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Constitutional Law Final Exam Study Guide
1. Race I (Plessy and Korematsu), Race II (Brown)
2. The Marshall Era, Second Amendment
3. Commerce I, Commerce II
4. Free Speech I, Free Speech II
5. Obscenity
6. Student Speech
7. Broadcast media
8. Free Exercise
9. Establishment Clause
10. EP I, EP II
11. Affirmative action
12. Gender, Gender II
13. Sexual Autonomy and Gay Rights
14. Abortion
15. Right to Travel, Poverty, Scope of Congressional Power
1. Race and the Constitution (Claire Guehenno)
SUMMARY

Constitutional Theory Perspectives:
o Originalism: Supreme Court should invalidate legislation when but only when that
was understood to be unconstitutional 200+ years ago.
o Restraint: Appeal is that it’s more democratic. Why do you want nine lawyers in
Washington deciding about abortion, gun control etc. If strong sensibility, the
argument may resonate with you. If more skeptical… Courts should not invalidate
legislation about which there is reasonable doubt, except when it seems hostile to a
minority.
 Minority rights: What about minority rights? Risk that the democratic and
legislative process, again and again will be insensitive to racial and religious
minorities to that there may be a whole series of questions where you can
disagree. Difficulty of identifying what counts as a minority.
o Moral reading: position that is relatively happy with the way things are.
o "Common law” constitutionalism: unwritten law made by judges made on the basis
of customs to try to resolve disputes. Using loose interpretive techniques to find
someway to understand that old language put in place by people who couldn’t
predict current situations.

Pay attention to historical context and read one clause in the context of the constitution.
Judges’ values come into the picture in complicated ways.
Hidden agenda: most people in thinking about SCOTUS think that we need it because the
role of the Supreme Court is to put things back in the direction of the moral right after the
republic/democratic political process has done bad things.
Judicial review is so controversial because of Supreme Court’s power. Not about whether we
should have it, but about how it ought to be practiced.
Debates about constitutional theory: how the Court ought to proceeds and what standards
to use get folded into the very practice of constitutional law.



Dred Scott v. Sanford (1857)
Facts: Dred Scott was born as a slave in Virginia, thereafter traveled in the free state with the
person claiming status as his master. Traveled in Illinois with his master and then Wisconsin and
then came to Missouri and was sold to Sanford in New York.
Issues/Holding:
Is he a citizen of the U.S.? No, so can’t challenge in Court.
2) Does Congress have the power to outlaw slavery in the territories? Even though he doesn’t
technically have right to sue, interesting to consider bigger question. They decide that the Court
cannot in fact outlaw it.
3) Unfair to divest Sanford of his property.
Rules: Must be a citizen to bring a case to Court. Congress cannot outlaw slavery in territories.
Masters receive the same legal protection for their slaves as they do for their property.
Key Quotes:
On citizenship: "no State can, by any act or law of its own, passed since the adoption of the
Constitution, introduce a new member into the political community created by the Constitution of
the United States."
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On race: "beings of an inferior order, and altogether unfit to associate with the white race, either in
social or political relations, and so far inferior that they had no rights which the white man was
bound to respect."
"It would give to persons of the negro race, ...the right to enter every other State whenever they
pleased, ...the full liberty of speech in public and in private upon all subjects upon which its own
citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms
wherever they went."
Plessy v. Ferguson (1896)
Facts: Louisiana has a statute requiring whites and blacks to sit in separate cars on railroads.
Technically, cars designated as white cards and then there were non-white cars which doubled as the
smoking cars and white men could sit there. Homer Plessy, who was only one-eighth black was
required by law to sit in the non-white car. He was arrested and jailed for refusing to leave the white
car and claimed that he was denied his constitutional rights.
Issues/Holding: Is Plessy in this case protected by the 14th Amendment? No. Are the separate
cars minimally fair and reasonable? Yes. Are they qualitatively the same? Yes (although, they were
obviously not).
Rules:
Separate but equal: Racial segregation is okay as long as the facilities (or services) provided are of
equal quality. Criticism: Separation of the races marks one race as inferior. Defense: Justices were
“creatures of their time” and believe what it is convenient to believe. Could not have compelled
something out of touch with social mores.
Fundamental (Civil) Rights vs. Social Rights: Fundamental rights are political rights and they receive
more protection. On the other hand, the state, under the 14th amendment has more flexibility in
determining the distribution of social rights.
Key Quotes:
“A statute which implies merely a legal distinction between the white and colored races—a
distinction which is founded in the color of the two races, and which must always exist so long as
white men are distinguished from the other race by color—has no tendency to destroy the legal
equality of the two races, or re-establish a state of involuntary servitude.”
“Laws permitting, and even requiring, their separation, in places where they are liable to be brought
into contact, do not necessarily imply the inferiority of either race to the other, and have been
generally, if not universally, recognized as within the competency of the state legislatures in the
exercise of their police power.”
Harlan’s Dissent: “But in view of the constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind,
and neither knows nor tolerates classes among citizens.”
Korematsu v. United States (1944)
Facts: All people of Japanese descent were ordered to leave certain West Coast areas near military
facilities and then eventually put into detention centers in the middle of the country. Fred
Korematsu, a U.S.-born Japanese American man, was arrested and convicted for refusing to leave
his home in San Leandro.
Issues/Holding: Can Korematsu claim protection under the Fifth Amendment (case is considered
under Due Process, not Equal Protection) during times of war? No. Race-based discriminations
usually deserve strict scrutiny, yet in this case the Court applies no scrutiny and supports the
decision of the general in times of war. Though the decision came internment camps had shut down,
the Court nonetheless gave a seal of approval on the military’s actions.
