Download Questions about state action

Fall 1999
Constitutional Law (Field)
Jordan Schreiber
Table of Contents
I.
BILL OF RIGHTS AND POST-CIVIL WAR AMENDMENTS ..................................................... 1
A.
PRE- AND POST-CIVIL WAR ................................................................................................................. 1
Starting note ................................................................................................................................................ 1
Barron v. Baltimore (US Sup. Ct. 1833) (p.418)......................................................................................... 1
Slaughter-House Cases (US Sup. Ct. 1873) (p.421).................................................................................... 1
Crandall v. Nevada (US Sup. Ct. 1868) (p. 426) ......................................................................................... 1
Bradwell v. Illinois (US Sup. Ct. 1873) ...................................................................................................... 1
Loan Association v. Topeka (US Sup. Ct. 1874) ........................................................................................ 1
B.
INCORPORATION .................................................................................................................................. 2
Palko v. Connecticut (US Sup. Ct. 1937) (p.435) ....................................................................................... 2
Adamson v. California (US Sup. Ct. 1947) (p.436) .................................................................................... 2
Duncan v. Louisiana (US Sup. Ct. 1968) (p.442) ....................................................................................... 2
Notes on incorporation ................................................................................................................................ 2
C.
1.
SUBSTANTIVE DUE PROCESS ............................................................................................................... 3
Lochner Era 1905-1935.................................................................................................................. 3
Calder v. Bull (US Sup. Ct. 1798) (p.455) .................................................................................................. 3
Munn v. Illinois (US Sup. Ct. 1877) (p.458) ............................................................................................... 3
Mugler v. Kansas (US Sup. Ct. 1887) (p.459) ............................................................................................ 3
Allgeyer v. Louisiana (US Sup. Ct. 1897) (p.460) ...................................................................................... 3
Lochner v. New York (US Sup. Ct. 1905) (p.460)...................................................................................... 3
Adair v. United States (US Sup. Ct. 1908) (p.472) ..................................................................................... 4
Muller v. Oregon (US Sup. Ct. 1908) (p.470) ............................................................................................. 4
Bunting v. Oregon (US Sup. Ct. 1917) (p.471) ........................................................................................... 4
Coppage v. Kansas (US Sup. Ct. 1915) (p.471) .......................................................................................... 4
Adkins v. Children’s Hospital (US Sup. Ct. 1923) (p.472) ......................................................................... 4
Nebbia v. New York (US Sup. Ct. 1934) (p.474) ....................................................................................... 4
West Coast Hotel Co. v. Parrish (US Sup. Ct. 1937) .................................................................................. 5
Notes on post-Lochner decline of economic substantive due process ......................................................... 5
Olsen v. Nebraska (US Sup. Ct. 1941) (p.480) ........................................................................................... 5
United States v. Carolene Products Co. (US Sup. Ct. 1938) (p.478) (See also p.644) ................................ 5
Ferguson v. Skrupa (US Sup. Ct. 1963) (p.480) ......................................................................................... 5
Williamson v. Lee Optical Co. (US Sup. Ct. 1955) (p.481) ........................................................................ 5
Note on deference to legislative judgment .................................................................................................. 5
2.
Revival of substantive due process ................................................................................................. 6
a)
b)
c)
Getting to Roe ............................................................................................................................................. 6
Meyer v. Nebraska (US Sup. Ct. 1923) (p.516) .......................................................................................... 6
Pierce v. Society of Sisters (US Sup. Ct. 1925) (p.517) .............................................................................. 6
Griswold v. Connecticut (US Sup. Ct. 1965) (p.518).................................................................................. 6
Eisenstadt v. Baird (US Sup. Ct. 1972) (p.528) .......................................................................................... 7
Abortion ...................................................................................................................................................... 7
Roe v. Wade (US Sup. Ct. 1973) (p.530) .................................................................................................... 7
Doe v. Bolton (US Sup. Ct. 1973) (p.537) .................................................................................................. 8
Akron v. Akron Center for Rep. Health (Akron I) (US Sup. Ct. 1983) (p.546) .......................................... 8
Thornburgh v. American Coll. Of Obst. & Gyn. (US Sup. Ct. 1986) (p.547) ............................................. 8
Planned Parenthood of Central Missouri v. Danforth (US Sup. Ct. 1976) (p.548) ..................................... 8
Bellotti v. Baird (Bellotti I) (US Sup. Ct. 1976) (p.548) ............................................................................. 8
Bellotti v. Baird (Bellotti II) (US Sup. Ct. 1979) (p.549) ............................................................................ 8
Akron v. Akron Center for Rep. Health (Akron II) (US Sup. Ct. 1990) (p.549) ......................................... 8
Maher v. Roe (US Sup. Ct. 1977) (p.550) ................................................................................................... 8
Harris v. McRae (US Sup. Ct. 1980) (p.551) .............................................................................................. 9
Rust v. Sullivan (US Sup. Ct. 1991) (p.553) ............................................................................................... 9
Carey v. Population Services International (US Sup. Ct. 1977) (p.554) ..................................................... 9
Webster v. Reproductive Health Services (US Sup. Ct. 1989) (p.555) ....................................................... 9
Planned Parenthood of Southeastern Pa. v. Casey (US Sup. Ct. 1992) (p.557) .......................................... 9
Other privacy cases ................................................................................................................................... 11
Moore v. East Cleveland (US Sup. Ct. 1977) (p.584) ............................................................................... 11
Belle Terre v. Boraas (US Sup. Ct. 1974) (p.587) .................................................................................... 11
Fall 1999
d)
D.
1.
Constitutional Law (Field)
Page 2
Zablocki v. Redhail (US Sup. Ct. 1978) (p.587) ....................................................................................... 11
Michael H. v. Gerald D. (US Sup. Ct. 1989) (p.590) ................................................................................ 11
Bowers v. Hardwick (US Sup. Ct. 1986) (p.593) ...................................................................................... 12
Kelley v. Johnson (US Sup. Ct. 1976) (p.599) .......................................................................................... 12
Youngberg v. Romeo (US Sup. Ct. 1982) (p.600) .................................................................................... 12
Whalen v. Roe (US Sup. Ct. 1977) (p.601) ............................................................................................... 12
Roberts v. United States Jaycees (US Sup. Ct. 1984) (p.601) ................................................................... 12
Right to die ............................................................................................................................................... 13
Cruzan v. Director, Missouri Dept. of Health (US Sup. Ct. 1990) (p.602) ............................................... 13
Washington v. Glucksberg (US Sup. Ct. 1997) (supp. p.52)..................................................................... 13
Vacco v. Quill (US Sup. Ct. 1997) (supp. p.63) ........................................................................................ 13
EQUAL PROTECTION ...........................................................................................................................14
Rationality .....................................................................................................................................14
a)
b)
c)
2.
Early cases ................................................................................................................................................ 14
F.S. Royster Guano Co. v. Virginia (US Sup. Ct. 1920) (p.636) .............................................................. 14
Lindsley v. Natural Carbonic Gas (US Sup. Ct. 1911) (p.636) ................................................................. 14
Railway Express Agency v. New York (US Sup. Ct. 1949) (p.639) ......................................................... 14
Skinner v. Oklahoma (US Sup. Ct. 1942) (p.517)..................................................................................... 14
Warren Court approach ............................................................................................................................. 14
Williamson v. Lee Optical Co. (US Sup. Ct. 1955) (p.642) ...................................................................... 14
McGowan v. Maryland (US Sup. Ct. 1961) (p.642) ................................................................................. 15
McDonald v. Board of Election Commissioners (US Sup. Ct. 1969) (p.642) ........................................... 15
Post-Warren Court .................................................................................................................................... 15
Notes on rationality ................................................................................................................................... 15
U.S. Dept. of Agriculture v. Moreno (US Sup. Ct. 1973) (p.648) ............................................................. 15
New Orleans v. Dukes (US Sup. Ct. 1976) (p.649) .................................................................................. 15
Massachusetts Bd. of Retirement v. Murgia (US Sup. Ct. 1976) (p.649).................................................. 15
U.S. Railroad Retirement Bd. v. Fritz (US Sup. Ct. 1980) (p.653) ........................................................... 16
Schweiker v. Wilson (US Sup. Ct. 1981) (p.657) ..................................................................................... 16
Logan v. Zimmerman Brush Co. (US Sup. Ct. 1982) (p.658) ................................................................... 16
Allegheny Pittsburgh Coal v. Webster County (US Sup. Ct. 1989) (p.659) ............................................. 16
Nordlinger v. Hahn (US Sup. Ct. 1992) (p.660) ....................................................................................... 16
FCC v. Beach Communications (US Sup. Ct. 1993) (p.661) .................................................................... 16
Suspect classifications ...................................................................................................................16
a)
Race .......................................................................................................................................................... 16
Strauder v. West (US Sup. Ct. 1880) (p.663) ............................................................................................ 16
Korematsu v. United States (US Sup. Ct. 1944) (p.664) ........................................................................... 17
McLaughlin v. Florida (US Sup. Ct. 1964) (p.669) .................................................................................. 17
Loving v. Virginia (US Sup. Ct. 1967) (p.667) ......................................................................................... 17
Palmore v. Sidoti (US Sup. Ct. 1984) (p.669) ........................................................................................... 17
Plessy v. Ferguson (US Sup. Ct. 1896) (p.671)......................................................................................... 17
Brown v. Board of Education (Brown I) (US Sup. Ct. 1954) (p.673) ....................................................... 17
Bolling v. Sharpe (US Sup. Ct. 1954) (p.677)........................................................................................... 18
Brown v. Board of Education (Brown II) (US Sup. Ct. 1955) (p.680) ...................................................... 18
Note on “substantive equal protection” ..................................................................................................... 18
b) Gender ...................................................................................................................................................... 18
i)
Intermediate scrutiny ............................................................................................................................ 18
Reed v. Reed (US Sup. Ct. 1971) (p.683) ................................................................................................. 18
Frontiero v. Richardson (US Sup. Ct. 1973) (p.684) ................................................................................. 18
Craig v. Boren (US Sup. Ct. 1976) (p.686) ............................................................................................... 19
Note on intermediate scrutiny ................................................................................................................... 19
Michael M. v. Superior Court (US Sup. Ct. 1981) (p.690) ....................................................................... 19
Rostker v. Goldberg (US Sup. Ct. 1981) (p.693) ...................................................................................... 19
Miller v. Albright (US Sup. Ct. 1998) (Supp. p.66) .................................................................................. 19
Geduldig v. Aiello (US Sup. Ct. 1974) (p.697) ......................................................................................... 19
Mississippi University for Women v. Hogan (US Sup. Ct. 1982) (p.698) ................................................ 20
Los Angeles Dept. of Water & Power v. Manhart (US Sup. Ct. 1978) (p.701) ........................................ 20
J.E.B. v. Alabama ex rel. T.B. (US Sup. Ct. 1994) (p.702) ....................................................................... 20
United States v. Virginia (US Sup. Ct. 1996) (p.704) ............................................................................... 20
ii) Benign gender classifications ............................................................................................................... 21
Kahn v. Shevin (US Sup. Ct. 1974) (p.716) .............................................................................................. 21
Orr v. Orr (US Sup. Ct. 1979) (p.717) ...................................................................................................... 21
Fall 1999
Constitutional Law (Field)
Page 3
Weinberger v. Wiesenfeld (US Sup. Ct. 1975) (p.717) ............................................................................. 21
Califano v. Goldfarb (US Sup. Ct. 1977) (p.718) ..................................................................................... 21
Wengler v. Druggists Mutual Ins. Co. (US Sup. Ct. 1980) (p.719)........................................................... 21
Note on benign discrimination .................................................................................................................. 21
3.
Other classifications ......................................................................................................................21
a)
b)
c)
d)
Alienage .................................................................................................................................................... 21
Graham v. Richardson (US Sup. Ct. 1971) (p.720)................................................................................... 21
Sugarman v. Dougall (US Sup. Ct. 1973) (p.721)..................................................................................... 21
Foley v. Connelie (US Sup. Ct. 1978) (p.722) .......................................................................................... 22
Ambach v. Norwick (US Sup. Ct. 1979) (p.722) ...................................................................................... 22
Bernal v. Fainter (US Sup. Ct. 1984) (p.723) ............................................................................................ 22
Toll v. Moreno (US Sup. Ct. 1982) (p.723) .............................................................................................. 22
Hampton v. Mow Sun Wong (US Sup. Ct. 1976) (p.724)......................................................................... 22
Nonmarital children .................................................................................................................................. 22
Levy v. Louisiana (US Sup. Ct. 1968) (p.725) .......................................................................................... 22
Trimble v. Gordon (US Sup. Ct. 1977) (p.726)......................................................................................... 22
Clark v. Jeter (US Sup. Ct. 1988) (p.728) ................................................................................................. 22
Other categories: disabilities, wealth ........................................................................................................ 23
Cleburne v. Cleburne Living Center, Inc. (US Sup. Ct. 1985) (p.728) ..................................................... 23
James v. Valtierra (US Sup. Ct. 1971) (p.736).......................................................................................... 23
Sexual orientation ..................................................................................................................................... 23
Romers v. Evans (US Sup. Ct. 1996) (p.737) ........................................................................................... 23
The “purposeful discrimination” requirement ..............................................................................24
4.
a)
b)
c)
5.
Purpose v. effect ....................................................................................................................................... 24
Yick Wo v. Hopkins (US Sup. Ct. 1886) (p.750)...................................................................................... 24
Palmer v. Thompson (US Sup. Ct. 1971) (p.751) ..................................................................................... 24
Griggs v. Duke Power Co. (US Sup. Ct. 1971) (p.753) ............................................................................ 24
Washington v. Davis (US Sup. Ct. 1976) (p.755) ..................................................................................... 25
Arlington Heights v. Metropolitan Housing Corp. (US Sup. Ct. 1977) (p.759) ........................................ 25
Personnel Administrator of Mass. v. Feeney (US Sup. Ct. 1979) (p.761) ................................................. 25
Rogers v. Lodge (US Sup. Ct. 1982) (p.764) ............................................................................................ 25
Hunter v. Underwood (US Sup. Ct. 1985) (p.770) .................................................................................... 26
De jure v. de facto (desegregation) ........................................................................................................... 26
Green v. County School Board (US Sup. Ct. 1968) (p.773) ..................................................................... 26
Swann v. Charlotte-Mecklenburg Board of Education (US Sup. Ct. 1971) (p.775) .................................. 26
Keyes v. School District (US Sup. Ct. 1973) (p.776) ................................................................................ 26
Pasadena City Bd. of Educ. v. Spangler (US Sup. Ct. 1976) (p.776) ........................................................ 27
Columbus Board of Education v. Penick (US Sup. Ct. 1979) (p.777) ...................................................... 27
Dayton Board of Education v. Brinkman (Dayton II) (US Sup. Ct. 1979) (p.777) ................................... 27
Milliken v. Bradley (US Sup. Ct. 1974) (p.784) ....................................................................................... 27
Missouri v. Jenkins (US Sup. Ct. 1990) (p.786) ....................................................................................... 27
Board of Ed. of Oklahoma City v. Dowell (US Sup. Ct. 1991) (p.786) .................................................... 27
Note on the desegregation cases ............................................................................................................... 27
Restructuring the political process ............................................................................................................ 28
Hunter v. Erickson (US Sup. Ct. 1969) (p.790) ........................................................................................ 28
Washington v. Seattle School Dist. (US Sup. Ct. 1982) (p.790) ............................................................... 28
Crawford v. Los Angeles Board of Education (US Sup. Ct. 1982) (p.792) .............................................. 28
Affirmative action and related programs.......................................................................................28
Note on affirmative action ........................................................................................................................ 28
Regents of Univ. of California v. Bakke (US Sup. Ct. 1978) (p.795) ....................................................... 28
Hopwood v. Texas (5th Cir. 1996) (p.809) ............................................................................................... 29
Wygan v. Jackson Board of Education (US Sup. Ct. 1986) (p.810).......................................................... 29
Fullilove v. Klutznick (US Sup. Ct. 1980) (p.812) ................................................................................... 29
Richmond v. J.A. Croson Co. (US Sup. Ct. 1989) (p.814) ....................................................................... 29
Metro Broadcasting, Inc. v. FCC (US Sup. Ct. 1990) (p.828) .................................................................. 30
Adarand Constructors, Inc. v. Pena (US Sup. Ct. 1995) (p.830) ............................................................... 30
Affirmative action law today .................................................................................................................... 30
6.
Fundamental rights........................................................................................................................31
a)
b)
General notes on fundamental rights ......................................................................................................... 31
Vote dilution ............................................................................................................................................. 31
Reynolds v. Sims (US Sup. Ct. 1964) (p.866)........................................................................................... 31
Modern approach ...................................................................................................................................... 32
Fall 1999
c)
d)
e)
f)
g)
E.
1.
Constitutional Law (Field)
Page 4
San Antonio Independent School Dist. v. Rodriguez (US Sup. Ct. 1973) (p.842) .................................... 32
Plyler v. Doe (US Sup. Ct. 1982) (p.850) ................................................................................................. 32
Wealth and voting rights ........................................................................................................................... 32
Harper v. Virginia State Board of Elections (US Sup. Ct. 1966) (p.858) .................................................. 33
Kramer v. Union Free School District No. 15 (US Sup. Ct. 1969) (p.860) ............................................... 33
Race-conscious redistricting ..................................................................................................................... 33
Davis v. Bandemer (US Sup. Ct. 1986) (p.875) ........................................................................................ 33
Shaw v. Reno (Shaw I) (US Sup. Ct. 1993) (p.880).................................................................................. 34
Miller v. Johnson (US Sup. Ct. 1995) (p.887)........................................................................................... 34
Shaw v. Hunt (Shaw II) (US Sup. Ct. 1996) (p.889) ................................................................................. 34
Bush v. Vera (US Sup. Ct. 1996) (p.889).................................................................................................. 34
Access to the courts .................................................................................................................................. 34
Griffin v. Illinois (US Sup. Ct. 1956) (p.896) ........................................................................................... 34
Douglas v. California (US Sup. Ct. 1963) (p.897) .................................................................................... 34
Questions on Griffin and Douglas............................................................................................................. 35
Ross v. Moffitt (US Sup. Ct. 1974) (p.898) .............................................................................................. 35
Boddie v. Connecticut (US Sup. Ct. 1971) (p.899) ................................................................................... 35
Lassiter v. Department of Social Services (US Sup. Ct. 1981) (p.901) ..................................................... 35
M.L.B. v. S.L.J. (US Sup. Ct. 1996) (Supp. p.71) ..................................................................................... 35
Interstate travel/migration ......................................................................................................................... 35
Shapiro v. Thompson (US Sup. Ct. 1969) (p.901) .................................................................................... 35
Memorial Hospital v. Maricopa County (US Sup. Ct. 1974) (p.906) ........................................................ 36
Sosna v. Iowa (US Sup. Ct. 1975) (p.907) ................................................................................................ 36
Zobel v. Williams (US Sup. Ct. 1982) (p.908) .......................................................................................... 36
Saenz v. Roe (US Sup. Ct. 1999) (Supp. p.76) ......................................................................................... 36
Economic inequalities ............................................................................................................................... 37
Dandridge v. Williams (US Sup. Ct. 1970) (p.912) .................................................................................. 37
Irrebuttable presumption reasoning ........................................................................................................... 37
STATE ACTION ...................................................................................................................................37
Action.............................................................................................................................................37
Civil Rights Cases (US Sup. Ct. 1883) (p.921) ......................................................................................... 37
DeShaney v. Winnebago Cty. Soc. Servs. Dept. (US Sup. Ct. 1989) (p.960) ........................................... 37
2.
State ...............................................................................................................................................38
a)
b)
c)
Marsh v. Alabama (US Sup. Ct. 1946) (p.928) ......................................................................................... 38
White primary cases .................................................................................................................................. 38
Nixon v. Herndon (US Sup. Ct. 1927) (p.934).......................................................................................... 38
Nixon v. Condon (US Sup. Ct. 1932) (p.934) ........................................................................................... 38
Smith v. Allwright (US Sup. Ct. 1944) (p.935)......................................................................................... 38
Terry v. Adams (US Sup. Ct. 1953) (p.935) ............................................................................................. 38
State involvement ..................................................................................................................................... 38
Shelly v. Kraemer (US Sup. Ct. 1948) (p.936) ......................................................................................... 38
Burton v. Wilmington Parking Authority (US Sup. Ct. 1961) (p.942) ...................................................... 39
Moose Lodge No. 107 v. Irvis (US Sup. Ct. 1972) (p.947)....................................................................... 39
State encouragement ................................................................................................................................. 39
Jackson v. Metropolitan Edison Co. (US Sup. Ct. 1974) (pp.931 and 952) .............................................. 39
Flagg Bros., Inc. v. Brooks (US Sup. Ct. 1978) (pp.932 and 954) ............................................................ 39
II. FEDERAL POWERS ..........................................................................................................................39
A.
1.
JUDICIAL POWER ................................................................................................................................39
Judicial Review ..............................................................................................................................39
Marbury v. Madison (US Sup. Ct. 1803) (p.3) .......................................................................................... 39
Justifications for judicial review ............................................................................................................... 40
2.
Standing .........................................................................................................................................40
Warth v. Seldin (US Sup. Ct. 1975) (p.30) ............................................................................................... 41
Allen v. Wright (US Sup. Ct. 1984) (p.36) ............................................................................................... 41
United States v. Richardson (US Sup. Ct. 1974) (p.37) ............................................................................ 41
Schlesinger v. Reservists Committee to Stop the War (US Sup. Ct. 1974) (p.37) .................................... 41
FEC v. Akins (US Sup. Ct. 1998) (Supp. p.2)........................................................................................... 41
Raines v. Byrd (US Sup. Ct. 1997) (Supp. p.3)......................................................................................... 42
3.
Political questions .........................................................................................................................42
Baker v. Carr (US Sup. Ct. 1962) (p.47) ................................................................................................... 42
Fall 1999
Constitutional Law (Field)
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Powell v. McCormack (US Sup. Ct. 1969) (p.53)..................................................................................... 42
Goldwater v. Carter (US Sup. Ct. 1979) (p.53) ......................................................................................... 42
Nixon v. United States (US Sup. Ct. 1993) (p.54) .................................................................................... 42
B.
1.
LEGISLATIVE POWER ..........................................................................................................................43
Introduction ...................................................................................................................................43
McCulloch v. Maryland (US Sup. Ct. 1819) (p.89) .................................................................................. 43
US Term Limits, Inc. v. Thornton (US Sup. Ct. 1995) (p.115) ................................................................. 43
2.
Commerce power ...........................................................................................................................44
a)
b)
3.
Congressional authority ............................................................................................................................ 44
Gibbons v. Ogden (US Sup. Ct. 1824) (p.159) ......................................................................................... 44
Champion v. Ames (The Lottery Case) (US Sup. Ct. 1903) (p.169) ......................................................... 44
The Shreveport Rate Case (US Sup. Ct. 1914) (p.167) ............................................................................. 44
Hammer v. Dagenhart (The Child Labor Case) (US Sup. Ct. 1918) (p.173) ............................................ 44
NLRB v. Jones & Laughlin Steel Corp. (US Sup. Ct. 1937) (p.185) ........................................................ 44
Wickard v. Filburn (US Sup. Ct. 1942) (p.189) ........................................................................................ 44
United States v. Darby (US Sup. Ct. 1941) (p.191) .................................................................................. 44
Heart of Atlanta Motel v. United States (US Sup. Ct. 1964) (p.203) ........................................................ 45
Katzenbach v. McClung (US Sup. Ct. 1964) (p.203) ................................................................................ 45
United States v. Lopez (US Sup. Ct. 1995) (p.142) .................................................................................. 45
Notes on Commerce Clause ...................................................................................................................... 45
Federalism-based limits ............................................................................................................................ 46
Maryland v. Wirtz (US Sup. Ct. 1968) (p.207) ......................................................................................... 46
National League of Cities v. Usery (US Sup. Ct. 1976) (p.207) ............................................................... 46
Hodel v. Virginia Surface Min. & Recl. Ass’n (US Sup. Ct. 1981) (p.208) ............................................. 46
FERC v. Mississippi (US Sup. Ct. 1982) (p.209) ..................................................................................... 46
Garcia v. San Antonio Metropolitan Transit Authority (US Sup. Ct. 1985) (p.209) ................................. 47
New York v. United States (US Sup. Ct. 1992) (p.212) ............................................................................ 47
Printz v. United States (US Sup. Ct. 1997) (Supp. p.11) ........................................................................... 47
Spending power .............................................................................................................................47
United States v. Butler (US Sup. Ct. 1936) (p.235) .................................................................................. 48
Charles C. Steward Machine Co. v. Davis (US Sup. Ct. 1937) (p.241) .................................................... 48
South Dakota v. Dole (US Sup. Ct. 1987) (p.244) .................................................................................... 48
4.
Enforcement of civil rights.............................................................................................................48
Katzenbach v. Morgan (US Sup. Ct. 1966) (p.998) .................................................................................. 48
City of Boerne v. Flores (US Sup. Ct. 1997) (Supp. p.82) ........................................................................ 48
C.
EXECUTIVE POWER ............................................................................................................................49
Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure) (US Sup. Ct. 1952) (p.356) ........................... 49
Dames Moore v. Regan (US Sup. Ct. 1981) (p.367) ................................................................................ 49
United States v. Nixon (US Sup. Ct. 1974) (p.404) .................................................................................. 49
Nixon v. Fitzgerald (US Sup. Ct. 1982) (p.408) ....................................................................................... 49
Clinton v. Jones (US Sup. Ct. 1997) (Supp. p.40)..................................................................................... 50
D.
SEPARATION OF POWERS ....................................................................................................................50
INS v. Chadha (US Sup. Ct. 1983) (p.375) ............................................................................................... 50
Clinton v. New York (US Sup. Ct. 1998) (Supp. p.33) ............................................................................. 50
E.
1.
FEDERAL LIMITS ON STATE POWER ...................................................................................................51
“Dormant” Commerce Clause ......................................................................................................51
Gibbons v. Ogden (US Sup. Ct. 1824) (p.159) ......................................................................................... 51
Philadelphia v. New Jersey (US Sup. Ct. 1978) (p.271) ........................................................................... 51
Dean Milk Co. v. Madison (US Sup. Ct. 1951) (p.281) ............................................................................ 51
Baldwin v. Seelig (US Sup. Ct. 1935) (p.287) .......................................................................................... 52
Hunt v. Washington State Apple Advertising Comm’n (US Sup. Ct. 1977) (p.289) ................................ 52
Pike v. Bruce Church, Inc. (US Sup. Ct. 1970) (p.297) ............................................................................ 52
Kassel v. Consolidated Freightways Corp. (US Sup. Ct. 1981) (p.306) .................................................... 52
Exxon Corp. v. Governor of Maryland (US Sup. Ct. 1978) (p.314) ......................................................... 52
Minnesota v. Clover Leaf Creamery Co. (US Sup. Ct. 1981) (p.315)....................................................... 53
South-Central Timber Development, Inc. v. Wunnicke (US Sup. Ct. 1984) (p.323) ................................ 53
2.
Interstate privileges and immunities ..............................................................................................53
United Bldg & Construction Trades Council v. Camden (US Sup. Ct. 1984) (p.329) .............................. 53
Supreme Court of New Hampshire v. Piper (US Sup. Ct. 1985) (p.334) .................................................. 53
III.
FIRST AMENDMENT ...................................................................................................................54
Fall 1999
A.
Constitutional Law (Field)
Page 6
SPEECH...............................................................................................................................................54
First Amendment hornbook ...................................................................................................................... 54
1.
Different kinds of speech ...............................................................................................................54
a)
Clear and present danger ........................................................................................................................... 54
Schenck v. United States (US Sup. Ct. 1919) (p.1036) ............................................................................. 54
Frohwerk v. United States (US Sup. Ct. 1919) (p.1037) ........................................................................... 54
Debs v. United States (US Sup. Ct. 1919) (p.1038) .................................................................................. 55
Abrams v. United States (US Sup. Ct. 1919) (p.1040) .............................................................................. 55
Masses Publishing Co. v. Patten (SDNY 1917) (p.1046) ......................................................................... 55
Gitlow v. New York (US Sup. Ct. 1925) (p.1050) .................................................................................... 55
Whitney v. California (US Sup. Ct. 1927) (p.1054) .................................................................................. 55
Yates v. United States (US Sup. Ct. 1957) (p.1068) ................................................................................. 55
Scales v. United States (US Sup. Ct. 1961) (p.1068) ................................................................................ 55
Noto v. United States (US Sup. Ct. 1967) (p.1069) .................................................................................. 55
Bond v. Floyd (US Sup. Ct. 1966) (p.1070).............................................................................................. 56
Brandenburg v. Ohio (US Sup. Ct. 1969) (p.1071) ................................................................................... 56
NAACP v. Clairborne Hardware Co. (US Sup. Ct. 1982) (p.1074) .......................................................... 56
b) Fighting words, hostile audiences and hate speech ................................................................................... 56
Cantwell v. Connecticut (US Sup. Ct. 1940) (p.1076) .............................................................................. 56
Chaplinsky v. New Hampshire (US Sup. Ct. 1942) (p.1077) .................................................................... 56
Cohen v. California (US Sup. Ct. 1971) (p.1081) ..................................................................................... 57
Feiner v. New York (US Sup. Ct. 1951) (p.1086) ..................................................................................... 57
Gregory v. Chicago (US Sup. Ct. 1969) (p.1089) ..................................................................................... 57
Kunz v. New York (US Sup. Ct. 1951) (p.1090) ...................................................................................... 57
R.A.V. v. City of St. Paul (US Sup. Ct. 1992) (p.1115) ............................................................................ 57
Wisconsin v. Mitchell (US Sup. Ct. 1993) (p.1123) ................................................................................. 58
c) Libel .......................................................................................................................................................... 58
New York Times Co. v. Sullivan (US Sup. Ct. 1964) (p.1094) ................................................................ 58
Curtis Publishing Co. v. Butts and AP v. Walker (US Sup. Ct. 1967) (p.1100) ........................................ 58
Gertz v. Robert Welch, Inc. (US Sup. Ct. 1974) (p.1102)......................................................................... 58
Dun & Bradstreet, Inc. v. Greenmoss Builders (US Sup. Ct. 1985) (p.1103) ........................................... 59
Hustler Magazine v. Falwell (US Sup. Ct. 1988) (p.1105) ....................................................................... 59
Time, Inc. v. Hill (US Sup. Ct. 1967) (p.1107) ......................................................................................... 59
Cox Broadcasting Corp. v. Cohn (US Sup. Ct. 1975) (p.1108)................................................................. 59
Zacchini v. Scripps-Howard Broadcasting Co. (US Sup. Ct. 1977) (p.1109) ........................................... 59
d) Sexually explicit speech ............................................................................................................................ 59
i) Obscenity ................................................................................................................................................... 59
Roth v. United States and Alberts v. California (US Sup. Ct. 1957) (p.1126) .......................................... 59
Miller v. California (US Sup. Ct. 1973) (p.1132) ..................................................................................... 59
Paris Adult Theatre I v. Slaton (US Sup. Ct. 1973) (p.1135) .................................................................... 59
ii) Pornography.............................................................................................................................................. 60
New York v. Ferber (US Sup. Ct. 1982) (p.1145) .................................................................................... 60
Osborne v. Ohio (US Sup. Ct. 1990) (p.1148) .......................................................................................... 60
American Booksellers Ass’n v. Hudnut (7th Cir. 1986) (p.1151) ............................................................. 60
Erznoznik v. Jacksonville (US Sup. Ct. 1975) (p.1156) ............................................................................ 60
Schad v. Mount Ephraim (US Sup. Ct. 1981) (p.1158) ............................................................................. 60
Young v. American Mini Theatres (US Sup. Ct. 1976) (p.1159) .............................................................. 61
Renton v. Playtime Theatres, Inc. (US Sup. Ct. 1986) (p.1162) ............................................................... 61
FCC v. Pacifica Foundation (US Sup. Ct. 1978) (p.1164) ........................................................................ 61
Denver Area Educational Telecommunications Consortium v. FCC (US Sup. Ct. 1996) (p.1171) .......... 61
Reno v. American Civil Liberties Union (US Sup. Ct. 1997) (Supp. p.92)............................................... 61
e) Commercial speech ................................................................................................................................... 62
Central Hudson Gas v. Public Service Comm’n (US Sup. Ct. 1980) (p.1189) ......................................... 62
44 Liquormart, Inc. v. Rhode Island (US Sup. Ct. 1996) (p.1198) ........................................................... 63
Greater New Orleans Broadcasting Ass’n v. US (US Sup. Ct. 1999) (Supp. p.102) ................................. 63
Glickman v. Wileman Bros. (US Sup. Ct. 1997) (Supp. p.104) ................................................................ 63
2.
