’t do the job on its own. Fed. Paper’s weakest branch. o Should we give the Supreme Court such credit? . Real integration came only 10 years later with an act of Congress. . Not the first to integrate. The Army had already done so and MLB was beginning to integrate as well. . Still, it played a large role. Plus the real heroes, the federal district court judges in the South, who order integration despite death threats and ostricization in their communities. Not sufficient, but an integral step. Landmark moment in the Civil Rights movement.

27  Began busing programs that integrated the schools. After many years of such programs, the schools asked for release from these expensive programs. Court found that de jure segregation had ended, and released the schools from these busing orders. o States returned to a system of neighborhood schools. But, of course, residential districts have always been highly segregated. This led to de facto segregation. o Segregation became much worse with white flight and sending their kids to private schools. Both phenomenon go on to this day. Schools are becoming more and more de facto segregated every day. Nationwide, the schools may be more segregated than they were before Brown!  Under Washington v. Davis (below) this sort of de facto segregation is subject only to rational basis review.  Pending case in SCOTUS concerning the constitutionality of the busing programs in Seattle and Louisville, a couple of the only cities that maintain such programs and desire to create integrated schools. Challenged as unconstitutional as a form of affirmative action that should be struck down. o Chance that the SCOTUS may hold that not only are cities not obligated to do something about de facto segregated schools, but that the constitution prohibits efforts such as busing programs that involve facially race-based laws. o De facto segregated schools may be constitutionally required!

FACIALLY-RACE BASED LAWS THAT APPLY EQUALLY

 Loving v. Virginia (1967) – Black man and white woman got married in DC and then traveled to Virginia. They were prosecuted for violating the anti-misogenation law. C.J. Warren strikes down the law apply strict scrutiny. o State argued that, despite Brown’s SS review and the demise of all segregation laws, the Court should have applied rational basis. Argued that this law impacted both races equally. Did not discriminate against minorities, no discriminatory effect like the inferiority badge of segregated schools. . Court accepts the argument that there was no real discriminatory effect. . Could dispute that claim. Implicit that the majority finds such an effect in the attempt to keep the white race “pure” from the blacks (or other races). o Also claims that the purpose is simply to preserve the racial integrity of the white race, not to denigrate the black race. . Court does not buy this argument. What purpose of maintaining racial purity except. Only a crime to have interracial marriage if one of the two spouses is white. Other races can water themselves down all they want, so long as the great white race is not affected o Aggressively non-originalist opinion. Absolutely NO ambiguity with regard to the exception from the Civil Rights Act for the anti-misogenation laws. Even the radical Republican denounced any effect on the prohibition on inter-racial marriages.  Johnson v. California (2005) – Segregation of new prisoners in CA penal system by race for a certain period of time. Obviously a facially race-based law, but seems to treat everyone equally. Purpose of the law was to protect against race riots and racial violence prevalent in U.S. prisons. o Johnson claimed that this segregation was humiliating to racial minorities in the same way that segregation of the schools did in Brown. o Court doesn’t buy it, but it also doesn’t seem to care about Johnson’s claim of humiliation. Rejected the view out of hand that separate can ever be equal. Facially race-based laws are always subject to o Did the Court get this case right? . What about a law requiring race identification for census-like information? o But to justify the Court’s holding: . Playing with fire. Reinforces the belief that race is a valid distinction. . Slippery slope, could just as easily say that a law segregating the schools would reduce inter-gang violence.

FACIALLY RACE-NEUTRAL LAWS AND EQUAL PROTECTION

 Law racially neutral but racist in purpose and effect. Discriminatory purpose can be found in: o Racist administration of the law. 28 . Yick Wo v. Hopkins (1886) – To operate a laundry in SF in a wooden building, a person had to apply for a permit. All but one of the white launderers’ applications were granted (88/89), and all the Chinese applicants were denied (200/200). o Inferring discriminatory motive from extreme circumstantial evidence. . Gomillion v Lightfoot (1960) – Tuskegee redrawing its borders to exclude all the black neighborhoods and includes all the white neighborhoods. Obviously passed to keep blacks outside of the city and deprive them of their right to influence municipal affairs. o The hard part of this category is determining a discriminatory purpose and effect. Once established, it is clear that strict scrutiny should be applied. . Sometimes it is so blatant that it can be inferred from the statistics.  That was the case in Yick Wo.  Today, most of civil rights cases turn on statistical data. Both sides hire statistical experts who engage in complex regression analyses. . Legislative history to determine discriminatory purpose.  Difficult to prove. Need legislator to be both racist and stupid to make an overt comment.  Also, often the law has multiple purposes and different legislators have different reasons for passing a certain law. This is a problem with looking to legislative history in general. o Court has solved this problem: Only need to prove that racism was a purpose of the law, it makes out a prima facie case. o Then the burden shifts to the government to prove that the law would have passed anyway even had there not been those racist votes. . Direct evidence or statements of the officials.  Facially race-neutral laws that have a discriminatory purpose but do not have a discriminatory effect o Palmer v. Jackson (1971) – City of Jackson closed all public swimming pools shortly after that federal government ruled that limiting access to the public swimming pools on racial grounds was impermissible. Clear from the context that the purpose of the closure was an animus against blacks. . J. Black wrote opinion for closely divided Court. Legislative purpose is difficult to show, a dangerous game. Only apply SS if those laws also have a discriminatory effect. Where there is no such effect, apply rational basis. . Found that the city could have closed the pools for other reasons, commercial viability (saving public money), avoiding race-based violence. Doesn’t matter. Easy to uphold under RB. . Really no discriminatory effect?  Once the city closed all the pools, presumably private operators will take over the swimming pools and exclude the blacks.  What about the stigma? What sort of blow was it to the ego of the black kids to learn that the whites were willing to deprive themselves of the pleasures of swimming pools in the hot Mississippi summers to avoid being in their presence. . What about Carolene Products FN 4? Does the process-based theory of judicial review support this outcome? In the process-based review  Want the judicial to step in and apply strict scrutiny when the political process breaks down. Laws that benefit the majority at the expense of a discrete and politically- disenfranchised minority have the greatest threat for violating rights without political redress.  A law that has no discriminatory effect equally harms the citizens. Thus, the entire electorate will be able to decide whether to keep such a law. (Sort of like export control laws. Have a national interest, but also self-damaging.)  But sometimes the political process will not work in this situation either. Sometimes race hate can be so strong that the majority is willing to deprive itself of a benefit in order to deny it to others.  On the other hand, the Court is not there to police legislative purpose, but to prevent the actual discriminatory effects.  Facially neutral laws that have no discriminatory purpose but has a discriminatory effect.

29 o Washington v. Davis (1976) – Civil service literacy test was challenged by blacks who were interested in becoming police officers in DC. No evidence of discriminatory purpose (plaintiffs conceded this fact), but it had a disparate impact on black applicants. Significantly more blacks failed the test than white applicants. The effect of the test was far more harmful to them. So this is a discriminatory effect. . Under Title VII this type of disparate impact is actionable. Then burden would be on the government to prove that the action serves a bona fide purpose. . The question is whether it gives rise to a constitutional right of action? Answer: No. No enhanced protection from the Constitution. If there is no discriminatory purpose, then it is not a matter for the EP to be concerned about. . Race discrimination is premised on a racist purpose. The blacks who failed the test have no more a right of action than whites who failed the test. . Rational basis review is appropriate for these types of cases. o Single most important EP cause since Brown. Not a single dissent in this case. Why? . Strong policy argument for not applying strict scrutiny:  How can a remedy be fashioned? Can re-write a test over and over again and never make one that all suspect groups pass with equal aptitude.  Flood of litigation on a strict scrutiny. Finding SS in situations such as this would be “far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes.”  Virtually every law has some sort of disparate impact. Would force the courts to engage in strict scrutiny of every law and detail of government and second guess whether such a law served a bona fide societal purpose. o Counterargument: Very difficult to show discriminatory purpose. A racially motivated government could pass laws that are subtly discriminatory, rather than the outright, patent racism of the past. A lot of racism may sneak through without judicial scrutiny. . This case makes it all the more difficult to root out such discrimination. Government can turn a blind eye to these matters. . The opposition outcome would have put tremendous pressure on the legislatures to ensure their policies in fact do not discriminate against minorities. o Raises the question, what does EP in the Constitution mean? Protect an equal chance in society? Or protect equal opportunity in all matters including access to benefits and wealth.

FACIALLY-RACE BASED STATUTES THAT BENEFIT MINORITIES (AFFIRMATIVE ACTION)

 Regents of Univ. of Cal. v. Bakke (1978) – Challenge to the racial quotas of the Davis campus of the Univ. of Cal. Held that race can be a factor in making admission decisions, it can be an “element of consciousness.” but it cannot be a quota. o Example of a 4-4-1 split in which one judge writes the opinion of the Court even though nobody agrees with opinion, simply because judge splits the difference. Stood for 25 years as the constitutional policy.  University of Michigan Cases o Grutter v. Bollinger - Upholds AA program at the law school that takes race into account in a global effort to improve diversity. o Gratz v. Bollinger – Strikes down undergraduate AA program that gives 20 point bump in admissions screening process to racial minority candidates. Other great characteristics that would add to the diversity of the student body were allocated  Comparing the these cases: o Applied strict scrutiny review. 5-4 decisions, J. O’Connor joining both majorities. Rejected the lower form of scrutiny suggested by Marshall et al in Bakke. . Is it really strict scrutiny?  Deference to the law school that says that this policy is needed. SS usually shows no deference. The Court usually engages in an aggressive judicial review of a certain law or policy.

30  Korematsu was one of the only other cases that upheld a racially based law under SS, and the consensus is that it was decided wrongly.  Usually the government must prove that a law under SS is absolutely necessary, not just that other alternatives were carefully considered and rejected. . More like strict scrutiny (minus). Watered down version. o Compelling interest? Both programs have a compelling interest in diversity in the student body. All the educational benefits that flow from a diverse student body. Following J. Powell in Bakke. o Necessary and narrowly tailored? . Law school policy is narrowly tailored. Looks at all the things an applicant can bring to the table. Race was one of a great many factors looked to in forming a diverse student body.  SS requires serious good faith consideration to other race-neutral alternative and conclusion that it will not work. Does not require in all cases the adoption of the least invasive method. o Fear that the suggested that the TX method of admitting anyone who graduated in the top % of the high school class would dilute MI law school prestige and ranking. This method also takes the control of diversity out of the admissions o Also considered the Berkley method which looks only to socio-economic diversity as an alternative to race-based ones. . Undergraduate policy not narrowly tailored. Put too much emphasis on race. Clumsy. o Comment about the 25 year limit on these programs . Hope for the future, but also shows that SCOTUS will get more and more skeptical of these programs over time. . Emphasizes the fact that such programs should be discarded as soon as there is no longer a compelling government interest in AA. . Warning shot to states. For now these programs are ok. But SCOTUS expects that states will take measures to correct the imbalance rather than relying forever on  Is there any justification for applying the same level of scrutiny to race-based statutes that benefit minorities? Survey of various methods of analysis: o Textualist – 14th Amendment makes no distinction between the races. Instead it speaks about all people. Suggests standard must be the same. o Originalist – Passed contemporaneous statutes that provided welfare benefits that gave benefits only to destitute black mothers, destitute blacks in DC, special awards to black soldiers and sailors who fought in the Union army. Suggests ok to apply a different standard. o Political-process – No need for courts to step in to protect democracy. No tyranny of the majority where the majority chooses to burden itself and benefit the minority. Lower scrutiny. o Precedent – Plessy dissent. Constitution is “color-blind.” Many cases from the Brown-era that supports this view. On the other hand, ****. Cuts both ways.  If the Court is actually applying strict scrutiny, did it get it right? Is racial diversity really necessary or helpful to academic diversity in an educational environment? o Large lecture halls, don’t really know what most of the other students think. o But there is also student life, social activities, small classes where more contact and exchange of ideas can happen. Assumes diversity in the campus culture that does not necessarily happen. Often the racial groups will segregate themselves into social groups that do not interact with another anyway. o Is race a good proxy for diversity? Based on presumption that all black people will see an issue more or less the same way and in a different way than whites. Can be said that it is subtly racist just to assume this fact. . But there is an underlying common experience that racial minorities must live through regardless of whether raised in a wealthy suburb or the inner city. Confronted with different treatment in society due to race. Conclusions drawn from that experience will not be uniform, but that core will remain. o Is this justification just a smokescreen? Many other diverse viewpoints are not represented at all, even though they could bring much more diversity: religious fundamentalists, social conservatives, libertarians

31 are likely to foster a far more robust discussion in most areas of study than the presence of racial minorities.  Economic and social benefits of diversity o Business amici emphasized that the exposure and learning how to communicate with other races is a valuable skill for future employees. o Diverse and global viewpoints allow companies to understand different cultures, increase the bottom line. o Diverse management in the workforce reduces racial tension between managers and lower level employees. (Same thing for between the officers and the soldiers.) o Government and community leadership becomes more legitimate in the eyes of the population.  These broader rationales can be used to justify AA outside the educational context.  Potential costs of achieving racial diversity through affirmative action college admissions programs: o Discrimination against whites (and often Asian Americans) . Somewhat of a fallacy. Analogy to the open handicapped parking spot in a packed lot. . But it is true that someone from the non-protected group will be denied an opportunity. o Devaluation of minority achievements. Stigma for those who benefit from AA o Entitlement (more controversial) – Count on AA and know they don’t have to work hard. Become dependant on such programs. o Racial tension – Whites resent AA programs. o Less success? . People who are admitted to institution through AA program tend to have lower scores. Get lower grades, so they have fewer career opportunities coming out of school. . Whereas, if they had gone to a school that was more in line w/ their abilities, they would have encountered more success. . But J. Thomas argues that the problem is the self-esteem costs.  What other interest could the state have advanced for considering race in admissions process? Remedying past discrimination? In Bakke Marshall & Brennan considered this to be a compelling state interest. Ginsberg in dissent in Gratz also argues that the government should take account of the past and recognize (at least one of) the true reasons for such programs. Everyone thinks about this justification, but no one talks about it.