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Rules: In times of war, SCOTUS defers to the military for a judgment call, trusting that the action
was necessary for national safety.
Key Quotes:
“We are unable to conclude that it was beyond the war power of Congress and the Executive to
exclude those of Japanese ancestry from the West Coast war area at the time they did.”
“Exclusion from a threatened area, no less than curfew, has a definite and close relationship to the
prevention of espionage and sabotage.”
“To cast this case into outlines of racial prejudice, without reference to the real military dangers
which were presented, merely confuses the issue. Korematsu was not excluded from the Military
Area because of hostility towards him or his race.”
Brown v. Board of Education (1954)
Facts: As part of a broader effort by the NAACP to campaign for equal education, thirteen parents
file suit against the Board of Education of the City of Topeka, Kansas. They ask for the school
district to reverse policy of racial segregation, claiming
Issues/Holding: Is education a fundamental right? Can’t take a historical perspective because back
then public education was nothing. Today however, education has become a fundamental right. The
effect of segregated schools is clearly to keep one race down. From lecture: The opinion itself is
lacking in inspiration because Warren thought that by writing a bland opinion that didn’t claim
moral high ground, it would be less divisive and counterproductive.
Rules: Education is a fundamental right that is protected under the 14th Amendment
Separate schools are “inherently unequal.”
Key Quotes:
“In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was
adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education
in the light of its full development and its present place in American life throughout the Nation.
Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the
equal protection of the laws.”
“Does segregation of children in public schools solely on the basis of race, even though the physical
facilities and other "tangible" factors may be equal, deprive the children of the minority group of
equal educational opportunities? We believe that it does.”
“We conclude that in the field of public education the doctrine of "separate but equal" has no place.
Separate educational facilities are inherently unequal.”
Bolling v. Sharpe (1954)
Companion case to Brown v. Board of Education. Challenge to the constitutional of race discrimination
in DC public schools. Does 14th amendment apply there (as it does in Brown)? No, because not a
state. In 1954, schools were controlled by the Congress. Is it permitted to apply rules that segregate
racially? The answer is no, under Due Process clause. A linguistic stretch to find that it prohibits
race-based discrimination. Definitely a huge historical stretch given that it was tolerated in the form
of slavery.
Key Quotes: “In view of this Court's decision in Brown v. Board of Education, ante, p. 347 U. S.
483, that the Constitution prohibits the States from maintaining racially segregated public schools, it
would be unthinkable that the same Constitution would impose a lesser duty on the Federal
Government.”
“Segregation in public education is not reasonably related to any proper governmental objective, and
thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary
deprivation of their liberty in violation of the Due Process Clause.”
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Brown v. Board of Education II (1955)
The Supreme Court determined that district courts should be responsive for overseeing the
implementation of desegregation in schools. For this they should be “guided by equitable
principles,” which involves “a practical flexibility in shaping its remedies and by a facility for
adjusting and reconciling public and private schools.” In addition the Court stated that defendants
should “make a prompt and reasonable start toward full compliance” and that they should do this
“with all deliberate speed.” If they are unable to comply for any reasons, the courts will consider
reasons for delays on an individual basis.
Loving v. Virginia (1967)
Facts: Mildred Loving and Richard Loving, residents of Virginia, married in 1958 in D.C. to avoid
the Racial Integrity Act, which banned marriages between a white person and a non-white person.
When they returned to Virginia, they were charged for violating the ban.
Issues/Holding: Is marriage a fundamental right? Yes, it is one of the “basic civil rights of man.”
This statute restricting the freedom to marry based on a racial classification violated both the Equal
Protection Clause and the Due Process Clause. The Court uses much more moral language in this
case then it did in Brown. Subjecting this to the “most rigid scrutiny,” is there some permissible state
objective to justify this restriction? No.
Rules: Marriage is a civil right protected by the 5th and 14th amendments.
Key Quotes:
“We have consistently denied the constitutionality of measures which restrict the rights of citizens
on account of race. There can be no doubt that restricting the freedom to marry solely because of
racial classifications violates the central meaning of the Equal Protection Clause.”
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
Palmore v. Sidoti (1984)
Court reiterates that it cannot support racial discrimination. It is not okay for Florida to deny child
custody to a white mother because her new husband was black. This violated the Equal Protection
Clause. “The effects of racial prejudice, however real, cannot justify a racial classification removing
an infant child from the custody of its natural mother found to be an appropriate person to have
such custody.”
Johnson v. California (2005)
The state of California was arresting people and sorting them into different cells separating whites
and blacks because there “still a lot of racial tension” and the potential for racial violence. The Court
determines that this policy requires strict scrutiny so that the means must be “narrowly tailored” to
further “compelling government interests.” Though the Court does not actually make a decision on
whether this policy violates the Equal Protection Clause, it demands that the Ninth Circuit or
District Court apply strict scrutiny to it.
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2. The Marshall Era; Second Amendment (Anna Steim)
Marbury v. Madison (1803)
a) Background to Marbury:
a. Entering 1800 election, Federalists (elitism/business, commerce/nationalism) vs.
Democratic Republicans (state governments)
i. Democratic Republicans in a landslide win; Federalists terrified the country is
being handed to the mob
1. John Adams names John Marshall Chief Justice in an effort to keep a
foot in the foor
2. Outgoing Federalists create new, smaller Federal courts with
Federalist judges
a. 42 new offices: Justices of the Peace (including Wm.