Modes of abridgement ...................................................................................................................63
a)
b)
Targeting content ...................................................................................................................................... 63
United States v. O’Brien (US Sup. Ct. 1968) (p.1213) ............................................................................. 63
Texas v. Johnson (US Sup. Ct. 1989) (p.1221) ......................................................................................... 64
Barnes v. Glen Theatre, Inc. (US Sup. Ct. 1991) (p.1231) ........................................................................ 64
Prohibiting speech in public forums.......................................................................................................... 64
Fall 1999
c)
d)
3.
Constitutional Law (Field)
Page 7
Cox v. New Hampshire (US Sup. Ct. 1941) (p.1238) ............................................................................... 65
Schneider v. State (US Sup. Ct. 1939) (p.1239)........................................................................................ 65
Kovacs v. Cooper (US Sup. Ct. 1949) (p.1241) ........................................................................................ 65
City of Ladue v. Gilleo (US Sup. Ct. 1994) (p.1243)................................................................................ 65
Cox v. Louisiana (US Sup. Ct. 1965) (p.1245) ......................................................................................... 65
Heffron v. ISKCON (US Sup. Ct. 1981) (p.1245) .................................................................................... 65
Metromedia, Inc. v. San Diego (US Sup. Ct. 1981) (p.1248) ................................................................... 65
Members of City Council v. Taxpayers for Vincent (US Sup. Ct. 1984) (p.1249) ................................... 66
Clark v. Community for Creative Non-Violence (US Sup. Ct. 1984) (p.1254) ........................................ 66
Ward v. Rock Against Racism (US Sup. Ct. 1989) (p.1260) .................................................................... 66
Frisby v. Schultz (US Sup. Ct. 1988) (p.1261) ......................................................................................... 66
Madsen v. Women’s Health Center, Inc. (US Sup. Ct. 1994) (p.1263) .................................................... 66
United States v. Grace (US Sup. Ct. 1983) (p.1266) ................................................................................. 66
Schenck v. Pro-Choice Network of Western NY (US Sup. Ct. 1997) (Supp. p.106) ................................ 66
Arkansas Educational TV Comm’n v. Forbes (US Sup. Ct. 1998) (Supp. p.107) ..................................... 67
Brown v. Louisiana (US Sup. Ct. 1966) (p.1268) ..................................................................................... 67
Adderley v. Florida (US Sup. Ct. 1966) (p.1269) ..................................................................................... 67
Grayned v. Rockford (US Sup. Ct. 1972) (p.1271) ................................................................................... 67
Lehman v. Shaker Heights (US Sup. Ct. 1974) (p.1272) .......................................................................... 67
Southeastern Promotions, Ltd. v. Conrad (US Sup. Ct. 1975) (p.1273) .................................................... 68
ISKCON v. Lee and Lee v. ISKCON (US Sup. Ct. 1992) (p.1283).......................................................... 68
Widmar v. Vincent (US Sup. Ct. 1981) (p.1289) ...................................................................................... 68
Lamb’s Chapel v. Center Moriches Union Free School Dist. (US Sup. Ct. 1993) (p.1290) ..................... 68
Capitol Square Review Board v. Pinette (US Sup. Ct. 1995) (p.1291) ..................................................... 68
Amalgamated Food Employees v. Logan Valley Plaza (US Sup. Ct. 1968) (p.1292) .............................. 68
Lloyd Corp. v. Tanner (US Sup. Ct. 1972) (p.1292) ................................................................................. 68
Hudgens v. NLRB (US Sup. Ct. 1976) (p.1293) ....................................................................................... 69
Limited purpose forums: Government as educator, as proprietor ............................................................. 69
Tinker v. Des Moines Indep. Community School Dist. (US Sup. Ct. 1969) (p.1293)............................... 69
Board of Education v. Pico (US Sup. Ct. 1982) (p.1295) ......................................................................... 69
Bethel School Dist. No. 403 v. Fraser (US Sup. Ct. 1986) (p.1299) ......................................................... 69
Hazelwood School District v. Kuhlmeier (US Sup. Ct. 1988) (p.1300) .................................................... 69
Speech subsidized by public funds............................................................................................................ 69
Speiser v. Randall (US Sup. Ct. 1958) (p.1318) ....................................................................................... 69
Regan v. Taxation with Representation of Washington (US Sup. Ct. 1983) (p.1319) .............................. 70
FCC v. League of Women Voters (US Sup. Ct. 1984) (p.1320) ............................................................... 70
Rust v. Sullivan (US Sup. Ct. 1991) (p.1321) ........................................................................................... 70
Rosenberger v. Rector and Visitors of UVI (US Sup. Ct. 1995) (p.1324) ................................................ 70
NEA v. Finley (US Sup. Ct. 1998) (Supp. p.109) ..................................................................................... 70
The special role of the press ..........................................................................................................70
First National Bank of Boston v. Bellotti (US Sup. Ct. 1978) (p.1421) .................................................... 70
Branzburg v. Hayes (US Sup. Ct. 1972) (p.1434) ..................................................................................... 71
Cohen v. Cowles Media Co. (US Sup. Ct. 1991) (p.1447)........................................................................ 71
Red Lion Broadcasting Co. v. FCC (US Sup. Ct. 1969) (p.1450) ............................................................. 71
CBS, Inc. v. Democratic National Committee (US Sup. Ct. 1973) (p.1453) ............................................ 71
CBS, Inc. v. FCC (US Sup. Ct. 1981) (p.1454) ........................................................................................ 71
FCC v. League of Women Voters (US Sup. Ct. 1984) (p.1454) ............................................................... 71
Turner Broadcasting v. FCC (Turner I) (US Sup. Ct. 1994) (p.1455) ....................................................... 71
Denver Area Educational Telecommunications Consortium v. FCC (US Sup. Ct. 1996) (p.1456) .......... 71
Arkansas Ed’l Television Comm’n v. Forbes (US Sup. Ct. 1998) (Supp. p.117) ..................................... 72
4.
Right not to speak, freedom of association, right not to associate ................................................72
Minersville School Dist. v. Gobitis (US Sup. Ct. 1940) (p.1362) ............................................................. 72
West Virginia v. State Bd. Of Educ. v. Barnette (US Sup. Ct. 1943) (p.1362) ......................................... 72
Wooley v. Maynard (US Sup. Ct. 1977) (p.1363)..................................................................................... 72
Talley v. California (US Sup. Ct. 1960) (p.1363) ..................................................................................... 72
McIntyre v. Ohio Elections Commission (US Sup. Ct. 1995) (p.1364) .................................................... 72
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (US Sup. Ct. 1995) (p.1371) ..... 72
Abood v. Detroit Board of Educ. (US Sup. Ct. 1977) (p.1397) ................................................................ 72
Roberts v. United States Jaycees (US Sup. Ct. 1984) (p.1399) ................................................................. 73
Board of Directors of Rotary Int’l v. Rotary Club (US Sup. Ct. 1987) (p.1400)....................................... 73
Glickman v. Wileman Bros. (US Sup. Ct. 1997) (Supp. p.114) ................................................................ 73
5.
Overbreadth, vagueness and prior restraint ..................................................................................73
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Constitutional Law (Field)
Page 8
a)
Overbreadth .............................................................................................................................................. 73
General notes on overbreadth.................................................................................................................... 73
Broadrick v. Oklahoma (US Sup. Ct. 1973) (p.1329) ............................................................................... 73
New York v. Ferber (US Sup. Ct. 1982) (p.1331) .................................................................................... 74
Brockett v. Spokane Arcades, Inc. (US Sup. Ct. 1985) (p.1332) .............................................................. 74
Schaumburg v. Citizens for Better Environment (US Sup. Ct. 1980) (p.1333) ......................................... 74
Massachusetts v. Oakes (US Sup. Ct. 1989) (p.1334) ............................................................................... 74
Osborne v. Ohio (US Sup. Ct. 1990) (p.1335) .......................................................................................... 74
b) Vagueness ................................................................................................................................................. 74
Test for vagueness..................................................................................................................................... 74
Coates v. Cincinnati (US Sup. Ct. 1971) (p.1338) .................................................................................... 74
c) Prior restraint ............................................................................................................................................ 74
i) Licensing.................................................................................................................................................... 75
Lovell v. Griffin (US Sup. Ct. 1938) (p.1340) .......................................................................................... 75
Lakewood v. Plain Dealer Publishing Co. (US Sup. Ct. 1988) (p.1340) ................................................... 75
Freedman v. Maryland (US Sup. Ct. 1965) (p.1342) ................................................................................ 75
Poulos v. New Hampshire (US Sup. Ct. 1953) (p.1343) ........................................................................... 75
Kingsley Books, Inc. v. Brown (US Sup. Ct. 1957) (p.1344) ................................................................... 75
ii) Injunctions ................................................................................................................................................ 75
Near v. Minnesota (US Sup. Ct. 1931) (p.1345) ....................................................................................... 75
iii) National security ...................................................................................................................................... 75
New York Times Co. v. US (Pentagon Papers Case) (US Sup. Ct. 1971) (p.1349) .................................. 75
iv) Fair trial ................................................................................................................................................... 76
Nebraska Press Ass’n v. Stuart (US Sup. Ct. 1976) (p.1357) ................................................................... 76
B.
1.
RELIGION ...........................................................................................................................................76
Establishment Clause ....................................................................................................................76
Lemon v. Kurtzman (US Sup. Ct. 1971) (p.1501) .................................................................................... 76
McCollum v. Board of Education (US Sup. Ct. 1948) (p.1501) ............................................................... 76
Zorach v. Clauson (US Sup. Ct. 1952) (p.1502) ....................................................................................... 76
Lee v. Weisman (US Sup. Ct. 1992) (p.1507)........................................................................................... 76
Edwards v. Aguillard (US Sup. Ct. 1987) (p.1515) .................................................................................. 76
McGowan v. Maryland (US Sup. Ct. 1961) (p.1519) ............................................................................... 77
Marsh v. Chambers (US Sup. Ct. 1983) (p.1519) ..................................................................................... 77
Lynch v. Donnelly (US Sup. Ct. 1984) (p.1521)....................................................................................... 77
Allegheny County v. ACLU (US Sup. Ct. 1989) (p.1526)........................................................................ 77
Capitol Square Review Board v. Pinette (US Sup. Ct. 1995) (p.1528) ..................................................... 77
Everson v. Board of Education (US Sup. Ct. 1947) (p.1532 and p.1462) ................................................. 77
Mueller v. Allen (US Sup. Ct. 1983) (p.1535) .......................................................................................... 77
Aguilar v. Felton (US Sup. Ct. 1985) (p.1541) ......................................................................................... 78
Tilton v. Richardson (US Sup. Ct. 1971) (p.1542) .................................................................................... 78
Roemer v. Maryland Public Works Bd. (US Sup. Ct. 1976) (p.1542) ...................................................... 78
Walz v. Tax Comm’n (US Sup. Ct. 1970) (p.1543) .................................................................................. 78
Witters v. Washington Dept. of Services for Blind (US Sup. Ct. 1986) (p.1544) ..................................... 78
Bowen v. Kendrick (US Sup. Ct. 1988) (p.1544) ..................................................................................... 78
Zobrest v. Catalina Foothills School Dist. (US Sup. Ct. 1993) (p.1545) ................................................... 78
Agostini v. Felton (US Sup. Ct. 1997) (Supp. p.122)................................................................................ 79
2.
Overview of religion clauses .........................................................................................................79
Wallace v. Jaffree (US Sup. Ct. 1985) (p.1464) ........................................................................................ 79
United States v. Seeger (US Sup. Ct. 1965) (p.1468) ............................................................................... 79
Welsh v. United States (US Sup. Ct. 1970) (p.1468) ................................................................................ 79
Gillette v. United States (US Sup. Ct. 1971) (p.1469) .............................................................................. 79
United States v. Ballard (US Sup. Ct. 1944) (p.1470)............................................................................... 80
3.
Free Exercise Clause .....................................................................................................................80
Torcaso v. Watkins (US Sup. Ct. 1961) (p.1471) ..................................................................................... 80
McDaniel v. Paty (US Sup. Ct. 1978) (p.1472)......................................................................................... 80
Church of Lukumi Babalu Aye v. City of Hialeah (US Sup. Ct. 1993) (p.1472) ...................................... 80
Reynolds v. United States (US Sup. Ct. 1878) (p.1477) ........................................................................... 80
Prince v. Massachusetts (US Sup. Ct. 1944) (p.1478) .............................................................................. 80
Braunfeld v. Brown (US Sup. Ct. 1961) (p.1478) ..................................................................................... 80
Sherbert v. Verner (US Sup. Ct. 1963) (p.1479) ....................................................................................... 80
Thomas v. Review Board (US Sup. Ct. 1981) (p.1481) ............................................................................ 81
Wisconsin v. Yoder (US Sup. Ct. 1972) (p.1482) ..................................................................................... 81
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Constitutional Law (Field)
Page 9
United States v. Lee (US Sup. Ct. 1982) (p.1484) .................................................................................... 81
Bob Jones University v. United States (US Sup. Ct. 1983) (p.1484) ........................................................ 81
Goldman v. Weinberger (US Sup. Ct. 1986) (p.1485) .............................................................................. 81
O’Lone v. Estate of Shabazz (US Sup. Ct. 1987) (p.1486) ....................................................................... 81
Bowen v. Roy (US Sup. Ct. 1986) (p.1486).............................................................................................. 81
Lyng v. Northwest Indian Cemetery Protective Ass’n (US Sup. Ct. 1988) (p.1487) ................................ 81
Employment Division v. Smith (US Sup. Ct. 1990) (p.1489) ................................................................... 81
Religious Freedom Restoration Act of 1993 (p.1499) .............................................................................. 82
City of Boerne v. Flores (US Sup. Ct. 1997) (Supp. p.120 and Supp. p.82) (see above) .......................... 82
Fall 1999
I.
Constitutional Law (Field)
Jordan Schreiber
Bill of Rights and Post-Civil War Amendments
A. Pre- and post-Civil War
Starting note
Federal government powers are those listed in the Constitution and none others. State
government powers are all powers except those denied them by the Constitution.
Barron v. Baltimore (US Sup. Ct. 1833) (p.418)
MARSHALL’s opinion holds that Fifth Amendment takings clause applies only to
the federal government and not to the states. State had diverted streams and destroyed
Barron’s wharf. Marshall says question is “of great importance, but not of much
difficulty.” He notes “history of the day”: the Bill of Rights was adopted out of fear
of federal, not state, power. Also notes that art. I §§ 9 and 10 distinguish between
limitations on federal and state power, implying framers of Fifth Amendment would
have been explicit had they intended to limit states.
Slaughter-House Cases (US Sup. Ct. 1873) (p.421)
MILLER’s opinion holds that the Fourteenth Amendment’s privileges and
immunities clause (§ 1) applies only to privileges of federal citizenship, not of state
citizenship. Louisiana law granted a slaughterhouse monopoly, and other butchers
sued. Court notes “history of the times”: “one pervading purpose” of Fourteenth
Amendment was to redress evils of slavery. Court doubts Equal Protection clause will
ever apply to non-blacks. Court observes distinction between state and federal
citizenship in first sentence of § 1. State privileges and immunities are those that are
“fundamental” (see art. IV, § 2 which prevents states from discriminating against
citizens of other states); they are determined by the state and any protection must be
offered by the state alone. Court fears nationalizing civil rights and becoming a
“perpetual censor upon all legislation of the States.” Court declines to define federal
privileges and immunities beyond a short list (including many Bill of Rights
protections). FIELD’s dissent argues that the majority interpretation makes the P&I
clause “a vain and idle enactment, which accomplished [nothing],” because states
already were prohibited from infringing on what this court now defines as the
privileges of US citizenship. BRADLEY’s dissent relies on due process and equal
protection clauses. Result: the privileges and immunities clause is dead and the
distortion of the Due Process clause must now begin.
Crandall v. Nevada (US Sup. Ct. 1868) (p. 426)
Cited in Slaughter-House Cases, this pre-Fourteenth Amendment case prohibited
states from taxing movement of people across state boundaries. The opinion offers a
catalogue of federal privileges and immunities.
Bradwell v. Illinois (US Sup. Ct. 1873)
Decided shortly after Slaughter-House, case holds that Illinois may prohibit women
from practicing law. Dissenters in Slaughter-House end up contorting themselves to
talk about women’s frailty and the Creator’s intention for them to be mothers.
Loan Association v. Topeka (US Sup. Ct. 1874)
Court strikes down a tax on manufacturers(?), saying it violates the freedom that all
people reserve from their governments (natural law or social contract rationale).
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Constitutional Law (Field)
Page 2
Doesn’t cite the Constitution. This is an early example of the trend to strike down
restrictive economic legislation but not social legislation (even though 14th
Amendment was designed to deal with race, not economics).
B. Incorporation
Palko v. Connecticut (US Sup. Ct. 1937) (p.435)
CARDOZO’s opinion holds that the Fifth Amendment’s double jeopardy clause does
not apply to the states through the Fourteenth Amendment. The Fourteenth
Amendment protects rights that are “of the very essence of a scheme of ordered
liberty” (“implicit in the concept of ordered liberty”).
Adamson v. California (US Sup. Ct. 1947) (p.436)
REED’s opinion cites Palko and holds that Fifth Amendment’s self-incrimination
clause (specifically prosecutor’s inability to comment on defendant’s failure to
testify) does not apply to the states through the Fourteenth Amendment. BLACK’s
dissent includes lengthy appendix arguing that original purpose of Fourteenth
Amendment was full incorporation of the first eight Amendments in the Bill of
Rights. He prefers this specificity to the subjective “natural law” approach of Palko,
which he calls an “incongruous excrescence on our Constitution.”
FRANKFURTER’s concurrence rejects total incorporation and insists that the Due
Process clause has “independent potency” and is not limited by the first eight
Amendments. Surely, he observes, Due Process did not mean one thing in the Fifth
Amendment and another in the Fourteenth. (Black later notes in Duncan that his total
incorporation position is based on the entire Fourteenth Amendment, not just the Due
Process clause.) Echoing Palko, Frankfurter would look to whether the challenged
procedures “offend those canons of decency and fairness which express the notions of
justice of English-speaking peoples….” He also insists on deference to state
legislatures.
Duncan v. Louisiana (US Sup. Ct. 1968) (p.442)
WHITE’s opinion applies the Sixth Amendment’s jury requirement to the states
through the Fourteenth Amendment, holding that “trial by jury in criminal cases is
fundamental to the American scheme of justice….” Doesn’t hold that jury trial is
necessary in all systems, but in America—where no alternative protection has been
devised—it’s essential. BLACK concurs, defends his Adamson appendix on the
Fourteenth Amendment, objects to the “fundamental fairness” and “shocks the
conscience” tests, but expresses satisfaction that he’s getting the result he wanted.
FORTAS concurs (“influenced by the Sixth Amendment”) but doesn’t feel all Sixth
Amendment jurisprudence also should be applied to the states (for example, 12member jury and unanimous verdict requirements) because it inflicts “serious blow
upon the principle of federalism.” HARLAN dissents, preferring not to put a
“constitutional straitjacket” on the Fourteenth Amendment by limiting it to the Bill of
Rights. He sees the Bill of Rights as mere evidence of the content Americans have
given at certain times to the word “liberty.” Also urges court to look at specific case
to see whether it violates fundamental fairness, rather than establishing blanket rule
incorporating Sixth Amendment.
Notes on incorporation
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Constitutional Law (Field)
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(1) Though Frankfurter’s “selective incorporation” logic won, Black basically got the
result he wanted. Nearly all provisions of the first eight amendments have now
been incorporated. Exceptions: Second, Third and Seventh Amendments, and
grand jury indictment provision of Fifth Amendment.
(2) Four dominant positions on incorporation: (a) Frankfurter-Cardozo (“fundamental
rights”), (b) Black (total incorporation), (c) Murphy-Routledge (incorporation
plus fundamental rights), (d) Slaughter-House (neither fundamental rights nor
incorporation). Really, the Murphy-Routledge position seems to have held sway.
(3) “Bag-and-baggage” approach won, with all federal jurisprudence on Bill of
Rights being incorporated into Fourteenth Amendment along with the Bill of
Rights themselves. (Harlan worried in Duncan that this could result in diluting
federal protections, as did in fact happen in Williams v. Florida (1970) (p.450)
when Court decided 12-person jury wasn’t required after all; and in Apodaca v.
Oregon (1972) (p.451), when a unanimous jury verdict was held unnecessary. In
Burch v. Louisiana (1979) (p.452), though, even Rehnquist drew the line and
prohibited a nonunanimous six-member jury in nonpetty criminal trials.)
C. Substantive Due Process
1. Lochner Era 1905-1935
Calder v. Bull (US Sup. Ct. 1798) (p.455)
CHASE’s opinion entertains natural law arguments although it ultimately refuses to
strike down a state ex post facto law. IRIDELL’s dicta rejects natural law and says a
legislature may do anything within the scope of its constitutional power.
Munn v. Illinois (US Sup. Ct. 1877) (p.458)
WAITE’s opinion upholds state regulation of grain elevator rates, allowing state
exercise of policy power in the public interest.
Mugler v. Kansas (US Sup. Ct. 1887) (p.459)
HARLAN’s opinion sustained a state law prohibiting intoxicating beverages but
stated that the court was obligated “to look at the substance of things” without merely
accepting legislature’s stated rationale for its actions.
Allgeyer v. Louisiana (US Sup. Ct. 1897) (p.460)
PECKHAM’s opinion for the first time invalidates a state law on substantive due
process grounds. Louisiana insurance regulation is held to infringe on “liberty of
contract.”
Lochner v. New York (US Sup. Ct. 1905) (p.460)
PECKHAM’s opinion invalidates a state law regulating working hours of bakery
employees, on “right of contract” grounds (based, presumably, on Fourteenth
Amendment due process “liberty”). State police power is limited to “safety, health,
morals and general welfare.” Court evaluates the bakery law as a “health” law but
holds that it’s not a legitimate means of achieving that end. Bakers are not “wards of
the state” and there’s nothing particularly unsafe about their job. Court doubts health
is real motive for law and holds that the state shouldn’t limit the hours “in which
grown and intelligent men may labor to earn their living.” Treats both employers and
Fall 1999
Constitutional Law (Field)
Page 4
employees equally (“sui juris”) in the contract-making process. HARLAN dissents,
taking judicial notice of studies demonstrating health risks to bakers and saying that
as long as there is “room for debate and for an honest difference of opinion” the Court
shouldn’t invalidate the law. HOLMES’ dissent notes, “The 14th Amendment does
not enact Mr. Herbert Spencer’s Social Statics.” He adds that “a constitution is not
intended to embody a particular economic theory, whether of paternalism and the
organic relation of the citizen to the State or of laissez faire.”
Criticisms of Lochner
(1) “Liberty” only means freedom from physical restraint
(2) Due Process is only procedural
(3) Even if there are some substantive protections in the Due Process clause, freedom
of contract is not one of them
(4) State is justified in overriding freedom of contract in circumstances such as
Lochner (see Harlan’s dissent) – Lochner court substituted its own view of the
facts for the legislature’s factual findings
(5) Even if the legislature got the facts and means wrong, it’s not for the courts to say
(see Holmes’ dissent)
Adair v. United States (US Sup. Ct. 1908) (p.472)
HARLAN’s opinion strikes down federal law against “yellow dog” contracts on
railroads, based on Fifth Amendment substantive due process.
Muller v. Oregon (US Sup. Ct. 1908) (p.470)
BREWER’s opinion sustains state law limiting work hours of women, noting that
women need special protection because they’re dependent on men and need to breed
“vigorous offspring.”
Bunting v. Oregon (US Sup. Ct. 1917) (p.471)
Court upholds 10-hour work day for factory workers (male and female alike),
essentially overturning Lochner’s specific holding (but not its philosophy) without
saying so.
Coppage v. Kansas (US Sup. Ct. 1915) (p.471)
PITNEY’s opinion strikes down state law forbidding “yellow dog” contracts, on
substantive due process grounds. Says there “must and will be inequalities of
fortune,” which must be recognized as “legitimate” in a free market. HOLMES’
dissent says legislature has the right to try to “establish the equality of position
between the parties in which liberty of contract begins.”
Adkins v. Children’s Hospital (US Sup. Ct. 1923) (p.472)
SUTHERLAND’s opinion strikes down minimum wage law for women. HOLMES’s
dissent says there’s no difference between minimum wage and the maximum hour
law for women upheld in Muller.
Nebbia v. New York (US Sup. Ct. 1934) (p.474)
ROBERTS’ opinion upholds New York regulation of milk prices, applying this test:
laws satisfy due process if they have “a reasonable relation to a proper legislative
purpose and are neither arbitrary nor discriminatory,” or if they have a “real and
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substantial relation” to a legitimate state purpose. McREYNOLDS’ dissent exalts the
free market and urges inquiry by Court into the end and means of the law.
West Coast Hotel Co. v. Parrish (US Sup. Ct. 1937)
HUGHES’ opinion overrules Adkins, saying Constitution “does not speak of freedom
of contract,” noting weak bargaining power of women, and bemoaning the
“exploitation of a class of workers who are in an unequal position with respect to
bargaining power….”
Notes on post-Lochner decline of economic substantive due process
After re-election in 1936, FDR proposed “court-packing plan” to get more favorable
court. Then Justice Roberts changed his voting pattern (see West Coast Hotel) on
economic substantive due process (“switch in time that saved the nine”).
Olsen v. Nebraska (US Sup. Ct. 1941) (p.480)
DOUGLAS’ opinion sustains state law fixing maximum employment agency fees,
professing, “We are not concerned [with] the wisdom, need or appropriateness of the
legislation.”
United States v. Carolene Products Co. (US Sup. Ct. 1938) (p.478) (See also p.644)
STONE’s opinion evaluates federal regulation of milk on “rational basis” grounds
and upholds it. Even in absence of legislative findings, Court will presume facts
support the basis for the legislation. Opinion includes footnote 4, implying stricter
scrutiny might apply to legislation restricting “political processes” or affecting
“discrete and insular minorities.”
Ferguson v. Skrupa (US Sup. Ct. 1963) (p.480)
BLACK’s opinion sustains Kansas law allowing only lawyers to practice “debt
adjusting.” Echoes Holmes’ Lochner dissent by saying it’s none of the Court’s
business what economic “textbook” the legislature adopts. HARLAN concurs
because the legislation has a “rational relation to a constitutionally permissible
objective.”
Williamson v. Lee Optical Co. (US Sup. Ct. 1955) (p.481)
DOUGLAS’ opinion sustains an Oklahoma law restricting certain practices to
licensed ophthalmologists and optometrists. Court insists on deference to legislature,
saying the law need not be logically consistent with its ends as long as it “might be
thought” (hypothetically, not based on actual evidence) a rational way to address an
evil: “The day is gone when this Court uses the Due Process Clause [to] strike down
state laws, regulatory of business and industrial conditions, because they may be
unwise, improvident, or out of harmony with a particular school of [thought].” So
we’ve come to a “minimal rationality” standard, which doesn’t require a perfect fit
between the legitimate end and the chosen means.
Note on deference to legislative judgment
Legislation examined under “rational basis” scrutiny almost always survives (and
post-Lochner economic legislation is nearly always subjected to this scrutiny).
Legislation examined under “strict scrutiny” almost never does. How can courts
scrutinize legislation without “Lochnerizing”? Maybe by being less willing to
hypothesize legislative objectives and by insisting on some showing of actual
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legislative ends. Maybe by not striking down “an arguably rational law” but instead
requiring “some showing by the State that there was a basis for believing it to be
rational…” (McCloskey, p.483).
2. Revival of substantive due process
a) Getting to Roe
Meyer v. Nebraska (US Sup. Ct. 1923) (p.516)
McREYNOLDS’ opinion voids a law preventing German-language instruction in
schools. Opinion expresses a broad reading of “liberty.”
Pierce v. Society of Sisters (US Sup. Ct. 1925) (p.517)
McREYNOLDS’ opinion voids state law requiring attendance at public schools only.
Opinion says law infringes on liberty of parents to “direct the upbringing and
education” of their children, adding, “The child is not the mere creature of the
State….”
Griswold v. Connecticut (US Sup. Ct. 1965) (p.518)
DOUGLAS’ opinion invalidates state law prohibiting using or providing advice on
contraception. Griswold had advised married couples on contraception use. Douglas
finds right to privacy in the “penumbra” or “emanations” of several Bill of Rights
provisions: First Amendment (“may not contract the spectrum of available
knowledge,” citing Pierce and Meyer; association, citing NAACP v. Alabama and
NAACP v. Button), Third Amendment (quartering of troops), Fourth Amendment
(search and seizures), Fifth Amendment (self-incrimination). Court focuses on the
marital relationship, which Douglas says lies “within the zone of privacy created by
several fundamental constitutional guarantees.” (Douglas was a Black-like total
incorporationist, so he has to struggle to find privacy in the Bill of Rights.)
GOLDBERG concurs, but looks to Ninth Amendment as evidence that “liberty”
encompasses more rights than those enumerated in the first eight amendments. He
says preventing extra-marital sex is a legitimate state objective but the means must be
more “discriminately tailored.” HARLAN concurs on Palko grounds (“implicit in the
concept of ordered liberty”) rather than Due Process or Ninth Amendment ones. He
doesn’t question the end of the legislation, just the means. WHITE concurs, seeing no
good fit between the ends and the means, and not believing the legislation can
possibly be effective anyway. He defines the right to privacy here as the right “to be
free of regulation of the intimacies of the marriage relationship.” BLACK dissents,
decrying “natural justice” and seeing no right to privacy in the Constitution: “I like
my privacy as well as the next one, but I am nevertheless compelled to admit that
government has a right to invade it unless prohibited by some specific constitutional
[provision].” STEWART dissents, rejecting Goldberg’s interpretation of the Ninth
Amendment.
Issues raised by Griswold
(1) To what extent was it a search and seizure case? (Would we allow the police to
search the marital bedrooms to enforce the law?)
(2) Did it depend on the fact that the law prohibited the use of contraceptives rather
than their manufacture or sale?
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(3) Is the holding limited only to married couples? Language of opinion suggests so.
Eisenstadt v. Baird (US Sup. Ct. 1972) (p.528)
BRENNAN’s opinion strikes down a prohibition on manufacturing contraception,
and marital status is not a critical factor in the holding. Purports to decide case on
“rationality” standard, but dicta define privacy right as “the right of the individual,
married or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child”
(emphasis in original). There’s some suggestion that Brennan has an equal protection
objection to extending the right to privacy to married couples but not single people.
This opinion is a crucial stepping-stone to Roe v. Wade. Field: “the opinion is a total
muddle.” (In Carey, the Court later held that minors have a right of access to
contraception.)
b) Abortion
Roe v. Wade (US Sup. Ct. 1973) (p.530)
BLACKMUN’s opinion holds (1) 14th Amendment “fundamental” liberty includes
woman’s right to choose abortion, (2) compelling state interest can justify
infringement of that right if it’s “narrowly drawn,” and state interests here include
health of mother and “potentiality of human life,” (3) “person” in 14th Amendment
does not include fetus, and (4) state’s interest in mother’s health is compelling after
first trimester, and interest in potential human life is compelling after “viability.”
Establishes trimester scheme: No state regulation during first trimester, regulation for
health of mother after first trimester, any regulation (including prohibition) after
viability (i.e., after second trimester). STEWART concurs, interpreting Griswold as a
substantive due process case. DOUGLAS concurs, finding right to choose in Ninth
and First Amendments and Constitution preamble (“blessings of liberty”). WHITE’s
dissent blasts the court’s “exercise of raw judicial power.” REHNQUIST dissents,
preferring rational basis test (Lee Optical) and objecting to substantive due process
here.
Notes on Roe
(1) In practice, in the aftermath of Roe any second-trimester restrictions on abortion
were invalidated, so unregulated choice applied to the first 26 weeks.
(2) See part A of the opinion: None of the justices, concurring or dissenting, argues
that a fetus is a person under the 14th Amendment. Consider effects of such a
position: no “life of the mother” exception, no ability to jail pregnant woman for
shoplifting without probable cause to detain the fetus. (And can state decide that
fetus is child for the purpose of distributing a testator’s assets to his or her
children?)