INTERMEDIATE SCRUTINY FOR GENDER DISCRIMINATION

 The early answer to whether EP requires equal treatment for women o Bradville vs. Illinois – No right for women to practice law. “Man is woman’s natural protector . . . woman’s place is in the home.” Rational basis review.  Changes in the early 1970s – Feminist movement. Court strikes down a series of sexist law. o Frontera v. Richardson – Applies rational basis review that gave male members of the military a presumption that their wives were financially dependant on them, but required women . But isn’t it perfectly rational that in 1973 the odds were much higher that a man in the military was supporting the wife and unlikely the other way around. . Gave women the option to prove that their husbands are indeed dependant on them. Did not exclude them. Apparent that the Court was applying a more strict standard. . 4 members led by J. Brennan claimed that they should apply strict scrutiny.  Advent of intermediate scrutiny. o Craig v. Boren – Women were permitted to purchase 3.2 beer at the age of 18, whereas men were permitted only upon reaching the age of 21. . Discrimination against men! More likely to sympathize with oppressed young males. So Brennan uses this case to establish intermediate scrutiny that then can be turned around and applied to women. . J. Brennan = anti-Scalia. Need to do what you have to do to get 5 votes. Ready to compromise principles somewhat in order to get a better result than being intransigent like Scalia and writing a scathing dissent. . Here he compromised with intermediate scrutiny, although he felt that strict scrutiny should be required when facing. Came out of nowhere, no citations to precedent! 32 . “To withstand constitutional challenge must: (1) serve important government objectives and (2) be substantially related to those objectives. o Revolutionized EP – expanded it out of the racial equality context. o Why couldn’t Brennan get 5 votes for strict scrutiny? . No political agitation to change some gender segregation (such as public restrooms). . Actual physical differences between the sexes. Race is pretty much irrelevant. But gender is a relevant consideration in government decisionmaking. . Some gender segregation does not have any malicious intent, not to advance sexism.  Privacy  Notions of social morality, decency  Protecting against “archaic and outdated notions” of the need to protect women from the world. (Hogan)  Need an “exceedingly persuasive justification” o U.S. v. Virginia (1996) [the VMI case] – The last bastion of all male education and comradery, VMI, Court struck down the school’s policy of admitting only boys/men. . Most important gender discrimination case of recent times. Claims that it is applying intermediate scrutiny, but is it really? The language used in this opinion seems to require a higher and better justification = Intermediate scrutiny + standard. o Cannot base discrimination in the law on such archaic stereotyped notions, but can base discrimination on actual physical differences and non-threatening, equally applied social norms and privacy issues. o Did the Court apply strict scrutiny or some sort of heightened intermediate scrutiny? . Phrase was reworded and now sounds more aggressive. Tougher rhetoric. . Comparing with earlier cases below, it seems that the standard is substantively more robust. o Justice Ginsberg’s most important opinion. Her legacy will be her triumph in raising the level of scrutiny to intermediate +, especially considering the open discrimination she (and O’Connor) faced early in their law careers.  Biological differences between the sexes as a permissible basis for distinction o Michael v. Superior Court (1981) – Challenge to a CA law that prosecuted only underage males that engage in statutory rape and not the female. . Upheld the law. Found that the potential of pregnancy acted as a deterrent for teenage females, but there was no such deterrent for males. Thus, the state could step in to equalize these inherent biological differences. . Found that the State had a genuine, important interest that was not related to gender stereotyping and that the law was substantially related to that purpose. Therefore, it meets intermediate o Rostker v. Goldberg (1981) – Female soldiers are not permitted to serve in combat. . Generally not physically able to withstand the stress of the battlefield. . Threat of rape and sexual abuse if captured.  Are either of these cases valid under VMI? o Michael seems inconsistent with VMI case, where the Court dismissed the ad hoc explanations for the male-only admissions policy. State could not satisfy intermediate scrutiny simply by proffering a reason for the disctinction. It has to be the actual o Rostker’s justifications that the majority of females are not capable of withstanding the physical exertion and stresses of combat. But in VMI the Court stated that the proposition that most women are not capable of something or are susceptible to greater harm by engaging in that activity.  Though in VMI the Court made much of the judiciary deference to Congress on military affairs.  Other policies that may be threatened under VMI. o Men-only football teams / Women-only field hockey teams. o Separate athletic programs and teams in general. But maybe not. VMI placed a lot of emphasis on the lack of an equal alternative. Women’s teams are a way to provide opportunity and recognize a real biological difference in the sexes.  The determination may come down to: o Why the gender-discriminating policy was adopted, and o What other opportunities are made available. 33  What if all those segregated athletic programs were abolished in favor of only one team that is open for all? Would that be constitutional? o Under Davis v. Washington a neutral policy that has a disparate impact is not unconstitutional. It would be like the effects of school segregation after Brown.

EQUAL PROTECTION FOR AGE AND INTELLIGENCE

 Cleburne v. Cleburne Living Ctr. (1985) – Law that required a special use permit for the construction of a group home for the mentally ill was denied. Seemed apparent that the law requiring such a permit was passed out of malice to the group. o Claims to strike down the law on a RB standard. But doesn’t look like RB review. Under Rwy Express, the Court said that they did not care if a law was over- or underinclusive, so long as the law contributes in some way to solve a valid problem under the police power, the law stands. o Here, the Court essentially points out that the regulation is underinclusive on several factors: . If flood is concern – then why is it ok to build a nursing home? . If ridicule is the concern – then why are there retarded kids in the high school? . If legal liability is the concern – then why is a frat house okay? o Really, it is applying something more aggressive than the regular rational basis. “Rational basis w/ bite.” Or rational basis +. o Why is the Court being more aggressive than in a typical RB review? . Less trustful of the political process here. More concerned with the possibility that the law was enacted out of some prejudice against the mentally retarded. . On the other hand, the Court finds that the risk of prejudice is lower than in other cases, given the generally positive legislation and accommodation of this group.

EQUAL PROTECTION AND SEXUAL ORIENTATION

 Romer v. Evans (1996) – Certain large, progressive Colorado cities had included gays and lesbians in their anti- discrimination legislation. This deeply disturbed other constituencies w/in the state. Amendment 2 was a state- wide ballot referendum to amend the Constitution to repeal these anti-discrimination laws and bar forever the enactment of such accommodation and anti-discriminatory laws. o State claimed that all Amendment 2 did was to deny gays the special rights that others do not get. Thus, they are treated equally with everyone else. o Court rejects this argument. Points out that the amendment does not just strip the current protection they enjoyed under the executive order forecloses the chance to petition the government to grant them the right to seek such government protection in the future, short of gaining enough support to get a Constitutional amendment passed. o Amounts to clear discrimination against gays and lesbians on the basis of sexual orientation. But what sort of scrutiny does this discrimination warrant? . Court claims that it applied rational basis review and the amendment failed even that. “Amendment 2 defies” such review. . Amounts to a frontal assault precisely the equal protection of the law. Most of the time, the law has a discriminatory impact and a discriminatory intent that had a tangential effect on the person’s rights under the law. This amendment actually denies all protection of law and is a literal deprivation of the protection of the law. Violates the plain language of the EP Clause. o Had the Court stopped there, it would not have been such an important case. Would have been limited to the odd facts of the case. But the Court went on to apply the RB review under the EP jurisprudence, and rejected the state’s arguments as not rationally related to: . Freedom of association – Found that law was not rationally related to the interest in protection the freedom of association of the citizens have a moral or religious objection to homosexuals. (Might not have been legitimate for the state to sanction private prejudice.)

34 . Conservation of resources for other anti-discrimination efforts – disregards. o Why not? Clearly advances those interests. . Doubt that these interests are the real reasons for the law. . States that it is overbroad. “Breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them.” So broad that those could not possibly be the real interests. Instead, the real interest is a bare desire to harm a politically unpopular . Ex post justifications that just don’t cut it. o Once again, does not look like true RB review. . Over- and underinclusive is usually not a factor in such deferential review. . Scrutinizing the “real” reasons for enactment. . Another example of RB+.  Scalia’s dissent o “The Court has mistaken a Kulturkampf for a fight of spite.” Thus, claims that the Court sees hatred, where the state tries to enforce morality and preserve community values. o Thus the Court has taken the gay rights side in the culture war by viewing homosexuality as a valid social construct. o Compares the animosity towards or moral disapproval of homosexuality with the laws against murder or pedophilia. o He is right in that the Justices are viewing homosexuality as an orientation, not as a lifestyle choice. So is it wrong that the Court is taking sides in the culture wars?  But if the Court had never taken sides in the segregation culture wars, there never would have been Brown v. Board of Education and Loving v. Virginia and the VMI Case. So the court occasionally has to take sides in the culture wars where morality and community values are used to discriminate against another group.  Court in Romer never confronts the issue of what level of scrutiny should apply. Instead ducks the issue by finding that Amend. 2 violated rational basis (w/ bite).  Are gays and lesbians a “discrete and insular minority?” o Discrete? Flamboyant gays may stand out, but homosexuality does not necessarily have to stand out. Can choose not to be visible. . Fact that their characteristic is not visible might work against them. Some may prefer to hide their homosexuality. Stay in the closet. . If AA, no way to hide it, so might as well stand up for your rights. o Insular? . Not living among us? Born into every family, including Dick Cheney’s! . Are they not able to protect themselves through the political process?  On the one hand, do well on the local level getting anti-discrimination like that in Denver and the other big cities in Colorado.  On the other hand, on the national and even state level they have done quite poorly?  History of discrimination and marginalization? Yes. Of course.  Is it an innate characteristic? Here is the biggest battle: o Opponents to recognizing gay rights view homosexuality as a lifestyle choice. o Proponents for gay rights believe that homosexuality is an inherent trait.

GAY MARRIAGE

 Does it violate the Federal Constitution to limit marriage to enact the current gay marriage bans?  Substantive Due Process arguments. Loving v. Virginia + Lawrence v. Texas  Equal Protection o How would the Court go about analyzing this issue? Evaluate the strength of the government’s interest, and determine if the law is sufficiently closely tailored to withstand the selected level of scrutiny. o What are the state’s interests? . (Before Lawrence) Protect against illegal sex. No longer valid. . Oppress gays? Unconstitutional to try to harm a certain group. . Guarding societal morality? 35 . Encourage procreation? . Familial unit – interests of the children? . Protecting the institution of marriage, traditional integrity of this social construct? o Are these state interests sufficient? Of course, it depends on which level of scrutiny the Court applies. . Strict scrutiny: The 3 familial unit justifications were rejected in Loving as insufficient under SS. . Intermediate scrutiny: Are those interests “important”? . Rational basis (w/ bite): Interests are certainly legitimate, but is the gay marriage ban rationally related to those interests?  Distinguishing Romer – The law in Romer was clearly enacted out of prejudice. Argument that gay marriage bans are not as invidious if focused on promoting and defending the institution of marriage.  Society not ready? o Before Loving, there was another inter-racial marriage case. In legislature there was a constitutional amendment waiting should the Court rule o There it was a constitutional amendment that o Should the Court think this way? Politically? Pragmatically? . Isn’t it the role of the Court to uphold liberties and rights, regardless of popular opinion?