Marbury)
ii. Incoming Jeffersonians abolish new federal judgeships
1. Begin impeaching lower court federal judges and justices of the
Supreme Court
2. Do not allow the Supreme Court to meet for the duration of 1802
iii. Marbury files suit against incoming Jefferson administration for withholding
his appointment to Justice of the Peace
1. Marbury’s mistake: suit filed in the wrong court: a court that had no
jurisdiction.
a. Marshall’s opinion:
i. Marbury does have the right to a position as Justice of
the Peace, and does have the right to a judicial remedy
b. Introduces the idea that the Courts are above politics; that the Constitution would
have no legal effect if Congress were to decide what does and does not violate it, as
Congress is political.
b) Mini-Brief:
a. Facts: see above. Essentially, “It was in this debate that for the first time since the
initiation of the new Government under the Constitution there occurred a serious
challenge of the power of the Judiciary to pass upon the constitutionality of Acts of
Congress” (CB 2)
b. Issue / Holding: Again, who possesses the power to interpret the Constitution?
c. Rules: 1. Marbury’s commission cannot be withheld. 2. Marbury has the right to
claim the protection of the laws and seek judicial redress. However, 3. Marbury is not
entitled to the particular remedy for which he applied because the Supreme Court
does not possess jurisdiction in that court.
d. Key Quotes: “The question whether an Act repugnant to the Constitution can
become the law of the land, is a question deeply interesting to the United
States....[An] original and supreme will organizes the government, and assigns to
different departments their respective powers. It may either stop here, or establish
certain limits not to be transcended by those departments. The government of the
United States is of the latter description. The powers of the legislature are defined
and limited; and that those limits may not be mistaken, or forgotten, the constitution
is written. To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may, at any time, be passed by those
intended to be restrained? The distinction between a government with limited and
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unlimited powers is abolished, if those limits do not confine the persons on whom
they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is
a proposition too plain to be contested, that the constitution controls any legislative
act repugnant to it; or, that the legislature may alter the constitution by an ordinary
act” (CB4-5).
McCulloch v. Maryland (1819)
a) Background to McCulloch:
a. Necessary and Proper Clause (Article I, section 8): the national legislature has the
power to “make all laws that shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested, by this Constitution”
(CB 27).
i. Does this mean that Congress has implied powers?
b) Mini-Brief:
a. Facts: In an effort to edge out the national bank, Maryland taxed any bank operating
in the state without state authority; the Baltimore branch of the Bank of the United
States was charged with issuing bank notes without paying the tax.
b. Issue / Holding: Does Congress have the power to incorporate a bank?
c. Rules: 1. The Necessary and Proper Clause is placed among the powers of
Congress, not the limitations against those powers. 2. This clause is meant to
“enlarge, not diminish” (CB 30) the powers of the government. Whether or not the
bank is “necessary” or merely “convenient” (as Thomas Jefferson believed it to be),
is not really the subject of the case—because the law for the accomplishment of this
object is not prohibited, deciding the object’s necessity is the job of the legislature,
not the court.
d. Key Quotes: 1. “Although, among the enumerated powers of the government, we
do not find the word “bank,” or “incorporation,” we find the great powers to lay and
collect taxes; to borrow money; to regulate commerce; to declare and conduct war;
and to raise and support armies and navies. The sword and the purse, all the external
relations, and no inconsiderable portion of the industry of the nation, are intrusted to
its government” (CB 29). 2. “The subject [of this case] is the execution of those great
powers on which the welfare of a nation essentially depends...We think the sound
construction of the Constitution must allow to the national legislature that discretion,
with respect to the means by which the powers it confers are to be carried into
[execution]. Let the end be legitimate, let it be within the scope of the Constitution,
and all means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the Constitution, are
constitutional” (CB 30-1).
Substantive Due Process (CB 154-158)
Invocation of the Due Process Clauses of the Fifth and Fourteenth Amendments in order to impose
limits on the substance of governmental regulations (as opposed to the procedures by which
government affects “life, liberty, and property”).
Early expression that there are implied or inherent limits to governmental power in Calder v. Bull
(1798) in Justice Chase’s opinion—the notion that the Constitution is enacted to establish justice,
promote the general welfare, and secure the blessings of liberty for ourselves and our posterity (etc.
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etc.), and that the legislature is entrusted with certain powers as a means of accomplishing this goal.
Justice Iredell returns with the expected argument that if the Constitution establishes no limit on
legislative power, then the legislature is essentially able to do whatever it wants.
Washington v. Glucksberg (1997), the Supreme Court rejects the constitutional right to physicianassisted suicide. Justice Souter speaks to the idea that substantive due process is a historically
ingrained method of judicial review.
Prior to the adoption of the Fourteenth Amendment in 1868, the federal constitution provided little
basis for challenging state regulation of economic interests. Barron v. Mayor and City Council of
Baltimore (1833) holds that the Bill of Rights applies only to the states. Because federal constitutional
grounds cannot protect against most encroachments on economic interests, state judges turn to
“due process” clauses in state constitutions. Out of these clauses, state courts begin to develop
substantive limitations on legislative power aimed at legislation affecting the rights of specific
individuals, and later at general legislation interfering with vested rights.
Second Amendment: Heller is the only case we studied (and the first in which SCOTUS explicitly
addressed the federal government’s ability to restrict the right to bear arms).
District of Columbia v. Heller (2008)
Facts: A D.C. special police officer challenged the D.C. gun-control law which makes it a crime to
carry an unregistered firearm and prohibits the registration of handguns. He applied to register a
handgun to keep at home and was refused.