(3) Part B of the opinion: Court declines to “resolve the difficult question of when life
begins,” but suggests that Texas has no place offering its own resolution of the
issue since there’s such broad disagreement in fields of medicine, philosophy and
theology. But isn’t it the place of the legislature to select from among competing
reasonable positions the one that the majority prefers? The privacy cases suggest
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this is one area where the state can’t impose an orthodoxy. (Around the time of
Roe, Germany found abortion unconstitutional.)
Doe v. Bolton (US Sup. Ct. 1973) (p.537)
BLACKMUN’s opinion in this companion case to Roe invalidates a Georgia abortion
regulation scheme, including striking down a state residency provision on the basis of
the Privileges and Immunities Clause of Art. IV, § 2.
Akron v. Akron Center for Rep. Health (Akron I) (US Sup. Ct. 1983) (p.546)
POWELL’s opinion reiterates Roe trimester system, professing respect for stare
decisis and invalidating Akron abortion regulations. O’CONNOR dissents, preferring
to test regulations on whether they “unduly burden” abortion rights.
Thornburgh v. American Coll. Of Obst. & Gyn. (US Sup. Ct. 1986) (p.547)
BLACKMUN’s opinion affirms Roe despite explicit urging by solicitor general to
overturn it. WHITE dissents on grounds that stare decisis doesn’t apply as strongly in
Constitutional jurisprudence because “corrective legislation” isn’t possible. Also
doesn’t see abortion rights as “implicit in the concept of ordered liberty” (Palko).
O’CONNOR’s dissent again prefers an “undue burden” test.
Planned Parenthood of Central Missouri v. Danforth (US Sup. Ct. 1976) (p.548)
BLACKMUN’s opinion strikes down requirements of spousal and parental consent
for abortion.
Bellotti v. Baird (Bellotti I) (US Sup. Ct. 1976) (p.548)
Court holds that parental consent requirement “unduly burdens” abortion rights.
Bellotti v. Baird (Bellotti II) (US Sup. Ct. 1979) (p.549)
POWELL’s opinion holds that parental consent to abortion may be required only if an
“alternative procedure” is available (judicial bypass).
Akron v. Akron Center for Rep. Health (Akron II) (US Sup. Ct. 1990) (p.549)
Court upholds one-parent consent requirement for abortion, as long as judicial bypass
is available.
Maher v. Roe (US Sup. Ct. 1977) (p.550)
POWELL’s opinion sustains Connecticut regulation providing Medicaid for
childbirth but not for nontherapeutic, medically unnecessary abortion. Court holds
that the fundamental right of Roe isn’t implicated because the state places no
obstacles in the way of abortion, just expresses a preference for childbirth. Under
rational basis analysis, the regulation is constitutional. BRENNAN’s dissent notes
that in practice this regulation will bar impoverished women from having abortions.
MARSHALL’s dissent attacks hypocrisy of claiming to be pro-life but having little
regard for the poor.
Notes on Maher v. Roe
(1) This obviously wasn’t just a budgetary decision, since funding abortions is
cheaper than funding childbirth, so state law here increases costs. Law’s clear
purpose is to discourage abortion.
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(2) Cases striking down health regulations of abortion say, “These aren’t really
health regulations; they’re intended to burden abortion.” Why couldn’t it say the
same thing in these funding cases?
(3) Outcome turns Roe v. Wade into a right not to have abortion be illegal, rather
than a right to have an abortion.
Harris v. McRae (US Sup. Ct. 1980) (p.551)
STEWART’s opinion upholds federal Hyde amendment barring payments for
medically necessary abortions. Reiterating Maher, Court notes that the amendment
leaves women with the same range of choices they would have if Congress subsidized
no health costs at all. Due Process clause does not “confer an entitlement” to federal
funds. BRENNAN’s dissent bemoans “government’s unequal subsidization of
abortion and childbirth.” STEVENS’ dissent distinguishes Maher (in which he was in
the majority) because this regulation doesn’t fund medically necessary abortions.
Rust v. Sullivan (US Sup. Ct. 1991) (p.553)
REHNQUIST’s opinion upholds (against a Fifth Amendment due process attack) a
federal restriction barring abortion counseling by recipients of federal family planning
funds. Repeats Maher and McRae reasoning. Also rejects First Amendment attack on
the infringement on doctor-patient relationship. BLACKMUN’s dissent says the
regulations distort professional medical advice and the Maher approach is “insensitive
and contrary to human experience.” Field: this case goes beyond Maher and McRae
by saying that even if a woman goes with money in hand, she can’t get an abortion at
a public hospital. (Could a state prohibit public school teachers from teaching
evolution on the grounds that it’s not obligated to public schools in the first place?)
Carey v. Population Services International (US Sup. Ct. 1977) (p.554)
BRENNAN’s plurality opinion applies strict scrutiny to laws restricting contraception
access, holding that New York law prohibiting sale or distribution of contraceptives
to minors is not justified by a compelling state interest. Law needs “more than a bare
assertion” that it is properly tailored. WHITE concurs on the grounds that the means
are not shown to be effective. STEVENS concurs because of irrationality of the
means. POWELL concurs because law’s prohibition on parental distribution of
contraceptives to kids infringes on parental liberty to rear their children as they
please.
Webster v. Reproductive Health Services (US Sup. Ct. 1989) (p.555)
REHNQUIST’s opinion upholds ban on state employees performing abortions and on
use of public facilities for abortions (Maher rationale), and viability testing
requirement, which Court sees as rationally related to state’s compelling interest in
potentiality of life. (Court reads law as granting physician discretion, not as requiring
viability tests in all cases—didn’t want to impose intrusive tests when physician
didn’t think they were necessary.) Having dissented in Roe, Rehnquist now criticizes
Roe’s “rigid trimester analysis.” O’CONNOR’s concurrence finds Roe fully
compatible with this case’s outcome and doesn’t see why Rehnquist went after Roe.
BLACKMUN’s dissent criticizes the majority for “silently” overruling Roe. SCALIA
urges that Roe be explicitly overruled.
Planned Parenthood of Southeastern Pa. v. Casey (US Sup. Ct. 1992) (p.557)
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O’CONNOR, KENNEDY and SOUTER’s judgment/opinion (1) purports to uphold
Roe’s “essential holding,” (2) affirms that Due Process “liberty” includes right to
choose abortion (but doesn’t say that this liberty is fundamental), (3) makes a series
of stare decisis arguments in favor of preserving Roe (including a novel reading of
Plessy-Brown and Lochner-West Coast Hotel that sees the repudiations as resulting
from new facts or a new understanding of facts), (4) replaces Roe’s trimester
framework with O’Connor’s pet “undue burden” new test, and (5) applies this new
test to uphold (a) Pennsylvania statute’s definition of medical emergency, (b)
informed consent requirement (including 24-hour waiting period), and (c) parental
consent requirement (with judicial consent), but not (d) the spousal notification
provision. In passing, the Court forgets all its argument about stare decisis and
overrules Akron I and Thornburgh. New “undue burden” test: if a regulation has
“the purpose or effect of placing a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus,” it’s invalid. Otherwise, it’s subject only to a
rationality test. STEVENS concurs in part but dissents from requirement that
physician provide state-sanctioned abortion counseling, and also from 24-hour
waiting period (“appears to rest on outmoded and unacceptable assumptions about the
decision-making capacity of women”). BLACKMUN’s concurrence/dissent defends
Roe (“by restricting the right to terminate pregnancies, the State conscripts women’s
bodies into its service”), preferring the trimester framework to the “undue burden”
test. He criticizes Rehnquist’s “stunted conception of individual liberty” and argues
that the right to abortion is fundamental. REHNQUIST’s concurrence/dissent would
uphold the entire Pennsylvania law based on “historical traditions” and rejecting the
Court’s discussion of stare decisis (including its interpretation of Brown). He dislikes
the “undue burden” test and prefers plain old rationality. SCALIA’s scathing
concurrence/dissent prefers text and tradition, sees no right to abortion in the
Constitution, would uphold the entire Pennysylvania law, finds the “undue burden”
test “inherently standardless” and totally rejects the arguments for stare decisis. He
also argues that Roe, far from bringing the country together over abortion (as the
main opinion suggests), divided it further and made political compromise impossible.
Notes on Casey
(1) Court in Casey preserves Roe holding that absolute prohibition on abortion is
allowed only after viability, but really emphasizes viability rather than the third
trimester. (O’Connor’s opinion suggests Roe is on a collision course with itself
because viability is moving forward. But it actually hasn’t moved into the first
semester.)
(2) Field: If we can’t think of any situation in which we’d honor the parents’
preferences over the child’s, then there’s no justification for the consent
requirement (though notification probably makes more sense than does spousal
notification). On the other hand, spousal consent might actually make more sense
than parental consent.
(3) Inconsistency: with respect to spousal notification, Court says, “Sure, only a few
women will be affected but they’re the ones we should be concerned with.” But
with respect to 24-hour waiting period, it says, “Well, a few women might be
burdened but we can’t just focus on them.” One explanation is that there was a
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factual record on the spousal notification issue but not the 24-hour waiting period.
But Court later refused to review a Mississippi case where such a factual record
did exist.
c) Other privacy cases
Moore v. East Cleveland (US Sup. Ct. 1977) (p.584)
POWELL’s opinion applies stricter than deferential scrutiny to strike down a zoning
law limiting occupancy to a “family,” narrowly defined to exclude extended family.
State ends (preventing overcrowding, etc.) may be legitimate, but the means chosen
“serves them marginally, at best” and is too “intrusive.” Cites Harlan’s dissent in Poe
v. Ullman. BRENNAN concurs, criticizing the ordinance for imposing “white
suburbia’s preference in patterns of family living” on black families. WHITE’s
dissent points out that East Cleveland was governed by black officials and prefers
Palko’s approach to rights over Powell’s “far too expansive” reading of history and
tradition.
Belle Terre v. Boraas (US Sup. Ct. 1974) (p.587)
DOUGLAS’ opinion finds no privacy rights implicated by zoning restriction
excluding unrelated groups. MARSHALL dissents.
Zablocki v. Redhail (US Sup. Ct. 1978) (p.587)
MARSHALL’s opinion invalidates Wisconsin law preventing marriage by people
without court approval if they owe child support, and court approval required proof
that the child would not become a “public charge.” Court holds that “right to marry”
is fundamental and any “significant” interference with that right demands “critical
examination.” Restriction can survive only if it “is supported by sufficiently
important state interests and is closely tailored to effectuate only those interests.”
POWELL’s concurrence worries that the Court sweeps “too broadly” and opens the
door to striking down bans on “incest, bigamy and homosexuality.” He prefers the
intermediate scrutiny he articulated in Craig v. Boren. STEVENS doesn’t mind
restraints on right to marry (consider incestuous marriage) but criticizes this
discrimination against the poor on Equal Protection grounds. STEWART’s
concurrence relies solely on substantive due process. REHNQUIST dissents alone,
preferring the Lee Optical presumption of validity.
Michael H. v. Gerald D. (US Sup. Ct. 1989) (p.590)
SCALIA’s opinion upholds a California law establishing a presumption that a child
born to a married couple is that child of that couple. A man claiming to be the child’s
father (from an extramarital affair with the mother) was denied visitation rights
despite a blood test strongly suggesting his paternity. Looking to tradition for the
contours of rights, Scalia (in a footnote) prefers the “most specific” level of
generality, holding that the sanctity of the “unitary family” is traditionally protected,
so that outweighs any more general right the putative father might have. O’CONNOR
concurs except with respect to that footnote. BRENNAN’s dissent argues that
tradition is “as malleable ad as elusive as ‘liberty’ itself” and says Scalia’s approach
is too restrictive for a “capacious” document like the Constitution. He also notes real
world changes (blood tests, less stigma on illegitimacy) that undermine Scalia’s
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tradition argument. WHITE dissents because the putative father should have had a
hearing to establish his paternity.
Bowers v. Hardwick (US Sup. Ct. 1986) (p.593)
WHITE’s opinion upholds Georgia’s sodomy law as applied to homosexuals,
refusing to consider whether it’s constitutional more generally (i.e., as applied to
heterosexuals). Court views question as whether homosexuals have a “fundamental
right…to engage in sodomy,” and sees no such right implicit in other privacy cases
(which are all about “family, marriage or procreation”). History and tradition also
offer no support for such a right. And Stanley v. Georgia’s protection of possessing
pornography in the home is “firmly grounded in the First Amendment”—“otherwise
illegal conduct is not always immunized whenever it occurs in the home.” Finally,
Court holds under “rationality” test that law is a permissible attempt to legislate
morality. BURGER concurs, looking at “ancient roots” of homophobia. POWELL
concurs, but suggests sodomy law may sometimes raise Eighth Amendment problems
because it has a 20-year possible penalty. BLACKMUN dissents eloquently, saying
case is about individual right to control intimate associations. (It’s “no more about a
‘fundamental right to engage in homosexual sodomy’” than Stanley was about “a
fundamental right to watch obscene movies.”) He objects to Court’s equation of
“private, consensual sexual activity” with other possessing drugs or guns in the home,
and says Stanley didn’t just rest on the First Amendment. And he says secular
legislation must be justified by something other than “conformity to religious
doctrine.” STEVENS dissents, saying history and tradition aren’t sacrosanct—
consider miscegenation laws. And he objects to Georgia’s selective application of its
law (against homosexuals but not heterosexuals) since it’s not based on neutral
criteria but instead on “a habitual dislike for, or ignorance about, the disfavored
group.” Field: This case is plainly sex discrimination (see Loving v. Virginia below)
since it upholds anti-sodomy laws for homosexuals but apparently not for
heterosexuals, which makes the crime depend on the gender of the sexual partner.
Kelley v. Johnson (US Sup. Ct. 1976) (p.599)
REHNQUIST’s opinion applies the Lee Optical deferential standard and upholds
regulation of policeman’s hair length. MARSHALL’s dissent says the regulation is
irrational.
Youngberg v. Romeo (US Sup. Ct. 1982) (p.600)
POWELL’s opinion holds that mentally retarded people who are involuntarily
committed do have some substantive due process rights (safety and liberty of
movement) but no right to training or “habilitation.” BLACKMUN’s concurrence
argues that institution should at least be required to help the patient maintain
whatever skills he or she had upon commitment.
Whalen v. Roe (US Sup. Ct. 1977) (p.601)
STEVENS’ opinion for unanimous Court holds that a state database of patients
prescribed certain drugs does not implicate any privacy right. Court says prior privacy
cases recognize (1) interest in avoiding disclosure of personal matters and (2) interest
in independently making certain important decisions.
Roberts v. United States Jaycees (US Sup. Ct. 1984) (p.601)
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BRENNAN’s opinion recognizes two types of “freedom of association”: expressive
and intimate association. These freedoms apply to associations distinguished by
“relative smallness, a high degree of selectivity…and seclusion from others in critical
aspects of the relationship.” Court holds that the Jaycees do not have these
characteristics and so are not constitutionally insulated from Minnesota civil rights
law banning sex discrimination in public accommodations.
d) Right to die
Cruzan v. Director, Missouri Dept. of Health (US Sup. Ct. 1990) (p.602)
REHNQUIST’s opinion affirms the Missouri Supreme Court holding that Nancy
Cruzan’s parents had failed to show by clear and convincing evidence that she would
have wanted to die rather than remain in a persistent vegetative state. But Court’s
crucial dicta assumes that Constitution provides a competent person with a liberty
interest in refusing unwanted medical treatment. Problem here is that Cruzan is not
competent, and the Court holds that nothing in the Constitution forbids Missouri from
requiring that her wishes be proven by clear and convincing evidence before
removing life support: a third-party’s substituted judgment is allowable but since
death is irreversible the state is allowed to be cautious. O’CONNOR’s concurrence
suggests that the Constitution may require states to honor powers of attorney.
SCALIA’s concurrence says the federal government should stay out of this issue, and
rejects the active/passive euthanasia distinction. BRENNAN’s dissent argues that
Cruzan has a fundamental right to be free of unwanted care and the state has no
countervailing interest that outweighs it. Says too few people write living wills for the
Court to require one as proof of their wishes. STEVENS also dissents: However
“commendable may be the State’s interest in human life, it cannot pursue that interest
by appropriating Nancy Cruzan’s life as a symbol for its own purposes.”
Washington v. Glucksberg (US Sup. Ct. 1997) (supp. p.52)
REHNQUIST’s opinion upholds Washington’s prohibition against assisted suicide.
Court is unwilling to expand substantive due process to include a right to commit
suicide, when history is replete with laws against suicide. Held: Suicide is not a
fundamental interest, and the prohibition on assisted suicide is rationally-related to
several legitimate state interests—preserving human life, promoting public health
(treating mental health problems that lead to suicide), maintaining “integrity and
ethics of the medical profession,” protecting vulnerable groups from subtle coercion,
and preventing a snowball towards “voluntary and perhaps even involuntary
euthanasia.” STEVENS concurs but emphasizes that state interest in preserving life is
diminished when the person is terminally ill and the only issue is how and when to
die—and Cruzan recognized individual’s interest in controlling “manner and timing”
of one’s death.
Vacco v. Quill (US Sup. Ct. 1997) (supp. p.63)
REHNQUIST’s opinion upholds a New York law permitting patients to refuse
lifesaving medical care but prohibiting assisted suicide. Distinguishing between
assisted suicide and withdrawal of care does not violate Equal Protection:
“everyone…is entitled, if competent, to refuse unwanted lifesaving medical
treatment; no one is permitted to assist a suicide.” The distinction is rational.
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(Aggressive palliative care that “may hasten a patient’s death” is also distinct from
assisted suicide, because “the physician’s purpose and intent is, or may be, only to
ease his patient’s pain.) STEVENS’ concurrence notes that the distinction may not
always be so clear and suggests an as-applied challenge may someday succeed. (In a
footnote, Rehnquist agreed with Stevens on this point but said any such challenge
would have to make “considerably stronger arguments” than the ones in this case.)
Question: Is this line (between active and passive assisted suicide) so arbitrary as to
be exposed to an equal protection attack by someone desiring active euthanasia?
D. Equal protection
1. Rationality
a) Early cases
F.S. Royster Guano Co. v. Virginia (US Sup. Ct. 1920) (p.636)
Court establishes slightly tough rationality standard: “classification must be
reasonable, not arbitrary, and must rest upon some ground of difference having a fair
and substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike.”
Lindsley v. Natural Carbonic Gas (US Sup. Ct. 1911) (p.636)
Court articulates highly deferential rationality standard: “if any state of facts
reasonably can be conceived that would sustain it the existence of that state of facts at
the time the law was enacted must be assumed.”
Railway Express Agency v. New York (US Sup. Ct. 1949) (p.639)
DOUGLAS’ opinion in this classic economic equal protection “mere rationality” case
upholds a New York regulation prohibiting advertising on vehicles unless the
advertising is connected with the vehicle owners’ business. Applying an extremely
deferential standard, the Court hypothesizes the legislature’s purpose and rejects the
under-inclusiveness argument: “It is no requirement of equal protection that all evils
of the same genus be eradicated or none at all.” JACKSON concurs, although he
prefers equal protection to substantive due process because due process “leaves
ungoverned and ungovernable conduct which many people find unobjectionable,”
while equal protection just requires a regulation to have a “broader impact.”
Skinner v. Oklahoma (US Sup. Ct. 1942) (p.517)
DOUGLAS’ opinion invalidates forced sterilization of third-time “moral turpitude”
felons. Case is decided on due process “fundamental right to procreate” grounds, but
equal protection argument would mean all third-time felons have to be sterilized, not
just those committing certain offenses.
b) Warren Court approach
Williamson v. Lee Optical Co. (US Sup. Ct. 1955) (p.642)
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DOUGLAS’ opinion (discussed above under due process) endorses the “one step at a
time” approach, holding that the legislature need not address all evils at once in order
to comply with equal protection.
McGowan v. Maryland (US Sup. Ct. 1961) (p.642)
WARREN’s opinion sustains Sunday closing laws that exempt certain businesses:
law will be upheld “if any state of facts reasonably may be conceived to justify it.”
McDonald v. Board of Election Commissioners (US Sup. Ct. 1969) (p.642)
WARREN’s opinion upholds denial of absentee ballots to jail inmates awaiting trial,
saying equal protection violation will be found only if there’s no relation between the
ends and means and no grounds can be found to justify the legislation—but
presumption of constitutionality applies even if “source materials usually resorted to”
for determining legislative intent “are silent.” Also cites Lee Optical’s one-step-at-atime approach (Illinois is in the process of extending absentee ballots to everyone, but
hasn’t reached inmates yet). Field: Truth is Court wanted to avoid Cook County
corruption in jails.
c) Post-Warren Court
Notes on rationality
Though Gunther and Sullivan suggest that “mere rationality” is a thing of the past,
Field argues that it still persists in the area of “economic and social” legislation.
How to tighten rationality scrutiny? Maybe look at actual purpose rather than any
conceivable purpose.
U.S. Dept. of Agriculture v. Moreno (US Sup. Ct. 1973) (p.648)
BRENNAN’s opinion strikes down federal food stamp program’s limitation of
benefits to households of related persons. (At issue is equal protection component of
Fifth Amendment’s due process clause.) Brennan doesn’t see any rationality here at
all (Field notes that he looks only at one purpose of the legislation—improving
nutrition—rather than other possible purposes that would—like helping families—
that would justify this distinction). Court also dislikes the end: “a bare congressional
desire to harm a politically unpopular group [hippies] cannot constitute a legitimate
governmental interest.”
New Orleans v. Dukes (US Sup. Ct. 1976) (p.649)
Court overrules Morey v. Doud (1957), which had stricken down a regulatory scheme
that exempted American Express by name, on equal protection grounds. The Court
now generally rejects Morey v. Doud, though it’s not clear that it was the wrong
decision: the regulation could more rationally have exempted all companies with
certain characteristics (even if AmEx was the only one with those characteristics).
Massachusetts Bd. of Retirement v. Murgia (US Sup. Ct. 1976) (p.649)
Court sustains mandatory retirement age for police officers, noting that perfect
congruency between means and ends is unnecessary. MARSHALL’s dissent attacks
the rigid two-tier method of equal protection scrutiny, preferring a “sliding scale”
analysis which is what he says the Court does in practice anyway.
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U.S. Railroad Retirement Bd. v. Fritz (US Sup. Ct. 1980) (p.653)
REHNQUIST’s opinion upholds law ending dual benefit system for railroad retirees
but grandfathering in some classes of employees. Applying deferential rationality
review, Rehnquist writes that “the plain language of [the law] marks the beginning
and end of our inquiry.” Since Congress could have eliminated benefits for everyone,
it’s allowed to phase them out (see Lee Optical’s step-at-a-time approach). Court
hypothesizes justifications for the discrimination and notes that it is “constitutionally
irrelevant whether this reason in fact underlay the legislative decision.” STEVENS
concurs though he sympathizes with Brennan’s criticism of the “mere tautological
recognition of the fact that Congress did what it intended to do.” BRENNAN
dissents, seeing no connection between Congress’ stated purpose and the
classification, and preferring a “rationality with bite” (Gunther) approach that would
look at the “actual legitimate governmental purpose.”
Schweiker v. Wilson (US Sup. Ct. 1981) (p.657)
BLACKMUN’s opinion upholds denial of federal “comfort allowances” to needy
people in institutions that didn’t receive federal Medicaid funds. Echoes Fritz but
with a much narrower (5-4) majority. POWELL dissents, despite voting with majority
in Fritz, disapproving of “post hoc hypotheses about legislative purpose, unsupported
by the legislative history.”
Logan v. Zimmerman Brush Co. (US Sup. Ct. 1982) (p.658)
BLACKMUN’s opinion strikes down Illinois law which withdrew any right to review
of discrimination complaints if those complaints were not acted on within 120 days.
Case turns on Due Process, but BLACKMUN also submits a separate opinion (not
joined by majority) saying the provision doesn’t satisfy the “minimum rationality
standards” of equal protection.
Allegheny Pittsburgh Coal v. Webster County (US Sup. Ct. 1989) (p.659)
REHNQUIST’s opinion applies rational basis review to strike down West Virginia
property tax system that taxed properties at purchase price if recently purchased but
otherwise relied on their (much lower) most recently assessed value.
Nordlinger v. Hahn (US Sup. Ct. 1992) (p.660)
BLACKMUN’s opinion distinguishes Allegheny Pittsburgh and upholds California’s
Proposition 13, because California’s stated rationale for passing Prop 13 was different
and was so clear as to preclude any inference that it was the same as Allegheny
Pittsburgh.
FCC v. Beach Communications (US Sup. Ct. 1993) (p.661)
THOMAS’ opinion cites Fritz repeatedly and says those attacking the rationality of
legislative classifications “have the burden ‘to negative every conceivable basis
which might support it.’”
2. Suspect classifications
a) Race
Strauder v. West (US Sup. Ct. 1880) (p.663)
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STRONG’s opinion holds that exclusion of blacks from juries (in black defendant’s
murder trial) violates equal protection.
Korematsu v. United States (US Sup. Ct. 1944) (p.664)
BLACK’s opinion upholds Japanese internment camps against equal protection
challenge. This case is the Court’s first explicit reference to race as a “suspect” class,
yet the classification survives strict scrutiny. Black is unconcerned by the law’s overinclusiveness, and urges deference to military imperatives. MURPHY’s dissent
argues that the generalization that all Japanese-Americans are a loyalty threat doesn’t
even pass rationality muster. JACKSON’s dissent dislikes enshrining an otherwise
temporary military measure into a constitutional principle for all time.
McLaughlin v. Florida (US Sup. Ct. 1964) (p.669)
Court strikes down law prohibiting cohabitation by interracial couples. Applies strict
scrutiny (Korematsu).
Loving v. Virginia (US Sup. Ct. 1967) (p.667)
WARREN’s opinion strikes down anti-miscegenation law on equal protection
grounds. Applying the law equally to whites and black alike doesn’t save it (a
footnote points out that the law is not applied to prevent, say, blacks from marrying
Asians—it’s clearly intended to preserve white racial purity). Clear purpose of
Fourteenth Amendment was to eliminate race-based distinctions in law (even though
the specific enactment history doesn’t indicate that the framers intended to allow
miscegenation). There is “patently no legitimate overriding purpose independent of
invidious racial discrimination which justifies this classification.” Field: Would Due
Process have been a better ground for the decision? In any event, result of this case
seems to be that all racial classifications are invalid if they disadvantage a minority.
Palmore v. Sidoti (US Sup. Ct. 1984) (p.669)
BURGER’s opinion (for a unanimous court) holds that a woman cannot be denied
custody of her child because her second husband is black and thus the child may be
subject to “stigma.” Court notes that “Private biases may be outside the reach of the
law, but the law cannot, directly or indirectly, give them effect.”
Plessy v. Ferguson (US Sup. Ct. 1896) (p.671)
BROWN’s opinion articulates “separate but equal” standard in upholding (on
rationality grounds) railroad car segregation. No “badge of inferiority” is implied by
such segregation: “If this be so, it is not by reason of anything found in the act, but
solely because the colored race chooses to put that construction upon it.” Fourteenth
Amendment ensures civil or political equality, but not social equality. HARLAN’s
prescient dissent predicts this case will join the dishonored ranks of Dred Scott.
Brown v. Board of Education (Brown I) (US Sup. Ct. 1954) (p.673)
WARREN’s opinion holds that “in the field of public education the doctrine of
‘separate but equal’ has no place. Separate educational facilities are inherently
unequal.” Relies heavily on sociological research (like that of Kenneth Clark)
showing negative effects of discrimination on black children, arguing that whatever
was known at the time of Plessy, it’s now clear that segregation does in fact stamp
children with a badge of inferiority.
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Notes on Brown I
(1) Grounds for decision may be harm to minorities, or may just be the inherent
inequality of segregated education. This is an early example of “substantive equal
protection,” where rational basis is insufficient because of the harms caused by
the classification.
(2) Case can be seen as arguing that segregation harms black children, or that it
harms everyone.
(3) Opinion might be read as establishing an equal protection fundamental right to
education (once the state chooses to provide education, it’s so fundamental it has
to be provided to everyone equally)—but not a due process fundamental right
(which the state would have to provide, whether or not it chooses to do so).
(4) Originalism doesn’t exactly carry the day in Brown: Warren says the history of
the Fourteenth Amendment is “inconclusive” on the question of school
desegregation, and even if history did give the answer the times have changed,
particularly the role and extent of public education.
Bolling v. Sharpe (US Sup. Ct. 1954) (p.677)
WARREN’s opinion in this companion case to Brown I strikes down school
segregation in Washington, DC, on Fifth Amendment equal protection (Due Process)
grounds. The two clauses (EP and DP) aren’t mutually exclusive, and some
discrimination is “so unjustifiable as to be violative of due process.” Plus, if states
can’t segregate schools, “it would be unthinkable” that the federal government can.
Brown v. Board of Education (Brown II) (US Sup. Ct. 1955) (p.680)
WARREN’s opinion remands to lower courts for remedy based on Brown I, allowing
courts to take into account the reality of implementing the remedy but requiring
progress “with all deliberate speed.”
Note on “substantive equal protection”
Douglas opinion in Louisiana case strikes down on equal protection grounds a law
allowing children to inherit money from their fathers only if their parents were
married. “Illegitimate” children need the money as much as “legitimate” ones,
Douglas says, creating substantive rule that you can’t harm the children to influence
the parents (i.e., to encourage them to marry). Like Moreno, Field argues, this case
focuses on just one objective of the contested legislation.
b) Gender
i)
Intermediate scrutiny
Reed v. Reed (US Sup. Ct. 1971) (p.683)
BURGER’s opinion declines to say gender is a suspect class but nonetheless strikes
down a law preventing women from becoming administrators of estates. Gender
classifications can’t be justified merely on the grounds that they reduce paperwork.
Frontiero v. Richardson (US Sup. Ct. 1973) (p.684)
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BRENNAN’s opinion argues for holding gender is a suspect class but fails to get a
majority on that point. He lists factors making gender comparable to race: high
visibility of sex characteristic, pervasive discrimination in political arena, immutable
characteristic, discrimination bears no relation to ability to perform the task (compare
the Carolene Products footnote). Strikes down federal law giving male servicemen
automatic dependency allowance for wives but requiring females to prove their
husbands were dependent. POWELL’s concurrence argues that the case can be
decided on the authority of Reed alone and doesn’t see why the ERA should be
rendered redundant before it’s even been enacted. Field: Who’s being discriminated
against here, the men or the women? (Note that many of the early sex discrimination
cases helped males, not females.)
Craig v. Boren (US Sup. Ct. 1976) (p.686)
BRENNAN’s opinion articulates new “intermediate scrutiny” standard: gender-based
classifications “must serve important governmental objectives and must be
substantially related to achievement of those objectives.” Law at issue discriminated
against men, allowing 18-year-old women to buy 3.2% alcohol but allowing men to
do so only at age 21. STEVENS concurs but doesn’t like all these tiers of analysis:
“There is only one Equal Protection Clause. REHNQUIST dissents, preferring Lee
Optical’s rational basis test, since it’s just discrimination against men (but, notes
Field, when it comes to affirmative action Rehnquist doesn’t exactly lead the charge).
Note on intermediate scrutiny
According to Field, rule seems to be “perfect fit” between means and ends, and
women must be treated as individuals – must show that for this particular woman the
classification is accurate.
Michael M. v. Superior Court (US Sup. Ct. 1981) (p.690)
REHNQUIST’s opinion upholds law punishing men but not women for statutory
rape. Law applied when woman was under 18 and not married to the man, and in this
case the man also was under 18. Equal Protection doesn’t require “things which are
different in fact [to] be treated in law as though they were the same.” Pregnancy is
enough of a deterrent for women to have youthful sex but men need more.
(Assumption: teenage girls don’t want to get pregnant.) Plus, if law applied to women
as well, they’d be less likely to report violations so you’d get less enforcement.
Rostker v. Goldberg (US Sup. Ct. 1981) (p.693)
REHNQUIST’s opinion upholds Military Selective Service Act’s application only to
men. Cites need for deference to the military (compare Korematsu). Notes that
women are statutorily excluded from combat anyway, so why draft them? `ALL
dissents, saying women should be registered even if they’re not drafted, and anyway
there are plenty of non-combat roles they could fill.
Miller v. Albright (US Sup. Ct. 1998) (Supp. p.66)
STEVENS’ opinion upholds parts of Immigration and Nationality Act providing that
citizenship of child whose mother is a citizen is established at birth, but if only father
is a citizen then there must be an acknowledgement or adjudication of paternity.
Court holds that the classification passes the “intermediate scrutiny” test from Boren.