DETERMINING THE LEVEL OF SCRUTINY FOR CLASSIFICATIONS

Strict Scrutiny Intermediate Scrutiny Rational Basis  Race  Sex  Age  Alienage  Legitimacy  Wealth  National origin  Intelligence/disability (+)  Sexual orientation (+) (?)

 Why only IS for sex discrimination? Why only RB review for age and wealth discrimination?  The Court is really “making it up as it goes along.” The Constitution guarantees “equal protection” under the law, but government would grind to a halt if it could not discriminate at all among citizens. o Examples: . Limitations on driver’s privileges (both age and passing a written test) . Intelligence tests for certain positions (or degree requirements as a proxy)  So the Court must look somewhere else to determine the level of scrutiny in various cases. Where should the Court look? o History – but that is insufficient as mores change and develop over time. Scalia would look only to history and leave the development of the law to the legislature. Originalism is not enough. o Legal context – what is has been afforded greater protection from state legislation or common law findings of courts. o Societal consensus values – Values change over time and new rights may become viewed as essential to liberty. o Political process theory [key] – Can’t confer heightened scrutiny to every “minority” in the political process b/c every group if compared to society at large is vulnerable. Must look to the long run: whether that group is one that wins some and loses some in the shifting alliances of the political process. . But where the discrimination is based upon constant marginalization of one group than that group might be a DISCRETE (distinct, differentiated from the crowd) and INSULAR (like an island, precluding cross-group coalitions to win some/lose some) minority group, then heightened scrutiny is required. . Immutable characteristics – Fairness dictates that greater protection is required where the political process discriminates against those who cannot help being who they are. Not so with other categories:  Wealth – everyone has a chance to change their wealth status (or so we believe)  Age – immutable, but also universal, so everyone will end up old someday.

36 . History of discrimination – Proof for the likelihood that detrimental laws were passed out of animus towards the group.  Thus, the Court is simply identifying the most invidious and unreasonable forms of discrimination. The ones in SS, are ones that the discrimination is invidious, requires more protection that other areas, and does not have an underlying real difference.  Review: A law that discriminates based on classification is subject only to rational basis, unless it discriminates on the basis of a suspect categorization, then strict scrutiny, or quasi-suspect categorization, in which case it is intermediate scrutiny. o Seems easy. But in practice it is not quite so clear. World is more complex and cannot be fit into just 3 categorizations. In reality, the Court has created several intermediate steps along the way RB+, IS+.

THE FUNDAMENTAL INTERESTS PRONG OF EQUAL PROTECTION

 Another way a law will be subject to heightened scrutiny: If discrimination bears upon the provision of certain fundamental rights: o Voting rights o Rights to access to the judicial process.  Any discrimination on the provision of such basic, fundamental rights violates the Equal Protection Clause unless it can withstand strict scrutiny. o Where there is another Constitutional provision on point, usually can simply sue to vindicate one’s rights under that Constitutional right and don’t need to sue under EP. . Ex. Eisenstadt v. Baird – contraception to unmarried couples. o Usually it’s a different category of cases that fall under the “fundamental rights” prong of EP. A narrow category of rights that the state could deny to everyone, but if they provide for that right, must extend it to everyone.  No fundamental right to vote in the Constitution! But struck down: o Poll taxes, literacy laws, restrictions to landowners. one man, one vote. (No discrimination btw city and country dwellers). o Harper v. Virginia State Bd. Of Elections (1966) – Virginia had a $1.50 poll tax as a precondition for voting. State argued the financial burden was minimal and the tax insured the people coming out to vote were serious. . Struck down. Once the franchise to vote is granted, the state violates EP whenever it makes the affluence of the voter or payment of any fee an electoral standard. o SCOTUS upheld restrictions to voting in very limited circumstances when the impact is almost exclusively on one group and the discretion of the public officials is very circumscribed. (Water authority cases.)  Same with access to the judicial process. But struck down: o transcript fees for appeals o denial of court-appointed lawyers for appeals of right.  Burger and Rehnquist Courts very reluctant to extend these types of cases. Sought to limit these rights o Ex: Limited the right to transcripts and lawyers to criminal cases.  San Antonio Indep. Sch. Dist. v. Rodriguez (1973) – Challenge to the policy of tying school funding to property taxes. Ensures that schools in wealth regions are better funded than those in poorer regions. o If education were to be found a fundamental interest that triggers SS under the EP Clause, it would certainly be illegal. Discriminates on the level of funding based upon the wealth of the community where one’s parents live. o Demonstrates the limits of the fundamental interest prong of EP. Final nail in the coffin of the movement to get positive rights recognized. . Basically says, “That’s it, no more. Drawing the line here. No more fundamental interests in this body of law.” o Illustrative of the modern Court’s rebuke of the Warren-era hint towards the affirmative rights to public benefits in it anti-discrimination under EP Clause. 37  Thus the scope of the fundamental interests prong of the EP Clause is actually quite narrow. Doesn’t look like it will expand anytime soon. Ironically, the one expansion in recent times was in Bush v. Gore.

FREEDOM OF SPEECH

 U.S. Const. amend. I – “Congress shall make no law abridging the freedom of speech, or of the press.”  Free speech serves three principal values o Advancing knowledge and truth in the marketplace of ideas. o Facilitating representative democracy and self-government. o Promoting individual autonomy, self-expression, and self-fulfillment.  What is the theory that explains why some forms are protected (and how stringently) and what forms are not protected. Need to do so in a principled way that is predictable and non-arbitrary. No easy rule. Instead there is a web of complicated rules and exceptions.  How do we determine the meaning of the First Amendment? o Textualism – Unsatisfactory. . Strictly from a textualist view, the President could issue an executive order substantially abridging free speech rights because 1st Amendment applied only to laws made by Congress. This view has never been accepted. Not withstanding the language, we read it more broadly to stand for a broader principle. Would create too large a loophole. . Also, under the plain meaning, Congress could pass a law prohibiting hand-written sign criticizing the Iraq War. This too has been rejected. “Speech” includes a wide variety of expression, not just verbal speech. . Can’t get our answer strictly by construing the text of the amendment. o Originalism – Also unsatisfactory. . “Abridging” implies that there already was freedom of speech at the time the 1st Amendment was passed, so it suggests that we could look to the original meaning. . Most legal historians agree that the historical understanding of free speech was far narrower than the understanding today.  Prevented prior restraints only.  But perfectly ok for the government to prosecute you after the fact. . Also fails to answer the big question. o Precedent and the Common Law Method– This is where the answers are. Understanding of free speech has developed over time.  Justifications for affording speech protection as a fundamental right o Discovering truth/Marketplace of ideas o Crucial to political process/democratic self-governmance. o Self-fulfillment o Safety valve

INCITEMENT

 World War I Cases - Espionage Act of 1917 o Thousands of people were prosecuted under this act and sentenced to long prison terms. o Prosecutions uniformly upheld by the Supreme Court.  Schenck v. United States (1919) – Involved a Socialist Party circular that makes legal arguments against the draft, including arguments that it violates the 13th Amendment as it is bondage and religious rights of certain groups opposed o Court recognized that it is political speech which is protected, but given the context of war and the danger to society upheld the convition. o Established the “Clear and Present Danger Test” – speech can be restricted by the government where it causes a clear and present danger to society. Analogizes to the fire in the theater situation. o Does the analogy to shouting “fire” in the crowded theater work in this case?

38 . Danger:  Could cause a panic. But not like in a theater. There we know what the reaction will be to a certainty.  Not clear that bad things are actually going to happen. . Present:  In the theater the reaction would be immediate.  The pamphlet, even if it worked, would take a long time to building into a movement and societal consensus against the war. . Truth/falsity  CAN yell “fire” in a crowded if it is true!  Many of these pamphlets contained statements of opinion that could not be determined true or false. . Doesn’t seem to fit at all. o Before Schenck the lower courts had been upholding the Espionage Act under a standard that seems to be more honest: “Speech that has a natural and probable tendency to cause harm.” . Court seems to actually apply this test. . Confirmed by Frohwerk (mere public opposition) and Debs (major political figure in the Socialist Party that carefully crafted his speech to never directly criticize the draft or war, but expressed the view that he was a pacifist).  These cases do not even use the language “clear and present danger.”  Use the phrase “natural tendencies” to bring about harm.  Abrams v. United States (1919) – Russian immigrants who supported the Russian Revolution. Afraid that the US was planning on entering the fight against the Revolution on the side of the czar. Passed out pamphlets urging a strike in ammunition plants to prevent US from using that ammunition for an intervention in Russia. o Supreme Court upheld the conviction under the Espionage Act. Relied on Schenck and disposed of the case summarily.  Holmes and Brandies Abrams dissent: o Once again advocates the clear and present danger test. Just claims that in this case, as opposed to Schenck, the prosecution does not pass the test. o Intent under the statute . Statute was directed at actions with the “intent by such curtailment to cripple or hinder the U.S. in the prosecution of the war with Germany.” . Holmes looked to their “direct proximate motive” to determine whether or not it was evil or harmful. Their goal is to protect the Russian Revolution, not hurting the U.S. war effort against Germany. . Trying to preserve the law of criminal attempt. Could not formulate it very well. Even remarking o Immediacy element added . No risk that this speech is going to cause immediate harm. Holmes finds the leaflet is “silly” and did not believe that it would have any real effect.  What then, about criminal intent? . But how is it more immediate than in the previous cases? o Thus creates a two part test where speech can be restricted under such sedition laws: . Where the speech actually creates a clear and present danger. . Where the speech is intended (mens rea) to be a clear and present danger. o Becoming more liberal on the topic of what kind of speech should be protected? . Changed application of the test. Nearly same facts as an earlier case. . Many legal historians believe that the change of heart came after an exchange of letters with Judge Learned Hand. Before this exchange, Justice Holmes did not really care about freedom of speech. . Last paragraph of this dissent: Introduces the famous “marketplace of ideas” metaphor.  Masses Publishing Co. v. Patten (1917) – Publication that was very critical of the war effort and included critical political cartoons and articles.

39 o Learned Hand’s incitement standard – To be restricted, the words must directly incite the reader. Need to look at the language itself and determine if explicitly encourage to engaged in harmful, illegal conduct. . Problem: Can craft an inciteful message around direct language. Need merely to choose words carefully and use innuendo and hint. . Problem: Allows the government to prosecute the harmless crazy people because they choose to articulate their thoughts too clearly. o Hand agrees that the cartoons may have the effect of undermining government policies, but disregards that fact. All that matters is whether incitement and violence are actually expressly called for, if so, then it can be restricted but otherwise, no restriction.  Neither of these tests ever won the day. By the time Holmes got serious about the clear and present danger test, he had lost the majority. The majority was applying the “natural tendencies” test.  Is the “marketplace of ideas” theory valid? o Market failures (see Barron) o Listening only to the speech one likes o Government as dominant speaker.  The RED SCARE cases  Gitlow v. New York (1925) – In NY, radical wing of the Socialist party broke off to advocate more forceful measures and revolution. Gitlow was the printer of a political tract “The Left Wing Manifesto.” o First case to incorporate the 1st Amendment as against the states through SDP of 14th Amend. Made no big deal of the incorporation of these rights. “We may assume arguendo. . .”! This was long before the main incorporation cases. Pretty nonchalant about it. Resolved the dispute ever since! o Court admits that there was no evidence of any clear or present danger. But still upheld the convictions on the authority of Schenck. . Claims that test does not apply to statutes like this. Legislature already made a determination that the speech itself was illegal. . The statutes in the previous cases prohibited interference with certain activities, and the court had to determine whether the speech has a substantial propensity to interfere or hinder the desired conduct (operation of the draft, munitions production). . Much more deferential when the legislature criminalizes speech directly. o Wouldn’t such laws call for more scrutiny, not less? . Court is confident that this type of speech does present a danger. Comfortable making this assumption without individual review because the legislature has already made this determination. Gives great weight to Congress (rational-basis review). . Legislature likely did not have speech in mind when they passed laws prohibiting interfering with the draft etc. So it falls to the Court to make an independent assessment of whether the speech actually presents a clear and present danger. o DISSENT: Holmes and Brandies. . Holmes believes the clear and present danger test should apply even though the law directly criminalizes speech. . Even if danger is clear, Holmes doesn’t believe that the threat is imminent or immediate.  If the threat is real, why should we can if it is imminent? If the speech is directed at organizing a terrorist attack four years from now, why should society have to wait until the attack is near before banning it?  But Holmes believes that so long there is a sufficient interim, the marketplace of ideas will sweep it away and it will never present a real threat to the society.  Whitney v. California (1927) – Prominent social activist. Wesleyan graduate. Wealthy niece of a Supreme Court justice. Was a moderate working within the Communist Party, but here resolutions were struck down in favor of more revolutionary measures. Was arrested for being part of a group advocating overthrow of the government. o Court upheld the conviction. Disregarded the fact that she advocated for peaceful means of bringing about a change to communism. Concerned only with the threat posed by the group. o CONCUR: Brandies & Holmes