Issue / Holding: Does the prefatory clause (“a well regulated Militia, being necessary to the
security of a free State”) of the Second Amendment limit its operative clause? (“The right of the
people to keep and bear Arms, shall not be infringed”?)
Ruling: The law is struck down, because “the inherent right of self-defense has been central to the
Second Amendment right” (CB 293).
Key Quotes: “Undoubtedly some think that the Second Amendment is outmoded in a society
where our standing army is the pride of our Nation, where well-trained police forces provide
personal security, and where gun violence is a serious problem. That is perhaps debatable, but what
is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct”
(CB 294).
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3. Commerce Clause History and Modern Doctrine (Audrey Kim)
Article 1, Section 8, Clause 3: “The Congress shall have Power…To regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes”
SUMMARY
The history of Commerce Clause doctrine revolves around the question of when it is constitutional
for Congress to use its authority over interstate commerce in order to regulate the activities of states
and individuals. In the earliest cases (e.g. Gibbons, Lottery, Dagenhart), the Court answered this
question by asking whether or not the regulated activity fit into a reasonable definition of
“interstate commerce.” But when this approach came under fire for invalidating popular New Deal
legislation, the Court began to focus on the effect that the regulated activity would have on
interstate commerce, even if the activity itself was intrastate (e.g. Jones & Laughlin, Darby, Wickard).
This emphasis on effect was also used to defend the constitutionality of many parts of the 1964 Civil
Rights Act, which proved particularly controversial because of Congress’s regulation of private
business (e.g. Heart of Atlanta, Katzenbach). As the Court grew more conservative towards the end of
the 20th century, modern doctrine began to place bounds on the authority that Congress could derive
from the Commerce Clause (an issue particularly important to Rehnquist and O’Connor). Most
importantly, Lopez and Morrison both hemmed Congressional power by distinguishing between
economic and noneconomic activity, and precluding the latter from Commerce Clause jurisdiction.
In lecture, Fallon argued that the trajectory of the Commerce Clause can serve as a good argument
against originalism. First, the Lopez and Morrison Courts probably did not go as far as they wanted to,
because an extreme overhaul of the standing interpretation of the Commerce Clause would have
overturned the Civil Rights Act, which in turn would have been politically unacceptable. In other
words, strong public opinion establishes a constraint on highly disruptive changes of constitutional
interpretation, such as those advocated by Clarence Thomas. Second, Fallon views the more liberal
changes in Commerce Clause history as consistent with the Framers’ intent to give Congress the
power to deal with problems “genuinely national in scope,” rather than having the federal
government adhere precisely to the letter of each enumerated power.
Three important questions to keep in mind while reading the cases:
(1) Is the power enumerated in the Commerce Clause plenary?
(2) When does “commerce” begin or end? Do manufacturing or production count?
(3) When is the regulation of intrastate activity essential to the regulation of interstate commerce?
First Commerce Cases (pp. 32-38)
Gibbons v. Ogden (1824)
Facts: The state of NY granted Ogden a monopoly to navigate boats in waters between NYC and
NJ. Ogden tried to stop Gibbons, who had been licensed under a Congressional act to navigate boats
between NY and NJ; Gibbons sued, arguing that NY’s granting of a state monopoly violates the
Commerce Clause.
Issue/holding: Supremacy of Congressional power vis-à-vis state power in regulating intrastate
commerce. Congress wins.
Rule: Congress has a fair amount of leeway when regulating interstate commerce, and thus
commercial claims made under state law (e.g. NY’s monopoly grant) must yield to those made under
federal law (e.g. Congressional licensing).
Key Quotes
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Definition of commerce: “Commerce, undoubtedly, is traffic, but it is something more, - it is
intercourse.”
Definition of interstate: “Commerce among the states must, of necessity, be commerce with the
states. [The] power of Congress, then, whatever it may be, must be exercised within the territorial
jurisdiction of the several states.”
Limits on power: The power to regulate, “like all others vested in Congress, is complete in itself,
may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in
the Constitution.”
Champion v. Ames (1903), a.k.a. “Lottery”
Facts: This case challenges a federal law that prohibited lottery tickets from being transported
across state boundaries.
Issue/holding: Can Congress use the Commerce Clause to exercise a “general police power”? Yes.
Rules: 1. Prohibition counts as regulation. 2. Congress can use commercial regulation to pursue a noncommercial goal. Fallon calls this a formalist test: if Congress prohibits the movement of something
across state lines, then the movement of something across state lines is formally within interstate
commerce category and falls within Congressional power.
Key Quotes:
“It must not be forgotten that the power of Congress to regulate commerce among the states is
plenary, is complete in itself, and is subject to no limitations except such as may be found in the
Constitution. [What] clause can be cited which, in any degree, countenances the suggestion that one
may, of right carry or cause to be carried from one state to another that which will harm the public
morals?”
Houston, East & West Texas RY v. United States (1914), a.k.a. “Shreveport”
Facts: A federal commission tried to impose certain rates on a Texas railway because its original
(higher) rates were effectively slowed the flow of interstate commerce. This presents a problem
because, as it applies to the whole railroad from TX to LA, the commission’s rule at some point
applies to commerce conducted purely within the state of TX.
Issue/holding: For a purpose related to interstate commerce, can Congress regulate purely intrastate
commerce? Yes.
Rule: Commerce clause regulations don’t have to pass the formalist test. If the effects of what goes
on wholly within the state of TX relate to interstate commerce, Congress is entitled to regulate.
Key Quotes:
“Where the power of Congress to regulate commerce] exists, it dominates.”