Geduldig v. Aiello (US Sup. Ct. 1974) (p.697)
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STEWART’s opinion upholds California insurance program that doesn’t cover
pregnancy, saying this isn’t gender discrimination: “There is no risk from which men
are protected and women are not. Likewise, there is no risk from which women are
protected and men are not.” (Stewart’s famous distinction is between pregnant
women and non-pregnant persons.) BRENNAN’s dissent points out that pregnancy is
a “gender-linked disability peculiar to women” and notes that other gender-linked
procedures (like vasectomies) were covered.
Notes on Geduldig
(1) Court later applied this holding to a Title VII case also, but Congress then
amended Title VII to cover pregnancy.
(2) This holding seems to preclude trying to base abortion rights on the Equal
Protection clause rather than on the Due Process clause
Mississippi University for Women v. Hogan (US Sup. Ct. 1982) (p.698)
O’CONNOR’s opinion strikes down all-female nursing school (where men were
allowed only to audit classes), requiring an “exceedingly persuasive justification” and
rejecting both the ends and the means of the discrimination. POWELL’s dissent
doesn’t see this as a sex discrimination case, since there are co-ed nursing schools and
this just provides an additional choice for women.
Los Angeles Dept. of Water & Power v. Manhart (US Sup. Ct. 1978) (p.701)
STEVENS’ opinion strikes down on statutory grounds higher pay deductions (for
pension plan) for women, which were justified on grounds that women live longer
than men. The truth of the generalization doesn’t make it permissible. Field: This
conclusion is an example of substantive equal protection in gender discrimination
cases.
J.E.B. v. Alabama ex rel. T.B. (US Sup. Ct. 1994) (p.702)
BLACKMUN’s opinion strikes down gender-based peremptory challenges to jurors
because they perpetuate stereotypes. O’CONNOR concurs but notes that gender does
affect a person’s outlook. SCALIA dissents, noting both men and women are stricken
from juries based on perceptions of how sympathetic they are, so the challenges are
not a way to preclude women from jury service.
United States v. Virginia (US Sup. Ct. 1996) (p.704)
GINSBURG’s opinion holds that VMI’s single-sex admissions policy violates Equal
Protection and establishing a parallel institution at Mary Baldwin College is an
inadequate remedy. Purports to apply intermediate scrutiny but emphasizes Hogan’s
“exceedingly persuasive justification” language and says Virginia hasn’t shown any
such justification (looking to the actual purpose, not the “benign” one that the state
proposed in argument). Court doesn’t believe VMI’s “adversative” approach
necessitates single-sex admissions, since at least some women could handle it. And
the VWIL (the parallel institution) lacks all the intangibles that make VMI great (see
the pre-Brown line of cases). REHNQUIST concurs but prefers the Craig standard to
the Hogan language. SCALIA dissents, relying on lower court’s factual findings to
argue that VMI would be destroyed by admitting women and suggesting all singlesex programs (including private ones relying on government funding) are now dead:
“the enemies of single-sex education have won.”
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Benign gender classifications
Kahn v. Shevin (US Sup. Ct. 1974) (p.716)
DOUGLAS’ pre-Craig opinion applies Reed standard and upholds state property tax
exemption for widows (but not for widowers) because it’s “designed to rectify the
effects of past discrimination against women.” Note: This case generally is cited to
justify benign discrimination in race cases.
Orr v. Orr (US Sup. Ct. 1979) (p.717)
BRENNAN’s opinion applies Craig standard to strike down Alabama law allowing
judges to impose alimony on husbands but not wives.
Weinberger v. Wiesenfeld (US Sup. Ct. 1975) (p.717)
Court strikes down Social Security provision paying benefits to widow and her
children when husband dies, but only to children and now widower when wife dies.
Court finds discrimination against the female wage-earner and doesn’t believe actual
purpose was benign.
Califano v. Goldfarb (US Sup. Ct. 1977) (p.718)
BRENNAN’s opinion strikes down federal benefits program that pays survivors’
benefits to widow but requires widower to prove his dependency on his deceased wife
to receive benefits. Plurality opinion finds discrimination against women wageearners. STEVENS’ concurrence sees it as discrimination against men.
REHNQUIST’s dissent prefers Lee Optical deference in cases of benign
classifications (including discrimination against men).
Wengler v. Druggists Mutual Ins. Co. (US Sup. Ct. 1980) (p.719)
WHITE’s opinion holds that workers’ compensation law requiring widowers to prove
dependence on their deceased wives in order to receive benefits (but imposing no
reciprocal requirement on widows) “discriminates against both men and women,”
applying the Craig standard even to this supposedly benign classification.
Note on benign discrimination
Some argue that affirmative action is more permissible with regard to gender since
it’s only subject to intermediate scrutiny anyway. But Field suggests the strict
scrutiny of racial classifications suggests race-based affirmative action should be
more tolerated since it’s intended to remedy a more invidious problem.
3. Other classifications
a) Alienage
Graham v. Richardson (US Sup. Ct. 1971) (p.720)
BLACKMUN’s opinion calls classifications based on nationality “inherently suspect”
and subject to strict scrutiny, holding that states cannot deny welfare benefits to
aliens. Additional justification: federal role in defining he rights of immigrants.
Sugarman v. Dougall (US Sup. Ct. 1973) (p.721)
BLACKMUN’s opinion creates “political” exception to strict scrutiny of alienage
classifications, holding that that state may “in an appropriately defined class of
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positions” require citizenship in order to “preserve the basic conception of a political
community.” Law at issue said only citizens could have permanent positions in
competitive classified civil service. REHNQUIST dissents, finding the Carolene
Products footnote inapplicable because alienage isn’t an immutable trait.
Foley v. Connelie (US Sup. Ct. 1978) (p.722)
BURGER’s opinion applies Dougall exception and holds that New York can require
state troopers to be citizens.
Ambach v. Norwick (US Sup. Ct. 1979) (p.722)
POWELL’s opinion applies Dougall exception and Foley to uphold law requiring
elementary and secondary teachers to be citizens. Stresses the importance of public
schools in preparing students for citizenship and shaping their values.
Bernal v. Fainter (US Sup. Ct. 1984) (p.723)
MARSHALL’s opinion refuses to apply Dougall exception, holding that Texas can’t
require notaries public to be citizens. REHNQUIST dissents.
Toll v. Moreno (US Sup. Ct. 1982) (p.723)
BRENNAN’s opinion employs federal pre-emption rationale to strike down
Maryland policy that doesn’t allow aliens domiciled in the state to receive in-state
tuition rates. Policy violates Supremacy Clause because it imposes a burden “not
contemplated by Congress” in admitting aliens to the United States.
Hampton v. Mow Sun Wong (US Sup. Ct. 1976) (p.724)
STEVENS’ opinion invalidates Civil Service Commission ban on the employment of
resident aliens in the federal competitive civil service. Court says the ban violates
“essential procedures”: since Congress admitted aliens into the US, a lowly body like
the CSC can’t impose these burdens. REHNQUIST’s dissent finds this a “novel
conception” of procedural due process.
b) Nonmarital children
Levy v. Louisiana (US Sup. Ct. 1968) (p.725)
DOUGLAS’ opinion finds violation of equal protection in denying unacknowledged
nonmarital children the right to sue for the wrongful death of their mother. Court
purportedly applies rationality test but notes that it is “extremely sensitive” when it
comes to basic civil rights. Illegitimacy “has no relation to the nature of the wrong
inflicted on the mother.”
Trimble v. Gordon (US Sup. Ct. 1977) (p.726)
POWELL’s opinion strikes down law barring nonmarital children from inheriting
money from their intestate fathers. Purported purpose of the law was to promote
legitimate family relationships, but Court rejects this “attempt to influence the actions
of men and women by imposing sanctions on the children.”
Clark v. Jeter (US Sup. Ct. 1988) (p.728)
O’CONNOR’s opinion applies intermediate scrutiny to strike down a Pennsylvania
law imposing a six-year statute of limitations on support actions on behalf of
nonmarital children.
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c) Other categories: disabilities, wealth
Cleburne v. Cleburne Living Center, Inc. (US Sup. Ct. 1985) (p.728)
WHITE’s opinion applies only the rationality test to a zoning ordinance requiring
permits for group homes for mentally retarded people (but not for fraternity houses or
hospitals or sanitariums), and nonetheless holds the ordinance invalid as applied.
Court notes that mentally retarded people do have a “reduced ability to cope with” the
everyday world, so disability-based classifications aren’t inherently suspect. (Field:
how is this relevant to the classification at issue?) Also, legislative progress on behalf
of mentally retarded people suggests they don’t lack political power. But none of the
supposed purposes behind the ordinance justify its application only to mentally
retarded people’s group homes and not to hospitals or fraternity houses
(underinclusiveness). The ordinance can only be explained as arising from “vague,
undifferentiated fears,” which are irrational. (Field: this decision comes a year before
Bowers v. Hardwick.) STEVENS concurs but rejects the three-tier approach in favor
of a continuum, where the definition of “rational” simply depends on weighing the
public purpose against the harm to members of the disadvantaged class. MARSHALL
concurs in the judgment but doesn’t think the Court actually applies a rationality test
here (á la Lee Optical) and worries that pretending it has done so will change that test
in future cases. He also points out that the existence of civil rights laws doesn’t mean
blacks are so politically powerful that race is no longer a suspect class.
Notes on Cleburne
(1) Decision really reflects fear of opening floodgates for intermediate scrutiny.
(2) Case may reflect a fourth standard: Gunther’s “rationality with bite.”
James v. Valtierra (US Sup. Ct. 1971) (p.736)
BLACK’s opinion holds that wealth classifications are not subject to strict scrutiny.
California constitution prohibited low-rent housing projects without prior approval in
local referendum. MARSHALL dissents, arguing for the first and only time that
poverty is a suspect class.
Note: Concern about calling wealth a suspect class and creating a cascade of
contradictions in a market-based economy should have been lessened by Washington
v. Davis, since many cost requirements may have discriminatory impact but no intent.
Valtierra, though, certainly seems to be intentional discrimination.
d) Sexual orientation
Romers v. Evans (US Sup. Ct. 1996) (p.737)
KENNEDY’s opinion strikes down Colorado’s Amendment 2, holding that it fails
even the permissive rationality test (“with bite”) because it is “inexplicable by
anything but animus toward the class that it affects. The Amendment repealed local
ordinances extending civil rights protection to people on the basis of their sexual
orientation and prevented the state or its subdivisions from offering any similar
protection in the future. Constitution requires that everyone have an equal opportunity
to seek assistance from the government, and this Amendment uniquely debilitates
homosexuals: “A State cannot so deem a class of persons a stranger to its laws.”
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Colorado Supreme Court had applied strict scrutiny because of exclusion of
homosexuals from political participation, but Kennedy doesn’t go with that analysis.
SCALIA’s frothing dissent argues that States should be allowed to insist that gays not
be given “special rights.” Since Bowers permits the criminalization of homosexual
conduct, and orientation is an “acceptable stand-in” for conduct, why can’t the State
withdraw special rights from homosexuals? Hard to reconcile Bowers (which the
majority doesn’t even mention) with this case.
Notes on Romer
Questions: (1) Was there discrimination? (2) What’s wrong with discrimination? (3)
Was the problem that protections existed and they were specifically repealed? (4)
Would it have been different if Amendment 2 had been a mere statute?
Field: Real issues in the opinion are (1) total exclusion of gays from legal protection
(without much attention paid to the Colorado court’s focus on political participation)
and (2) the exclusion is so overinclusive and underinclusive (“identifies persons by a
single trait and then denies them protection across the board”) that it demonstrates an
“animus” against homosexuals.
How to distinguish Bowers from Romer? Can punish conduct but not status (recall
Powell v. Texas on alcoholism).
Where does Romer leave gay marriage? One would think the combination of Loving
(with laws against gay marriage to be viewed as gender discrimination subject to
intermediate scrutiny) and Romer would make it hard to outlaw gay marriage, which
would call into question the constitutionality of the federal “Defense of Marriage
Act.”
4. The “purposeful discrimination” requirement
a) Purpose v. effect
Yick Wo v. Hopkins (US Sup. Ct. 1886) (p.750)
MATTHEW’s opinion finds unconstitutional discrimination in the administration of a
law neutral on its face. Law required permits for laundries in wooden buildings, and
these permits were routinely granted to non-Chinese applicants but never to Chinese
ones. The application of the law was a “practical denial” of equal protection. Note:
this is a state action holding – denial of equal protection by state actors either in
passage or administration of legislation is unconstitutional.
Palmer v. Thompson (US Sup. Ct. 1971) (p.751)
BLACK’s opinion holds that closing a swimming pool to avoid integration does not
violate equal protection. Motivation alone won’t establish constitutional violation,
since the city can easily re-close the pool for some “legitimate” reason. Implies that
what really matters is effect.
Griggs v. Duke Power Co. (US Sup. Ct. 1971) (p.753)
BURGER’s opinion holds that when the use of a general intelligence test in making
hiring decisions has the effect of disadvantaging black applicants violates Title VII
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when the test hasn’t been shown to predict job performance. Note that this use of
discriminatory impact arises in a statutory case, not a constitutional one
Washington v. Davis (US Sup. Ct. 1976) (p.755)
WHITE’s opinion holds that discriminatory effect is insufficient to constitutionally
invalidate the use of a qualifying test for prospective police officers. The Title VII
holding of Griggs does not extend to the Equal Protection clause. There must be an
actual “racially discriminatory purpose,” though disproportionate impact may
contribute to a prima facie case of discriminatory purpose, shifting the burden to the
State to rebut that presumption. STEVENS concurs but notes that the line between
purpose and effect is far from clear, since “normally the actor is presumed to have
intended the natural consequences of his deeds.”
Notes on Davis
How do you prove purpose? If there’s only a constitutional violation when the racism
is written into the legislative history, there won’t be many viable claims. Why can’t
the Court scrutinize the need for the test, requiring that it have some validated
predictive capacity (see Griggs)? Is it possible to argue after Davis that once a
disparate impact is obvious and the state continues with the challenged action it’s
clear that the state now intends the disparate impact?
Arlington Heights v. Metropolitan Housing Corp. (US Sup. Ct. 1977) (p.759)
POWELL’s opinion affirms the Davis principle that discriminatory purpose is
necessary and that effect merely supplies evidence of purpose. Other factors:
historical background of decision, specific sequence of events leading to it, departures
from normal procedural sequences, legislative history.
Personnel Administrator of Mass. v. Feeney (US Sup. Ct. 1979) (p.761)
STEWART’s opinion upholds state lifetime absolute civil service hiring preference
for veterans, who happen to be almost exclusively male. The preference was not
established for the purpose of excluding women, and the distinction between veterans
and non-veterans (like Stewart’s distinction between pregnant women and nonpregnant persons?) is not a mere pretext for discrimination. MARSHALL dissents,
partly because the disparate impact was so foreseeable that it had to have been
intended. Notes that the preference does not apply to low-level work traditionally
done by women (like secretarial jobs).
Notes on Feeney
(1) This case tightens up the purpose requirement beyond Davis, since the disparate
impact was so obviously foreseeable here (and in fact the military had a history of
discrimination against women, so the preference perpetuates that discrimination).
(2) The case also illustrates the problem with the two- or three-tier scheme of
constitutional scrutiny. The tiers don’t let you look at questions of degree—it’s
either strict scrutiny or rationality without any look at the real world. Marshall’s
or Powell’s sliding scale, by contrast, would let you weigh how great a detriment
to women, how great a state need, could the same purpose be accomplished less
intrusively, how suspect is the class, etc.
Rogers v. Lodge (US Sup. Ct. 1982) (p.764)
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WHITE’s opinion holds that at-large system of county elections violates equal
protection: although the system was “racially neutral when adopted, [it] is being
maintained for invidious purposes.” The system dilutes black voting strength and
allows whites, through bloc voting to ensure that no black has ever been elected.
Factors such as lack of minority access to the process, unresponsiveness of elected
officials to minority interests, and past discrimination are not conclusive proof of
discriminatory purpose but they’re relevant evidence. The lower court’s use of those
factors to find purpose here was not clearly erroneous (nice way to get the result you
want—defer to lower court). STEVENS, in dissent, would drop the purpose
requirement altogether. Questions: How to reconcile this case with Feeney? Should
voting be protected differently from employment? (White denies this.)
Hunter v. Underwood (US Sup. Ct. 1985) (p.770)
REHNQUIST’s opinion strikes down Alabama constitutional provision
disenfranchising people convicted of crimes involving “moral turpitude.” Finds
discriminatory impact despite facial neutrality, and notes that “white supremacy ran
rampant” at convention when provision was adopted (in 1901) and clear intent of the
provision was to withdraw the franchise from blacks by choosing crimes for which
they were more likely to be convicted. There’s “both impermissible racial motivation
and racially discriminatory impact.”
b) De jure v. de facto (desegregation)
Green v. County School Board (US Sup. Ct. 1968) (p.773)
BRENNAN’s opinion focuses on effects rather than good faith efforts in holding a
minority-to-majority freedom-of-choice plan unacceptable when it fails to produce
integrated schools: “a unitary, nonracial system of public education was and is the
ultimate end to be brought about.” School boards have an “affirmative duty” to do
whatever is necessary to eliminate racial discrimination “root and branch.” Notes that
geographic zoning is a potentially effective alternative.
Swann v. Charlotte-Mecklenburg Board of Education (US Sup. Ct. 1971) (p.775)
BURGER’s opinion approves court-ordered busing and redistricting, noting, “Once a
right and a violation have been shown, the scope of a district court’s equitable powers
to remedy past wrongs is broad.” Can’t require a “particular degree of mixing,” but
can use mathematical ratios as a “starting point.”
Keyes v. School District (US Sup. Ct. 1973) (p.776)
BRENNAN’s opinion purportedly sticks with de facto-de jure distinction but allows a
finding of purposeful discrimination in part of the Denver district to justify remedies
for the entire district. First, discrimination against a substantial portion of students
permits finding that entire system is dual unless it’s shown that the district is divided
into clearly unrelated units. Second, even if the parts are treated separately, the
showing of intentional discrimination in one part is probative as to intent elsewhere.
POWELL notes the need for “constitutional principles of national rather than merely
regional application”—i.e., those that will desegregate northern as well as southern
schools. He would abandon the de jure – de facto distinction. REHNQUIST dissents,
rejecting this “confusing enunciation of evidentiary rules.”
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Pasadena City Bd. of Educ. v. Spangler (US Sup. Ct. 1976) (p.776)
A rare case where the Court rejects a court-ordered desegregation plan.
Columbus Board of Education v. Penick (US Sup. Ct. 1979) (p.777)
WHITE’s opinion holds that the existence of racially segregated schools in 1954
(Brown), when that segregation resulted from “cognitive acts or omissions” of school
board members, constitutes a constitutional violation that imposes on the district a
“continuous constitutional obligation” to create a unitary system. REHNQUIST’s
dissent says the holding eliminates the de jure – de facto distinction and rejects the
focus on 1954. POWELL’s dissent warns that these remedies will produce white
flight.
Dayton Board of Education v. Brinkman (Dayton II) (US Sup. Ct. 1979) (p.777)
WHITE’s opinion reiterates the continuing duty to produce a unitary system once a
district has operated an unconstitutionally segregated one. STEWART’s dissent
criticizes the reliance on 1954.
Milliken v. Bradley (US Sup. Ct. 1974) (p.784)
BURGER’s opinion rejects a multi-district remedy, holding that a court may not
ignore school district lines or treat them as “mere administrative conveniences”
unless the constitutional violation in one district produces “a significant segregative
effect in another district.” White flight to the suburbs in this case left the city almost
exclusively black, so integration was impossible without reaching out to the suburbs.
But “absent an inter-district violation there is no basis for an inter-district remedy.”
MARSHALL’s dissent sees this as an “emasculation” of equal protection. WHITE’s
dissent worries that this “arbitrary rule” will make it impossible to end segregation.
Note: Court allowed inter-district remedy in housing context in Hills v. Gautreaux
(1976) (p.785).
Missouri v. Jenkins (US Sup. Ct. 1990) (p.786)
WHITE’s opinion overturns on federal-state comity grounds a district court order
requiring school district to raise property taxes (despite state law capping them).
Advises instead that the court order the district to come up with the money while
simultaneously enjoining the state from enforcing its cap. KENNEDY argues that a
court can’t under Article III impose a tax, which is essentially what happened here.
Board of Ed. of Oklahoma City v. Dowell (US Sup. Ct. 1991) (p.786)
REHNQUIST’s opinion holds that court-ordered desegregation is a “temporary
measure,” and as soon as a unitary system is achieved court supervision must be
lifted. If segregation re-appears, the supervision can’t return unless the plaintiff can
show purposeful discrimination in the renewed discrimination. MARSHALL’s
dissent disagrees that “13 years of desegregation was enough.”
Note on the desegregation cases
The Court generally seems to say that the constitutional violation was found in 1954
with Brown, and now that the purposeful discrimination has been found the districts
must remedy it—so these are remedy cases (permitting broad equitable power) rather
than violation cases.
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Keyes, Columbus, and Dayton seem to find Yick Wo-type violations: doesn’t matter
that there wasn’t statutory segregation, as long as school districts, etc. were set up to
perpetuate segregation then there’s state action. So these cases, Field argues, correctly
break down de facto – de jure distinction and turn it into a de facto – state action
distinction.
c) Restructuring the political process
Hunter v. Erickson (US Sup. Ct. 1969) (p.790)
WHITE’s opinion applies strict scrutiny to strike down a voter-approved amendment
to the Akron housing ordinance, which required a majority of voters to approve any
ordinance regulating real estate transactions on the basis of race, color, religion, etc.
Although law is facially neutral, Court holds that its “impact” falls more heavily on
minorities seeking to secure civil rights protections through the normal ordinance
process.
Washington v. Seattle School Dist. (US Sup. Ct. 1982) (p.790)
BLACKMUN’s opinion relies heavily on Hunter to strike down an initiative which
prohibited school boards from implementing busing plans for desegregation. Says
strict scrutiny is appropriate due to the “racial nature” of the initiative and the fact
that it placed “special burdens” on minorities in the political process.
Crawford v. Los Angeles Board of Education (US Sup. Ct. 1982) (p.792)
POWELL’s opinion distinguishes Hunter and upholds a state constitutional
amendment preventing state courts to do more than a federal court would be able to
do (under Equal Protection) to remedy school segregation. Constitution doesn’t
require states to grant more protection than the 14th Amendment provides, and it’s not
clear that there was a discriminatory purpose here—maybe just a preference for
neighborhood schools.
5. Affirmative action and related programs
Note on affirmative action
Scalia and Thomas take view that constitution is color-blind and affirmative action is
never ok. Marshall and Brennan came closest to opposite view, but even they don’t
argue that affirmative action is always ok and therefore deserving of rational basis
scrutiny; they go for intermediate scrutiny.
Regents of Univ. of California v. Bakke (US Sup. Ct. 1978) (p.795)
POWELL’s opinion for a very divided court holds: (1) strict scrutiny applies even to
“benign” racial classifications (Field: most important holding), (2) seeking specific
racial percentages (quotas), or remedying past discrimination without an actual
finding of such discrimination, are not compelling purposes, (3) UC-Davis’ quota
program (reserving 16 of 100 slots for minorities) is not properly tailored to improve
delivery of services to underserved communities, (4) assuring a diverse student body
is a permissible (“important”) purpose (partly because of First Amendment tradition
of diverse viewpoints in a university), (5) the Davis quota program is not a necessary
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means to the end of diversity and (6) race may be considered as “simply one
element—to be weighed fairly against other elements” that “tip the balance” in a
candidate’s favor (Harvard College’s approach is the example: other factors count,
the decision is individualized). BRENNAN, WHITE, MARSHALL and
BLACKMUN prefer intermediate scrutiny of benign classifications and dislike the
requirement of a prior finding of discrimination before a remedy can begin.
MARSHALL points out that blacks were discriminated against “not as individuals”
but as members of a group. BLACKMUN notes, “In order to get beyond racism, we
must first take account of race.” STEVENS thinks the court shouldn’t have reached
the final question of whether race may ever be taken into account.
Hopwood v. Texas (5th Cir. 1996) (p.809)
Court holds that Bakke is bunk, since it never commanded a majority anyway (but
Sullivan notes that the diversity rationale did in fact get five votes) and more recent
precedent makes it clear that the goal of diversity doesn’t satisfy strict scrutiny. Court
strikes down University of Texas Law School admissions program. Supreme Court
denies certiorari, with Ginsburg noting that the UT program has been discontinued
and won’t be re-established, so the issue is moot: this Court reviews judgments, not
opinions.”
Wygan v. Jackson Board of Education (US Sup. Ct. 1986) (p.810)
POWELL’s plurality opinion applies strict scrutiny, striking down a minority
preference in teacher layoffs (which had been agreed upon by the teachers’ union)
and rejecting the goal of providing “role models” for minority children. Need some
showing of prior discrimination by the government unit involved. Layoffs are worse
than hiring preferences because their effects are concentrated on one person rather
than dispersed among all applicants. O’CONNOR doesn’t see the need for that
finding, since the constitutional violation arises when the wrong is committed, not
when the finding is made.
Fullilove v. Klutznick (US Sup. Ct. 1980) (p.812)
BURGER’s opinion upholds a 10% minority set-aside for federal funds to local
public works projects. Emphasizes deference to Congress (which had made findings
of past discrimination), especially given §§ 1 and 5 of the Fourteenth Amendment.
STEWART’s dissent says an unconstitutional law is no less unconstitutional because
it was passed by Congress.
Richmond v. J.A. Croson Co. (US Sup. Ct. 1989) (p.814)
O’CONNOR’s opinion strikes down minority set-aside for construction contracts in
Richmond (modeled precisely on the one upheld in Fullilove), distinguishing between
State and federal set-asides on the grounds that § 1 of the Fourteenth Amendment is a
constraint on State power, while § 5 is a grant of power to Congress—the amendment
“stemmed from a distrust of state legislative enactments based on race.” Court
doesn’t want to distinguish between illegitimate and “benign” racial classifications
and insists on strict scrutiny either way. Also rejects Richmond’s reliance on the
Congressional findings from Fullilove, since they weren’t specific to Richmond.
Held: (1) affirmative action only would be justified if Richmond were a “passive
participant” in racial discrimination in the construction industry; (2) there’s no
compelling interest in apportioning contracting opportunities based on race (over-
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inclusiveness of applying set-asides to Aleut newcomers who have never faced
discrimination in Richmond “strongly impugns the city’s claim of remedial
motivation”); and (3) the set-aside is not narrowly tailored to remedy past
discrimination. SCALIA’s concurrence argues that “only a social emergency rising to
th level of imminent danger to life and limb…can justify an exception to the
principle” of a color-blind Constitution. Remedial measures are justified only to
eliminate the actor’s own maintenance of unlawful discrimination. MARSHALL’s
dissent prefers intermediate scrutiny, argues that the Congressional findings were
appropriate for Richmond, notes that racial discrimination is not a thing of the past,
and rejects the distinction between state and federal remedial powers.
Notes on Croson
This is the first time a majority supports strict scrutiny for benign classifications.
Political participation rationale for remedial action isn’t very strong here, since blacks
made up a majority of the city council that adopted the preference.
Metro Broadcasting, Inc. v. FCC (US Sup. Ct. 1990) (p.828)
BRENNAN’s opinion is a departure from the general trend, applying intermediate
rather than strict scrutiny and upholding minority preferences in awarding broadcast
licenses. Notes that the preference is mandated by Congress, and cites Fullilove. First,
diversity is an important interest and, second, the preferences are substantially related
to them. O’CONNOR dissents, wanting strict scrutiny across the board.
Adarand Constructors, Inc. v. Pena (US Sup. Ct. 1995) (p.830)
O’CONNOR’s opinion for a very divided court applies strict scrutiny to a federal
incentive to hire minority subcontractors, using the Fifth Amendment equal
protection component. Preference was for disadvantaged subcontractors, with a
presumption that certain minorities were disadvantaged. Holds that past precedents
establish three principles: (1) skepticism (strict scrutiny), (2) consistency (no double
standard for benign classifications) and (3) congruence (same standard for Fifth and
Fourteenth Amendments)—O’Connor denies ever making the distinction she made in
Croson. Court remands for a determination of whether this program violates those
three principles, emphasizing that strict scrutiny need not necessarily be fatal.
SCALIA concurs to the extent that the opinion is consistent with his view that
government can never have a compelling interest in benign racial discrimination.
THOMAS concurs, saying there is neither constitutional nor moral authority for
benign discrimination, which also stamps minorities with a badge of inferiority.
STEVENS’ dissent doesn’t see the problem distinguishing between good and bad
discrimination (“a ‘No Trespassing’ sign and a welcome mat”) and likes futurelooking goals (like diversity) better than remedial ones.
Note on Adarand
Equivalence for 5th and 14th amendment equal protection is questionable, since even if
5th amendment has an “equal protection” component it doesn’t have § 5.
Affirmative action law today
(1) Only for remedial purposes (only to the specific victims of discrimination? Only
by those actually found guilty of discrimination? The latter would, ironically,
prevent self-initiated remedies)
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(2) Other possible purposes (justifiable by social utility, according to Stevens):
diversity? O’Connor’s “strict scrutiny minus” in Adarand (not necessarily fatal in
fact) notices that sometimes a race-based remedy is needed – Thomas and Scalia
disagree
6. Fundamental rights
General notes on fundamental rights
(1) Recall Skinner v. Oklahoma, above, an early fundamental rights equal protection
case (fundamental right to procreate).
(2) “Fundamental rights” have different meanings in substantive due process,
incorporation, interstate privileges and immunities, and (substantive) equal
protection.
(3) Equal protection fundamental rights include voting, appeals/court access, and
interstate travel. Not included: education, food, shelter.
(4) Various factors are relevant in real-life EP analysis, but hard to account for in the
multi-tier analysis: (a) suspectness of class (race at top, business at bottom, gender
in between—but what about age, poverty, disability, sexual orientation?), (b) state
interest (compelling, substantial/important, not important), (c) degree of harm
(how detrimental is the effect of deprivation?) and (d) degree of deprivation (total
or partial?)
a) Vote dilution
Reynolds v. Sims (US Sup. Ct. 1964) (p.866)
WARREN’s opinion holds (1) that voting rights classifications deserve strict scrutiny
because voting is a fundamental right (not in Constitution, but critical to the exercise
of other rights), (2) that failure to reapportion state legislature based on population
violates principle of “one person, one vote” (“Legislators represent people, not trees
or acres”), and (3) that the districts must have as equal populations as possible:
“Mathematical exactness or precision is hardly a workable constitutional
requirement,” but deviations must be supported by a rational state policy, with
respecting political subdivisions the only such policy that the Court names. Alabama
had not redrawn districts since 1900, and population changes had resulted in unequal
representation. Why not allow state to mimic federal structure? Senate is product of
compromise. States were always independent entities but counties, etc., were just
political subdivisions of states with no sovereignty or constitutional significance.
HARLAN’s dissent notes that the majority doesn’t “address itself to the 14th
Amendment as a whole.” STEWART’s dissent suggests a rationality test combined
with an assurance that there’s no “systematic frustration of the will of the majority.”
Questions: Where’s the intentional discrimination? Would this classification survive
rationality review? Where in the constitution is the right to vote? Once the court
invalidates a district, what next? (Lots of long-term judicial intervention.) What about
Milliken v. Bradley, which implied that school districts are constitutionally
significant?
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b) Modern approach
San Antonio Independent School Dist. v. Rodriguez (US Sup. Ct. 1973) (p.842)
POWELL’s opinion holds (1) residents of a school district with low property wealth
do not constitute a suspect class, (2) fundamental rights are those “explicitly or
implicitly guaranteed by the Constitution” or bearing “a peculiarly close relationship
to other rights” in the Constitution (i.e., voting), and education is not such a right, and
(3) maintaining school districts with unequal tax bases does not violate the rationality
test. Districts with higher tax bases were able to extract more educational revenues
than others even with a lower property tax rate (state argued this is part of local
control). Court emphasizes that this isn’t discrimination against the poor as such, and
it’s not a total deprivation of education. MARSHALL’s dissent again rejects multitier analysis in favor of a “spectrum of standards” based on “constitutional and
societal importance of the interest adversely affected.” Education is so critical as to
merit more protection.
Questions: how powerful is equal protection fundamental rights doctrine after this
case? All we have now are right not to be sterilized (Skinner) and right to vote
(Reynolds), and maybe we could get these rights from other Due Process anyway.
Can Rodriguez and Reynolds be reconciled? Why didn’t the Court require re-drawing
of school districts like it did in Reynolds? Is Rodriguez really about how different
levels of government share financial responsibility for the poor?