40 . Brandies adds another factor: Seriousness and proportionality. Government can only censor the speech and punish someone when the unlawful activity is sufficiently serious and the restriction is proportionate to that threat.  Comes back in the context of civil rights civil disobedience measures. Advocacy of breaking the law in minor ways, sit-ins and unauthorized protests/demonstrations, would be protected under the Brandies view. . Does not believe that the Court should defer to the Congress – Offers an extremely influential theory for why: Political Process Argument. (Unlike Holmes who relies on Marketplace of Ideas theory).Brandies’ greatest opinion. Many believe it is the greatest defense of free speech ever.  The Smith Act Prosecutions (RED SCARE II) o Blacklists – once your name was on the list, difficult to ever work again. o Hollywood gets torn apart when McCarthy accused o Arthur Miller, The Crucible – Ostensibly about the Salem witch hunts  Dennis v. United States (1951) – Arrest and prosecution of the entire leadership of the U.S. Communist Party. Charged under the Smith Act which made it a federal crime to advocate or espouse views of overthrowing the government by force or violence. o Upholds the conviction. But does not agree to Gitlow and Whitney that the clear and present danger test applies to statutes that directly criminalize speech. There had never been a direct abrogation of those opinions, but the dissents were so powerful that . Did they actually follow the test?  There was a low likelihood of bringing about the evil.  Even that likelihood would only materialize well down the road. . Show a substantial deference to Congress. o Instead, this formulation appears to be a sliding scale of harm vs. probability. . {Potential harm} X {Probability of harm} > Infringement on Free Speech.  Like L. Hand formula in torts, adopted for the free speech context. o Vincent references the Beerhall Putsch . Suggests that the failure to prevent the type of speech Hitler . But is that the right lesson to draw from Nazism? After all, once Hitler took power one of the first things he did was prevent dissent and restricted free speech. o DISSENT (Black & Douglas) . Freedom will prevail over Communism regardless, but it will do so faster if we remain open and true to our free speech ideals. Need not suppress Communist ideas, that is what the Communists do. Empowering speech exposes how ridiculous Marxism really is. . Adopts the Holmsian Marketplace of Ideas notion.

MODERN INCITEMENT TEST

 Brandenburg v. Ohio (1969)– Law that makes it a crime to advocate violent methods of political reform. Brandenburg is a clan member who burns a cross and gives a speech. The Court overturns his conviction as a violation of his 1st amendment free speech rights. o What is the test for speech that might encourage other to take actions against the US? o Where the advocacy is directed at inciting imminent lawless action, and is likely to incite or produce such action. . (1) Directed at lawless action: The speech must intentionally and explicitly call for people to engage in lawless action. . (2) Imminent: The incited action must be imminent. . (3) Likely to produce lawless action. o The court says that this is settled law; but what about Whitney (saying it is enough to advocate for the violent overthrow of the government, or even joining an organization that itself so advocates, even if there is no likelihood of inciting imminent lawless action. o The Court does not say it overrules Whitney; but it indicates that Whitney has not stood the test of time. Says that Holmes and Brandies view has won the day, on the basis of Dennis. Bur really a new test? 41  So the Court is cherry picking form other tests to create a much more speech protective test than ever before. Court goes further than Holmes and Brandeis ever would have imagined, or wanted to!  This is a revolution in free speech law, overruling Dennis and basically everything before it, but the Court treats this as though it is settled law, in a per curium opinion.  History of the case: o But this was not done because the court thought that this was so fundamental that the Court wanted per curium, but instead more like a routine per curium reversing a lower court with nothing important involved. o Apparently: All 9 justices agreed that this conviction had to be overturned, but the justices could not agree upon the test at the first meeting. o Brennan adds the current test to Fortas’ draft which cited clear and present danger test. Brennan says let’s just do this per curium, and everyone agrees, probably not recognizing the profound change in law that was occurring. Brennan’s cunning in terms of Court strategy.  Brandenburg: Last major decision of the Warren Court. But this decision still enjoys widespread acceptance on the court and among academics across the political spectrum  But, it this the best test to employ in this area? o Very speech protective: This is good if you believe in free speech as both a means and an end of democracy. o Historically, the SCT has not stood up for free speech rights during times of crisis. Why? . Realist institutional concerns: Court is afraid to stand up for the law during a time of crisis (like McCarthy era) o Problem in the Clear and Present Danger Test (particularly the Dennis Test): Because in times of crises, even the court tends to overestimate the real danger. o The Judge under Brandenburg must be sure about the danger for there to be a suppression of speech; this overcompensates in protecting speech because of the phenomenon of overestimating the danger caused by speech  But does Brandenburg not go far enough? Should there be a “serious harm” requirement? o Holmes an Brandeis said this should be a requirement; (e.g., the harm isn’t serious for calling for a sit-in to protest segregation laws) o Some people read Brandenburg as having an implicit seriousness requirement, but it is not explicit (though you can assume that it is incorporated in the Brandenburg test) o If it is explicit, then this test still allows for the suppression of speech when there is speech directed at and likely to produce serious lawless action. o Should some speech in this area be protected?

42 . What about the argument that the conduct itself should be illegal, but not the speech. It is almost hypocritical to punish speech that we display in the national archives: the Declaration of Independence  Does Brandenburg go too far, does it tie the hands of the govt. too much? o Imminence requirement may make the govt. wait too long o Directed at requirement allows a wink and a nudge (carefully chosen speech to get around the requirement) o Example: the 9th Cir. case (The Nuremberg files)with the anti-abortion group giving photos and address of abortion doctors, and saying “wanted dead or alive” and then checking off the photos when they are murdered. . 9th Cir. said this did not implicate Brandenburg, because this is just a threat . Compelling dissent: Says this is not a threat – it is not explicit, and not the speaker saying he will do the act, but instead is incitement and should be analyzed as such. If Brandenburg is applied, then this speech cannot be suppressed because the treaty is not directed, imminent, or likely o Maybe the Brandenburg test is outdated in the internet era: Perhaps the ability to reach so many people immediately and turn speech into action quickly may be cause for a more restrictive test.

FIGHTING WORDS

 Chaplinsky v. New Hampshire (1942) – Jehovah’s Witness denouncing all religion as a “racket” was escorted away after the crowd he addressed grew restless. Chaplinsky demanded the police arrest the o Naturally causes a person to react with physical violence = fighting words. Fall outside the scope of the protection of freedom of speech and the government can regulate them at will. o Extremely important quote: pg 1040-1041.  Theory that those categories that have little or no value to society and that tend to cause sufficient harm such that they fall outside the wide scope of freedom of speech. Because of the slight value to the marketplace of ideas and the significant countervailing harm, they can be banned outright.  But do fighting words fall outside the scope? o Are there words we really believe have the capability in civilized society that give rise to imminent fighting? Notion that there is an honor code that requires physical violence following certain insult seems archaic and outdated. Today taught to turn the other cheek or seek other recourse. o Has been narrowed substantially by the modern Court. Do not see much cases falling under this doctrine anymore. Chaplinsky is the LAST TIME the Court has upheld a conviction.  Cohen v. California (1971) – Cohen wore a leather jacket with the inscription “Fuck the draft” while walking through a courthouse. Convicted under a disturbing the peace statute. State court upheld the conviction on the fighting words doctrine. Supreme Court reversed the conviction. o Fighting words argument: . The message was not a directed, personalized insult, so it cannot be fighting words. Message that is broadcast to no one in particular, offensive or not, is not reasonably viewed as personal insult. . Political speech. Crass, but protected no the less. Broadcasting to a group of people is more likely to contribute to the marketplace of ideas. One-on-one communication does not have as much public value. . More on notice that violence may be provoked when the message it one-on-one. Also there is more notice that the state might restrict the speech. . Permitting the censure of a controversial statement to the public through heckler’s veto. o Sensitive listeners – profanity . In Chaplinsky the Court assumed in dicta that if words were classified as profanity they could be banned by the states. . But in Cohen the Court rejected these dicta. Profanity that offends other people is not outside the freedom of speech. Looked to the circumstances:  Public forum is a protected place. One can always look away. o But this is nonsense, because one has to look at the jacket, understand it is offensive, before one decides to look away. 43 o Can avoid repeated harm. But still permits the “offenders” to take over the public places if they want. Force those who want to avoid offensive language to stay at home or avoid public places that attract such types.  State can prohibit offensive speech where there are captive audiences or the speech invades a person’s home. . This offense is a cost. But the Court determined that the contribution to the marketplace of ideas outweighs this harm. The easily offended cannot silence the rest of us. . But is profanity necessary? Couldn’t Cohen have made his statement without the use of profanity? Justice Harlan’s three justifications for including profanity in freedom of speech:  Emotive force vs. cognitive force of words. Provocative and powerful.  Impossible to draw the line. The same words are not offensive to anyone. o “For while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.”  The profanity used in a popularly disliked concept would likely be permissible. o What about the context? Was arrested in a courthouse. What about decorum in a courthouse? . Don’t have time to cover time, place, and manner restrictions. But it is permissible so long as it does not discriminate based on viewpoint. Needs to be viewpoint-neutral:  No hats in court – even if it prevents wearing an “Overturn Roe v. Wade.”  No speaking during oral arguments – even if it prevents Larry Flint . Cohen was prosecuted under a broad law that prohibited offensive speech anywhere any time, it just happened to be that he was in a courthouse.  Overbreadth doctrine: State cannot prosecute a person under an overly broad statute proscribing more speech than necessary, even if prosecution for the conduct or speech at issue would have been permissible under a narrower statute.  Ruling otherwise would permit states to draft laws with a chilling effect while never bringing actual prosecutions against those who egregiously violating the law. Can keep the law on the books by selective prosecution.

LIBEL

 Group libel – Beauharnais v. Illinois (1952) – (discussed in context of hate speech?).  Common law view of libel o Strict liability for publications that tend to cause harm to a person’s reputation. o Affirmative defense – Once reputational harm is established, publisher needs to demonstrate that all the statements in the publication are true. o If no AD, then publisher liable for statutory damages – plaintiff need not establish actual damages.  Modern standard for defamation and libel of public officials: Must publish untrue statements with “actual malice.” o New York Times v. Sullivan (1964) – Civil rights groups trying to garner support for MLK and the civil rights movement by exposing the types of violence and arbitrary state power that goes on in the South. Published an advertisement in the New York Times that contained numerous mistakes of fact, including the number of times MLK was arrested. Police chief who was implicated, but not named, in the ad, sued for libel. . Court held that some defamatory speech is protected by the First Amendment. Needs a certain amount of “breathing room” in order to survive. . Even some lies facilitate the search for truth. Forces those that hold the truth to counter the lies with the information they exclusively hold and may not otherwise disseminate. . Errors are inevitably going to make their way into the discussion. If people were afraid that if what they think is true, that eventually turns out to be false. Leads to self-censorship. . Failures of Sullivan’s case under the new standard:

44  No evidence of actual malice. Negligence at best. Not sufficient b/c greater public interest in criticizing the government requires a higher standard for liability where the criticism is directed at public officials.  Not of or concerning a particular person. Not actually targeted at plaintiff. Broad attack on the government, doesn’t even specifically mention Sullivan. o Why “actual malice”? What does it matter for the marketplace of ideas? . Limited category of unprotected speech to only that which has no value to society. If the speaker knows that something is untrue from the start, then entering untrue speech into the market is not worth the harm. . Matters if the whole theory is chilling effect. Then makes sense to draw the line at intent. If there was no intent to lie, then there was actually an attempt to contribute. Not possible to be always correct in factual assertions. o Not sufficiently speech-protective? . Litigation costs. . Lies, like obscenity, can be used to express a point, especially in politics. o Too speech-protective? . Lies published about a person can ruin their career, but cannot recover any damages or even receive an admission. . Times seems to not take into account the harm to the person defamed. . Court essential forces the pubic officials to subsidize the lazy, irresponsible speech of the press! . Has this decision really improved the search for truth? Has it enhanced the operation of the press: tabloid trash, A Current Affair, political attack ads. Cluttered the marketplace of ideas with lies and half-truths? . Deterred good and qualified people from going into politics? . Didn’t the U.S. have a free and open debate about public figures under the CL standard?  Actual malice standard’s deviations from the common law rule: o Burden of proof on the plaintiff to show the speech is false. o Must show actual malice, o Under a clear and convincing evidence standard.  Hypos on the New York Times standard: o Manager of White House gift shop manager accused of embezzlement based upon an alleged insider tip. Story is untrue and manager sues for . No actual malice. So if Sullivan applies, . Likely not a “public official.” Categorization not co-existent with federal employment. In the case, the Court did not decide how far down the hierarchy the label “public official” goes. . But does not seem that a WH gift shop manager is sufficiently high up to qualify. o Discussion by TV talk show host that Cheney’s daughter cheated on her lesbian lover and was a . Not a public official. . Perhaps a “public figure” . If a private individual, then what standard applies?  On a matter of public concern – middle ground standard. Gertz o Burden on Plaintiff o Prove negligence on part of speaker. o But does not need to prove actual malice.  Not a matter of public concern – Old common law standard. Dun & Bradstreet. o Show only that the speech o Then strict liability on the defendant. o Unless can prove everything is true. o Website publishing nude photos of Antonella Barba (American Idol) and engages in casual sexual activity. But was assured by people who allegedly know her that these photos and . Does the actual malice standard apply?  If she is a public figure, then the website wins. o Clearly she thrust herself literally into the spotlight. No fairness problem. 45 o But should actors, game show participants, and athletes be considered “public figures” such that it justifies overriding state tort laws. Would the 1st Amendment suffer if stars could sue the tabloids for untrue stories?  If she is not a public figure, then it is likely she would be able to show negligence.  Clarification of “public official” o Control over government policy and affairs o Such that the public has an interest in how the public job is being done. (Not all govt employees)  Inclusion of “public figures” in the New York Times standard. But what is a “public figure?” o Curtis Publishing Co. v. Butts (1967) – Extension of NY Times standard to public figures. Why? . Play an influential role in ordering society. . Have ready access to mass media, both to influence policy and to counter criticism of their views and activities. o To be a “public figure,” you must voluntarily enter the debate. Must “thrust himself/herself” into the spotlight.  Private figures o Gertz (1974) – Private person can recover w/o meeting the NY Times standard. This involved a lawyer representing a client bringing a wrongful death action against the police. Lawyer was not a public figure, but the matter at issue was of public interest. But states cannot impose liability w/o fault where the issue was one of public concern.  Two levels of analysis for defamation actions brought by private person: o On a matter of public concern – middle ground standard. Gertz . Burden on Plaintiff to prove negligence on part of speaker to recover actual damages, but does not need to prove actual malice. . For punitive or presumed damages, must still show actual malice. o Not a matter of public concern – Old common law standard. Dun & Bradstreet. . Show only that it is the type of speech that brings a person into ill repute. . Then strict liability (presumed statutory damages) on the defendant. . Unless can prove everything is true. o 4 dissenters in Dun & Bradstreet. Why would they apply a heightened standard even to defamation of private individuals on topics not of public concern? . Dissenters are concerned that the lines between matters of public concern and private concern are not clear. Ends up with a judge making the decision of what speech is “of a public concern.” . Government thus decides with what the public should and shouldn’t care about. . Mere fact that it was published seems to suggest that the public does care about.  Great summary of the law of libel by Justice O’Connor: One can discern in these decisions two forces that may reshape the common-law landscape to conform to the First Amendment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the speech at issue is of public concern. When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in Gertz, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern. When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986).

Public Concern No Public Concern Public Official or Public Figure Sullivan / Butts ???? [hard to even imagine] Private Figure Gertz Dun & Bradstreet

 Other torts that conflict with First Amendment (Sullivan standard imported) o Intentional infliction of emotional distress, etc. o Invasion of privacy. 46 o “False light” invasion of privacy  Thus, there is a broad exception to the freedom of speech for knowing, intentional lying. But there is protection for unintentional, non-negligent lying, and protection for even negligent (but not grossly reckless) lying about public figures. o But must be a statement of fact, not of opinion. o AND must reasonably be understood as a statement of fact. (Hustler v. Falwell)

OBSCENITY

 Roth v. United States (1957) – A couple of mail order dealers were convicted of mailing obscene advertising and books. Convictions upheld. o Court agrees that obscenity was categorically outside the First Amendment. . Unlike Sullivan (rejecting the dicta in Chaplinsky that libel is categorically outside) . Unlike Cohen (rejecting the dicta in Chaplinsky concerning fighting words/obscene words/hostile audiences) o Definition of obscenity: The dominant theme of the material, taken as a whole, appeals to the prurient interest (tends to incite lustful, shameful thoughts). Adopting the MPC’s definition of obscenity. o Not a very liberal standard by today’s standards, despite Justice Brennan as the author. But more liberal than the precedent. Before this opinion, any movie or sculpture with any nudity or references to sex could be proscribed. o Using the Chaplinsky framework, the Court essentially says that whatever minimum social benefit provided by obscene speech is outweighed by the significant social costs.  Restricting pornography based on the negative impact on society. Increase in violence & sex crimes. o Paris Adult Theatre I v. Slaton (1973) – Prosecution of an adult theater operation despite the clear warnings of obscene material insides and age limitation of 21 or older. . Essentially applied rational basis review. Court didn’t even require that there be empirical proof that pornography actually leads to violence or other crime. . But this is entirely inconsistent with Brandenburg and the incitement cases.  Restricting pornography as degrading to women. o American Booksellers Ass’n v. Hudnut (1986) – Challenge to an obscenity statute enacted in Indianapolis that was written by a well-known feminist Katharine McKinnen. Defined pornography in a novel way, focusing on whether the pornography depicts women in a submissive, subjugated way or shows them enjoying rape, injury, or abasement. . Judge Easterbrook strikes the law down. Finds that this law imposes one government-sponsored viewpoint – that women should not be submissive or subjugated by men. That message, regardless of whether in a cheap film or literature, regardless of how sexually explicit, is banned by the government. . Engaged in no balancing at all. Applied strict scrutiny as a law discriminating on the ground of the content of the speech. Direct violation of the First Amendment. . Law would reach even highly valuable speech, literature . Easterbrook agrees that pornography could lead to the commission of crimes such as rape. But Brandenburg and other incitement cases stand directly in the way. Must be directed at imminent lawless action. Effect of porn is subtle and gradual, so it does not meet the Brandenburg standard.  Protects speech against suppression that is inconsistent with true freedom. But it has costs. Tough tradeoff. But that harm is the price our society pays. . Both sides are sending messages: Shows depicting women as confident, capable o Don’t want to give the government the right to restrict speech to its preferred message unless absolutely necessary.  Government cannot criminalize possession of obscene materials in a person’s home. o Stanley v. Georgia (1969) – Overruled conviction of a person viewing pornography at home. Stated, “If the First Amendment. But this was not expanded to purchasing, downloading, making, distributing obscene materials. Only the privacy interest of home overrides the government interest in this case.  Miller v. California (1973) – Contemporary standard for obscenity. 47 o Miller standard: Three part test: . Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, . Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, AND . Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. o How different from Roth? . Adds two more prongs to the standard. More liberal standard in that it permits sexually explicit material so long as, taken as a whole, it has significant value to society. . Court took a lot of heat from the conservatives. Including the Utah Supreme Court!  Problems with the Miller standard. o Inherent contradiction: Prurient = turns people on. Offensive = people have to be revolted, turn people off. o Differing standards among the prongs: Prurient (local/community), offensive (depends upon what law is at issue, likely state or federal), value (national standard).  Justifications for obscenity regulation o Debasement of the individual character (paternalistic) o Offense to unwilling onlookers (contra Cohen) o Inducement of criminal conduct (Paris Adult) o Eroding moral standards o Harming the social fabric o Extremely low value of obscenity as speech w/in marketplace of ideas. . Non-political . Non-cognitive . Not susceptible to counterspeech  Distinction between regulating speech: political v. moral. o The Court in these cases seems to state that restrictions on speech to entrench a particular political view is clearly protected by the First Amendment. o But interfering with speech for the purpose of morality is valid. One of the reasons we have government is to regulate the morals of the country. o But is this a tenable distinction? . Everything is a political issue, including issues of morality. . Controlling morality is controlling the thoughts of the people on matters that eventually involve politics.  The bottom line on this topic: o Modern obscenity regulation is entirely content-based. Based on the amalgam of the justifications above, but likely most based on morality. o Recognize that even worthless speech is protected, but we don’t extend that principle to obscenity. So long as it is not about sex, there is full protection. o Why do we apply this regulation only to sexual speech? Most of the rest of the world thinks we have it precisely backwards: permitting violence in unlimited quantities, but restricting nudity. o Reflects the danger of the current model of defining certain categories as being “outside” the scope of the freedom of speech: Permits the Court to determine on its own, based on own subjective views, to proscribe some speech: porn, and permit others: crappy horror movies. o Prof. thinks there is no justification for that line. Justices Black and Douglas believed that the government has not legitimate interest in telling the public what to think. They were the great champions of free speech and the First Amendment. Black thought of himself as a First Amendment absolutist = First Amendment protects all speech. But this view turned out to be impractical. (Black = no symbolic speech)

CHILD PORNOGRAPHY

 New York v. Ferber (1982) – Bookstore owner convicted for selling videos of boys masturbating.

48 o Focuses on the fact that the creation of child pornography harms the child who is sexually molested/abused in its making. . The production of the images itself is unlawful. Unlike adult women, children are not legally capable to consent to such treatment. . Children are hurt over and over again whenever it is distributed. o Stanley v. Geogia does not apply. Can be convicted for possession of child pornography at home.  Ashcroft v. Free Speech Coalition (2002) – Challenge to the Child Pornography Prevention Act of 1996 on overbreadth grounds. Law prohibited the depiction of child sex, even where no actual child was involved in the production. o Cannot bar non-obscene depictions of child sex if that actors portraying the “child” is actually an adult or if computer generated. o Would result in the ban of great movies such as Romeo and Juliet and American Beauty. Actually changed the director’s vision due to the concerns of child pornography charges. o What about whetting the appetite of pedophiles?Barred by Brandenburg.  Court’s determination in Ferber has never been substantially criticized. Is that justified? Have we gone too far? o Law treats any depiction of a nude child, regardless of any proof of intent to sexually molest or o People are arrested for taking pictures of their children in the bathtub! o Like the Red Scare? Hatred of certain behavior causing us to ignore key Constitutional protections? Causing wrongful prosecutions?