“This is not to say that Congress possesses the authority to regulate the internal commerce of a
state, as such, but that it does possess the power to foster and protect interstate commerce, and to
take all measures necessary or appropriate to that end, although intrastate transactions of interstate
carriers may thereby be controlled.”
Hammer v. Dagenhart (1918):
Facts: This case challenges a federal law that prohibits the interstate transportation of products
made with child labor.
Issue/Holding: Basically the same question as the one presented in Lottery, but this is a different
court that doesn’t like the use of the Commerce Clause to achieve non-commercial goals.
Rule: Distinction from Lottery lies in the necessity of interstate commerce to achieve harmful results.
Because “the goods shipped are of themselves harmless,” Congress cannot regulate their traffic.
Key Quotes:
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“Before transportation begins, the labor of their production is over, and the mere fact that they were
intended for interstate commerce transportation does not make their production subject to federal
control.”
“To sustain this statute would sanction an invasion by the federal power of the control of a matter
purely local in its character.”
Holmes’s dissent (joined by 3 others): “The act does not meddle with anything belonging to the
States…If there were no Constitution and no Congress their power to cross the line would depend
upon their neighbors. Under the Constitution such commerce belongs not to the States but to
Congress to regulate.”
New Deal Cases (pp. 38-45)
1. Schechter Poultry Corp v. United States (1935): struck down a portion of the National Industrial
Recovery Act that regulated trade, wages, hours, and bargaining in the NY poultry slaughtering
market. In order for the Commerce Clause to justify intrastate regulation, there must be a “direct
effect” on interstate commerce.
2. Carter v. Carter Coal Co. (1936): struck down the Bituminous Coal Act, which required all
members of the Bituminous Coal Code to observe wages and hours negotiated by some of its
members. Bolstered the “direct effect” test, explicitly noting that the difference between activities
that could and could not be regulated “is not formal but substantial in the highest degree.”
Furthermore, “the federal regulatory power ceases when interstate commerce ends; and,
correlatively, the power does not attach until interstate commercial intercourse begins.”
*NB: The two cases above (along with four similar ones) infuriated New Dealers, serving as a
catalyst for FDR’s court-packing scheme immediately following his 1936 landslide re-election.
3. NLRB v. Jones & Laughlin (1937)
Facts: The National Labor Relations Board (created by Congress) accused a large steel producer of
unfair labor practices. J&L defended itself with a Carter-esque argument: manufacturing necessarily
preceded (and thus could not constitute) commerce, even if the goods were produced with the
intent of engaging in interstate commerce.
Rule: Court rejects this argument and responds that it is not so black and white: “Although activities
may be intrastate in character when separately considered, if they have such a close and substantial
relation to interstate commerce that their control is essential or appropriate to protect that
commerce from burdens and obstructions, Congress cannot be denied the power to exercise that
control.” The question of what was “essential or appropriate” was “necessarily one of degree,” and
they refused “to shut our eyes to the plainest facts of our national life and to deal with the question
of direct and indirect effects in an intellectual vacuum.” This represents a crucial turningpoint in
the Court’s logic, probably in response to the wave of political pressure coming from an enormously
popular president trying to boost the economy (it only took one justice changing his opinion
between Carter and J&L).
The Court saved a little face by continuing to emphasize the importance of preserving states’
authority vis-à-vis Congress (i.e. maintaining “our dual system of government”) and warned against
legislation that would “effectually obliterate the distinction between what is national and what is
local and create a completely centralized government.” For example, they argued, to legitimize the
indirect Schecter relationship – between New York poultry farms and interstate commerce – would
have made Congress effectively omnipotent. In contrast, there was a very direct relationship at stake
in this case: were Jones & Laughlin to shut down as a result of a labor strike, there would be “a most
serious effect upon interstate commerce.”
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4. United States v. Darby (1941)
Facts: The Fair Labor Standards Act (1) set national minimum wage / maximum hour standards,
and (2) prohibited the interstate shipment of goods made in factories that did not conform to these
standards. Georgia did not have any of these standards previously. Darby, a lumber manufacturer in
Georgia, argued that Congress could not justify this Act under the Commerce Clause because “
while the prohibition is nominally a regulation of the commerce its motive or purpose is regulation
of wages and hours of persons engaged in manufactures.”
Issues/holding: 1. Does Congress’s “true” motive matter? 2. Can Congress impose the minimum
wage on all producers, including those involved only in intrastate commerce? Congress wins on both
counts.
Rule:
1. It’s okay to use Commerce Clause to achieve regulatory objectives  overrules Hammer
(1918): “The opinion that the motive of the prohibition or its effect to control in some
measure the use or production within the states of the article thus excluded from the
commerce can operate to deprive the regulation of its constitutional authority has long since
ceased to have force. [It] should be and now is overruled.” This confirms that Congress’s
power is plenary (i.e. immune from categorical splicing by the courts): “the motive and
purpose of a regulation…are matters for the legislative judgment…over which the courts are
given no control. Whatever their motive and purpose, regulations of commerce which do
not infringe some constitutional prohibition are within the plenary power conferred on
Congress by the Commerce Clause.”
2. Establishes substantial effects test: “The power of Congress to regulate interstate
commerce extends to the regulation [of] activities intrastate which have a substantial effect
on the commerce or the exercise of the Congressional power over it.” Shift of Court’s focus
from determining whether an activity fits within the definition of commerce to evaluating
the activity’s effect on commerce.
*NB: At this point, all four of the dissenting justices in J&L had left the Court, rendering Darby a
unanimous, 9-0 decision and an important turningpoint in the history of Commerce Clause doctrine.