Plyler v. Doe (US Sup. Ct. 1982) (p.850)
BRENNAN’s opinion holds (1) undocumented aliens are “persons” within the
meaning of the Equal Protection clause, (2) they’re not a suspect class and education
is not a fundamental right, (3) a law denying free education to children of
undocumented aliens is subject to something like intermediate scrutiny (law isn’t
rational unless there’s a substantial state interest) because children can’t “conform
their conduct to societal norms” and shouldn’t be punished for their parents’ illegal
presence (analogous to illegitimacy cases), (4) there’s no support in federal policy for
denying public education to these kids, and (5) no substantial state interests justify the
denial (the proposed interests are stemming influx of illegal immigrants, preserving
resources to maintain quality education, and granting education only to those most
likely to remain in the state). Court notes that unlike Rodriguez there’s a total denial
here. BLACKMUN concurs, emphasizing the importance of education and saying
once the state grants it to some it can’t deny it to others. POWELL concurs, saying
“children should not be left on the streets uneducated.” BURGER dissents, viewing
the holding as a “trespass on the assigned function of the political branches.”
c) Wealth and voting rights
The Constitution doesn’t explicitly guarantee the right to vote, although it seems
implicit in the provisions giving States the power to establish voting qualifications
and in the Amendments extending the franchise to blacks and women. Field: Neither
text nor history (original intent) provides much support for idea that Fourteenth
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Amendment establishes the fundamental right to vote recognized in Reynolds v.
Sims.
Harper v. Virginia State Board of Elections (US Sup. Ct. 1966) (p.858)
DOUGLAS’ opinion strikes down poll tax as a precondition for voting, noting that
once the franchise is granted to the electorate, the state’s constitutional interest is
limited to defining qualifications for voting. Says wealth “like race” has no
relationship to one’s ability to vote intelligently. BLACK’s dissent rejects this
“natural-law-due-process formula.” HARLAN’s dissent sees a rational basis for a tax
that will promote civic responsibility in voting.
Field: This is the “real bootstrap” with the right to vote: the State can’t take the
franchise away from everyone (Art. I and the Art. IV guarantee of a Republican form
of government assume someone will be voting) and once someone has it, this case
says everyone has to have it.) Compare Skinner and Zablocki.
Question: Why not create an exemption from the poll tax for poor people (compare
Griffin v. Illinois, below) rather than striking down the tax altogether?
Result: Voting is probably a fundamental right, wealth classifications probably get
special scrutiny. (Why no finding of invidious intent? This was before Washington v.
Davis, but it wouldn’t be hard to find.)
Kramer v. Union Free School District No. 15 (US Sup. Ct. 1969) (p.860)
WARREN’s opinion extends Harper and strikes down New York law that allows
voting in school district elections only by those owning or leasing taxable real
property in the district or having children enrolled in the schools. Applying strict
scrutiny and assuming the state has a compelling interest in granting the franchise
only to those with an interest in the election results, the Court finds the requirement
insufficiently precise because it is over-inclusive and under-inclusive. Field: This
suggests that the least restrictive alternative requirement makes strict scrutiny “fatal
in fact.” STEWART’s dissent considers the law rational and says it should survive
any scrutiny in any event.
d) Race-conscious redistricting
Like affirmative action, redistricting raises question of whether Constitution is colorblind or simply anti-subordination.
Davis v. Bandemer (US Sup. Ct. 1986) (p.875)
WHITE’s judgment for a divided court finds a redistricting challenge to be
justiciable, says a claim that Indiana’s post-Census redistricting unconstitutionally
dilutes Democratic votes must make a “threshold showing of discriminatory vote
dilution for a prima facie case of an equal protection violation.” To make this
showing requires intentional discrimination (not hard in redistricting, where
legislators are aware of the demographics) and also discriminatory effect (which
means the redistricting will “consistently degrade a voter’s or a group of voters’
influence on the political process as a whole”). This continuous effect can’t be shown
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on the results of just one election. POWELL’s dissent would focus on whether the
districts were “distorted deliberately and arbitrarily to achieve illegitimate ends.”
Shaw v. Reno (Shaw I) (US Sup. Ct. 1993) (p.880)
O’CONNOR’s opinion invalidates North Carolina’s majority-minority I-85 district
because it deprives plaintiffs of their right to a “color-blind” electoral process. (The
plaintiffs did not complain of dilution of white votes.) Applies strict scrutiny because
legislature is always aware of race in redistricting process. Objective factors
(compactness, contiguousness, preservation of political subdivisions) may defeat
claim of racial gerrymandering, but this district doesn’t meet those factors. Rejects
argument that State had compelling interest in complying with Voting Rights Act,
implying the Act didn’t require this district. Nor does remedying past racial
discrimination justify this district, which is “so irrational on its face that it can be
understood only as an effort to segregate voters” because of their race. WHITE’s
dissent asks what harm has come to the plaintiffs, who don’t allege either deprivation
or dilution of their votes. STEVENS’ dissent, similarly doesn’t see what the problem
is in helping blacks elect representatives when there’s no corresponding harm to
whites. SOUTER’s dissent notes that racial bloc voting does occur and so legislators
can’t help but take race into account.
Field: This case, like Bakke, seems to say it’s ok to consider race as long as you’re
not too obvious about it.
Miller v. Johnson (US Sup. Ct. 1995) (p.887)
KENNEDY’s opinion strikes down majority-minority district in Georgia even though
it’s not bizzarely-shaped, since race was the predominant factor in drawing the
boundaries.
Shaw v. Hunt (Shaw II) (US Sup. Ct. 1996) (p.889)
REHNQUIST’s opinion again strikes down the North Carolina district that was redrawn after Shaw I.
Bush v. Vera (US Sup. Ct. 1996) (p.889)
O’CONNOR’s opinion strikes down Texas majority-minority district, noting that race
may permissibly be considered in redistricting without evoking strict scrutiny, but not
if other principles (such as contiguousness, compactness, preservation of political
subdivisions) are “subordinated” to race.
e) Access to the courts
Griffin v. Illinois (US Sup. Ct. 1956) (p.896)
BLACK’s opinion holds on a combination of due process and equal protection
grounds that a state must provide a trial transcript to an indigent criminal defendant
appealing a conviction on nonfederal grounds. Ability to pay for transcript bears no
rational relationship to guilt. Although State is not required to allow appellate review,
once it does so it must not discriminate.
Douglas v. California (US Sup. Ct. 1963) (p.897)
DOUGLAS’ opinion extends Griffin, holding that a state must appoint counsel to
indigent defendants for the first appeal, granted as of right. Rejects California
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approach of requiring a prior showing by the defendant that a lawyer would effect the
outcome: this means “the rich man can require the court to listen to argument of
counsel before deciding on the merits, but a poor man cannot.” HARLAN dissents
because the law is one of general applicability that just happens to hurt the poor, and
in fact the majority’s result means the poor will be treated differently from the rich
(they get paid counsel and the rich don’t).
Questions on Griffin and Douglas
(1) Is this equal protection? Not really, since there’s no right to an attorney on the
second appeal, or to a good attorney (Johnnie Cochran) on the first one. Is it due
process? Court starts in both Griffin and Douglas by saying State doesn’t have to
provide an appeal at all.
(2) What about Harris v. McRae? State doesn’t create poverty, doesn’t have to
alleviate it – isn’t that what Harlan says in his dissents in these two cases? Field:
the difference may be that in Griffin, Douglas, and MLB (below), the State is
proceeding against you so you need to have more protection than in Harris v.
McRae.
Ross v. Moffitt (US Sup. Ct. 1974) (p.898)
REHNQUIST’s opinion refuses to extend Douglas to discretionary appeals.
Boddie v. Connecticut (US Sup. Ct. 1971) (p.899)
HARLAN’s opinion holds on due process grounds that the state may not require $60
divorce fees by indigent couples. Critical factors are that marriage is a fundamental
relationship and that the state has a monopoly on divorce.
Lassiter v. Department of Social Services (US Sup. Ct. 1981) (p.901)
Court holds that indigent mother in state parental status determination is not entitled
to counsel.
M.L.B. v. S.L.J. (US Sup. Ct. 1996) (Supp. p.71)
GINSBURG’s opinion holds that state violates equal protection and due process
when it requires parents to pay record preparation fees in order to appeal a
termination of parental rights. Echoes Griffin: once state provides appeal, it may not
“bolt the door to equal justice.” Notes importance of parental rights and says
termination is “barely distinguishable from criminal condemnation” (partly because
she’s defending against a State deprivation). Applies something like the Mathews v.
Eldridge three-part balancing test. THOMAS dissents, seeing no reason to extend
Griffin to the civil context and suggesting he’d like to overrule Griffin itself.
f)
Interstate travel/migration
Shapiro v. Thompson (US Sup. Ct. 1969) (p.901)
BRENNAN’s opinion strikes down on equal protection grounds provisions denying
welfare assistance to state residents who haven’t resided in the jurisdiction for at least
one year. Court rejects all of the purported state interests: preserving fiscal integrity
of welfare programs, providing benefits on the basis of tax contributions people have
made, and administrative interests. Court is suspicious that these aren’t the real reason
for the restrictions, which “seem irrational and unconstitutional.” Basis for decision is
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right to travel interstate, derived from Art. IV § 2 (privileges and immunities),
commerce clause, 14th Amendment privileges and immunities. Court apparently
applies strict scrutiny, possibly because the classification deprives people of “food,
shelter, and other necessities of life.” WARREN dissents. HARLAN’s dissent doesn’t
consider wealth a suspect class, criticizes the majority’s “cryptic suggestion” that
basic necessities justify strict scrutiny, and worries about stifling state
experimentation in welfare policy.
Memorial Hospital v. Maricopa County (US Sup. Ct. 1974) (p.906)
MARSHALL’s opinion relies on Shapiro to invalidate Arizona requirement of oneyear county residence before receiving free non-emergency hospitalization. Key is
that the provision is a “penalty” on the right to travel, and what makes it a penalty
(unlike in-state tuition fees) is that it denies a basic “necessity of life.”
Sosna v. Iowa (US Sup. Ct. 1975) (p.907)
REHNQUIST’s opinion upholds requirement that party reside in the state for a year
before bringing a divorce action against a nonresident. State has an interest in not
becoming a “divorce mill.”
Zobel v. Williams (US Sup. Ct. 1982) (p.908)
BURGER’s opinion strikes down Alaska law varying benefits (from natural
resources) based on length of residence. Purported objectives were to offer incentives
to stay in Alaska and to ensure prudent management of the natural resources. Court
finds no rational relationship between these objectives and the law. Also cites Shapiro
in holding that the goal of rewarding residents for past contributions to the state is not
a legitimate state purpose.
Saenz v. Roe (US Sup. Ct. 1999) (Supp. p.76)
STEVENS’ opinion strikes down California provision (explicitly permitted by federal
law) paying welfare benefits to first-year residents on the basis of the benefits they
would have received in their former state of residence. Outlines three components of
right to travel: (1) right to enter and leave the state, (2) right to be treated as a
“welcome visitor” in any state (Art. IV § 2 privileges and immunities clause), and (3)
right to become permanent resident and be treated like any other resident of the state
(14th Amendment privileges and immunities). Cites Slaughter-House as evidence that
right to be a resident anywhere has always been a 14th Amendment right for citizens
of the United States. Notes that 14th Amendment citizenship clause equates residence
with citizenship. Applies strict scrutiny and holds: (1) State interest in saving money
is legitimate but doesn’t justify this discrimination, and (2) it is not relevant that
federal law explicitly authorized this state law, because “Congress may not authorize
the States to violate the Fourteenth Amendment.” REHNQUIST and THOMAS
submit separate dissents.
Notes on Saenz
(1) This reliance on Privileges and Immunities gets away from the old analysis of
whether the provision is a penalty or a deterrent.
(2) Certain durational requirements are allowed (like in-state tuition and divorce)
because the benefits are portable, but welfare benefits will be used in the state—
this distinction serves the evidentiary function of helping a state determine when a
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person is a bona fide resident. Rehnquist’s dissent rejects this “you can’t take it
with you” distinction.
g) Economic inequalities
Dandridge v. Williams (US Sup. Ct. 1970) (p.912)
STEWART’s opinion applies rationality scrutiny and upholds cap on AFDC benefits
for families over a certain size, comparing it to “regulation in the social and economic
field” even as the Court acknowledges that this case “involves the most basic
economic needs of impoverished human beings.” Constitution may impose certain
procedural safeguards, but it doesn’t outright prohibit this classification. Strangely,
Court analyzes this as a classification of families, rather than seeing it as
discrimination against an individual—the child who brings the family over the cap.
MARSHALL’s dissent articulates “sliding scale” approach.
Irrebuttable presumption reasoning
For a short time the Court struck down any law creating an “irrebutable
presumption”—i.e., a categorical classification whose basis “is not necessarily or
universally true in fact.” In effect, this analysis would kill any classification that was
overbroad, that doesn’t have a perfect fit between means and ends.
E.
State Action
1. Action
Civil Rights Cases (US Sup. Ct. 1883) (p.921)
BRADLEY’s opinion holds that the Civil Rights Act of 1875—which prohibited
race-based exclusions from hotels, theaters, railroads—is unconstitutional because it
goes beyond the power granted to Congress by § 5 of the 14th Amendment. First
premise is that 14th Amendment only applies to state action. Holding argues that
private exclusion of blacks violates no rights: they still have their right as long as the
state hasn’t deprived them of it—suggests that protecting those rights is up to state
tort law. Question: What’s the purpose of § 5, then? Doesn’t this holding make it
superfluous? HARLAN’s dissent argues (1) that discrimination is a badge and
incident of slavery (13th Amendment; see Jones v. Meyer), (2) that state action isn’t
really required, and (3) that inns are quasi-public and therefore subject to 14th
Amendment requirements.
DeShaney v. Winnebago Cty. Soc. Servs. Dept. (US Sup. Ct. 1989) (p.960)
REHNQUIST’s opinion holds there is no Due Process violation when state fails to
prevent brutal abuse by father of his son. There are no affirmative obligations on the
state to protect people from one another, just a duty for the state to refrain from
certain activity. (State had awarded custody to father after divorce and investigated
several reports of abuse but never took action to remove child before he finally was
left retarded and institutionalized by the beatings. Court here dismisses action by
child and mother for denial of Due Process liberty.) Rejects analogy to prison cases
(where affirmative duty exists to care for ill inmates) because there is no similar
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“limitation…imposed on his freedom to act on his own” behalf. BRENNAN’s dissent
notes that the state’s child protection program constituted active intervention.
Questions about state action
Is it limited to “laws, customs, or judicial or executive proceedings” or does it include
police actions? Does inactivity by the state constitute state action or are there no
affirmative obligations by the state? Recall Palmer v. Thompson (p.751): was the
problem there really the lack of discriminatory state action?
2. State
Marsh v. Alabama (US Sup. Ct. 1946) (p.928)
BLACK’s opinion holds that a company-owned town serves “essentially a public
function” and therefore the town is subject to First Amendment guarantees. Overturns
criminal trespass conviction Jehovah’s Witness for distributing literature in
Chickasaw, Alabama. Also implies that the act of criminally convicting the Jehovah’s
Witness was itself state action (compare Shelly v. Kraemer, below).
a) White primary cases
Nixon v. Herndon (US Sup. Ct. 1927) (p.934)
Court holds that Texas may not exclude blacks from Democratic primaries.
Nixon v. Condon (US Sup. Ct. 1932) (p.934)
Court holds that Texas’ latest ploy—giving party committees the power to set voting
qualifications—makes the committees agents of the state and thus still is state action.
Smith v. Allwright (US Sup. Ct. 1944) (p.935)
REED’s opinion holds that a state party convention may not privately exclude blacks
because Art. I § 4 gives Congress power over electoral machinery, including
primaries, so the use of party conventions is a delegation of a state function.
Terry v. Adams (US Sup. Ct. 1953) (p.935)
Divided court holds that state may not exclude minorities from “pre-primary”
elections of the Jaybird Democratic Association, a voluntary club of white
Democrats. BLACK argues any election in which public officials are elected is
subject to 15th Amendment. FRANKFURTER saw an “infusion by conduct by
officials” into the scheme, and noted that the pre-primary vote “predetermines the
legally devised primary.”
Question: Can the principles of these cases be reconciled with the treatment of private
schools as private actors?
b) State involvement
Shelly v. Kraemer (US Sup. Ct. 1948) (p.936)
VINSON’s opinion holds that judicial enforcement of racially-restrictive covenants is
state action. Voluntary covenants are permissible as long as they’re enforced by
mutual agreement, but once people turn to the courts for enforcement the state’s
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involvement subjects the covenants to 14th Amendment scrutiny. Court notes that
there was a willing (white) seller and a willing (black) buyer, so absent the state’s
enforcement of the covenant the sale would go through.
Burton v. Wilmington Parking Authority (US Sup. Ct. 1961) (p.942)
CLARK’s opinion holds that a private restaurant located in a state-owned parking
building may not discriminate on the basis of race. The profits that the state earns
through its lease with the discriminatory restaurant contribute to (indeed are
“indispensable elements in” the financial success of the state’s venture. Court notes
that this holding is extremely fact-specific.
Moose Lodge No. 107 v. Irvis (US Sup. Ct. 1972) (p.947)
REHNQUIST’s opinion holds that a private club may discriminate even though the
state granted the club a liquor license. DOUGLAS’ dissent notes that there are a
limited number of liquor licenses so the state is granting the club a monopoly-like
benefit.
Field: this is not simply a neutral application of law like allowing the fire department
to put out a fire at a white supremacist club. But Court probably didn’t want to
trample on free association
c) State encouragement
Jackson v. Metropolitan Edison Co. (US Sup. Ct. 1974) (pp.931 and 952)
REHNQUIST’s opinion rejects due process complaint against utility for cutting off
service, despite extensive regulation of the utility. Monopoly status is not
determinative, partly because utility companies are “natural monopolies.” Rejects
argument that utility performs a “public function” because utility provision is not
traditionally exclusively provided by the state. Sees no state imprimatur on the
utility’s termination practices merely because it approved the practice. Also sees no
“symbiotic relationship” like the one in Burton. MARSHALL’s dissent observes that
the Court would never allow a utility to refuse to provide service to blacks.
Flagg Bros., Inc. v. Brooks (US Sup. Ct. 1978) (pp.932 and 954)
REHNQUIST’s opinion holds that use of a private warehouseman to sell goods to
satisfy a lien is not state action because this is not the only way to settle private
disputes, so Flagg Bros. isn’t performing an “exclusive state function.” Lists
education, fire, police and tax collection as exclusive state functions.
II. Federal powers
A. Judicial Power
1. Judicial Review
Marbury v. Madison (US Sup. Ct. 1803) (p.3)
MARSHALL’s opinion holds (1) when a commission is signed an appointment is
made, so the petitioner has a right here, (2) the executive isn’t exempt from judicial
remedies where there’s a specific legal duty on which individual rights depend, (3)
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the court has the power to grant the remedy, but (4) in this case the statute giving the
Court jurisdiction was unconstitutional. Madison (Jefferson’s secretary of state) had
refused to deliver commissions to judges appointed at the last minute by former
president Adams, though those appointments already had been confirmed by the
Senate. Logic of the holding: “It is emphatically the province and duty of the judicial
department to say what the law is,” the Constitution is a species of law, when statute
and Constitution conflict the Constitution takes precedence (Supremacy Clause), and
the Court in hearing cases must interpret applicable law and refuse to apply laws
“repugnant to the Constitution.” Congress had granted the Court jurisdiction (which
the Court reads as original jurisdiction) over writs of mandamus to public officials,
but Marshall interprets Article III’s assignments of original and appellate jurisdiction
to be mutually exclusive, so Congress couldn’t constitutionally grant original
jurisdiction in an area not so granted explicitly by Article III.
Field: The primary issue when the case arose was the struggle between the executive
and the Court. But Marshall stretched his interpretation of the statute here in order to
create an unnecessary constitutional dilemma, thereby managing both to affirm the
Court’s power over the executive (and the legislature) and to avoid actually creating a
power struggle in trying to force the legislature to deliver the commissions.
Note: Judicial review wasn’t much questioned after Marbury, and by the time the
Court next struck down a statute (in Dred Scot), it had been 60 years and was
accepted.
Questions about Marbury
Does this case establish judicial supremacy on constitutional interpretation, or just
judicial competence? The opinion isn’t explicit either way. But judicial supremacy
generally is accepted partly because the court is “the least dangerous branch.”
To what extent should judicial review apply to institutional change like desegregation
that involve long-term court supervision of other institutions? It’s not the type of
litigation Marbury contemplated.
Justifications for judicial review
(1) “Clean hands” – Court won’t enforce an unconstitutional law because it would
sully itself by doing so. This is a passive justification, giving the Court no reason
to reach out and invalidate acts of Congress unnecessarily.
(2) “Watchdog” – Court has active responsibility to make sure the other branches
behave constitutionally
2. Standing
Determining justiciability
Constitutional: Must be a case or controversy (Article III) – the Court will not issue
advisory opinions. There must be adversariness, the parties must have standing, the
issue must be ripe (but not moot) and it must not be a “political question.” Standing
depends largely on whether there’s a palpable injury to the plaintiff.
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Prudential: Even when Court may Constitutionally hear a case it might exercise
discretion not to hear it. Example – can’t just be a generalized grievance. But
Congress may grant standing despite prudential considerations (while it can’t override
constitutional considerations).
Basic principle: Must have palpable injury, causation, and redressability.
Congressional authority over Court: Art. III, § 2 gives Congress power to make
exceptions and regulations regarding Court’s appellate jurisdiction. Also, Necessary
and Proper Clause (Art. I, § 8) applies to executing all powers vested in the
government, not just Congress.
Warth v. Seldin (US Sup. Ct. 1975) (p.30)
POWELL’s opinion holds that none of the following plaintiffs have standing to
challenge Penfield, NY’s zoning restrictions (which effectively exclude low-income
residents): low-income people unable to get affordable housing in Penfield, Rochester
residents (who argue that they pay higher taxes to subsidize low-income housing in
Rochester to compensate for Penfield’s stinginess), an association representing
Rochester taxpayers, and a home builders association that builds low-income housing
(and alleges lost profits due to Penfield restrictions). First group couldn’t show
personal injury to themselves because there was no “substantial probability” that they
could have afforded housing without the restrictions. Second group asserted no
personal right, but just the rights of third parties (low-income people). Third group
also sought to assert third-party rights. Fourth group referred to no “specific project”
that had been thwarted by the restrictions (except one project that had been
abandoned and the group did not allege that the project still was “viable,” so it’s now
moot). BRENNAN’s dissent observes the majority’s “indefensible hostility to the
claim on the merits.” Court is essentially requiring the plaintiffs to prove their claims
on paper just to get into court at all.
Question: Should Court waive its prudential considerations sometimes if the result
otherwise would be that no one can sue?
Allen v. Wright (US Sup. Ct. 1984) (p.36)
O’CONNOR’s opinion holds that parents of black public school children have no
standing to challenge IRS tax exemptions for racially discriminatory private schools.
Notion that the children are stigmatized by the exemptions is too generalized, and
argument that they are denied right to attend desegregated school isn’t “fairly
traceable to the Government conduct”—need stronger “links in the chain of
causation.”
United States v. Richardson (US Sup. Ct. 1974) (p.37)
BURGER’s opinion holds that taxpayers do not have standing to challenge law
keeping CIA budget secret – too generalized.
Schlesinger v. Reservists Committee to Stop the War (US Sup. Ct. 1974) (p.37)
BURGER’s opinion holds that past Reservists lack standing to challenge Reserve
membership by Congressmen (argument is that this violates the Incompatibility
Clause, Art. I, § 6, cl. 2) – too generalized, no concrete injury.
FEC v. Akins (US Sup. Ct. 1998) (Supp. p.2)
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BREYER’s opinion holds a group of voters has standing to challenge FEC’s failure to
treat AIPAC as a political committee subject to disclosure requirements. Voters are
within the “zone of interests” that the Federal Election Campaign Act sought to
protect (so no prudential obstacle) and there is an “injury in fact” (so no constitutional
obstacle). SCALIA’s dissent argues that the harm is generalized.
Raines v. Byrd (US Sup. Ct. 1997) (Supp. p.3)
REHNQUIST’s opinion holds that Senators challenging the Line Item Veto Act do
not have standing, even though the act explicitly permitted them to bring an action.
There is no Article III case or controversy: Senators haven’t been “singled out for
specially unfavorable treatment,” and they haven’t been deprived of something to
which they’re personally entitled—it’s just about political power. STEVENS’ dissent
argues that the Act deprives Senators of the ability to vote for the final piece of
legislation that becomes law. BREYER’s dissent notes that the parties assert “genuine
and opposing” interests.
3. Political questions
Baker v. Carr (US Sup. Ct. 1962) (p.47)
BRENNAN’s opinion holds that a challenge to apportionment does not present a
nonjusticiable political question. Doctrine is based on the following factors:
“textually demonstrable constitutional commitment of the issue” to another branch,
“lack of judicially discoverable and manageable standards,” need for initial policy
determination unsuited for Court, lack of respect for other branches that opinion
would imply, unusual need for adherence to decisions already made, potential
embarrassment from “multifarious pronouncements” by different branches. None of
these factors apply to apportionment. Precedents holding Article IV § 4 (republican
government) nonjusticiable are based on these factors – but this is an Equal
Protection case, not an Article IV one. FRANKFURTER’s dissent sees this as a
“Guarantee Clause claim masquerading under a different label.”
Powell v. McCormack (US Sup. Ct. 1969) (p.53)
WARREN’s opinion holds that refusal of House to seat Rep. Adam Clayton Powell is
justiciable. Congress only has power to judge qualifications, not to set them—they’re
established in the Constitution already. Opinion is based on “textually demonstrable
commitment” aspect of Baker v. Carr.
Goldwater v. Carter (US Sup. Ct. 1979) (p.53)
REHNQUIST’s plurality opinion holds nonjusticiable the question of whether the
President can terminate a treaty without Senate participation. It’s a dispute between
“coequal branches” and the Court shouldn’t intervene.
Nixon v. United States (US Sup. Ct. 1993) (p.54)
REHNQUIST’s opinion holds that a challenge to Senate Impeachment procedures is
nonjusticiable. Senate has sole power to try impeachments (textual commitment), and
the notion that the word “try” means the Senate has to hear evidence (not just assign a
committee to do so) is not so obvious as to provide a judicially manageable standard.
Reviewing the Senate’s impeachment would violate separation of powers because
impeachment is meant as a check on the judiciary, so it shouldn’t be reviewable by
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the judiciary. Finally, it would be too hard to fashion relief. WHITE’s concurrence
would reach the merits: the word “sole” means the Senate does not share
impeachment with the House; it doesn’t mean to exclude judicial review.
B. Legislative power
1. Introduction
McCulloch v. Maryland (US Sup. Ct. 1819) (p.89)
MARSHALL’s opinion holds that Congress has power under the Necessary and
Proper Clause to establish a National Bank, and that Maryland may not impose a tax
on that bank because “the power to tax is the power to destroy.” Never forget that “it
is a constitution we are expounding.” Congress must have implied power to employ
all appropriate and plainly adapted means (unless prohibited by the Constitution) for
exercising its enumerated powers—to construe “necessary” strictly would be to
deprive Congress of the choice of means. (Reasoning stems not just from text but
from the governmental structure.) And because the states never had an “original right
to tax” federal entities created by the Constitution, the Tenth Amendment could not
preserve such a right.
Field’s summary of McCulloch:
(1) Broad reading of Constitution
(2) Supremacy Clause (tax contradicts federal law, state can’t discriminate against
federal government)
(3) Intergovernmental immunities (structural argument)
(4) Necessary and Proper Clause – broad construction. With limits: (a) means must
not be prohibited, (b) can’t be a pretext (must be a legitimate end). Question:
What if means is constitutional but ends is not expressly granted? Example: Law
forbidding sale of gambling devices across state lines regulates interstate
commerce for the purpose of regulating morality.
US Term Limits, Inc. v. Thornton (US Sup. Ct. 1995) (p.115)
STEVENS’ opinion holds the voter-approved Arkansas amendment imposing term
limits on federal congresspersons unconstitutionally adds to the qualifications for
Congress that the Constitution enumerates. Relies heavily on Powell v. McCormack’s
historical arguments and on the argument suggested in McCulloch (and expanded by
Justice Story) that Tenth Amendment cannot reserve powers the states never had prior
to the Constitution, and of course the states never had an original power to set
qualifications for federal office. Presumption is that states have no power to alter
structure of federal government unless explicitly granted. Finally, the provision of the
Arkansas amendment that allows term-limited incumbents to run as write-in
candidates is clearly intended to prevent their re-election and so is unconstitutional.
THOMAS’ dissent emphasizes the importance of states in the federal system and
views the Qualifications Clause as establishing only minimal requirements, which the
states may supplement. Also notes that Powell isn’t necessarily persuasive here since
it imposed a limit on the Congress, not on the States, and the founders didn’t have the
same fear of State power.
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2. Commerce power
a) Congressional authority
Gibbons v. Ogden (US Sup. Ct. 1824) (p.159)
MARSHALL’s opinion holds that federal law granting license to Gibbons (for ferry
between NY and NJ) takes priority over New York grant of monopoly license to
Ogden. Federal law is within commerce power (with commerce defined broadly to
include navigation) and Supremacy Clause causes it to supercede the state law.
Defines “among the states,” “commerce,” and “regulate” as broadly as possible.
Champion v. Ames (The Lottery Case) (US Sup. Ct. 1903) (p.169)
HARLAN’s opinion upholds law regulating interstate commerce of lottery tickets:
once the item is in commerce, Congress can regulate it, even if the purpose is not
commercial but moral. Also, power to regulate commerce includes power to prohibit
certain commerce.
The Shreveport Rate Case (US Sup. Ct. 1914) (p.167)
HUGHES’ opinion holds that commerce power permits Interstate Commerce
Commission to regulate intrastate railroad transport rates in order to prevent rate
discrimination against interstate transport. (Railroad charged less for transport within
Texas than between Texas and Louisiana, even though the latter distance was often
shorter.) Test: intrastate rates affect interstate commerce.
Hammer v. Dagenhart (The Child Labor Case) (US Sup. Ct. 1918) (p.173)
DAY’s opinion holds commerce power does not permit Congress to exclude the
products of child labor from interstate commerce. Denies that power to regulate is
power to prohibit. HOLMES dissents.
NLRB v. Jones & Laughlin Steel Corp. (US Sup. Ct. 1937) (p.185)
HUGHES’ opinion strikes down the National Labor Relations Act of 1935, which
prohibited discriminatory discharges of employees for union activity. Court holds that
production and manufacturing are not commerce, and their affects on commerce are
too remote to permit Congressional regulation.
Wickard v. Filburn (US Sup. Ct. 1942) (p.189)
JACKSON holds that Congress may regulate wheat production to control supply and
affect prices, even to the extent of including in its quotas the wheat that the farmer
grows for personal consumption. By growing his own wheat instead of buying it on
the market, the farmer affects commerce. Test: “substantial effect.” But the individual
farmer need not have a substantial effect under Jackson’s “aggregation theory”: this
farmer combined with many others would have the requisite effect on commerce.
United States v. Darby (US Sup. Ct. 1941) (p.191)
STONE’s opinion (the switch in time that saved nine) overturns the Child Labor
Case, holding that commerce power permits Congress (1) to prohibit shipment in
interstate commerce of lumber manufactured by employees earning too little or
working too long and also (2) to prohibit the employment of people under
substandard conditions for the production of goods “for interstate commerce.” This
returns to the Lottery Case approach. Famous statement here: the Tenth Amendment
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states “but a truism that all is retained which has not been surrendered.” (Tenth
Amendment offers no affirmative protection of state prerogatives against Congress’
legitimate use of the commerce power.)
Heart of Atlanta Motel v. United States (US Sup. Ct. 1964) (p.203)
CLARK’s opinion upholds public accommodations law passed pursuant to
Commerce Clause (rather than 14th Amendment, thus avoiding state action problem),
which prevented hotel from racially discriminating. Notes Congress’ findings that
racial discrimination in accommodations has substantial effects on commerce:
impairs black travelers’ “pleasure and convenience” and discourages them from
traveling. Test: concerns more than one state and has a real and substantial relation to
the national interest. Fact that purpose was moral rather than commercial is irrelevant.
Katzenbach v. McClung (US Sup. Ct. 1964) (p.203)
CLARK’s opinion (issued the same day as Heart of Atlanta) upholds application of
civil rights law to Ollie’s Barbecue, 11 blocks from interstate highway with mostly
local clientele. Restaurant purchased 46% of its food from a local supplier who
purchased it out of state. The restaurant’s discrimination will have a direct and
restrictive effect on interstate travel by blacks: “one can hardly travel without eating.”