INCIDENTAL RESTRICTIONS ON SPEECH

 United States v. O’Brien (1968) – Challenge to prosecution of Vietnam War protester who burned his draft card on the steps of a Boston courthouse. o Could not be convicted for seditious speech after Brandonburg. If he had said “Down with the draft!” it would be insufficient to meet that standard. o But Court finds he is not being convicted for his speech, but for the conduct, the act, of destroying his draft card. Looked to all the non-speech purposes and uses for these draft cards in the administration of the selective service. But even if the law does not facially target speech, it is being used to stifle a sort of speech. The Court has always found that laws targeting conduct for the purpose of prohibiting the expression of ideas. o O’Brien test for regulation of expressive conduct (hybrid IS/SS, supposedly of 4 parts): . Whether the law is within the constitutional power of the government. (Throwaway prong.) . If it furthers an important or substantial governmental interest. (Intermediate scrutiny.) . If the governmental interest is unrelated to the suppression of free expression. (Otherwise would be an attempt at indirect censorship and strict scrutiny would apply.) . And if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Strict scrutiny?) o Court’s actual application of the test to the facts. . Prongs 2 & 4: Intermediate plus scrutiny?  Court does not apply a standard as stringent as it claims. The draft cards were clearly not essential to the operation of the draft. Burning the card does not free one from the operation of the draft. Most draftees reporting need not present the draft cards to enlist.  Instead the court applies intermediate scrutiny, maybe even lower. Later cases have generally clarified that straight intermediate scrutiny is the standard that should be applied. . Prong 3: Not targeted at suppressing speech.  Main point is that government almost always has an interest in suppressing controversial speech that would meet intermediate scrutiny, so this prong acts as a gatekeeper to insure this lower level of scrutiny is reserved to regulations that were not target  In O’Brien the Court claims that the primary purpose of the prohibition is to protect the integrity and efficiency of the draft system: reminder that draft exists, to notify of address changes, keep address of the draft board handy. 49  Court avoids the (damning) legislative history suggesting that the real purpose of the law was to prohibit this form of protest and speech. Pretty obvious that the main point was to suppress this speech. Wanted to limit the acts of public defiance of the draft. o Statement on the floor of Congress: Straightforward clear answer to those who would make a mockery. . . thumb their noses at the war and government. o Claims that it is a well-established principle that the SCOTUS will not strike down an otherwise valid law by inquiring into the subjective Congressional intent of the law. o But that is not true, at least w/in the Equal Protection context! . Yick Wo . Arlington Heights o In this regard, the Court appears to be dropping down to the level of rational basis review!!! o Why was the application of the (seemingly reasonable) proffered test so warped? . Warren, while liberal, distained those who would attack American policy and a war effort against Communist. . Today O’Brien is viewed as a deeply flawed application. But the test itself is still valid today.  The real O’Brien test as has been interpreted later: o Threshold: Must be unrelated to the suppression of free speech. o If so, then apply intermediate scrutiny: . Furthers an important or substantial governmental interest. . Incidental restriction on alleged First Amendment freedoms is not [substantially greater] than is essential to the furtherance of that interest.  Texas v. Johnson (1989) – Vehement anti-American, anti-Reagan, anti-Cold War protest held outside the Republican National Convention o Most important First Amendment decision of recent times. o First must determine if the conduct was intended as expressive before applying the O’Brien test: . Intended to communicate? . Reasonably likely that a listener would understand that message? o Clear that it was expressive conduct. Texas did not even challenge this point. o Application of the O’Brien test: . What interests unrelated to expression?  Texas’ proffered justifications: o Preventing breaches of the peace o Protect the symbolic value of the flag. Preserving the flag as a symbol of nationhood and unity.  Both are deeply flawed and, in fact, intimately related to the suppression of free expression. o First is simply incitement, just like the WWI cases. The speech is being understood and might be potentially rousing to the crowd (Brandenburg). Alternatively, it would be fighting words, for which we have a doctrine. Not a direct invitation to a brawl (Cohen). o The symbolic nature of the flag is a form of speech itself. Singles out one use of the message-sending nature of the flag for prohibition. Permits the use of the flag for pro-nation, pro-unity message. . Thus no need to move on to the intermediate scrutiny test. Fails the threshold inquiry. o Even outside the O’Brien, some restrictions on speech are acceptable. Had it been content- and viewpoint neutral, then subject to time-place-manner restrictions. A sort of intermediate scrutiny. (Don’t have time to get into much.) . Content neutral? No. Disrespectful message content illegal. Respectful message content is permissible. Government is regulating speech based upon the content of the message conveyed.

50  Famous phrase: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” . Viewpoint neutral? No. Permits burning of the flag if the burner’s viewpoint is one of respect and desire to dispose of flag out of respect for the symbol. o But even if that is true, Texas argues that there are many other avenues for expressing the same critical viewpoint, so foreclosing this particularly offensive means is acceptable. . Court rejected this argument in Cohen. Other means may not convey the message with the same power and vigor. o Thus, applied typical First Amendment strict scrutiny of the most aggressive kind. Naturally the law falls. Laws that are content-based or (especially) viewpoint-based are subject to this scrutiny. o DISSENT (Rehnquist) – Flag is special. Americans regard it as an almost mystical reverence. Should be an exception to the First Amendment for the flag only. Treat it like fighting words under Chaplinksy. New category of unprotected speech outside First Amendment – flag burning. . But this exception does not fit the Chaplinsky framework (minimal value in the marketplace of ideas). Flag burning expresses core political speech. Unlike fighting words, obscenity, or child pornography. o DISSENT (Stevens) – Cannot deface the Lincoln Monument argument. Idiotic.  Following the decision in Texas v. Johnson, public outrage (83% of population opposed) gave rise to suggestions to amend the Constitution to permit the prohibition of flag burning. But this failed. And instead a federal law prohibiting flag burning without reference to “desecration” or “venerated objects.”  Many commentators labeled this case the worst example of judicial activism ever! o No possible construction of “judicial activism” could bring this case w/in its meaning. o Judicial activism is a bankrupt phrase – most often used by people who know nothing about constitutional law to express opposition to a particular judicial decision on political grounds.  United States v. Eichman (1990) – Prosecutions brought against several persons challenging the newly minted federal Flag Protection Act of 1989 by publicly burning/defiling the flag. Law was drafted to appear only to regulate conduct with no mention of maintaining an air of respect etc. Allegedly protects the physical integrity of the flag under all circumstances. o Court, with the same 5-4 vote, struck it down again. Even though it contained no explicit content-based limitation, “it is nevertheless clear that the Government’s asserted interest is related to the suppression of free expression.” o What possible interest does the federal government have in the physical integrity of privately owned flags? Nothing except to ensure that it is not used to express the same message as in Texas v. Johnson. o Suffers the same flaw as in that case: suppresses expression out of concern for its likely communicative impact.  After Eichman, several proposed constitutional amendments have been offered in the past years. o Last year passed in House 286-130. Failed by one vote in the Senate! o Had it gone on to the states, polls show that it would likely pass with ease.

HATE SPEECH

 Very difficult topic. Both because it is an emotional and sensitive topic, and because the cases dealing with this topic are confused and contradictory.  Need a special approach to hate speech? o There are many types of offensive, even hurtful, speech that we do not criminalize. o But hate speech is especially offensive. And many have called for a special approach or exception for this particular form of offensive speech.  Group libel o Most aggressive theory for criminalizing hate speech. o Beauharnais v. Illinois (1952) (“Bo-harnai”) – Challenge to an Illinois law that criminalize the portrayal of depravity, criminality etc. of a class of citizens based on race, national origin, religious etc. . DISSENT (Black): Claims it is censorship plain and simple. 51 o Never been officially overruled. But today it is highly suspect as precedent today because it relies on libel from Chaplinsky that such speech is entirely outside . Also, such statements are of opinion. Under Sullivan statements of opinion can never be prohibited under libel law. . Words inherently creating injury, another rationale of this case, has been undermined by the SCOTUS decisions in Cohen and Texas v. Johnson. o Skokie IL cases . Lower courts in those cases essentially treated Beauharnais as if it is no longer good law. . Today we take it for granted that Beauharnais was wrong and these cases were correctly decided. Unlikely that a group libel theory will fly to prohibit hate speech.  R.A.V. v. St. Paul (1992) – KKK members prosecuted for burning a cross on the yard of a black family. Law prohibited placing on public or private property Nazi or KKK symbols or other objects that represent hate speech. o Court overrules the conviction. Finds that the law violates the First Amendment. o Where is the O’Brien test in this opinion? It seems to be expressive conduct. But the test does not seem to appear. Why not? . Law targeted at expression on its face. Targets graffiti, symbols, and other methods of expressing hateful speech. o Also, clearly content-based regulation. Limits only speech that offends on the basis of “race, color, creed, religion or gender,” but not based on sexual orientation or football loyalty. o But Minnesota Supreme Court construed the statute only to reach speech that amounts to fighting words. Narrowed the statute somewhat, but also forced it into a category outside the First Amendment entirely. . So the question is, if the speech is outside the protection of the First Amendment, can the state discriminate based upon content in that case? o Justice Scalia states that even unprotected speech CANNOT be proscribed when a restriction within that category is content based. . But makes exception for content-based distinctions that are drawn upon the same basis for why that speech is outside the First Amendment in the first place. . Thus a state regulating obscenity:  could draw distinctions between type of graphic sex shown  but not o But then what about this case? Isn’t this law a nice example of fitting within Scalia’s own exception? Aren’t racial epithets a form of fighting words of the worst kind? . Scalia is disturbed by the fact that the law is also viewpoint-based. o Justice Scalia is even more disturbed by the fact that this law is also viewpoint based. Permits pro- integration fighting words and provocation, but criminalizes. Viewpoint-based restrictions are virtually NEVER allowed. . So even if the law could arguable fit the except to the rule against content-based regulations . Does not survive strict scrutiny, because not the least restrictive means (on speech). Could have a law that prohibits all fighting words.  Odd form of “narrow tailoring” because requires government to censor more speech! Is it possible that a law can be too narrowly tailored? Broader reach, but no viewpoint restriction. o CONCUR: Justice White. Agrees that law is unconstitutional, but rejects Scalia’s approach. Instead, he would find the law overbroad. Disregards the interpretation of the MN Supreme Court that it applies only to fighting words as a significant & unacceptable stretch of the doctrine. . Basic application of settled First Amendment rules. . Clearly written and easily summarized.  Scalia’s opinion in R.A.V. calls into question the entire framework of having certain categories of speech outside the First Amendment. Complete reinterpretation for the entire Chaplinsky framework. o Convoluted system of selective application of First Amendment principles only to certain restrictions on speech outside the protection of the Amendment. o Wants both to keep the Chaplinsky framework to proscribe porno movies, but also wants to find a way for courts to strike down politically correct regulation of speech outside the scope of the First Amendment. 52 o Critics say that the Court must bite the bullet one way or another. Either: . Maintain Chaplinksy, but recognize that politically correct regulation and distinctions can be made within the scope of unprotected speech. . Or the First Amendment reaches those forms of speech both to prevent content- and viewpoint discrimination, but then confer protection as well.  Wisconsin v. Mitchell (1993) – Challenge to an enhanced sentence for racially motivated attacks on the basis of R.A.V. Court upheld the conviction unanimously. o Why is it different? Once again it is viewpoint and content based! . This is a law regulating pure conduct, not even the expressive kind. Has nothing to do with speech at all, so such distinctions do not implicate First Amendment concerns. . Rational basis for this distinction. Violence based upon racial animus can give rise to more social strife and likelihood of retaliation. o Has always been acceptable to punish conduct based upon the motives or values behind the conduct. First Amendment only protects speech. . Ex. Title VII: Prohibits racist motives for hiring and firing decisions. . Ex. Premeditated murder vs. manslaughter.  Virginia v. Black (2003) – Law prohibiting cross burning again. But this one requires an “intent to intimidate,” presumably to bring the law within the threats exception to the First Amendment. Provided that any “such burning of a cross shall be prima facie evidence of an intent to intimidate.” o Upholds the law in so much that it criminalizes cross burning with the intent to intimidate specific persons. But strikes the conviction because of the presumption clause. o Again no O’Brien test as law is a pure restriction on speech, not one where there is an incidental restriction on speech. So why would the Court uphold it? . Threats are one of the categories always understood to be outside of the scope of the First Amendment. Does not criminalize all threats, only this one kind of threat: cross-burning. Narrow subset of the broad category. . Content-based. Singles out one mode of expressing the speech. Isn’t this counter the principle of R.A.V.?  Fits the exception: content-based regulation drawing lines for the same reason that form of speech is outside the First Amendment. State could draw distinctions between threats and more severely regulate the most egregious. o But could have said the same thing after R.A.V.! o After R.A.V., states stopped trying to use fighting words to criminalize hate speech. The threat category is a replacement for that lost cause. . Viewpoint-based? Difference is that in R.A.V. engaged in viewpoint-based discrimination. Prohibited the use of fighting words only to one side. Here the use of cross-burning with the intent to intimidate is prohibited for any reason. (????)  But why would one burn a cross except to express that one viewpoint?  Court came up with some obscure examples of use of cross-burning for a generic threat that is not tied to racism. Somewhat disingenuous argument... o But the Court strikes down the law anyway, because of the presumption . Cross-burning at a KKK rally to rouse the crowd is constitutionally protected speech. And the presumption makes this law applicable to such rallies, rather than just uses . Overbroad and unconstitutional on its face. o DISSENT: Thomas. Cross-burning is an act of violence, not expression. When the law was passed, VA was still passing segregationist and racist laws. Thus it would have been odd if VA was suppressing the racist measure at the same time it was passing laws. (No one else agrees.)  What about college speech codes? o Some are written in a round-about way to try to bring them w/in the scope of Virginia v. Black. o Others are much broader, and are more similar to group libel in breadth.  Arguments for upholding such speech codes (and regulating hate speech in general) o Hate speech as a new category of speech unprotected by the First Amendment. . Worthless speech. Value and contribution is de minimis, and the harm is great. 53 . One step further: harmful to the marketplace of ideas. Intimidating, impediment. Contrary to the principles of the First Amendment. . Problem: The ideas are political and cognitive, core speech, even if objectionable. Making a value judgment as to the worth or harm to society and censoring speech on that basis resembles the attack on Communism during the McCarthy era. o Regulation of hate speech as surviving strict scrutiny. . Could fall w/in the scope of the First Amendment protection, but prohibiting it is the only way to advance the compelling state interest of integration and racial harmony. . Problem: But is censoring racist speech really the least restrictive means of advancing that compelling state interest? Probably not. o Equal protection basis . Guarding suspect groups from discrimination o One of the great constitutional debates of our time: . Pits two fundamental constitutional rights against each other: 1st and 14th Amendments. . Equality vs. liberty.  So far, U.S. law has tended to resolve those conflicts in favor of liberty.  Summary of hate speech. o Cannot be suppressed on a theory of group libel. (Beauharnais). o Cannot be suppressed as fighting words, at least under a law that targets only hateful speech for prosecution. (R.A.V. v. St. Paul) o Some forms of hate speech can be regulated under the true threats doctrine, but only those that can be regarded as a real threat to a particular individual. (Virginia v. Black).