5. Wickard v. Filburn (1942)
Facts: This cased challenged the section of the Agricultural Adjustment Act that limited the amount
of wheat that farmers could grow.
Issue/holding: Court upholds the Act’s punishment of farmers who grow more wheat than they
should have, even though it was grown for home consumption and not intended for the market.
Rule:
1. (Somewhat sketchily) legitimizes Congress’s goal to buoy the price of wheat by limiting
supply: “The stimulation of commerce is a use of the regulatory function quite as definitely
as prohibitions or restrictions thereon.”
2. Uses aggregation principle (a.k.a. cumulative effects test) to reinforce Darby’s
substantial effect test. If lots of wheat farmers grew wheat for home consumption, they
would cumulatively depress the demand for (and thus the price of) wheat, which would have
a substantial effect on interstate commerce: “That appellees own contribution to the demand
for wheat may be trivial by itself is not enough to remove him from the scope of federal
regulation where, as here, his contribution, taken together with that of many others similarly
situated, is far from trivial.”
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Civil Rights Cases (pp. 46-49)
1. Heart of Atlanta Motel v. US (1964)
Facts: The Motel challenged the section of the Civil Rights Act that forbade racial discrimination in
motels.
Issue/holding: Does the scope of Congress’s Commerce Clause power include regulating the
behavior of private citizens, like hotel owners (as opposed to state governments)?1 Yes.
Rule: Court cites the “overwhelming evidence of the disruptive effect that racial discrimination has
had on commercial intercourse,” the logic being that hotel/motel discrimination discourages
African-Americans from traveling and engaging in commerce across state boundaries, which
definitely piques Congressional “interest in protecting interstate commerce.” In other words,
Congress has a right to legislate private business in order to facilitate interstate commerce.
According to Fallon, the Court at this point is relying heavily on precedent, with original
understanding fading in relevance.
2. Katzenbach v. McClung (1964)
Facts: Ollie’s BBQ argues that the Commerce Clause does not allow Congress to strike down its
discrimination policy, because it serves only intrastate customers.
Issue/holding: Same question as Heart of Atlanta, but also asks: if the constitutionality of this
clause of the Civil Rights Act depends on the Commerce Clause, then should there be a case-by-case
assessment of restaurants and/or an exemption for restaurants that serve only intrastate customers?
No.
Rule:
1. Even intrastate restaurant discrimination hurts interstate commerce: “The fewer customers a
restaurant enjoys the less food it sells and consequently the less it buys.”
2. It is the class of activity, not the facts of each individual case, that determines whether
Congress can regulate individual businesses (at least with respect to racial discrimination). In
order to be within its constitutional boundaries, Congress only has to prove that restaurants’
“refusals of service to Negroes have imposed burdens both upon the interstate flow of food
and upon the movement of products generally” – not that Ollie’s discrimination policy (or
discrimination practiced by restaurants that serve only intrastate customers) specifically has a
detrimental effect upon interstate commerce. Again, this opinion relies heavily on precedent,
particularly on Wickard’s aggregation principle.
Modern Doctrine (pp. 49-61)
1. US v. Lopez (1995) – not in CB, but mentioned in lecture
Facts: Congress invokes its Commerce Clause powers to ban handguns from school zones.
Issue/holding: Court strikes it down because Congress’s Commerce Clause justification doesn’t
hold water (e.g. the chain of causation was too long and there was no empirical data to back it up).
Rule: The Court didn’t hand down a general test for lower courts to use, because there were a lot of
sketchy, non-Commerce-Clause related details in this case. But striking down the law did send a
signal to conservative lawyers that the Court would be newly receptive to cases more appropriate for
curtailing Commerce Clause power.
2. US v. Morrison (2000)
The majority opinion begins: “The sole question posed is…the constitutionality of the Civil Rights Act of 1964 as
applied to these facts.” (Choper 46).
1
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Facts: Congress cites its Commerce Clause power to pass the Violence Against Women Act (1984),
which provides a federal civil remedy for victims of gender-motivated violence.
Issue/holding: VAWA is struck down.
Rule: Violence is noneconomic activity, and Congress cannot use the Commerce Clause to regulate
noneconomic activity. A Court that is much more conservative than those during the New Deal and
civil rights era emphasize that “Congress’ regulatory authority is not without effective bounds.”
Because there hasn’t been a lot of case doctrine, it’s unclear how this economic/noneconomic
distinction actually pans out (e.g. Gonzales, below, is pretty ambiguous about what it actually means).
Thus, on an issue spotter, as long as you made a reasonable distinction it would probably work.
Majority opinion (Rehnquist, C.J.):
 The key to the Lopez decision was the “noneconomic, criminal nature of the conduct at
issue.” (50)
 Abuse of the Commerce Clause threatens state autonomy: The government’s logic in Lopez
made it “difficult to perceive any limitation on federal power, even in areas such as criminal
law enforcement or education where States historically have been sovereign.” (50)
 “Gender-motivated crimes of violence are not, in any sense of the phrase, economic
activity…thus far in our Nation’s history our cases have upheld Commerce Clause regulation
of intrastate activity only where that activity is economic in nature.” (51)
 Slaps Darby in the face: “’whether particular operations affect interstate commerce
sufficiently to come under the constitutional power of Congress to regulate them is
ultimately a judicial rather than a legislative question.” (51)
 Rejects the use of the aggregation principle as applied here as stepping onto a slippery slope.