Relatively minor effect here is irrelevant because of the “aggregation” theory of
Wickard v. Filburn.
Field: McClung unacceptably combines Shreveport and Champion v. Ames: the latter
allowed regulation for morals when something was actually in commerce, and the
former allowed regulation of intrastate commerce when it has a substantial effect on
interstate commerce—this case allows moral regulation when there’s a substantial
effect (even if the activity isn’t in commerce).
United States v. Lopez (US Sup. Ct. 1995) (p.142)
REHNQUIST’s opinion holds the Congress lacks power under the Commerce Clause
to prohibit possession of firearms in school zones. Applies substantial effects test: this
is a criminal statute unrelated to commerce at all and unnecessary as part of a larger
regulation of commerce. Law doesn’t even require a nexus between the gun and
commerce. Notes that Congress made no findings on the effects, and doesn’t buy
argument that costs of violent crime have substantial effects on commerce (insurance
premiums, unwillingness to travel, threat to educational process and thus future
productivity of citizenry)—where would such a chain end? That argument would
permit wholesale federal regulation of the educational process. KENNEDY’s
concurrence emphasizes the importance of federalism to the constitutional structure—
education is traditionally a state concern. THOMAS’ concurrence argues for
scrapping the “substantial effect” test altogether and returning to a distinction
between commerce and production. BREYER’s dissent applies a rational basis test
and argues that the connection between education and economic productivity justifies
this law under the commerce clause. SOUTER’s dissent rejects Thomas’ argument as
formalistic and urges faith in congressional judgment. STEVENS’ dissent notes that
possessing guns is the consequence of commercial activity.
Notes on Commerce Clause
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Expansion of power (until recently) may be justifiable not because it’s what the
Founders envisioned—they surely could not have—but because commerce itself has
changed (local commerce now affects international commerce), so regulating
interstate commerce has a different meaning now.
The current Court, in its effort to preserve state prerogatives has begun looking away
from the Commerce Clause and toward the Tenth and Eleventh Amendments. Field:
Court has difficulty defining an area reserved for the states. In any event, why does
the Court need to protect states’ rights? Why can’t states just prevent Congress from
passing laws it doesn’t like? Senate is designed to represent the states (an approach
that would be unconstitutional if the states themselves tried it).
Question: Can the federal government tax state banks? (Reverse situation from
McCulloch.) Answer has traditionally been yes, since supremacy clause works in
only one direction. But there’s some suggestion recently that there are limits on
federal power to tax (and thus destroy) states acting in their sovereign capacity.
b) Federalism-based limits
Maryland v. Wirtz (US Sup. Ct. 1968) (p.207)
HARLAN’s opinion upholds amendment to Fair Labor Standards Act applying law to
employees of state-operated schools and hospitals. DOUGLAS’ dissent cites the
Tenth Amendment.
National League of Cities v. Usery (US Sup. Ct. 1976) (p.207)
REHNQUIST’s opinion (5-4) strikes down extension of FLSA’s maximum hour and
minimum wage provisions to all state and local employees. Cannot apply law to
“States qua States” in a way that displaces state’s authority over “integral state
operations” with respect to traditional state functions. BRENNAN’s dissent argues
that protection of states’ rights should be left to the political process given the
structure of the federal government.
Note: Blackmun joined the majority but switched in subsequent cases, so nothing else
ever fell within the National League of Cities prohibition.
Hodel v. Virginia Surface Min. & Recl. Ass’n (US Sup. Ct. 1981) (p.208)
MARSHALL’s opinion upholds federal law regulating strip mining and articulates
National League of Cities as a three-part test: (1) statute regulates “states as states,”
(2) regulation addresses “attributes of state sovereignty,” and (3) law would impair
state’s ability “to structure integral operations in areas of traditional government
functions.” Law in this case survives because it doesn’t “commandeer the legislative
processes of the States.”
FERC v. Mississippi (US Sup. Ct. 1982) (p.209)
BLACKMUN’s opinion upholds law requiring states to “consider” adopting a
specific utility rate structure and regulatory standards. Congress could have preempted the field entirely, so this is surely acceptable. O’CONNOR’s dissent argues
that the provisions “conscript state utility commissions into the national bureaucratic
army.”
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Garcia v. San Antonio Metropolitan Transit Authority (US Sup. Ct. 1985) (p.209)
BLACKMUN’s opinion (5-4) overrules National League of Cities because its
“integral state function” test has proven unworkable. Argues that the structure of the
federal government offers sufficient protection to States from the political process,
and the Court should step in only to correct “failings in the national political process.”
O’CONNOR’s dissent is unwilling to trust state sovereignty to Congress’
“underdeveloped capacity for self-restraint.”
New York v. United States (US Sup. Ct. 1992) (p.212)
O’CONNOR’s opinion holds that Congress may not require a state to enact or
enforce a federal regulatory regime.
Printz v. United States (US Sup. Ct. 1997) (Supp. p.11)
SCALIA’s opinion strikes down interim provisions of Brady Bill requiring local chief
law enforcement officers to perform background checks on gun purchasers (just until
the national database is established). Reiterates New York v. United States rationale:
history/“dignity” (even though it’s long established that Congress may require state
courts to hear cases under federal law), money (unfunded mandate problem),
separation of powers, political accountability. If Congress may not require State to
enact its regulations (New York v. United States) then it may not conscript State
officers directly. THOMAS concurs and urges an abandonment of most 20th century
Commerce Clause jurisprudence, while also suggesting the Brady Bill violates the 2nd
Amendment.
Field’s comments:
(1) Scalia’s and O’Connor’s use of Supremacy Clause to justify distinction between
state judiciary and other state officers makes little sense, since all state officers are
bound by that Clause to enforce the Constitution and federal law.
(2) Threat of pre-emption (FERC) remains, which seems to limit Printz somewhat. In
any event, the extent of spending power gives Congress the ability to get what it
wants, notwithstanding Printz
(3) Not clear from either approach to limiting Congress (National League of Cities or
New York/Printz) whether the source is an affirmative limit in the Tenth
Amendment—but recent Eleventh Amendment jurisprudence suggests new limits
(see Seminole Tribe, extending 11th Amendment’s prohibition to state courts).
(4) If Printz limits on federal commerce power are to hold, there must be some de
minimis exception to allow certain federal infringements on state domain
(5) Court can also support States’ rights “subconstitutionally” – by interpreting
federal statutes narrowly so they don’t apply to states (age discrimination is an
example) and thereby shifting burden to Congress to be specific if they do intend
for them to apply
3. Spending power
Both taxing and spending powers have traditionally been plenary – because they’re
independent Constitutional powers, Congress can use them for whatever ends it likes
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(though the Lochner era saw some Tenth Amendment limits when the Court thought
Congress used its power not for general welfare but instead to infringe on State
interests).
United States v. Butler (US Sup. Ct. 1936) (p.235)
ROBERTS’ opinion strikes down Agricultural Adjustment Act of 1933, holding that
taxing power may not be used to raise funds to purchase state behavior that it could
not otherwise compel. “Coercion by economic pressure” is forbidden, though
conditions on expenditure of federal funds are permitted. Providing for the “general
welfare” is not an independent constitutional power, but rather a qualification on the
taxing power.
Charles C. Steward Machine Co. v. Davis (US Sup. Ct. 1937) (p.241)
CARDOZO’s opinion upholds tax credit provision of Social Security Act designed to
induce enactment of state laws complying with federal standards. Notes national
crisis (Depression) and need for national action, concluding that there’s no Tenth
Amendment problem. Does note that a nexus is needed between the tax and the action
sought to be induced.
South Dakota v. Dole (US Sup. Ct. 1987) (p.244)
REHNQUIST’s opinion upholds federal statute directing Transportation Secretary to
withhold 5% of federal highway funds from any State that doesn’t raise its drinking
age to 21. Congress may attach conditions to its use of the spending power if those
conditions are related to a federal interest in the program – in this case, the interest in
keeping interstate highways safe by reducing drunk driving. Twenty-first Amendment
is not an “independent constitutional bar” because Congress is not regulating drinking
directly nor demanding unconstitutional behavior by the State. O’CONNOR’s dissent
thinks the drunk driving rationale is over- and under-inclusive and argues that
conditions on federal grants should be limited to specifying how those grants may be
spent.
4. Enforcement of civil rights
Katzenbach v. Morgan (US Sup. Ct. 1966) (p.998)
BRENNAN’s opinion upholds (under § 5 of the Fourteenth Amendment) a Voting
Rights Act provision that overrides New York literacy requirement by extending
franchise to Puerto Ricans with sixth-grade education in Spanish-language schools.
This legislation is a rational way to enforce equal protection both by ensuring voting
rights (with the assumption that literacy requirements typically have a discriminatory
purpose) and by giving minorities a voice to prevent discrimination in provision of
services. It is “plainly adapted” to those ends. And it does not itself violate equal
protection (in that it extends only to those educated in American schools) because it
extends the franchise rather than restricting it and may do so one step at a time (Lee
Optical).
City of Boerne v. Flores (US Sup. Ct. 1997) (Supp. p.82)
KENNEDY’s opinion strikes down the Religious Freedom Restoration Act, which
had sought to reinstate the Smith approach to Free Exercise jurisprudence (if there’s a
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substantial burden on religion then it must be justified by a compelling interest) after
the Court abandoned Smith in favor of a standard tolerating neutral generally
applicable laws that incidentally burden religion. Section 5 of the Fourteenth
Amendment allows Congress to enforce Equal Protection (which incorporates Free
Exercise), not to decree the substance of it. Morgan stands for the proposition that
corrective or remedial legislation is allowed, nothing more. Test is whether there’s
“congruence and proportionality between the injury to be prevented…and the
means.” No such proportionality is found here, where the Act imposes the “most
demanding test known to constitutional law” without regard to whether there’s an
intentional burdening of religion.
C. Executive Power
Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure) (US Sup. Ct. 1952) (p.356)
BLACK’s formalistic opinion holds that Truman exceeded his executive authority
when he seized steel mills during Korean War to prevent a strike that would harm
military production. All acknowledge the action was not expressly permitted by the
Constitution or any congressional statute. Neither the “aggregate” executive power
nor the Commander-in-Chief power nor the power to “faithfully execute the laws”
authorizes the seizure. Congress has exclusive authority to make laws. JACKSON’s
often-cited concurring opinion categorizes three degrees of executive power: actions
pursuant to express or implied authorization (maximum power), action in face of
congressional silence (twilight zone with concurrent legislative/executive power), and
action incompatible with express or implied will of Congress (limited to president’s
constitutional power minus Congress’ constitutional power).
Dames Moore v. Regan (US Sup. Ct. 1981) (p.367)
REHNQUIST’s opinion upholds Carter-Reagan agreement with Iran for hostage
release, nullifying all attachments and liens on Iranian assets and turning claims over
to a newly established tribunal. Cites Jackson’s Youngstown concurrence extensively,
putting this action in the first category (express congressional authorization) and
noting not only a statute authorizing president to nullify claims but also a long history
of congressional acquiescence in this type of presidential behavior. Emphasizes
“narrowness” of holding: settlement of claims here is necessary incident to resolving
major foreign policy dispute and Congress has acquiesced.
United States v. Nixon (US Sup. Ct. 1974) (p.404)
BURGER’s opinion holds that Nixon does not have absolute executive privilege
against producing tape recordings in a criminal case. First, Court review here does not
violate separation of powers (Marbury). Second, absolute privilege (based only on a
“generalized claim of the public interest”) would damage separation of powers by
inhibiting courts’ Article III role. Third, there is a presumptive privilege for
presidential communications, but it depends on more than a “generalized interest in
confidentiality.”
Nixon v. Fitzgerald (US Sup. Ct. 1982) (p.408)
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POWELL’s opinion grants Nixon absolute presidential immunity from civil liability
for official acts, partly because it would be such a diversion from presidential duties
to allow him to be sued for official acts.
Clinton v. Jones (US Sup. Ct. 1997) (Supp. p.40)
STEVENS’ opinion refuses to extend Fitzgerald to Clinton’s unofficial acts
(propositioning Paula Jones). Court just can’t imagine that civil suits based on
unofficial behavior could possibly divert the president from his duties. Separation of
powers does not require Court to stay civil actions against president until he leaves
office.
Field: the only immunity in the Constitution is legislative immunity. Presidential
immunity was invented by the Court (justified by a tenuous history-based statutory
interpretation of 42 USC § 1983, under which most constitutional claims are brought
against public officials).
D. Separation of Powers
Constitutional structure embodies both “separation of powers” and “checks and
balances.” Separation of powers was a protection against tyranny, but it was always a
matter of degree, rather than a strict separation.
INS v. Chadha (US Sup. Ct. 1983) (p.375)
BURGER’s opinion strikes down “legislative veto” provision whereby Congress
delegates power to Attorney General (to suspend deportation) but reserves right for
one chamber of Congress to veto her decision. The procedure violates both the
Presentment Clauses (Art. I, § 7, cl.2 and cl. 3) and the Bicameral Requirement (Art.
I, § 1). Functional test: The legislative veto is “essentially legislative in purpose and
effect” and therefore must comport with the normal procedures for enacting
legislation. WHITE’s dissent notes how widespread the legislative veto has become
as the federal government has grown and delegation has become more important.
Field: Our agency system probably isn’t compatible with separation of powers
Clinton v. New York (US Sup. Ct. 1998) (Supp. p.33)
STEVENS’ opinion strikes down Line Item Veto Act of 1996 on grounds that the
only way for the president to reject a bill is in its entirety, in accordance with Art. I, §
7, cl. 2. The line item veto would allow him to unilaterally amend statutes, creating
“Public Law 105-33 as modified by the president.” SCALIA’s dissent notes the
Congress is allowed to delegate rulemaking authority to the exective branch, and that
indeed Congress is allowed to give the president discretionary authority to decline to
spend appropriated money. There’s not a “dime’s worth of difference” between that
approach and the line item veto. BREYER’s dissent argues that the act does not give
the president authority to change law, just to enforce it—the act should be read as
putting into any future appropriation a provision authorizing the president to decline
to spend (with Congress retaining the power to require the spending by a simple
majority).
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Question: Does the Constitution establish the only way to pass laws, or may Congress
follow the Constitutional procedure and pass a law that establishes a new procedure?
Field: Maybe functional test (Breyer/White) is appropriate rather than formalist one
(Burger) – if effect of new procedure is to threaten liberty or seriously upset the
balance of power, then it’s invalid. But if it’s just an experiment without that effect,
then allow it. (Congress and the President both were happy with the Line Item Veto.)
E. Federal Limits on State Power
1. “Dormant” Commerce Clause
Dormant commerce clause comes primarily from notion that purpose of Commerce
Clause is to ensure a national free trade zone, so any state interference with that zone
is impermissible. Current law balances state/local and federal concerns, with more
weight generally given to state/local needs (which makes sense, given that the clause
is “dormant” because Congress hasn’t acted, and if Congress does act then the
Supremacy Clause gives it priority). But state legislation that is either discriminatory
or too burdensome then it’s unconstitutional.
Views of the dormant commerce clause
(1) No negative aspect to commerce clause at all (Scalia, Thomas, Rehnquist)
(2) Protects against discriminatory state regulation (protectionism) only
(3) Anti-protectionism and balancing (current approach)
Gibbons v. Ogden (US Sup. Ct. 1824) (p.159)
MARSHALL’s opinion holds that federal law granting license to Gibbons (for ferry
between NY and NJ) takes priority over New York grant of monopoly license to
Ogden. Federal law is within commerce power (with commerce defined broadly to
include navigation) and Supremacy Clause causes it to supercede the state law.
Defines “among the states,” “commerce,” and “regulate” as broadly as possible.
Philadelphia v. New Jersey (US Sup. Ct. 1978) (p.271)
STEWART’s opinion holds that New Jersey may not prohibit importation from other
states of solid or liquid waste. Though a law directed at local concerns and having an
incidental effect on interstate commerce is permissible, a facially protectionist
measure is per se unconstitutional. It doesn’t matter that the purpose was health and
safety: “evil of protectionism can reside in legislative means as well as legislative
ends.” New Jersey can’t isolate itself from the national economy. Any health and
safety needs don’t justify distinguishing out-of-state waste from local waste.
Quarantine laws are not analogous. REHNQUIST’s dissent thinks quarantine laws are
directly analogous.
Dean Milk Co. v. Madison (US Sup. Ct. 1951) (p.281)
CLARK’s opinion holds that local ordinance protecting local industry
unconstitutionally discriminates against interstate commerce (even though it also
discriminates against intrastate commerce from outside of the locality), and is not
saved by its legitimate health purpose as long as “reasonable nondiscriminatory
alternatives” are available to achieve that purpose. Madison, Wisconsin barred sale of
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pasteurized milk unless it was processed and bottled at an approved plant within five
miles of town square.
Field: (1) Is there a Geduldig-like distinction at work here? (2) Unlike Washington v.
Davis, court looks to effect and not just intent (3) Court’s scrutiny here is well beyond
rational basis, since it apparently requires least discriminatory alternative
Baldwin v. Seelig (US Sup. Ct. 1935) (p.287)
CARDOZO’s opinion strikes down New York’s regulation of milk prices because by
setting minimums the regulation averts Vermont’s competitive advantage that comes
from offering lower prices. Doesn’t matter that New York’s claimed (public health)
purpose was to ensure a supply of milk—effect is to erect barriers to interstate
competition. Constitutional principal: the states must sink or swim together.
Field: Now there’s a per se rule against protectionism whether it’s facially
discriminatory (Philadelphia v. New Jersey) or discriminatory in effect (Dean Milk,
Baldwin v. Seelig)
Hunt v. Washington State Apple Advertising Comm’n (US Sup. Ct. 1977) (p.289)
BURGER’s opinion for unanimous Court strikes down North Carolina law requiring
apples sold in the State to carry only the U.S. grade standard. Washington State was
North Carolina’s main competitor and had a higher standard than the USDA one.
Even if motive wasn’t protectionist (which it probably was), the effect is
discriminatory. Says discriminatory effect places burden on State to justify it in terms
of (a) local benefits and (b) unavailability of nondiscriminatory alternatives.
Pike v. Bruce Church, Inc. (US Sup. Ct. 1970) (p.297)
STEWART’s opinion results in rule that discriminatory laws (in intent or effect) are
per se impermissible and laws that have legitimate local purpose and only
incidentally affects interstate commerce are still invalid if they unduly burden
commerce (balancing test). Arizona law required home-state processing (and
labeling) of canteloupes grown in Arizona – it’s not clear the Court really applies a
balancing test here rather than the regular per se rule against protectionism.
Kassel v. Consolidated Freightways Corp. (US Sup. Ct. 1981) (p.306)
POWELL’s opinion strikes down Iowa’s weight limit on freight trucks, where that
limit is lower than those of the neighboring states. Applies balancing test and sees the
needs of interstate commerce far outweighing local interests because (a) the trial
Court found that no real safety interest is accomplished by the weight limit, and (b)
there’s a substantial burden on interstate commerce. Declines to give deference to the
State because the regulation disproportionately affects out-of-state residents and
businesses. BRENNAN concurs, largely because he believes the safety rationale was
a post hoc one offered by the State’s lawyers, and not the actual purpose of the law.
REHNQUIST’s dissent argues that state safety measures should have a strong
presumption of validity and that if it’s true that heavier trucks are less safe than
lighter ones, the Court shouldn’t tell the State where to draw its line.
Exxon Corp. v. Governor of Maryland (US Sup. Ct. 1978) (p.314)
STEVENS’ opinion sustains law prohibiting producers or refiners of petroleum
products from operating service stations in Maryland. No such producers existed in
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Maryland, so the effect fell only on out-of-state producers. Court notes that there are
no in-state producers to be protected here and denies that there’s an undue burden.
Minnesota v. Clover Leaf Creamery Co. (US Sup. Ct. 1981) (p.315)
BRENNAN’s opinion upholds state law banning sale of milk products in nonreturnable plastic containers (but allows non-returnable pulpwood containers, which
are a local product.) Regulation doesn’t necessarily discriminate (out-of-state
businesses can go into pulpwood container production), and there’s no undue burden.
South-Central Timber Development, Inc. v. Wunnicke (US Sup. Ct. 1984) (p.323)
WHITE’s opinion declines to apply the “market participant” doctrine where Alaska
sells timber and requires the purchaser to partially process the timber in Alaska before
shipping it out of state. Doctrine says that when State is acting as a market participant
rather than a regulator, it can discriminate against interstate commerce. White
distinguishes the three cases where this doctrine has been applied, noting that the
restrictions here are imposed on post-sale behavior.
Other market participant cases
General Motors Corp. v. Tracy (US Sup. Ct. 1997) (Supp. p.28)
Camps Newfound/Owatonna v. Town of Harrison (US Sup. Ct. 1997) (Supp. p.29)
2. Interstate privileges and immunities
Why not use privileges and immunities instead of “dormant commerce clause”? (1)
P&I protects only fundamental (national) interests, (2) it protects only people and not
corporations, (3) it is an individual right and can’t be overturned by Congress, while
Congress can act in place of state regulation that the dormant commerce clause
prohibits.
United Bldg & Construction Trades Council v. Camden (US Sup. Ct. 1984) (p.329)
REHNQUIST’s opinion holds that Art. IV privileges and immunities clause does
apply to a Camden ordinance requiring that 40% of employees of city contractors be
local residents. There’s no market participant exception for the privileges and
immunities clause, and city ordinance is state action because city is state subdivision.
Doesn’t matter that ordinance also discriminates against non-Camden New Jersey
residents, because at least those residents can seek a remedy at the polls. Test:
ordinance burdens a fundamental right to seek employment with city contractors
(even if it’s not fundamental for Equal Protection purposes), because that right is
“basic to the livelihood of the Nation.” Remands for determination of whether clause
is violated.
Supreme Court of New Hampshire v. Piper (US Sup. Ct. 1985) (p.334)
POWELL’s opinion holds that state law limiting bar admission to state residents
violates Privileges and Immunities. Bar admission is a “privilege” (i.e., fundamental
right for the purposes of this clause) because it is “important to the national economy.
It can only be burdened if (1) there is a substantial reason for the discrimination and
(2) the discrimination bears a substantial relationship to the State’s objective.
Availability of less restrictive means is also relevant.
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Rule: State cannot burden fundamental national rights unless it satisfies intermediate
scrutiny. Unlike commerce clause, there’s no per se invalidity here. (But note that
Congress can reverse a result under the dormant commerce clause, but not under
privileges and immunities.)
III. First Amendment
A. Speech
General issues raised in First Amendment cases
(1) Is the activity conduct or expression? (Speaker intends expression and likely will
be understood that way) (2) How can you tell if the restriction targets content? (3)
What purposes are sufficient to justify restriction? (4) Captive audience vs. avert eyes
(5) Alternate means of communication (6) Relevance of specific regulation covering
the activity (7) Judge by category or by individual facts?
First Amendment hornbook
(1) In a public forum (streets and parks), if restriction is content-based (targeted at
content)—including standardless licensing schemes that make content-based
applications possible—strict scrutiny applies and generally is fatal. In a
nonpublic forum—i.e., when government is in a different role (patron, employer,
educator, market participant, proprietor)—rational basis seems to apply unless
the restriction is viewpoint-discrimination.
(2) If restriction is content-neutral but incidentally restricts speech (including
expressive conduct) then intermediate scrutiny of four-part O’Brien test applies:
(a) Is regulation within government’s constitutional power? (b) Does it further
important or substantial governmental interest? (c) Is interest unrelated to
suppression of free expression? (d) Is incidental restriction on speech no greater
than essential to further the interest?
(3) If speech is unprotected (obscenity, fighting words) then mere rational basis
review applies.
(4) First Amendment “escape hatches”: nonpublic forums, curricular activities in
schools, government subsidies (as opposed to penalties)
1. Different kinds of speech
a) Clear and present danger
Schenck v. United States (US Sup. Ct. 1919) (p.1036)
HOLMES’ opinion articulates “clear and present danger” test, upholding convictions
for violating the 1917 Espionage Act. Defendants published pamphlet equating the
draft with slavery and urging resistance.
Frohwerk v. United States (US Sup. Ct. 1919) (p.1037)
HOLMES’ opinion upholds convictions under Espionage Act for publishing a
newspaper urging noncompliance with the draft.
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Debs v. United States (US Sup. Ct. 1919) (p.1038)
HOLMES’ opinion upholds conviction of Eugene Debs under Espionage Act for
delivering a speech whose “natural and intended effect would be to obstruct
recruiting” for military service. Notes that jury instructions required specific intent to
obstruct recruiting (specific intent is necessary for attempt and conspiracy charges).
Abrams v. United States (US Sup. Ct. 1919) (p.1040)
CLARKE’s opinion upholds Espionage Act convictions for distributing leaflets
advocating general strike on munitions factories in protest against the US military
expedition into Russia (after Russian-German alliance). “Men must be held to have
intended…the effects which their acts were likely to produce. HOLMES dissents,
arguing that there was no intent to impede the US war against Germany (intent was to
prevent war against Russia) and that there was no clear and present danger posed by
the “surreptitious publishing of a silly leaflet by an unknown man.” Paraphrases J.S.
Mill on testing the truth of unpopular ideas in the marketplace.
Masses Publishing Co. v. Patten (SDNY 1917) (p.1046)
LEARNED HAND’s opinion in this pre-Schenck case prefers to look at the words
used and whether they constitute “direct incitement to violent resistance” or direct
counsel or advocacy to illegal activity, rather than looking to the likely effects of the
speech as Holmes’ clear and present danger test does.
Gitlow v. New York (US Sup. Ct. 1925) (p.1050)
SANFORD’s opinion seems to apply Learned Hand’s test, upholding a conviction for
“criminal anarchy” where defendant published a “left wing manifesto” preferring
militant to moderate socialism. The manifesto “advocates and urges in fervent
language mass action” and it is “the language of direct incitement.” Where the
legislature has already determined that a certain category of speech is dangerous, the
clear and present danger test need not be applied in specific instances. HOLMES’
dissent argues that there was no present danger: “Every idea is an incitement.”
Note: Court doesn’t always defer to legislative findings. In Landmark
Communications, Inc. v. Virginia (US Sup. Ct. 1978) (p.1075), BURGER says even
with legislative findings of a general danger, the Court needs to look at whether in
this specific case that danger was present.
Whitney v. California (US Sup. Ct. 1927) (p.1054)
SANFORD’s opinion upholds a conviction for criminal syndicalism where defendant
was a member of a militant labor party. BRANDEIS (with Holmes) concurs, but
distinguishes between advocacy and incitement.
Yates v. United States (US Sup. Ct. 1957) (p.1068)
HARLAN’s opinion distinguishes between advocacy of abstract doctrine and
advocacy of action.
Scales v. United States (US Sup. Ct. 1961) (p.1068)
HARLAN’s opinion affirms conviction under Smith Act (after interpreting it to
require specific intent) and notes that “present advocacy of future action” can be
prohibited. Scales was the last person convicted under the Smith Act.
Noto v. United States (US Sup. Ct. 1967) (p.1069)
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HARLAN’s opinion reverses Smith Act conviction where there was sparse evidence
of any illegal advocacy.
Bond v. Floyd (US Sup. Ct. 1966) (p.1070)
WARREN’s opinion holds that Georgia may not refuse to seat Rep. Julian Bond
solely because he had criticized the draft and Vietnam War.
Brandenburg v. Ohio (US Sup. Ct. 1969) (p.1071)
PER CURIAM opinion reverses conviction of KKK leader whose speech at a rally
mentioned “revengeance” against the federal government. Test: “inciting or
producing imminent lawless action” and “likely to incite or produce such action.”
Abstract teaching can’t be stopped. Tightens up the “present” side of the clear and
present danger test.
Question: When is speech sufficiently “brigaded” with conduct that it becomes a form
of conduct? Factors to consider include the medium, the place, the audience (size,
active or passive recipients of speech, armed or unarmed). This question is relevant
not only to political speech.
Brandenburg test (according to Field): Incitement is determined by specific intent and
imminence.
Field: this opinion reverses Whitney v. California – unusual to overturn a case in a
per curiam opinion. Fortas had written the opinion but resigned a couple of days
before it was issued, so it was changed to per curiam.
NAACP v. Clairborne Hardware Co. (US Sup. Ct. 1982) (p.1074)
STEVENS’ opinion reverses damage award against NAACP field secretary Charles
Evers, who had warned that violators of an economic boycott would be “disciplined.”
No acts of violence followed immediately from his speech, so there’s not question
that it was mere advocacy and therefore protected.
b) Fighting words, hostile audiences and hate speech
Cantwell v. Connecticut (US Sup. Ct. 1940) (p.1076)
ROBERTS’ opinion holds that Jehovah’s Witness cannot be punished for giving a
speech on a New Haven street corner just because the audience was offended by it.
His speech created no clear and present danger of rioting – had it been “likely to
provoke violence and disturbance of good order, even though no such eventuality be
intended” he could have been be stopped.
Chaplinsky v. New Hampshire (US Sup. Ct. 1942) (p.1077)
MURPHY’s opinion upholds conviction of Jehovah’s Witness who called a
policeman a “God damned racketeer” and “a damned Fascist” when the cop escorted
him away after his literature caused a disturbance. Court holds that fighting words
(those “likely to cause an average addressee to fight” or those which “by their very
utterance inflict injury or incite an immediate breach of the peace”) are unprotected.
Some words get no First Amendment protection: “the lewd and obscene, the profane,
the libelous, and the insulting or ‘fighting’ words.” The words “are of such slight
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social value as a step to truth” that they don’t outweigh “the social interest in order
and morality.”
Cohen v. California (US Sup. Ct. 1971) (p.1081)
HARLAN’s opinion reverses conviction for offensive conduct of defendant who wore
a jacket bearing the words “Fuck the Draft.” Can’t punish the underlying message,
and though the word was offensive it was not obscene and it was not directed at any
particular listener (so it wasn’t a fighting word). Nor did the jacket invade
“substantial privacy interests…in an essentially intolerable manner” because people
could turn away. Notes difficulty of allowing State to cleanse language, and argues
that the “emotive” force of words is often as important (and as constitutionally
protected) as the “cognitive” force. BLACKMUN’s dissent argues the “antic” was
“mainly conduct and little speech.”
Feiner v. New York (US Sup. Ct. 1951) (p.1086)
VINSON’s opinion affirms disorderly conduct conviction for giving a left-wing
speech that angered the audience. Notes that the “ordinary murmurings and objections
of a hostile audience cannot be allowed to silence a speaker” but says this goes
beyond argument or persuasion and instead is “incitement to riot.” BLACK’s dissent
argues that the police should have reacted to the audience’s hostility by attempting to
quiet the audience and protect the speaker.
Gregory v. Chicago (US Sup. Ct. 1969) (p.1089)
WARREN’s opinion reverses conviction for disorderly conduct where defendants
marched for desegregation and “onlookers became unruly.” When demonstrators
refused police officer’s order to disperse, they were arrested—but Court ducks that
issue, noting that they were arrested not for disobedience but for the demonstration
itself, which was protected activity.
Kunz v. New York (US Sup. Ct. 1951) (p.1090)
VINSON’s opinion (on the same day as Feiner) strikes down permit requirement for
pubic meetings because it grants too much discretion to police commissioner to
impose prior restraint on speech. The ordinance did not list any reasons for which a
permit application could be denied.
R.A.V. v. City of St. Paul (US Sup. Ct. 1992) (p.1115)
SCALIA’s majority opinion strikes conviction under Bias-Motivated Crime
Ordinance of cross-burning Klansmen. Although fighting words may be proscribed
without offending the First Amendment, the proscription may not discriminate on the
basis of content, and because this statute targets specific categories of fighting words
it is unconstitutional. Law does not “single out an especially offensive mode of
expression” (i.e., those words most likely to cause harm), nor does it aim at
“secondary effects” of the speech. (Field notes that intent required by ordinance was
knowledge or reasonable grounds to know, i.e., negligence.) WHITE’s concurrence
argues that if fighting words are unprotected then that’s the end of the inquiry—
legislature can go one step at a time rather than going after all fighting words in one
swoop. But he feels the ordinance is overbroad because it criminalizes protected
speech that causes generalized reactions of “anger, alarm or resentment.” STEVENS’
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concurrence also complains that the majority obscures the traditional category
approach (which put some categories of speech beyond First Amendment scrutiny).
Field suggests that a major rationale for the majority’s opinion was an antiaffirmative action one—you can’t use speech laws to help minorities any more than
you can use other types of laws.