THE RELIGION CLAUSES

 Overview. (Did not discuss in class).

FREE EXERCISE CLAUSE

Free Exercise doctrine in a nutshell.  Strict scrutiny will apply to any law that facially discriminates against religious practices. o (Torcaso – Md. requirement that all public officials declare their belief in God)  Strict scrutiny will apply to facially neutral but are enacted out of a motive to discriminate against certain religious practices. o (Lukumi Babalu – prohibition on animal sacrifice indirectly targeting Santeria religion)  Rational basis applies to all generally applicable, non-discriminatory laws, no matter how much they burden the free exercise of some religious groups. o (Smith – prohibition on peyote use).

Direct infringement to free exercise (facially neutral, but motivated by discrimination).  Church of the Lukumi Babalu Aye v. City of Hialeah (1993) – Church practicing the Santeria religion wanted to open a church in a suburb of Miami. The church practices animal sacrifice. The town, having heard that of the church’s plans, tailored a new city ordinance to prohibit this practice (but not other slaughtering practices) within the city limits. Law used words such as “ritual” and “sacrifice” o Court says that the law does not target religion on its face despite its reference to “ritual” and “sacrifice.” Words strongly suggest religion, but fraternities, secret societies, etc. also have these things. So the Court finds that it does not facially burden religion. o But the Court looks to the intent and the purpose behind the law (like in EP context), and strikes the law as unconstitutional. How does the Court determine that the law was passed for discriminatory purposes? . Analysis of the language. Could the law be written in this manner w/o a discriminatory purpose? No. Even if the government interests proffered were compelling, the law was not narrowly tailored: both overinclusive and underinclusive.

54  Does not prohibit animal killing: Pretty much any animal killing is ok, except in the manner practiced by Santeria.  Not believable that passed out of concern for animal cruelty: Does not regulate the means of killing or humane methods. Permits Kosher killing, hunting, methods of slaughterhouse, use of animals for research.  No explanation except to discriminate against practitioners of an unpopular religion. . Historical context and temporal connection between the passage of the law and plans of the church. . Legislative history. Lawmakers specifically indicated that the law would target this group and expressed disgust at the group’s practices.  Scalia & Thomas often refuse to look to legislative history.  But because of the withering attacks by Scalia in recent years, the Court now turns less often, and is reluctant to solely rely on, legislative history. Indirect impact on free expression  Early cases: Application of deferential review to free exercise claims in the face of facially neutral laws that are not enacted out of religious discrimination, but has a disparate effect on certain religious groups. o Reynolds (1878) – Upholding prohibition on polygamy in face of challenge from Mormons. . Genesis of belief/action distinction. o Cantwell (1940) – Invalidating conviction of Jehovah’s Witness under free speech doctrine. . Suggesting religious conduct is not wholly outside the protection of the free exercise clause, even if subject to greater regulation than belief. Moving away from belief/action distinction. o Braunfeld v. Brown (1961) – Upheld Sunday closing laws in the face of a challenge by an Orthodox Jewish shopowner who had to close on Saturdays due to his belief, and had to close on Sunday due to the law, putting him at a competitive disadvantage. . Laws that merely make the practice of certain religious beliefs more expensive do not violate the free exercise clause.  Raising the standard in indirect impact cases: Strict scrutiny review as to whether the State can make an exception for religious practitioners. o Sherbert v. Verner (1963) – Seventh Day Adventist challenged a ruling denying unemployment benefits because the person refused to work on Saturdays, which that sect believes is the holy day of rest. . Court found that the denial of benefits on this basis was an infringement on free expression and applied strict scrutiny. . Majority attempted to distinguish Braunfeld, decided only 2 years earlier, on the grounds that there was no other way for the state to achieve the goal of a uniform day of rest. But there are several reasons (pointed out by the concurrence & dissent) for considering the burden in this case far less serious than in Braunfeld:  Criminal statute vs. civil guideline denying a benefit.  Permanent denial of ability to compete in one’s profession and business vs. denial of an affirmative (non-obligatory) government benefit that is temporary anyway. . Main state concern: Fraud. Everyone will claim religious beliefs to get out of the requirement of being willing to work on Saturday to  Brennan believes this would not be a problem. Most people wouldn’t do this.  But even if there is, there are other ways of addressing the fraud concern: testing knowledge, asking for religious advisor, etc. o Set standard governing free exercise claims where there is indirect religious discrimination for 30 years. Monumental Brennan case.  Application of the Sherbert test. o Various unemployment cases following the Sherbert precedent to order payment of compensation based on work lost for religious reasons. o Wisconsin v. Yoder (1972) – Successful Amish challenge application of compulsory education law to them as an infringement of their religious beliefs. Court held that challenge is valid. o But in many other cases, while supposedly applying strict scrutiny, the Court began applying far more deferential review: 55 . Bob Jones University (1983) – Rejecting challenge to denial of tax-free status to educational institutions that practice racial discrimination, even though that practice  Change in direction: More deferential standard for free exercise claims. Neutral law does not raise free exercise concerns, even where it burdens certain groups’ religious practices. o Employment Division v. Smith (1990) – Challenge to a law criminalizing the use of peyote by Indians who use the substance in their religious rituals. Fired from his job when his boss found out that he used peyote and denied unemployment benefits for “misconduct” (using drugs). Question presented to the Court: Can the state criminalize the use of peyote and refuse to make an exception . J. Scalia: Upholds the criminal law and refusal to grant an exception. For strict scrutiny to apply, there must be a “hybrid.” Must involve more than one constitutional right at issue, so that free exercise and something else couple with it.  Yoder = FE and SDP (direct the education of children)  Cantwell = FE and free speech (proselytizing in the town square) . No scrutiny applies (well, actually, rational basis would still apply under DP). But this is not a free exercise case. Falls back on the standard of Reynolds. . CONCUR: O’Connor thinks strict scrutiny applies, but the law prohibiting peyote survives anyway. . DISSENT: Blackmun. Finds that strict scrutiny applies and this law violates it. o Questions with Scalia’s hybrid: . Does the second constitutional claim making up the hybrid have to be valid, or just plausible?  Valid: Then no need for the FS clause, because it would be covered by the other constitutional provision!  Plausible: Idea that two near misses of violations of constitutional rights can, working together, amount to a violation is entirely novel and not terrible rational. . Distinguishing Sherbert valid under Scalia’s approach?  Distinguishes that in that case, the rule was not criminal. o But what sense does that make? It seems that the criminal law would more severely burden the free exercise of religion!  In Sherbert there is an individualized review of whether a person is. Should not extend to the criminal context, because there is no similar individual approach through which to create exemptions. o But there is prosecutorial discretion – so there is individualized review! o Distinguished away the clear precedent on pretty lame grounds. But that is nothing new. That is what was done in Brown v. Bd. of Educ. as well. o Why does Scalia want to make this new rule? What is the basis for this new constitutional rule? . Precedent? No. Abused the precedent to attempt to . Text? No. Does not even mention the text. The text of the free exercise clause cuts strongly against his framework: “Congress shall make no law abridging the free exercise of religion.” Does not say that Congress cannot intend to abridge the free exercise of religion! . History? Not really. Does not review history of the adoption. Only really goes back to the polygamy law review in Reynolds.  Took a lot of flak from this opinion. Revolutionalized the law without any review of the history behind the amendment!  The history was, as usual, inconclusive. But Scalia did not even bring it up. In any case, where the history was later debated in another opinion, most commentators agreed that O’Connor’s review of history (permitting an exception) was more persuasive. . Structure? Possible. Need consistent meta-rules across the constitution. Most like EP. What is the rule in EP? If facially discriminatory = SS. If discriminatory purpose = SS. If the law is facially neutral and not intended to impact minorities, but does have a disparate impact = RB.  But Scalia does not rely on this. Plus broad coherence across amendments is not really feasible. No unified rule of scrutiny/ interpretation.  And what about other constitutional rights? Brandenburg which deals with similar issues in free speech (same amendment), and applies at least intermediate scrutiny. 56 . Rules v. standards? Maybe. Obviously Scalia likes hard and fast rules. . Political process? Yes. Primary rationale for this opinion.  Analysis of the political process basis in Smith. o Rationale: This is not the kind of constitutional right that we need the judiciary to step in and apply heightened scrutiny, because the political process affords sufficient protection. Our culture highly values religious freedom. Thus, there should be judicial restraint. o This clearly works to prevent rules that impact the majority’s religious practices. Political process would even protect the religious practices of substantial minorities with significant political power: Jews, Catholics, Mormons etc., given the general public’s view that o What about the lesser know minorities with even less political power? Muslims, Rastafarians, other more fringe religious groups? . Caroline Products FN 4 says the political process argument has it the other way around. Need heightened scrutiny for this groups. Of course there is no need to protect the majority Christians! . Many religious groups are prototypical discrete and insular minorities. Easily identifiable by characteristic dress or customs. o Is it true that the American political process sufficient to protect the freedoms of religious minorities without strict scrutiny from the Court? . Major legislative bodies do seem quite deferential:  After this case came down, the Oregon legislature promptly amended the law to provide an exception to practitioners of  Congress was so upset about this case, that it passed the Religious Freedom Restoration Act to overrule Smith. One of the most bi-partisan bill in history: Unanimous in the House of Representatives and 93-3 in the Senate.  Legislatures in this country are extremely deferential to religious free exercise freedoms of religious minorities. . But what about the city councils and local level governance such as was the case in Lukumi? Seems that there is greater danger of discrimination on the local level. . Native Americans are possibly a different case. Doesn’t mean that the same receptivity would apply for Wiccans, Santeria, and other exotic religions. Or even Muslims given the strong anti- Muslim sentiment following 9/11. o Isn’t placing faith in the legislature to protect the minorities inconsistent with the concept of the Bill of Rights and judicial review? . Despite the popularity of racial diversity and anti-discrimination . Strict scrutiny designed to protect minorities during the bad times. Not as necessary during the good times, but having it on the books is still necessary.  Is the reduced scrutiny in Smith really necessary? Under the Sherbert test, the Court seemed to apply a variant of strict scrutiny that is not as aggressive as in some other contexts. SS- o Amish denied exemption from SS tax o Bob Jones Univ. etc. o So Scalia’s concerns of anarchy is probably overblown. But it does highlight his concern about subjectivity in the judicial process. Not even the usual strict scrutiny, but a watered down version of it.  1994 RFRA is passed. Designed to overrule Smith, but that was struck down! o City of Boerne v. Flores (1997) – Court struck down RFRA. Congress could not enforce the Free Exercise Clause on the states (via 14th Amend) beyond the definition given to it by the Court.