Dissent 1 (Souter, J.):
 Morrison should be distinct because it makes up for Lopez’s fatal flaw: the lack of empirical
evidence demonstrating the myriad ways in which domestic violence curtails interstate
commerce. The majority effectively ignores this “mountain of data,” and applies a “new
criterion of review” that is stricter than rational basis.
 Plenary means “unsusceptible to categorical exclusions.” Souter calls this ignorance a “neartragedy.” Also dismisses the argument about traditional balance of power between state and
national government, citing precedent that held the concept of “traditional governmental
function” as incoherent in a legal context, and noting that most states support the Act.
Dissent 2 (Breyer, J.):
 Economic/noneconomic dissent is impractical in many cases (e.g. violent mugging).
 Reminder of the lesson from Darby: the effect on interstate commerce, rather than the
economic/noneconomic nature, of the activity, should be what brings that activity within
Congressional jurisdiction.
 Historical and current economic realities render it “close to impossible for courts to develop
meaningful subject-matter categories that would exclude some kinds of local activities from
ordinary Commerce Clause ‘aggregation’ rules without, at the same time, depriving Congress
of the power to regulate activities that have a genuine and important effect upon interstate
commerce.” Breyer prefers the “procedural approach” used in New Deal and Civil Rights
Act precedents.
3. Gonzales v. Raich (2005), a.k.a. GANJA!
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Facts: State of CA passes a statute allowing local cultivation and use of marijuana for medical
purposes, which conflicts with the federal Controlled Substances Act. This case establishes an
important distinction from Lopez and Morrison.
Issue/holding: Can local activities have effects substantial enough to justify use of the Commerce
Clause? Yes.
Rule: Even Scalia agrees with this one. Congress can regulate local activities – even the production
of goods not intended for sale – as long as they have a substantial effect on the dynamics of an
interstate market (e.g. national marijuana market). This case is distinct from Lopez and Morrison
because those cases involved activities that were noneconomic and thus entirely outside of commercial
regulation (e.g. carrying a handgun, abusing women). CA here wants to make exemptions within a
“quintessentially economic” activity (growing marijuana), depending on where it takes place (i.e.
within vs. outside of CA). In his concurrence, Scalia refines this notion. He cites Lopez to
demonstrate that even if marijuana were not considered an economic activity, Congress still has
regulatory authority over it because such authority is “an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be undercut unless the intrastate activity
were regulated.” (Lopez)
O’Connor’s dissent doesn’t buy it: “Most commercial goods or services have some sort of privately
producible analogue. …Backyard or windowsill gardening substitutes for going to the supermarket.
To draw the line wherever private activity affects the demand for market goods is to draw no line at
all, and to declare everything economic. [As for Wickard, in] contrast to [California’s] limitless
assertion of power, Congress provided an exemption within the AAA for small producers.” Also
objects because the Wickard court had a lot more data about the effects of home-consumption on
the national wheat market than the Gonzales court had about home-cultivation/consumption on the
national weed market.
The National Taxing and Spending Powers (pp. 61-66)
Art. I, sec. 8, cl. 1 gives Congress both the power to tax and to spend, i.e. the oft-cited “power of the
purse.” Besides the Commerce Clause, this is another place where Congress derives the power to
compel action from both states (e.g. Dole) and individuals. Lopez and Morrison renewed the
importance of how Congress can use these two powers to achieve regulatory ends. We didn’t discuss
this much in
United States v. Butler (1936): invalidates the Agricultural Adjustment Act of 1933, which attempted to
raise farm prices in part by levying a tax on commodity processors. The Court ruled that this
“invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural
production, a matter beyond the power delegated to the federal government.” The dissent promoted
Fallon’s “national scope” argument, defending the law because “the depressed state of agriculture is
nation wide in its extent and effects.”
Steward Machine Co. v. Davis (1937): upholds the Social Security Act’s program for unemployment
compensation, because the Depression was “a crisis so extreme” that taxation in order to “relieve
the unemployed and their dependents” did indeed constitute “the promotion of the general
welfare.”
Helvering v. Davis (1937): upholds Social Security Act’s old age pension program (supported
exclusively by federal taxes), because defining what is within “the general welfare” is a legislative
(rather than judicial) choice. The “discretion belongs to Congress, unless the choice is clearly wrong,
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a display of arbitrary power, not an exercise of judgment. [Nor] is the concept of the general welfare
static. Needs that were narrow or parochial a century ago may be interwoven in our day with the
well-being of the nation.”
South Dakota v. Dole (1987) – the only spending clause case discussed in lecture
Facts: Congress denies highway funding to any state that does not raise its drinking age to 21. South
Dakota gets pissed and sues.
Issue: What are the limits of Congress’s spending power?
Holding: Congress wins.
Rule: Strings attached to Congressional money (1) must promote “the general welfare” (here courts
should defer to Congress); (2) cannot require that states pass unconstitutional laws; and (3) the
financial inducement cannot be so intense that “pressure turns into compulsion.”
Sabri v. US (2004): holds that Congress can criminalize bribery of state or local officials when their
agency receives more than $10,000 of federal money, because the Necessary and Proper Clause gives
it authority to see “that taxpayer dollars appropriated under that power are in fact spent for the
general welfare and not frittered away in graft.”
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4. Freedom of Speech: History and Emergence of Modern Law (Max Mishkin)
Amendment I: “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right o the
people peaceably to assemble, and to petition the Government for a redress of grievances.”