Wisconsin v. Mitchell (US Sup. Ct. 1993) (p.1123)
REHNQUIST’s opinion upholds a hate crimes law which increased penalties for
crimes committed with hateful intent (race, religion, etc.). Notes that judges
traditionally consider motives in fixing sentences. Distinguishes hate crimes laws
from hate speech laws in that the former are aimed only at conduct unprotected by the
First Amendment.
Summary of the law so far
Regulation on the basis of content (“targeted” at content, in Field’s formulation) faces
strict scrutiny (and viewpoint-based regulation is especially bad). Other regulation of
speech faces intermediate scrutiny. Some speech is not subject to First Amendment
scrutiny at all: obscenity, fighting words (epithets), incitements to crime, libel,
commercial speech. And of course conduct is not protected either.
Field on how to write a constitutional hate speech law
(1) Apply it only to hard-core hate speech, analogous to obscenity law—this includes
requiring specific intent and actual harm. Idea is that when there’s specific intent to
harm someone and that intent is accomplished then the state (tort law) interest
outweighs the constitutional interest. But New York Times v. Sullivan (below) calls
this premise into question, at least with respect to true (but harmful) speech about
public figures. (2) Require face-to-face vilification, or at least vilification aimed at an
individual or small group (see the Stanford code)
c) Libel
New York Times Co. v. Sullivan (US Sup. Ct. 1964) (p.1094)
BRENNAN’s opinion reverses libel conviction based on advertisement defending
Martin Luther King and criticizing (by implication) the Montgomery police
commissioner. Treats libel action like any other state restriction on speech, and
establishes the following test for libel of public officials: falsehood made with actual
malice (knowledge or reckless disregard).
Curtis Publishing Co. v. Butts and AP v. Walker (US Sup. Ct. 1967) (p.1100)
WARREN’s opinion extends Sullivan standard from public officials to public figures,
including a university athletic director and a retired general.
Gertz v. Robert Welch, Inc. (US Sup. Ct. 1974) (p.1102)
POWELL’s opinion declines to extend Sullivan to private persons, and holds that a
lawyer defending the victim of a police shooting is not a public figure. States may
define for themselves the standard for libel of private persons, but they may permit
compensatory damages only, unless there’s a showing of actual malice (knowledge or
reckless disregard).
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Dun & Bradstreet, Inc. v. Greenmoss Builders (US Sup. Ct. 1985) (p.1103)
POWELL’s plurality opinion upholds defamation judgment from false credit report
(without showing of actual malice), refusing to apply Sullivan and distinguishing
between speech on matters of “public concern” and that on matters of “private
concern.”
Hustler Magazine v. Falwell (US Sup. Ct. 1988) (p.1105)
REHNQUIST’s opinion holds that public figure offended by magazine parody must
show “actual malace” (Sullivan) in order to recover for tort of intentional infliction of
emotional distress. Jerry Falwell sued Hustler over a parody suggesting he had sex
with his mother – it was clearly labeled as a parody and couldn’t have been
interpreted as stating actual facts.
Time, Inc. v. Hill (US Sup. Ct. 1967) (p.1107)
BRENNAN’s opinion applies Sullivan standard to “false light” privacy cases. Where
a play falsely portrayed hostage victims (as courageous!), they were not able to
recover without proving knowledge of falsity or reckless disregard for truth.
Cox Broadcasting Corp. v. Cohn (US Sup. Ct. 1975) (p.1108)
WHITE’s opinion holds that civil liability in a “true” privacy action can not be
imposed on a broadcaster for accurately reporting information released in public court
records. Cox broadcast rape victim’s name.
Zacchini v. Scripps-Howard Broadcasting Co. (US Sup. Ct. 1977) (p.1109)
WHITE’s opinion holds that notwithstanding Time (above) the press may be liable
for damages when it violates a performer’s “right of publicity” by broadcasting his
entire act without his consent.
d) Sexually explicit speech
i) Obscenity
Roth v. United States and Alberts v. California (US Sup. Ct. 1957) (p.1126)
BRENNAN’s opinion holds that obscenity is not within the area of constitutionally
protected speech or press. Obscenity is “utterly without redeeming social
importance.”
Miller v. California (US Sup. Ct. 1973) (p.1132)
BURGER’s opinion establishes the prevailing test for defining obscenity. The test
rejects the “utterly without redeeming social importance” factor. Test: (1) appeals to
prurient interest according to contemporary community standards, (2) depicts sexual
conduct specifically defined by state law in a patently offensive way, (3) lacks
“serious literary, artistic, political or scientific value.” The first two prongs are left to
juries and community local standards, but the third prong is based on national
standards and that’s how these cases are won.
Paris Adult Theatre I v. Slaton (US Sup. Ct. 1973) (p.1135)
BURGER’s opinion holds that Georgia may ban obscene films in adult theatres
because there are legitimate state interests (for instance, a reasonable connection
between obscene material and crime). Rejects comparison with Stanley v. Georgia,
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since this isn’t a private home. Remands for determination of whether these films
actually were obscene in light of Miller. BRENNAN’s dissent finds the Georgia
restriction too vague and absent a harm to children or non-consenting adults sees no
reason to ban these theatres.
Field: One theory of this case is that obscenity (even viewed privately by consenting
adults) dilutes the general tone of the community and thereby harms others who do
object to obscenity (Bickel). But how to reconcile that with Cohen? Is the difference
just that Cohen didn’t involve obscenity, so it had First Amendment protection?
ii) Pornography
New York v. Ferber (US Sup. Ct. 1982) (p.1145)
WHITE’s opinion upholds prohibition on (non-obscene) child pornography, creating
a new category of unprotected speech—the only time such a category has been
created since Chaplinsky. State interest in protecting children from exploitation (in
the making of the films) is compelling, and it’s irrelevant to the child whether there’s
any literary or other merit. The films are evidence of child abuse, and allowing the
distribution of the films creates an economic incentive for such abuse.
Osborne v. Ohio (US Sup. Ct. 1990) (p.1148)
WHITE’s opinion holds Stanley v. Georgia inapplicable to child pornography. Just as
state has valid interest in eliminating chain of distribution (see Ferber), it has an
interest in eliminating demand for child pornography.
American Booksellers Ass’n v. Hudnut (7th Cir. 1986) (p.1151)
EASTERBROOK’s opinion strikes down the MacKinnon-Dworkin Indianapolis
ordinance that banned non-obscene pornography (without examining the work as a
whole) on the grounds that it perpetuated submissive stereotypes of women. Court
holds that ordinance is content-based discrimination and the connection between
pornography and submission of women is insufficiently compelling to justify the ban,
since any effective speech will affect beliefs—it can’t be banned simply because of
disagreement with those beliefs. If the concern is that women are harmed in making
the films, the state may ban that harm without banning all pornographic films.
Erznoznik v. Jacksonville (US Sup. Ct. 1975) (p.1156)
POWELL’s opinion invalidates ordinance prohibiting drive-in theatres visible to
streets from showing (non-obscene) nudity. Reasonable time, place and manner
regulations that are neutral in application are allowed. But this ordinance
discriminates on the basis of content, so strict scrutiny applies. (Cites Cohen in noting
that the viewer “readily can avert his eyes.”) Rejects two justifications: protecting
minors (it’s overbroad) and avoiding traffic problems (underinclusive – compare
Railway Express’ step-at-a-time rationale). BURGER’s dissent considers the opinion
“rigidly simplistic.”
Schad v. Mount Ephraim (US Sup. Ct. 1981) (p.1158)
WHITE’s opinion strikes down zoning ban on “live entertainment” which in this case
was applied to a coin-operated strip show in an adult store. An outright ban on nudity
is impermissible.
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Young v. American Mini Theatres (US Sup. Ct. 1976) (p.1159)
STEVENS’ plurality opinion upheld zoning ordinance requiring dispersal of adult
theatres and bookstores (even if material is not obscene). This speech is less valuable
than political speech—and determining value necessarily depends on content. But it’s
not viewpoint discrimination. The zoning restriction has a small impact on speech,
leaving open alternative venues.
Renton v. Playtime Theatres, Inc. (US Sup. Ct. 1986) (p.1162)
REHNQUIST’s opinion upholds zoning law that concentrates adult theatres and
keeps them away from schools, churches, homes. Analyzes law as a content-neutral
time, place and manner restriction, because it aims at secondary effects and not at the
content itself. Test: substantial governmental interest, don’t unreasonably limit
alternative avenues of communication. BRENNAN’s dissent argues that the law
doesn’t leave open reasonable alternatives, and it’s not narrowly tailored.
Field: It’s not clear that the state ought to be allowed to suppress speech in order to
prevent secondary effects, as opposed to just going after those effects themselves.
FCC v. Pacifica Foundation (US Sup. Ct. 1978) (p.1164)
STEVENS’ opinion upholds FCC’s declaratory order granting a complaint against a
radio station for broadcasting (at mid-afternoon) an indecent (not obscene) George
Carlin monologue. He gets no majority for the section suggesting that indecent
speech like this is outside of the normal First Amendment protection (like fighting
words, etc.) because it lacks social value and has the capacity to offend. But he does
get a majority for the argument that broadcasting (always a highly regulated medium)
is the least protected medium because it pervades the privacy of the home (captive
audience) and is “uniquely accessible to children.” (But compare Erznoznik’s
rejection of these rationales.) Upholds FCC’s use of a nuisance rationale (implying it
might not support criminal sanctions), “under which context is all important,” since a
nuisance is “a right thing in the wrong place.” POWELL concurs but disagrees that
the Court can decide what speech is valuable enough for protection. BRENNAN’s
dissent says this is not a reasonable time, place and manner restriction because the
radio can be turned off—its not as invasive as sound trucks. Court shouldn’t “reduce
the population to reading only what is fit for children.”
Note: Dial-a-porn is protected (in another case), partly because you have to pick up
the phone to call and partly because telephone isn’t highly regulated (not a limited
bandwidth).
Denver Area Educational Telecommunications Consortium v. FCC (US Sup. Ct.
1996) (p.1171)
BREYER’s plurality opinion applies balancing to uphold a regulation authorizing
cable operators to ban indecent programming on leased access channels, while
rejecting regulations requiring scrambling and permitting able operators to prohibit
obscene or indecent material on public access channels. The first provision is
narrowly tailored but the second isn’t. As for third provision, First Amendment
interests are stronger with respect to public access channels.
Reno v. American Civil Liberties Union (US Sup. Ct. 1997) (Supp. p.92)
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STEVENS’ opinion strikes down portions of Communications Decency Act
prohibition the display or transmission to minors of indecent and patently offensive
(not obscene) message on the Internet. Factors: Need to take affirmative steps to
access these messages, lack of existing technology to enable transmitters to screen
their viewership (so the ban on transmission to minors could mean a total ban on
transmission), unlimited channels available (unlike radio), no history of regulation of
Internet, lack of provision allowing parental consent for minors to view messages.
Distinguishes Pacifica and Renton.
Field: (1) It’s not clear how you can zone the Internet by restricting the messages to
certain times (like radio) or places (like adult stores). (2) Stevens has been pushing
for an explicit acknowledgement that sexual speech is less protected than other
speech, but he’s never gotten a majority on that
e) Commercial speech
Preface on commercial speech
(1) Traditionally, commercial speech was treated as outside the First Amendment—it
was a first step in a commercial transaction, and the state could regulate such
transactions. Bigelow v. Virginia (US Sup. Ct. 1975) (p.1176) held that Virginia
couldn’t criminalize advertising in newspapers about the availability of abortion,
since abortion was constitutionally protected. The case that established the
commercial speech doctrine was Virginia Pharmacy Board v. Virginia Citizens
Consumer Council (US Sup. Ct. 1976) (p.1176). In that case, Blackmun stressed
the right of consumers to receive information in striking down a law preventing
pharmacists from advertising the prices of drugs (only pharmacists were allowed
to sell drugs).
(2) Currently, Court calls commercial speech lower-level speech and claims to
exercise intermediate scrutiny but doesn’t seem to treat it that way – they seem
often to be exercising strict scrutiny in requiring the least restrictive alternative.
Still, prior restraint and overbreadth doctrines do not apply to commercial speech.
Field: it’s “intermediate scrutiny plus” for commercial speech. Does this mean the
Court is protecting economic interests á la Lochner through the back door of the
First Amendment?
(3) What constitutes commercial speech? Not the ad in New York Times v.
Sullivan—that case was decided on regular speech grounds (before Virginia
Pharmacy Board).
Central Hudson Gas v. Public Service Comm’n (US Sup. Ct. 1980) (p.1189)
POWELL’s opinion strikes down regulation preventing electrical utilities from
engaging in promotional advertising (purpose was energy conservation). Four-part
test: (1) Protected expression, (2) substantial state interest, (3) directly advanced by
law, (4) not more extensive than necessary. Regulation passes the first three parts
(interest is in reducing demand for electricity) but not the fourth because it reaches all
promotional advertising, even that which doesn’t impair the state’s interest in energy
conservation. BLACKMAN concurs but disagrees that suppression of speech is a
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legitimate means to promote energy conservation – compare the secondary effects
rationale of Renton. REHNQUIST dissents, arguing that the state should be allowed
to regulate a state-created monopoly as much as it wants – compare to his completely
different argument in Jackson v. Metropolitan Edison.
44 Liquormart, Inc. v. Rhode Island (US Sup. Ct. 1996) (p.1198)
STEVENS’ plurality opinion strikes down prohibition on advertising the price of
alcohol, a measure that was designed to promote temperance. He gets only two other
votes for the use of strict scrutiny (despite this being commercial speech) because it’s
a complete speech ban rather than a content-neutral time, place and manner
regulation. He gets three votes for the use of the Central Hudson test (strengthened by
a requirement that the regulation advance the state interest to a “material degree”),
and he holds that not only does the law not significantly advance temperance but also
it’s too extensive since it completely suppresses “nonmisleading commercial speech.”
Three justices also join the section arguing against deference to the legislature and
rejecting the notion that the restriction is legitimate because the state could have
completely banned alcohol sales. THOMAS concurs but would hold that any
governmental interest in keeping consumers ignorant is per se illegitimate.
Field: This case calls into question the Court’s assumption in Central Hudson that
reducing electricity demand was a legitimate state interest underlying the ban on
advertising.
Greater New Orleans Broadcasting Ass’n v. US (US Sup. Ct. 1999) (Supp. p.102)
STEVENS’ opinion for unanimous Court applies Central Hudson test to invalidate a
federal law banning broadcast advertising of lotteries and casinos. Noting the many
exemptions in the law (including for state-run lotteries and Native American casinos),
the Court questions the significance of the federal interest. The law doesn’t directly
advance an interest in alleviating social costs (given exemptions and likelihood that
advertising just channels people from one casino to another) or in assisting States
with anti-gambling policies.
Glickman v. Wileman Bros. (US Sup. Ct. 1997) (Supp. p.104)
Court upholds mandatory fees for generic fruit advertising, finding that the
regulations don’t implicate speech at all. SOUTER’s dissent would have applied
Central Hudson since the mandatory fees amount to compelled speech and notes that
the requirement is applied so arbitrarily as to make the purported state interest barely
plausible.
2. Modes of abridgement
a) Targeting content
United States v. O’Brien (US Sup. Ct. 1968) (p.1213)
WARREN’s opinion upholds law outlawing destruction of draft cards and provides
the four-part intermediate scrutiny test for regulations that are not content-based but
that have incidental effects on speech. (Law here does not facially abridge free
speech, but it’s challenged as applied to symbolic speech—draft card burning.) Test:
(1) regulation is within government’s constitutional power, (2) furthers important or
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substantial governmental interest, (3) interest is unrelated to suppression of free
expression, (4) incidental restriction on speech is no greater than essential to further
the interest (this prong sounds like strict scrutiny). Interest here is in foster
effectiveness of draft law by ensuring that people actually have their cards. Court
declines to void facially-valid legislation on the basis of congressional purpose to
suppress speech.
Field: This is an “outright lie” by Warren, who misapplies his own test – it’s clear
that the purpose of this law was content-based. But he’s right about the general
difficulty of discerning congressional intent.
O’Brien test: The case establishes a test for restrictions on symbolic speech
(expressive conduct) which has since been acknowledged to be virtually the same as
the test for time, place and manner restrictions. The test establishes two tracks: (1) If
restriction is aimed at content, strict scrutiny applies. (2) If not content-based (but
incidental effect on speech) then the O’Brien four-part test applies (which is like
intermediate scrutiny but not definitively so).
Texas v. Johnson (US Sup. Ct. 1989) (p.1221)
BRENNAN’s opinion reverses conviction of protestor for burning the flag in
violation of Texas law. First, the act was expressive conduct under Spence: it was
intended to convey a particularized message which was likely to be understood by
those who viewed it. Second government interest in protecting breaches of the peace
is not implicated here (there was no actual breach, and the burning was not “fighting
words”) and interest in preserving the flag as a symbol of nationhood and national
unity is “related to the suppression of expression” (citing O’Brien). Having taken this
case outside of O’Brien, Court applies strict scrutiny because the restriction is
content-based—flag desecration is ok as a sign of respect (e.g., disposal when it’s
torn) for the flag but not as a method of protest. REHNQUIST’s dissent would carve
out special protection for the flag by equating flag-burning with fighting words.
STEVENS’ dissent argues that the flag-burning is conduct, not speech.
Barnes v. Glen Theatre, Inc. (US Sup. Ct. 1991) (p.1231)
REHNQUIST’s opinion upholds public indecency statute requiring dancers to wear
pasties and G-strings. Analyzes statute as content-neutral with incidental effect on
speech, and therefore applies O’Brien test. Holds that public decency is a substantial
state interest unrelated to expression, and that the statute has a minimal impact on the
“erotic message” of nude dancing. SCALIA concurs but wouldn’t apply any First
Amendment scrutiny at all since it’s a neutral regulation of conduct, not expression.
SOUTER concurs under the O’Brien test but says the interest is not public decency
but rather to avoid “secondary effects” (see Renton). WHITE dissents, arguing this is
a content-based regulation so the O’Brien test is inapplicable.
b) Prohibiting speech in public forums
Field: Does the public forum doctrine add anything to First Amendment law? Would
the result under standard tests be any different from the result under a public forum
test? Field questions whether there really is a public forum doctrine but says there
does seem to be a “streets and parks” doctrine (where there’s basically a public
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easement derived from tradition)—and maybe it’s because the streets and parks are so
protected that the Court feels ok about allowing restrictions in other areas.
What makes a public forum?
(1) Tradition (2) Government intention (3) Government practice (i.e., is forum
generally-available)
Types of forums: Traditional public forum, designated public forum (unlimited or
limited) and nonpublic forum)
Cox v. New Hampshire (US Sup. Ct. 1941) (p.1238)
HUGHES’ opinion upholds permit and license fee requirement for holding parade on
public street. Law at issue did not grant “unfettered discretion” but rather was limited
to time, place and manner considerations to assure safety and convenience.
Schneider v. State (US Sup. Ct. 1939) (p.1239)
ROBERTS’ opinion suggests banning an entire medium of speech in a public forum
is unacceptable. Court invalidates law prohibiting leaflet distribution in streets and
alleys. The interest in avoiding litter doesn’t justify the infringement on speech—
government should go after littering itself rather than leaflet distribution. It’s
irrelevant that there are other places you could distribute leaflets, since the streets are
a “natural and proper place” for such activity.
Kovacs v. Cooper (US Sup. Ct. 1949) (p.1241)
REED’s plurality opinion upholds regulation of loudspeakers (sound trucks).
JACKSON concurs even though he interprets the regulation as a flat ban. BLACK
dissents, noting that leaflets and sound trucks can be a “poor man’s printing press.”
City of Ladue v. Gilleo (US Sup. Ct. 1994) (p.1243)
STEVENS’ opinion unanimously invalidates a ban on posting signs (to minimize
visual clutter). Even assuming content-neutrality, the regulation forecloses an entire
medium without leaving adequate substitute media available. Court notes that “more
temperate measures” could accomplish the city’s needs.
Cox v. Louisiana (US Sup. Ct. 1965) (p.1245)
GOLDBERG’s opinion invalidates law prohibiting parades and meetings that
obstruct sidewalks and streets. Even if such a law would be valid if applied neutrally,
this one was applied only to prevent a civil rights demonstration. The law provides
too much discretion to officials.
Heffron v. ISKCON (US Sup. Ct. 1981) (p.1245)
WHITE’s opinion upholds state fair rule allowing distribution or sale of merchandise
and literature only from rented booths. Rule is a permissible time, place and manner
regulation, and it’s not clear that a less restrictive alternative would be effective.
Metromedia, Inc. v. San Diego (US Sup. Ct. 1981) (p.1248)
WHITE’s plurality opinion strikes down part of a city ordinance restricting
noncommercial billboard displays (justified on grounds of distractions), holding that
the ordinance is impermissibly content-based because it provides several exceptions.
Field: Opinion also upholds restriction on commercial displays (a possible
contradiction with the Discovery Network case discussed in class, which struck down
ban on commercial magazine racks where noncommercial racks were permitted).
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Members of City Council v. Taxpayers for Vincent (US Sup. Ct. 1984) (p.1249)
STEVENS’ opinion upholds a ban on posting signs on public property (utility poles).
Applying O’Brien, the interest in avoiding a “visual assault” is significant, and it is
narrowly tailored. The expression itself creates the visual assault, so there’s no way to
avoid the negative effect without banning the expression. Alternative medium is
available: posting signs on private property. Court declines to call utility poles a
public forum, since there’s no “traditional right of access.” BRENNAN’s dissent
argues that the Court should be skeptical of aesthetic interests offered by the
government reiterates Black’s “poor man’s printing press” argument (Kovacs v.
Cooper), and says no equivalent alternative media are available.
Clark v. Community for Creative Non-Violence (US Sup. Ct. 1984) (p.1254)
WHITE’s opinion upholds prohibition against sleeping in certain parks as applied
against a homelessness demonstration on the Mall in Washington. Court assumes
sleeping is expressive activity in this case but because the regulation is contentneutral it applies the O’Brien test. Government interest in maintaining the park is
substantial and unrelated to expression, and the restriction “narrowly focuses” on that
interest. Note: Court here acknowledges that the symbolic expression (expressive
conduct) test from O’Brien is virtually the same as the time, place and manner test.
MARSHALL’s dissent doesn’t see how the restriction furthers a significant interest,
since the protestors could stay in the park all night as long as they didn’t fall asleep.
Ward v. Rock Against Racism (US Sup. Ct. 1989) (p.1260)
KENNEDY’s opinion upholds a sound volume regulation (requiring use of the city’s
sound systems and technicians), holding that the last part of the O’Brien test requires
only that the measure be “narrowly drawn,” not that it be the least restrictive
alternative. MARSHALL’s dissent argues that “narrowly tailored” means “least
restrictive.”
Frisby v. Schultz (US Sup. Ct. 1988) (p.1261)
O’CONNOR’s opinion sustains a flat ban on “focused picketing” of a person’s house
because it satisfies the O’Brien test. Anti-abortion protestors picketed a doctor’s
home. BRENNAN’s dissent argues that the ban restricts more speech than necessary.
Madsen v. Women’s Health Center, Inc. (US Sup. Ct. 1994) (p.1263)
REHNQUIST’s opinion applies Ward time, place and manner test “with special
stringency” to an injunction against anti-abortion protestors: the injunction must
“burden no more speech than necessary to preserve a significant government
interest.” Upholds 36-foot buffer zone around clinic entrance and noise level
restriction. Strikes down buffer zone on private property around side and back of
clinic, restriction on observable images, restriction on physically approaching
abortion patients, and prohibition against picketing near clinic staff members’ homes.
SCALIA would strike down the whole thing.
United States v. Grace (US Sup. Ct. 1983) (p.1266)
WHITE’s opinion strikes down prohibition against protesting on Supreme Court
grounds as applied to public sidewalks surrounding the building, seeing no
connection between the restriction and any asserted state interest.
Schenck v. Pro-Choice Network of Western NY (US Sup. Ct. 1997) (Supp. p.106)
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REHNQUIST’s opinion strikes down “floating buffer zones” around people entering
abortion clinics but upholds a “fixed buffer zone” around the clinic entrance. The
floating buffer burdens more speech than is necessary.
Arkansas Educational TV Comm’n v. Forbes (US Sup. Ct. 1998) (Supp. p.107)
KENNEDY’s opinion upholds exclusion of minor candidate from a congressional
debate on public television. Public television is not a public forum (there’s no
government intent to make the forum generally available), and the station must be
free to exercise journalistic discretion
Brown v. Louisiana (US Sup. Ct. 1966) (p.1268)
FORTAS’ plurality opinion reverses on due process grounds the breach of peace
conviction of civil rights protestors for a silent sit-in in a segregated library. Opinion
notes that free speech and assembly is at issue, and the right is not confined to verbal
expression. BLACK’s dissent argues that the government can restrict access to its
property.
Adderley v. Florida (US Sup. Ct. 1966) (p.1269)
BLACK’s opinion upholds trespass convictions resulting from a protest on county jail
premises. The enforcement of the trespass statute was evenhanded and not contentbased. Emphasizes (as he did in dissent in Brown v. Louisiana that government as
private property owner can preserve the property “for the use to which it is lawfully
dedicated.”
Notes on Brown v. Louisiana and Adderly v. Florida
(1) In Brown Fortas looks at the particular silent vigil and sees it as compatible with
the function of a library, but if he thought of demonstrations in general he’d reach
a different conclusion. In Adderly, (and also in Clark v. CCNV above and
Grayned below) the Court here looks at demonstrations in general rather than at
this particular one.
(2) Does the analysis change if there’s a specific regulation forbidding all
demonstrations on jail/library grounds? Fortas’ opinion suggests not, but it’s an
open question. (See Grayned, where there is an ordinance.)
Grayned v. Rockford (US Sup. Ct. 1972) (p.1271)
MARSHALL’s opinion upholds “anti-noise” conviction for civil rights protest on
grounds adjacent to a school. The “nature of the place” and the “pattern of its normal
activities” make this a reasonable time, place and manner restriction. The protest
could “materially disrupt” school activities (see Tinker, below). The restriction is
narrowly tailored to further a compelling interest.
Lehman v. Shaker Heights (US Sup. Ct. 1974) (p.1272)
BLACKMUN’s opinion upholds rule against political advertising on city buses
(commercial advertising was allowed). Buses are not a public forum: the city is
engaged in commerce, and its distinction between commercial and political
advertising is not “arbitrary, capricious or invidious.” Result: Content discrimination
by government is permissible when it’s not a public forum (i.e., not streets or parks)
or when the government is occupying a different role (proprietor, market participant).
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FORTAS’ dissent argues that the bus becomes a designated public forum once the
city agrees to accept advertising.
Southeastern Promotions, Ltd. v. Conrad (US Sup. Ct. 1975) (p.1273)
BLACKMUN’s opinion holds that city’s refusal to allow production of “Hair” in city
theatre is impermissible prior restraint. The theatre is a public forum and the denial is
not a time, place and manner restriction. REHNQUIST’s dissent suggests this result
prevents Shakespeare festivals and requires provision of theatre space on a first-come,
first-serve basis. Field: Why doesn’t Lehman apply here?
ISKCON v. Lee and Lee v. ISKCON (US Sup. Ct. 1992) (p.1283)
REHNQUIST’s opinion upholds ban on solicitation of money in public airport
terminal but strikes down ban on sale or distribution of literature. Airports are
nonpublic forums, since they’re commercial establishments and they’re relatively new
(and therefore don’t have a tradition of public expression). The solicitation of money
has a disruptive effect on airport traffic and causes duress to travelers. But the ban on
distribution or sale of literature is not narrowly drawn and does not leave open ample
alternatives. (REHNQUIST dissents on this point, so KENNEDY writes the Court’s
opinion here.) KENNEDY’s partial concurrence disagrees with the “strict doctrinal
line between the proprietary and regulatory functions of government.”
Widmar v. Vincent (US Sup. Ct. 1981) (p.1289)
POWELL’s opinion applies strict scrutiny to hold that University of Missouri may
not bar a religious group from meeting in facilities generally available to student
groups. Religious speech is treated like any other speech. University has created a
public forum, and restriction is not narrowly drawn to achieve a compelling state
interest. Establishment Clause does not require the exclusion.
Lamb’s Chapel v. Center Moriches Union Free School Dist. (US Sup. Ct. 1993)
(p.1290)
WHITE’s opinion unanimously holds that school district that makes its facilities
available to community groups may not deny access to a religious organization
wishing to show a religious film. Without reaching the question of whether the
district has created a public forum (White dissented in Widmar), the Court holds that
the restriction is impermissible viewpoint discrimination.
Capitol Square Review Board v. Pinette (US Sup. Ct. 1995) (p.1291)
SCALIA’s plurality opinion holds that Ohio may not deny the KKK permission to
erect a cross on a plaza designated by State law to be a public forum. Private religious
expression is as protected as any other speech.
Amalgamated Food Employees v. Logan Valley Plaza (US Sup. Ct. 1968) (p.1292)
MARSHALL’s opinion holds that a privately-owned mall is “the functional
equivalent” of the company town in Marsh v. Alabama (above) and therefore subject
to public forum principles. Trespass law may not be applied to prevent a union from
peacefully picketing a supermarket in the mall.
Lloyd Corp. v. Tanner (US Sup. Ct. 1972) (p.1292)
POWELL’s opinion distinguishes Logan Valley Plaza, holding that a mall’s ban on
distributing handbills is constitutional as applied to anti-war protestors. Their protest,
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unlike that in Logan Valley Plaza, is unrelated to the shopping center’s operations,
and alternative means of communications are available.
Hudgens v. NLRB (US Sup. Ct. 1976) (p.1293)
STEWART’s opinion acknowledges that Lloyd Corp. effectively overruled Logan
Valley Plaza.
c) Limited purpose forums: Government as educator, as proprietor
Tinker v. Des Moines Indep. Community School Dist. (US Sup. Ct. 1969) (p.1293)
FORTAS’ opinion holds that school may not discipline students for wearing black
armbands to protest the Vietnam War unless there is reason to anticipate that the
protest will “materially and substantially interfere” with school discipline or will
intrude on the rights of other students. Students and teachers to not leave their rights
at the schoolhouse gate. Undifferentiated fear of disturbance doesn’t justify
restriction. Note: As in Brown v. Louisiana, Fortas looks at the specific
demonstration rather than at demonstrations in general. BLACK dissents, as he did in
every one of Fortas’ opinions. (Field: he doesn’t like demonstrations.)
Board of Education v. Pico (US Sup. Ct. 1982) (p.1295)
BRENNAN’s plurality opinion finds a “right to receive” information, holding that
school may decide what books to add to its library but may not remove books from
the library if the removal results from ideological intent. REHNQUIST’s dissent
points out that if there’s a constitutional right to receive information, then it is
violated not only by removal but also by failure to purchase.
Bethel School Dist. No. 403 v. Fraser (US Sup. Ct. 1986) (p.1299)
BURGER’s opinion holds that school may discipline student for lewd speech before a
high school assembly, noting that his message is sexual and not political as in Tinker,
that the speech interfered with the school’s mission and interfered with the
sensibilities of younger students, and that the school could reasonably “disassociate
itself” from the speech.
Hazelwood School District v. Kuhlmeier (US Sup. Ct. 1988) (p.1300)
WHITE’s opinion holds that school may delete articles from a school newspaper if
the paper is part of the school curriculum (because “supervised by faculty members
and designed to impart particular knowledge or skills”). School has interest in
furthering its educational mission, tailoring newspaper content to readers’ maturity,
and avoiding having the paper’s views “erroneously attributed to the school.” Test:
School may exercise “editorial control” over student speech in school-sponsored
activities if the restriction is “reasonably related to legitimate pedagogical concerns.”
BRENNAN’s dissent argues that the censorship didn’t satisfy the Tinker test.
d) Speech subsidized by public funds
Speiser v. Randall (US Sup. Ct. 1958) (p.1318)
BRENNAN’s opinion holds that California property tax exemption for veterans may
not be conditioned on declaration that you don’t advocate forcible overthrow of the
government. The condition constitutes a penalty on speech.
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Regan v. Taxation with Representation of Washington (US Sup. Ct. 1983) (p.1319)
REHNQUIST’s opinion unanimously upholds federal tax code provision prohibiting
nonprofit organization that lobbies from receiving tax-deductible contributions.
Distinguishes between penalty (Speiser) and subsidy, seeing the tax exemption as a
subsidy to nonprofits and holding that Congress doesn’t have to subsidize lobbying.
Defends veterans’ exception from the no-lobbying rule as status-based rather than
content-based. Standard: rational basis, because there’s no viewpoint discrimination.