ESTABLISHMENT CLAUSE

 Congress shall make no law making an establishment of religion.  Everyone agrees that Congress cannot declare and establish an official religion, of the like of the Church of England. Nor can there be a de facto establishment of a church by passing a law requiring citizen contributions to a particular church.  But in many other circumstances, it is much more difficult: school prayer, religious symbols on government property, etc. 57  Focus discussion on three types of issues: o Prayer in public schools. o Use of religious symbols or speech in public places o Use of public money to fund religious activities  What does the Establishment Clause forbid? What is the touchstone for separating church and state? o Forcing the people to engage in a particular religious practice. o Coercion, either psychological or administratively, to accept a particular religion. o Endorsement of a particular religion or group of religions. o Neutrality. Requires appearance of government neutrality between religions and between religion and non-religion, but permits accommodation. o Use of government facilities/funds to promote religion. o All government support, intermingling, or encouragement of religion. Prayer in public schools  Accommodating religious instruction during the public school day. o McCollum v. Bd. of Educ. (1948) – Strikes down the practice of bringing in parochial school instructors to teach sectarian classes on the school property. o Zorach v. Clauson (1952) – Upheld a program that permitted schoolchildren to leave the school property during the official school day to attend religious classes. o Should there be any difference between these two cases? o Depends on the view of what the Establishment Clause is intended to prevent. . If force, then neither should violate. . If coercion, then both should have been struck down. . If use of government facilities/funds, then both cases were decided properly.  But even in Zorach, there is a use of government resources – time in the school day that could be dedicated to basic education, assistance of public teachers in rounding up the kids.  On the other hand, a lot of outside groups work with the school and there is accommodation for these groups – athletics, dance, etc. . Neutrality. o Court in Zorach purported to decide it on the basis of neutrality and upheld the law. But then it seems that the McCollum case was decided wrongly?  Government-facilitated coercion to religious adherence or prayer. o Lee v. Weisman (1992) – Principal hired a rabbi to give a non-denominational prayer at a middle school graduation ceremony. One of the student’s parents sued the school claiming a violation of the Establishment Clause. . Both the majority and the dissent look to coercion. But they have very different ideas as to what constitutes coercion.  Majority (Kennedy) – Psychological coercion to join in the prayer. Peer pressure if very strong at this age. Points to the psychological studies.  Dissent (Scalia) – Would only recognize coercion as an Establishment Clause violation where the coercion is legal: threat of fines, criminal penalties, or other detriment. . Government not as the source of the coercion.  Isn’t the coercion here coming from the kids, not the government? But it is the state that is facilitating the coercion. It is setting up the captive audience situation in the first place.  Thus, government-facilitated coercion violates the Establishment Clause, even where the government is not the primary actor. . The concurrence advances another theory for the Establishment Clause analysis in agreeing that this prayer. Endorsement theory.  Endorsement by the government violates the Establishment Clause because it asserts a preference for one religion over others.

58  Criticizes the coercion model as duplicative of the Free Exercise protection. If the state coerces a person to adopt a certain belief, it would clearly violate the person’s rights under that clause. Should not read the constitutional provisions to create a nullity. . Scalia disputes this view that government cannot endorse religion in any way. Points to numerous examples of express religious references throughout American history.  In God We Trust on money.  Prayer before the opening of congressional sessions.  Opening remark of the Supreme Court: God save this . . . Court. . J. Souter’s 3 responses to Scalia’s attack on the endorsement test:  Previous violations don’t justify continued violation: Madison & Jefferson thought such acts were unconstitutional from the beginning. Most these historical traditions tell us is that lawmakers sometimes violated the constitution for political expediency.  Living constitution: Should be non-originalist when interpreting the Religion Clauses just as is done in the free speech context. Back then, general references to Judeo-Christian God did not offended anyone  Ceremonial deism: Difference between the rarely noticed and formalistic public announcements and the direct impact of religious endorsement to a captive audience. o Explicit: Have faded into the background. Over time lost endorsing power. o Implicit: Even if that’s not true and these practices do endorse religion, they are long-standing practices that have been grandfathered in as exceptions. Does not justify opening the floodgates and rendering the Establishment Clause a nullity. o Santa Fe Indep. Sch. Dist. v. Doe (2000) – Later the Court extended this holding to prayers during high school football games. Seems to expand the doctrine to any important school-organized events. While not as important as a graduation ceremony, high school football games are an important social event for teens.  School curriculum issues: Evolution and Creation Science. o School districts cannot ban the teaching of evolution in schools, despite the broad authority and discretion to generally set school curriculum o Nor can a state mandate schools teaching evolution give equal time to creation science. . Edwards v. Aguillard (1987) – Challenge to Louisiana’s “Balanced Treatment” act that mandated equal time for evolution and creation science in schools that teach evolution.  Applied the Lemon test, still technically in effect today. But has been severely criticized by the Court over the years. Sometimes the Court will simply ignore the Lemon test. But then it will appear again. Made of three parts, violation if: o Primarily religious purpose. o Primary effect of advancing religion over non-religion o Impermissible entanglement – government is required to get too involved in the internal affairs of a religious institution.  Court finds the law fails the first prong of the Lemon test: Purpose is to discredit the theory of evolution so that children will be more likely to believe in the literal depiction of creation in Genesis.  DISSENT: Scalia. Attacks the Court’s inquiry into the legislative intent. One of his better explanations of Use religious symbols on government property or government expressions of religious beliefs. Legislative prayer.  Marsh v. Chambers (1983). o Court avoids the Lemon test in upholding this practice, primarily on historical grounds. Relied on quasi- originalist argument that something that was practice at the time the amendments were ratified cannot be a violation of the original intent. o Implicitly established an exception to the Establishment Clause test – any religious practice that goes back to 1789 is immune from the Lemon test. Religious objects in city Christmas displays.

59  Lynch v. Donnelly (1984). City set up a nativity scene among other secular Christmas symbols in a holiday display. o Court finds no establishment clause problem with the government erecting this religious display. Maligns the Lemon test, but still tries to apply it to the facts. . Purpose? Secular purpose to acknowledge the historical origins of a national holiday. . Effect? Doesn’t it have an effect of advancing religion by reminding citizens of the religious origin of Christmas? o CONCUR: O’Connor. Origin of the modern endorsement test. View that the first two prongs of the Lemon test should be read together to determine whether the government’s actions give rise to an endorsement of religion. Entanglement prong remains as the second test. . Not as absolute as the Lemon test standard. Less whether a law minimally advances religion in some way. But what sort of impact or impression of endorsement it creates. . According to O’Connor, the city did not intend to endorse religion. Looked to the context of the holiday display and found that in context with a whole bunch of secular figures. So this same crèche could act as an endorsement in other contexts. . Reasonably observer test – Would a reasonable observer find the government action constituted an endorsement of religion?  Difficulty in determining who is the reasonable observer – Christian, adherent to another religion, atheist? o DISSENT: Both under the Lemon test and the endorsement test the deeply religious meaning of the crèche oversteps the boundaries of the establishment clause. Any “reasonable observer” would view the placement of this religious symbol is an endorsement.  Allegheny County (1989) – Freestanding display of nativity scene on courthouse steps ruled an impermissible endorsement of religion. But upheld display of menorah along with Christmas tree and a sign stating that it was a “Salute to Liberty.” 5 votes for the endorsement test. The Ten Commandments  McCreary County (2005) – Kentucky courthouse display of Ten Commandments o O’Connor joined the majority in striking this display down, despite her general deference to state accommodation of religion. Refuses to go along with the fiction that religious monuments do not necessarily endorse religion. o DISSENT: J. Scalia also recognizes that posting the 10 Commandments endorses religion. Only an endorsement of bibilical monothesism generally, non-sectarian. Nothing wrong with non-sectarian endorsement of religious monotheisim. Acceptable to endorse the Bible. Has been done so throughout U.S. history.  Court seems to have moved away from the “wink and nod” endorsement case in which defenders of religious symbols on government property. Both sides openly admitted that 10 Commandments are religious.  Van Orden v. Perry (2005) – Ten Commandments monument on the territory of the Texas State Capitol. o Rehnquist writes an opinion upholding this display. Grudgingly applies the Lemon test, but finds there was a secular purpose to the monument: recognizing the religious background of our laws. o Breyer switches and this display is upheld. Rationale apparently based on the fact that when the monument was erected it was not done in a context that exacerbated religious divisiveness in our culture.  Questioning Breyer’s divisiveness distinction o Doesn’t seem to believe in any particular test, but in “legal judgment.” Weak? o Creates a rule that any 10 Commandment monuments long erected may stay, but any placed w/in the past few years during which this has become a divisive issue must be taken down and no more new ones can be placed! Odd rationale that probably will not stand the test of time. Government Funding of Religion – Subsidizing certain expenses associate with private religious education.  Provision of pubic transportation to private, parochial schools.  Everson v. Bd. of Educ. (1947) – NJ statute authorized school district to make provisions for school transportation, including for private school students. State reimbursed parents of private school parents for the bus fare they pay to send their kids to that religious school.

60 o Majority focuses on the neutrality of the law. Applies equally to students of religious and public schools. Funding provided though generally applicable programs w/ a secular purpose not paid directly to the religious institution seems to be acceptable. o “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they many be called, or whatever form they may adopt to teach or practice religion.” . How does this busing reimbursement not violate this rule?  No as extreme as it seems: Taken to its logical end, such a prohibition would not permit the state to fund the fire department or police department services as they apply to the church.  Taking it that far would single out religion and likely violate the Free Exercise clause and a patently discriminatory law. o Problem is that there are two fundamental religion clause principles articulated in this case, and they seem to run counter to each other: . Neutrality towards religion. Cannot unfairly discriminate on the basis of religion. . Separation of church and state. No state funding for religion.  Tax deductions for parochial education costs  Mueller v. Allen (1983) – MN provided a tax deduction for educational expenses including o Upheld the tax deduction. Justified on the change in society. Threat of religious takeover of the political process and religious strife are not longer significant. o Because money is fungible, the practical effect is that government money is going to fund religious education. o Autonomy and personal choice – Difference is that if the government gives money directly to the school, the govt is purposely funding religion. By giving it to citizens, the choice is made by a private intervening actor. Govt only facilitates that choice on neutral terms.  The Court has vacillated irrationally between the neutrality and no funding principle. For about 50 years the decisions have fluctuated between (1) no funding, and (2) neutrality principles. o State can loan books, but not projectors. o Can pay to bus kids to religious schools, but not on field trips. o State can reimburse for mandatory state-created tests, but not mandatory teacher-created tests.  Third prong of Lemon test. o Obviously concerned about having too much religion in government. o BUT ALSO the “entanglement” prong aims to protect against too much Preeminence of Neutrality Principle.  Over the past 12 years, the Court has moved significantly in the direction of consistently adopting the neutrality principle. Before no funding won out more often than it lost. No more. The neutrality principle has substantially won out.  Examples of application of neutrality principle during the Rehnquist Court. o UVA can make student group funds to religious groups even where the money is openly religious in nature and proselytizes. Gave money direct to the printer, not to the religious group. o Mitchell v. Helms (2000) – Government money can be used to provide computers to religious schools.  Zelman v. Simmons-Harris (2002) – Cleveland school district adopted a school voucher program that permitted residents to use government funds to send their kids to either a public or private school. The vast majority of the private schools are religious. o Essentially applies the Lemon test. No religious purpose: secular purpose of the law was to provide choice to students in the decrepit Cleveland article. No real entanglement problem, the voucher funders and the religious schools. o Thus the focus in on the “effect” prong of the test. Majority claims the effect of the law is neutral. Government is not supporting religion. It is just giving public funds for education to citizens who then make their own choices. Matters not that many choose to used the vouchers in private, parochial schools. o DISSENT: Souter focuses on the no funding principle. This is government tax money being used to pay religious instruction. Claims that the neutrality the court relies up is a mirage: 97% use the voucher funds to send their kids to religious schools. 2/3 of the parents did not agree with the religion the private school

61 taught – the non-religious private schools were much more expensive, the voucher did not come near to covering the cost – so the one option to escape the Cleveland public schools was to go to a religious school!

PLAY IN THE JOINTS BETWEEN FREE EXERCISE AND ESTABLISHMENT

 Locke v. Davey (2004) – Washington constitution affirmatively prohibits the use of public funds for religious purposes. State had an education grant program – Promise Scholarship Program – for gifted students. Permitted recipients to use the $$ to attend any college, but not to study devotional theology. o Upheld exclusion of that particularly religious study as consistent with Free Exercise Clause. o “There are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Gray area where state can exclude religion or act neutrally at its discretion.  Why doesn’t it violate FE? Generally unconstitutional for a law to facially discriminate against religion. o Scalia & Thomas in dissent believe it does. o Doesn’t discriminate against religion within the meaning of the FE Clause. . For facial discrimination of FE: must impose a civil or criminal penalty on the practice of religion, not just refrain from conferring a benefit. . Two conflicting religion clauses – countervailing force of the EC?  But even if a law does not facially discriminate, SS is applied if the purpose is to discriminate. o Intention of the Washington constitution and previous SCOTUS no funding rulings are not about punishing religion. Enacted to protect religion from the government. Anti-entanglement. o Goal is freedom of religion and conscious from state interference. Acceptable purpose.  Better reading of the opinion: Law facially discriminates, so should apply SS. But this law survives SS because the state has a compelling interest in safeguarding religion from government interference and entanglement. But is this narrowly tailored or necessary?

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