BLACKMUN’s concurrence points out that 501(c)(3) nonprofits can set up separate
501(c)(4) branches to lobby and not take tax-deductible donations for those branches.
FCC v. League of Women Voters (US Sup. Ct. 1984) (p.1320)
BRENNAN’s opinion strikes down a “no editorializing” condition imposed on
noncommercial television stations receiving federal Corporate for Public
Broadcasting funds. Court holds the condition is a penalty, since the station can’t
segregate its activities according to funding source. This content-based discrimination
fails intermediate scrutiny (narrowly tailored to further a substantial government
interest). REHNQUIST dissents, arguing that TRW above should apply.
Rust v. Sullivan (US Sup. Ct. 1991) (p.1321)
REHNQUIST’s opinion rejects First Amendment challenge to HHS regulations
prohibiting Title X recipients from counseling or referring women for abortion and
requiring them to tell patients they don’t consider abortion an “appropriate method of
family planning.” Any such activities must be physically and financially separate
from the Title X activities. Court holds that government may subsidize one activity
without funding another one, and there’s no penalty since recipients can use separate
funds for abortion counseling. BLACKMUN’s dissent argues that any viewpoint
discrimination is impermissible.
Rosenberger v. Rector and Visitors of UVI (US Sup. Ct. 1995) (p.1324)
KENNEDY’s opinion invalidates university’s refusal to use mandatory student fees
for a religious student publication when it does provide the money for other student
groups. The financial awards create a “limited public forum,” and the refusal here is
viewpoint discrimination, which is presumed impermissible. Distinguishes Rust on
the grounds that here the government creates a program to encourage private speech,
and in Rust the government used private speakers to transmit information about its
own program.
NEA v. Finley (US Sup. Ct. 1998) (Supp. p.109)
O’CONNOR’s opinion rejects facial challenge to statutory requirement that NEA
consider general standards of decency in awarding grants. Interprets the statute as
imposes no categorical requirement but only a hortatory one, such that indecent
project could still potentially receive grants. Because grants are scarce and awarded
on a competitive basis, there’s no limited public forum as there was in Rosenberger.
The NEA’s mandate is to make aesthetic judgments, which will be inherently
content-based.
3. The special role of the press
First National Bank of Boston v. Bellotti (US Sup. Ct. 1978) (p.1421)
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BURGER’s concurring opinion contains dicta arguing that the press clause in the
First Amendment does not create a special protection for the press beyond that
created for all speakers in the speech clause.
Branzburg v. Hayes (US Sup. Ct. 1972) (p.1434)
WHITE’s opinion refuses to create a reporters’ privilege, holding that journalists
must testify before grand juries when subpoenaed even if it means revealing
confidential information. Court says there’s not sufficient evidence that this holding
will create a “significant constriction of the flow of news to the public.” Public
interest in prosecuting crimes is so compelling that treating journalists like everyone
else would survive strict scrutiny.
Cohen v. Cowles Media Co. (US Sup. Ct. 1991) (p.1447)
WHITE’s opinion holds that an individual may sue a newspaper for promissory
estoppel when the paper divulges his name as a source after promising him that it
wouldn’t do so. (He was an aide to the Republican gubernatorial candidate who
anonymously leaked a smear on the Democrat.) Generally applicable laws may be
applied to the press. The state may require that the press acquire information lawfully.
Red Lion Broadcasting Co. v. FCC (US Sup. Ct. 1969) (p.1450)
WHITE’s opinion unanimously upholds FCC’s “fairness doctrine” requiring free
reply time. Notes scarcity of broadcast frequencies and government’s role allocating
them, which makes license holder a “proxy or fiduciary” for the public interest.
CBS, Inc. v. Democratic National Committee (US Sup. Ct. 1973) (p.1453)
BURGER’s opinion denies that Red Lion created a broad right of access, holding that
broadcasters are not required to accept political advertisements even when it accepts
commercial ones. Notes that broadcasters must have editorial discretion. Also, the
viewers and listeners are a captive audience.
CBS, Inc. v. FCC (US Sup. Ct. 1981) (p.1454)
BURGER’s opinion holds that a statutorily-created right of access does not violate
broadcasters’ First Amendment rights.
FCC v. League of Women Voters (US Sup. Ct. 1984) (p.1454)
BRENNAN’s opinion invalidates a statute prohibiting “editorializing” by
noncommercial educational broadcasters funded by the Corporation for Public
Broadcasting. Applies intermediate scrutiny rather than strict scrutiny because—
although it’s a content-based regulation—broadcasting is a special medium.
Turner Broadcasting v. FCC (Turner I) (US Sup. Ct. 1994) (p.1455)
KENNEDY’s opinion declines to extend Red Lion to cable television, noting that the
rationale for less rigorous scrutiny of broadcast regulations does not apply to cable
television. However, the Court does find cable’s “chokehold” monopoly relevant to
the question of whether the regulation (requiring cable companies to carry certain
broadcasts) is content-neutral.
Denver Area Educational Telecommunications Consortium v. FCC (US Sup. Ct.
1996) (p.1456)
BREYER’s plurality opinion declines to analogize cable television either to a
common carrier or to a bookstore.
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Arkansas Ed’l Television Comm’n v. Forbes (US Sup. Ct. 1998) (Supp. p.117)
KENNEDY’s opinion rejects First Amendment challenge to exclusion of candidate
from candidate debate, emphasizing need for editorial discretion.
4. Right not to speak, freedom of association, right not to associate
Minersville School Dist. v. Gobitis (US Sup. Ct. 1940) (p.1362)
Court sustains a flag salute requirement against a Free Exercise challenge.
West Virginia v. State Bd. Of Educ. v. Barnette (US Sup. Ct. 1943) (p.1362)
JACKSON’s opinion reverses Gobitis and strikes down a school flag salute
requirement. Freedom of belief means right not to speak what one does not believe.
Government may not prescribe orthodoxy.
Wooley v. Maynard (US Sup. Ct. 1977) (p.1363)
BURGER’s opinion emphasizes that the First Amendment freedom of thought
encompasses the right not to speak, holding that New Hampshire may not
constitutionally require automobiles to bear license plates with the “Live free or die”
motto. The requirement converts private property into “mobile billboards” for the
State’s ideology, which is not justified by any weighty state interest. Remedy:
allowing drivers to cover the motto on the plate?
Talley v. California (US Sup. Ct. 1960) (p.1363)
BLACK’s opinion strikes down as “void on its face” a requirement that distributed
handbills identify their sponsors. Court notes historical importance of anonymity for
unpopular voices, and argues that the identification requirement will restrict freedom
of expression.
McIntyre v. Ohio Elections Commission (US Sup. Ct. 1995) (p.1364)
STEVENS’ opinion reaffirms Talley, striking down state law against circulating
anonymous leaflets in connection with political campaigns. First, strict scrutiny
applies because the law “burdens core political speech.” Second, State interests in
preventing fraud and improving voter information are not compelling enough to
justify the burden. Third, mandatory disclosure of political expenditures (upheld in
Buckley v. Valeo) is different.
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (US Sup. Ct.
1995) (p.1371)
SOUTER’s opinion unanimously holds that privately organized St. Patrick’s Day
parade need not include against organizers’ will a self-identified gay contingent. The
state public accommodations law as applied here intrudes on free expression rights of
parade organizers. The parade is a form of expression (not a mere public
accommodation), even if its message is not entirely articulate. Gays can march, but
not under a gay banner because that would force the organizers to include in their
expression a message with which they do not agree.
Field: In Feiner (heckler’s veto), the heckler also is engaged in expression. Do Hurley
and Feiner create a “first-come, first-serve” rule?
Abood v. Detroit Board of Educ. (US Sup. Ct. 1977) (p.1397)
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STEWART’s opinion upholds requirement that non-union public employees pay
union dues for collective bargaining expenses but strikes down compulsory fees for
support of ideological causes. Decision recognizes a right to “refuse to associate.”
Remedy: employees can get a rebate for the part of their dues spent on ideological
issues.
Roberts v. United States Jaycees (US Sup. Ct. 1984) (p.1399)
BRENNAN’s opinion upholds against a free association challenge the application of
Minnesota public accommodations law to require Jaycees to admit women. Rejects
Fourteenth Amendment “intimate association” liberty, since Jaycees membership is
large and unselective. Finds First Amendment clearly implicated but holds that
compelling state interest in eradicating discrimination justifies the imposition on the
Jaycees expression rights. Holds that the law is content-neutral on its face and as
applied. O’CONNOR’s analysis emphasizes the commercial nature of the expression
here, rather than the supposed content-neutrality of the law.
Board of Directors of Rotary Int’l v. Rotary Club (US Sup. Ct. 1987) (p.1400)
Court unanimously follows Roberts, upholding application of California
antidiscrimination law to require Rotary clubs to admit women.
Glickman v. Wileman Bros. (US Sup. Ct. 1997) (Supp. p.114)
STEVENS’ opinion upholds requirement that fruit growers contribute to a fund for
generic advertising of California fruit. Finds no First Amendment issue implicated at
all. First, there’s no restraint on the freedom of growers to communicate their
messages. Second, no one is compelled to engage in actual or symbolic speech. Third,
no one is compelled to endorse or finance a political or ideological view. Also, there’s
no reason to believe the growers disagreed with the message of the advertising.
Field: Is this decision consistent with Abood and Wooley?
5. Overbreadth, vagueness and prior restraint
a) Overbreadth
General notes on overbreadth
(1) Sullivan/Gunther say overbreadth holding invalidates the law on its face rather
than just as applied. Field disputes this interpretation, since the finding of
overbreadth depends on a finding that the law could be applied to constitutionallyprotected speech. If plaintiff has engaged in protected conduct, he is asking for an
overbreadth ruling as applied.
(2) Overbreadth is an exception to normal standing rules: people who could
legitimately be restricted by the law nonetheless can escape by claiming
overbreadth—they assert the rights of others whose speech is chilled by the
overbroad law. Field says, though, that if you’re engaged in conduct that could
definitely be prohibited then you can’t raise overbreadth as a defense—that’s
available only if you’re more on the borderline.
Broadrick v. Oklahoma (US Sup. Ct. 1973) (p.1329)
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WHITE’s opinion creates a “substantial overbreadth” standard for facially
invalidating laws, upholding pre-Hatch Act restriction on political activity by
Oklahoma civil servants. “Where conduct and not merely speech is involved, we
believe the overbreadth of a statute must not only be real, but substantial as well” to
be invalid.
New York v. Ferber (US Sup. Ct. 1982) (p.1331)
WHITE’s opinion upholds child pornography law although it could forbid
distribution of material with literary value, finding no “substantial overbreadth.”
Brockett v. Spokane Arcades, Inc. (US Sup. Ct. 1985) (p.1332)
WHITE’s opinion disallows facial challenge to state obscenity law but does hold that
the law is overbroad as applied because it defines “prurient interest” to include not
only “shameful or morbid interest” in sex but also normal desires.
Schaumburg v. Citizens for Better Environment (US Sup. Ct. 1980) (p.1333)
WHITE’s opinion holds facially invalid an ordinance barring door-to-door
solicitations by charitable organizations that don’t use at least 75% of receipts for
charitable purposes. Law is overbroad and there’s no “substantial relationship”
between the restriction and the state interest in protecting residential privacy.
Massachusetts v. Oakes (US Sup. Ct. 1989) (p.1334)
SCALIA holds that an otherwise conviction under a child pornography statute that is
overbroad (because it could be illegitimately applied to someone else) cannot be
allowed to stand simply because the legislature subsequently amends the law to cure
the overbreadth. Legislators otherwise would write overbroad laws, content in the
knowledge that they could later make cost-free amendments. (Nonetheless, the Court
finds in this case the statute was not substantially overbroad.) Field notes a BLACK
opinion in Younger v. Harris that comes to the opposite conclusion on retroactive
application of amended statutes.
Osborne v. Ohio (US Sup. Ct. 1990) (p.1335)
WHITE’s opinion holds that judicial narrowing of an overbroad law does end the
overbreadth concern.
b) Vagueness
Test for vagueness
Law is void on its face if people “of common intelligence must necessarily guess at
its meaning and differ as to its application.” Connaly v. General Construction Co. (US
Sup. Ct. 1926) (p.1337)
Coates v. Cincinnati (US Sup. Ct. 1971) (p.1338)
STEWART’s opinion invalidates a law prohibiting three or more people from
gathering on a sidewalk and conducting themselves “in a manner annoying to persons
passing by.” The law “subjects the exercise of the right of assembly to an
unascertainable standard, and unconstitutionally broad because it authorizes the
punishment of constitutionally protected conduct.”
c) Prior restraint
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i) Licensing
Lovell v. Griffin (US Sup. Ct. 1938) (p.1340)
HUGHES’ opinion invalidates ordinance requiring prior written permission to
distribute literature of any kind. The ordinance is not limited to obscene literature,
and it’s not limited in application with respect to time or place. It’s facially invalid
because it imposes a “previous restraint upon publication.”
Lakewood v. Plain Dealer Publishing Co. (US Sup. Ct. 1988) (p.1340)
BRENNAN’s opinion allows facial challenge to permit requirement for putting
newspaper vending racks on public property. Standard: facial challenge is allowed
“whenever a licensing law gives a government official or agency substantial power to
discriminate based on the content or viewpoint of speech by suppressing disfavored
speech or disliked speakers.”
Freedman v. Maryland (US Sup. Ct. 1965) (p.1342)
BRENNAN’s opinion invalidates requirement that film distributor submit film to
censorship board before distribution, noting the long time delays in the process, the
fact that the burden is on the distributor, and the lack of judicial determination.
Poulos v. New Hampshire (US Sup. Ct. 1953) (p.1343)
REED’s opinion upholds permit requirement for meeting in a park, dismissing the
time delays inherent in making an as applied court challenge to a facially valid law.
Kingsley Books, Inc. v. Brown (US Sup. Ct. 1957) (p.1344)
FRANKFURTER’s opinion suggests that prior restraints are not necessarily worse
than subsequent punishments, sustaining an injunction against distributing material
pending an expedited trial on whether the material is obscene. Field: The judicial
safeguards inherent in the injunction process should avoid the problems of a
“censorship board” which prior restraint doctrine wants to avoid.
ii) Injunctions
Near v. Minnesota (US Sup. Ct. 1931) (p.1345)
HUGHES’ opinion strikes down “abatement” perpetually enjoining a newspaper from
publishing defamatory material. “This is the essence of censorship.” Subsequent
punishment under libel laws is preferable to prior restraint.
iii) National security
New York Times Co. v. US (Pentagon Papers Case) (US Sup. Ct. 1971) (p.1349)
PER CURIAM opinion holds that government has not met its heavy burden to gain an
injunction against publication of the Pentagon Papers (disclosing decision-making
process on Vietnam policy). There is a heavy presumption against the validity of such
an injunction. BLACK’s concurrence argues the press may never be enjoined.
DOUGLAS’ concurrence denies that the government has “inherent power” to get
injunctions for national security reasons. BRENNAN’s concurrence would allow
injunctions only upon “governmental allegation and proof that publication must
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inevitably, directly and immediately cause the occurrence of an event kindred to
imperiling the safety of a transport already at sea…” WHITE’s concurrence agrees
that the publication will damage the public interest and invites the government to seek
criminal prosecution for publication under some relevant statute.
iv) Fair trial
Nebraska Press Ass’n v. Stuart (US Sup. Ct. 1976) (p.1357)
BURGER’s opinion invalidates a gag order on the press which was designed to
protect a criminal defendant’s right to a fair trial. Looks to gravity and probability of
harm (recall Dennis) and also notes alternative measures might be equally effective.
B. Religion
1. Establishment Clause
Lemon v. Kurtzman (US Sup. Ct. 1971) (p.1501)
Court articulates three-prong standard for Establishment: (1) secular legislative
purpose, (2) primary effect must not advance or inhibit religion, (3) no excessive
government entanglement with religion.
McCollum v. Board of Education (US Sup. Ct. 1948) (p.1501)
BLACK’s opinion prevents school from allowing students to attend sectarian classes
in public schools taught by parochial school teachers during school hours. Use of the
buildings is “invaluable aid” to religion. Once students have been compelled to attend
school, you can’t provide religious instruction there—it’s coercive.
Zorach v. Clauson (US Sup. Ct. 1952) (p.1502)
DOUGLAS’ opinion allows school to release students during the day so they may
attend religions instruction off school grounds. There’s no coercion, no partiality to
any group, and no expenditure of public funds on behalf of religion. BLACK’s
dissent sees this case as no different from McCollum.
Lee v. Weisman (US Sup. Ct. 1992) (p.1507)
KENNEDY’s opinion strikes down school-sponsored prayer (by rabbi) at
commencement ceremonies. Attendance isn’t mandatory but it is “in a fair and real
sense obligatory,” school context puts the “imprint of the state” on the prayers, and
age of students makes them particularly susceptible to peer pressure and subtle
coercion (cites “research in psychology”). BLACKMUN’s concurrence argues that
the prayer is an endorsement of religion. SOUTER’s concurrence argues that coercion
is not essential, since such a reading would render the Establishment Clause
redundant—coercion already is prohibited by the Free Exercise Clause. SCALIA
dissents because he doesn’t see this as coercion.
Edwards v. Aguillard (US Sup. Ct. 1987) (p.1515)
BRENNAN’s opinion holds facially invalid a Louisiana law allowing teaching of
evolution only if accompanied by teaching of “creation science.” Rejects the
purported “academic freedom” purpose as a “sham,” and holds that in fact the
purpose is not a secular one. SCALIA’s dissent takes the stated purpose at face value.
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McGowan v. Maryland (US Sup. Ct. 1961) (p.1519)
WARREN’s opinion upholds Sunday closing laws, arguing they’ve taken on a secular
character over time.
Marsh v. Chambers (US Sup. Ct. 1983) (p.1519)
BURGER’s opinion upholds state legislature’s hiring of a paid chaplain, noting long
history of the practice. This is the first case that does not apply the Lemon test.
Lynch v. Donnelly (US Sup. Ct. 1984) (p.1521)
BURGER’s opinion allows inclusion of a creche in a Christmas display (that also
includes Santa, reindeer, etc.) erected by the city on private land in the heart of the
shopping district. First, focuses on creche “in the context of the Christmas season”
and reasons that the creche “depicts the historical origins of this traditional event,”
which is a secular purpose. Second, sees only a “remote and incidental” benefit to
religion, not a primary effect. O’CONNOR concurs but argues for an “endorsement”
test.
Allegheny County v. ACLU (US Sup. Ct. 1989) (p.1526)
BLACKMUN’s opinion strikes down a freestanding display of a nativity scene
(owned by a Catholic organization and unaccompanied by Santa, etc.) on the main
staircase of a county courthouse. The five-person majority adopts O’Connor’s
endorsement analysis as a general approach.
Capitol Square Review Board v. Pinette (US Sup. Ct. 1995) (p.1528)
SCALIA’s opinion holds that free speech requires that the KKK be allowed to erect a
cross on a public square that is open to all, and that allowing it to do so does not
violate the Establishment Clause. He gets a majority for his result but only three votes
for his reasoning—the others (including the dissenters) prefer O’Connor’s
endorsement test, meaning there are now five votes for that test.
Everson v. Board of Education (US Sup. Ct. 1947) (p.1532 and p.1462)
BLACK’s opinion holds that school board may reimburse parents for cost of
transporting their children to parochial schools. The rhetoric of the opinion suggests
the opposite result: First Amendment erects “a wall between church and state.” “No
tax in any amount, large or small, can be levied to support any religious activities….”
But the result is that the State may enact a “general program” that incidentally
benefits parochial schools.
Field: Everson should have stuck with its rhetoric and not breached the wall. Need to
distinguish between a general welfare benefit (fire, police, sewage) which must be
available to all schools and a subsidy, which should not be made available to
parochial schools.
Mueller v. Allen (US Sup. Ct. 1983) (p.1535)
REHNQUIST’s opinion upholds tax deduction for educational expenses, even though
the deduction is available for expenses related to private schooling (and 95% of kids
in private schools are in sectarian schools). First, state has offered a “plausible secular
purpose”—to defray parents’ educational expenses. Second, “attenuated financial
benefit, ultimately controlled by the private choices of individual parents, that
eventually flows to parochial schools from the neutrally available tax benefit” does
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not have the primary effect of benefiting religion. (Tax code gets special deference
and this deduction may have been enacted to equalize tax burdens.) Court rejects
disparate impact analysis. Third, statute does not “excessively entangle” the state in
religion.
Aguilar v. Felton (US Sup. Ct. 1985) (p.1541)
BRENNAN’s opinion holds that Title I money may not be used to place public school
teachers in parochial schools for remedial instruction. To avoid Establishment Clause
problems, the teachers were monitored to ensure they weren’t imparting a religious
message—but this monitoring created “excessive entanglement.” REHNQUIST’s
dissent calls this a “Catch-22.”
Tilton v. Richardson (US Sup. Ct. 1971) (p.1542)
BURGER’s plurality opinion holds that the Lemon test is more easily satisfied in the
higher education context than in elementary and secondary schools. College students
are “less impressionable and less susceptible to religious indoctrination,” and the
existence of separate “internal disciplines” makes such indoctrination harder.
Roemer v. Maryland Public Works Bd. (US Sup. Ct. 1976) (p.1542)
BLACKMUN’s plurality opinion upholds annual non-categorical grants to private
colleges (including church-related ones), acknowledging problem of entanglement in
supervising annual grants to ensure secular purposes but nonetheless approving the
program.
Walz v. Tax Comm’n (US Sup. Ct. 1970) (p.1543)
Court upholds state property tax exemption for religious property, recognizing the
“indirect economic benefit” to churches but noting the broad application of the
exemption.
Witters v. Washington Dept. of Services for Blind (US Sup. Ct. 1986) (p.1544)
MARSHALL’s opinion upholds law authorizing payment to visually handicapped
student for vocational rehabilitation services, where student uses those funds to pay
tuition at a Christian college in preparation for a career as a “pastor, missionary, or
youth director.” The law creates no incentive for students to pursue sectarian
education, and there’s no reason to believe a “significant portion” of the program’s
aid will end up going to religious education.
Bowen v. Kendrick (US Sup. Ct. 1988) (p.1544)
REHNQUIST’s opinion upholds (against a facial challenge) a federal grant for
counseling services and research “in the area of premarital adolescent sexual relations
and pregnancy” but remands the as applied challenge (recipients included religious
organizations). On its face, the law has a valid secular purpose (addressing teen
pregnancy) and only an “incidental and remote” effect on religion, especially since
there’s no indication on the face of the law that “a significant proportion” of the grant
funds will go to “pervasively sectarian” organizations. Finally, there’s no need to
worry about excessive entanglement.
Zobrest v. Catalina Foothills School Dist. (US Sup. Ct. 1993) (p.1545)
REHNQUIST’s opinion relies on Mueller and Witters to sustain the provision of a
publicly-funded sign-language interpreter to a deaf student in a parochial school
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classroom. The law “neutrally provide[s] benefits to a broad class of citizens” and
isn’t invalid just because schools receive an “attenuated financial benefit,” especially
since the benefit results from private choices and the law doesn’t create an incentive
to choose parochial schools.
Agostini v. Felton (US Sup. Ct. 1997) (Supp. p.122)
O’CONNOR’s opinion ends the injunction granted in Aguilar v. Felton, holding that
Establishment Clause jurisprudence since that case was decided makes it clear that
Aguilar is no longer good law. The reasoning of Grand Rapids v. Ball (decided the
same day as Aguilar) depended on assumptions the Court no longer holds: (1) that
public employees teaching in religious schools are presumed to inculcate religion
(Zobrest repudiates this view), (2) that their mere presence in religious schools
creates a “symbolic union” between church and state (again, see Zobrest), and (3) that
any public aid that directly aids the educational function of religious schools
impermissibly finances religious indoctrination even if it reaches the schools due to
private decisionmaking (Witters repudiates this view). Finally, Aguilar’s “excessive
entanglement” reasoning depended on the idea that pervasive monitoring would be
necessary to avoid problems with primary effects—but given that the assumptions
listed above have been abandoned, that monitoring is no longer necessary.
2. Overview of religion clauses
Free Exercise
Establishment
1940s-70s
Strong (Sherbert)
Strong (Everson)
Now
Weak (Smith)
Weak (Agostini)
RFRA
Strong
Weak
No one
Weak
Strong
Wallace v. Jaffree (US Sup. Ct. 1985) (p.1464)
Court invalidates Alabama statutes permitting silent prayer or meditation in public
schools. REHNQUIST’s dissent rejects the “wall of separation” metaphor.
United States v. Seeger (US Sup. Ct. 1965) (p.1468)
CLARK’s opinion interprets “religion” broadly (in a statute), holding that a person is
entitled to conscientious objector status where his belief in a Supreme Being is
“open” and he has a “religious faith in a purely ethical creed [without] belief in God
except in the remotest sense.”
Welsh v. United States (US Sup. Ct. 1970) (p.1468)
BLACK’s plurality opinion allows a conscientious objector exemption from the draft
for an applicant who struck the word “religious” from his application, reasoning that
he probably didn’t realize how broadly the word “religious” could be read. Black
argues that the “religious” requirement is not meant to prevent those with deeply held
moral views founded largely on public policy considerations. HARLAN concurs in
the result, disagreeing with Black’s tortured reading of the law but arguing that if the
law is read correctly to apply only to those who object due to theistic beliefs then it
violates the Establishment Clause.
Gillette v. United States (US Sup. Ct. 1971) (p.1469)
MARSHALL’s opinion holds that conscientious objector exemptions can
constitutionally be denied to those who object only to particular wars (rather than all
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wars). A claimant for a “religious gerrymander” must show there’s no neutral, secular
basis for the law.
United States v. Ballard (US Sup. Ct. 1944) (p.1470)
DOUGLAS’ opinion holds that the First Amendment bars asking a jury to inquire
into the truth of religious beliefs but does not bar the jury from deciding whether
those beliefs are sincerely held. (This is a mail fraud case where the defendants
claimed to be divine messengers capable of healing ailments and diseases.)
3. Free Exercise Clause
Torcaso v. Watkins (US Sup. Ct. 1961) (p.1471)
Court strikes down requirement that Maryland public office holders declare a belief in
God.
McDaniel v. Paty (US Sup. Ct. 1978) (p.1472)
BURGER’s plurality opinion strikes down a Tennessee provision preventing clergy
from being legislators or constitutional convention delegates. Court does not apply
the absolute bar on interference with religious beliefs, since this provision is based on
status, but does apply strict scrutiny.
Church of Lukumi Babalu Aye v. City of Hialeah (US Sup. Ct. 1993) (p.1472)
KENNEDY’s opinion strikes down ban on animal sacrifice, holding that although the
language of the ban appears neutral, it clearly was written to target Santeria. Test: If
the object of the law is to infringe on religious practices then it is not neutral and must
survive strict scrutiny. SCALIA concurs but would look to the effects of the law
rather than the subjective motivation of the lawmakers.
Reynolds v. United States (US Sup. Ct. 1878) (p.1477)
WAITE’s opinion upholds application of anti-bigamy law to Mormons. Though
government may not interfere with religious beliefs, it may regulate actions—to allow
Mormons a religious exemption would be to “permit every citizen to become a law
unto himself.”
Prince v. Massachusetts (US Sup. Ct. 1944) (p.1478)
Court holds that a law prohibiting minors from selling publications in public places
may constitutionally be applied to a child of Jehovah’s Witnesses.
Braunfeld v. Brown (US Sup. Ct. 1961) (p.1478)
WARREN’s plurality opinion upholds Sunday closing laws, arguing that the laws
only indirectly burden the religious exercise of Orthodox Jews (who also must close
on Saturdays) by making such exercise more expensive for them. Test: If “the State
regulates conduct by enacting a general law within its power, the purpose and effect
of which is to advance the State’s secular goals, the statute is valid despite its indirect
burden on religious observance unless the State may accomplish its purpose by means
which do not impose such a burden.”
Sherbert v. Verner (US Sup. Ct. 1963) (p.1479)
BRENNAN’s opinion holds that a Seventh-Day Adventist may not be denied
unemployment benefits for failure to accept “suitable work when offered,” if the
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reason for not accepting the work is a religious duty not to work on Saturdays. To
withhold the benefit clearly would burden religious practice, and the concern about
religious imposters is not sufficiently compelling.
Thomas v. Review Board (US Sup. Ct. 1981) (p.1481)
BURGER’s opinion holds that unemployment benefits may not be denied to a
Jehovah’s Witness who quit a job in a munitions factory because of religious
objections to war.
Wisconsin v. Yoder (US Sup. Ct. 1972) (p.1482)
BURGER’s opinion holds that Amish parents must be exempted from compulsory
schooling laws after eighth grade. The long history and good manners of the Amish
seem central to the reasoning.
United States v. Lee (US Sup. Ct. 1982) (p.1484)
BURGER’s opinion refuses to exempt an Amish employer from social security taxes,
since there is an “overriding governmental interest” in mandating such taxes. Amish
argued for exemption on ground that they believe it sinful not to provide for their own
elderly.
Bob Jones University v. United States (US Sup. Ct. 1983) (p.1484)
BURGER’s opinion upholds IRS denial of tax-exempt status to educational
institutions that practice racial discrimination (in accordance with their religious
beliefs), applying strict scrutiny but holding that the government has a compelling
interest in eradicating racial discrimination.
Goldman v. Weinberger (US Sup. Ct. 1986) (p.1485)
REHNQUIST’s opinion declines to apply strict scrutiny in the military context and
upholds a rule preventing Orthodox Jews from wearing yamulkes indoors.
O’Lone v. Estate of Shabazz (US Sup. Ct. 1987) (p.1486)
REHNQUIST’s opinion again insists on deference rather than strict scrutiny, this time
in a prison context, upholding regulations that effectively prevent Islamic inmates
from attending Friday midday service.
Bowen v. Roy (US Sup. Ct. 1986) (p.1486)
BURGER’s opinion holds that AFDC and Food Stamp programs may constitutionally
use Social Security numbers to identify recipients, despite recipients’ religious
objection that the use of the number would “rob the spirit” of their child. The Free
Exercise clause does not require the government to behave itself in a way that will
further people’s spiritual development.
Lyng v. Northwest Indian Cemetery Protective Ass’n (US Sup. Ct. 1988) (p.1487)
O’CONNOR’s opinion upholds Forest Service plan to build a road and prevent
timber harvesting in an area sacred to Native Americans. Cites Bowen v. Roy’s
argument that the Free Exercise clause does not constrain government behavior.
Employment Division v. Smith (US Sup. Ct. 1990) (p.1489)
SCALIA’s opinion upholds denial of unemployment benefits to Native Americans
fired for smoking peyote, arguing that unlike in Sherbert the conduct for which they
were fired was prohibited by the state’s criminal law. Scalia distinguishes cases like
Pierce and Yoder on the ground that they involved hybrid rights (i.e., free exercise
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and parental liberty) and not solely free exercise rights. Distinguishes Sherbert on
grounds that the process of granting unemployment benefits “invite[s] consideration
of particular circumstances,” while the criminal statute at the center of this case does
not. New rule: neutral, generally applicable laws that merely burden religion
incidentally do not offend the First Amendment. States are free to enact religious
exceptions to their drug laws, but they are not constitutionally required to do so. If
minority religions are unable to win these exceptions through the majoritarian
political process, tough luck. O’CONNOR concurs but insists that the same result
would be reached by applying strict scrutiny which she believes is the appropriate
test, since a neutral law can just as coercively intrude upon religious duties as one
designed to do so. O’Connor’s proposal: If a general law substantially burdens
religion then it can be sustained only if it’s the least restrictive means to achieve a
compelling state interest – presumption in favor of accommodating religion.
Field: What constitutionally-required exemptions survive Smith? Yoder and Sherbert
Religious Freedom Restoration Act of 1993 (p.1499)
Law attempts to “restore th compelling interest test” from Sherbert and Yoder,
providing that a law that substantially burdens religion is allowed only if it is the least
restrictive means to achieve a compelling interest.
City of Boerne v. Flores (US Sup. Ct. 1997) (Supp. p.120 and Supp. p.82) (see above)
Court holds that Congress lacked the authority under § 5 of the Fourteenth
Amendment to enact the Religious Freedom Restoration Act (RFRA).
Field: This opinion may have little practical effect. The Smith test says that the
Constitution does not require exemptions from neutral laws (though law neutral on its
face may not be in truth—see Lukumi). But even after Boerne, the legislature is
permitted to make accommodations (consistent with the Establishment Clause,
including Kiryas Joel), so it doesn’t much matter that the Religious Freedom
Restoration Act was overturned.