HISTORICAL SUMMARY
According to Fallon and historians, the original intent of the First Amendment was either to
protect against the “seditious libel” punishments that scared off criticism of the British government
or to defend the media from prior restraint. Either way, it almost certainly wasn’t meant as a
doctrine of individual liberty. First, Schenck v. U.S. (1919) upheld a conviction under the Espionage
Act that forbade obstructing the military’s recruiting – Holmes presented the “clear and present
danger” test, albeit not very strictly (Fallon calls this the “harm-focused consequentialism”
doctrine). Back in 1917, however, Judge Learned Hand had ruled in Masses that political discourse is
necessary for democracy, so only speech that specifically advocates lawlessness can be banned
(Fallon’s “democracy” doctrine). But in Debs (1919), the Supreme Court again used a lax reading of
Holmes “clear and present danger” test, essentially arguing that discourse is important, but that
some ideas are too dangerous to be allowed to spread (Fallon’s “democracy and distrust”
doctrine). Later that year, in his dissent to Abrams (1919) Holmes both toughened up the “clear and
present danger” test and put forward the “marketplace of ideas” doctrine in defense of free
speech. Gitlow (1925) represents a half-step towards expanded free speech rights – the Court
embraced the clear and present danger test, but yielded to the legislature in determining if some
speech is inherently dangerous. In Whitney (1927), Justice Brandeis put forward two new defenses
for free speech: the “safety valve” notion that speech vents frustration that would otherwise turn to
violence, and the “autonomy” rationale that discovering political truth is essential to individual
liberty and self-governance.
Free speech came up again in Dennis (1951), which determined that the “high gravity” of evil
in Communism meant that a Communism-advocating threat need not be imminent to be illegal.
Yates (1957) was a change, as the Court ruled that Communists could be jailed only for advocating
specific acts of violence, not just the idea of overthrowing the government. 1969’s Brandenburg,
however, finally created the “imminent and likely” standard for determining if lawlessnessadvocating speech is illegal.
And, on a different note, the Court found that freedom of the press required expansive
protections against libel lawsuits. In NYT v. Sullivan (1964), the “actual malice” standard was
established: to sue a newspaper for libel, a public official must show that the paper knew that its
allegations were untrue, or showed reckless disregard for the truth. Subsequent cases expanded
these protections to articles involving almost any public figure or event in the public interest.
Schenck v. United States (1919)
Facts: Schenck and friends mailed out 15,000 flyers opposing the draft to recently-enlisted men,
violating the Espionage Act’s prohibition on attempting to cause insubordination.
Question: Does the First Amendment protect anti-draft speech during a time of war? No.
Rule: During wartime, even a conspiracy to obstruct the war effort – let alone actually succeeding at
obstructing it – is criminal.
Quotes:
“The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic.”
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“[The] question in every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent.”
Debs v. United States (1919)
Facts: Debs, Socialist Party leader, criticized WWI in a speech, violating the Espionage Act
Question: Does the First Amendment protect anti-war speech during wartime? No.
Rule: Schenck upheld. If the “natural and intended effect” of the speech obstructs the war effort, it
loses First Amendment protections. Political content of the speech should be ignored.
N.B.: Fallon called this case an “absolute travesty”
Masses Publishing Co. v. Patten (1917)
Facts: The New York Postmaster banned The Masses, a monthly anti-war journal, from being sent
through the mail after an issue praised draft resisters.
Question: Did the Postmaster’s actions violate The Masses’ First Amendment protections? Yes.
Rule: Only when speech directly advocates illegal action can it constitutionally be banned.
Quote: “Words are not only the keys of persuasion, but the triggers of action, and those which have
no purport but to counsel the violation of law cannot by any latitude of interpretation be a part of
that public opinion which is the final source of government in a democratic state.”
Abrams v. United States (1919)
Facts: Abrams and friends tossed leaflets out of a window in New York City. They opposed the
U.S. intervention in Russia and called for a general strike.
Question: Is supporting a strike during wartime protected by the First Amendment? No.
Rule: Schenck upheld. “Likely effects” of the speech can be enough to forfeit First Amendment
protections.
Dissent Quotes:
“[T]he United States constitutionally may punish speech that produces or is intended to
produce a clear and imminent danger” (Holmes).
“The best test of truth is the power of the thought to get itself accepted in the competition
of the market” (Holmes).
Gitlow v. New York (1925)
Facts: Gitlow printed thousands of copies of the “Left Wing Manifesto,” violating New York’s antianarchy “sedition law”
Question: Does the First Amendment protect advocating the overthrow of the government? No.
Rule: Hybrid ruling – speech that advocates lawlessness and poses a clear and present danger can be
banned, and the legislature is free to determine what speech causes such a danger.
Dissent Quotes:
“Every idea is an incitement” and “Eloquence may set fire to reason” (Holmes).
Whitney v. California (1927)
Facts: Whitney taught for the CA Communist Labor Party, violating California’s “anti-syndication”
laws
Question: Does the CA law violate the First Amendment? No.
Rule: The State has no obligation to protect speech that is “inimical to the public welfare”
Quotes: [That a state] may punish those who abuse [freedom of speech] by utterances inimical to
the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations
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of organized government and threaten its overthrow by unlawful means, is not open to question”
(Sanford).
“Freedom to think as you will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech and assembly discussion would be
futile” (Brandeis, concurring).
“Even imminent danger cannot justify resort to prohibition of these functions essential to
effective democracy, unless the evil apprehended is relatively serious” (Brandeis, concurring).
Dennis v. United States (1951)
Facts: Dennis violated the Smith Act, which forbade the advocacy of violently overthrowing the
government, by teaching the principles of the Communist Party
Question: Does the First Amendment protect the advocacy of a party whose goals include
overthrowing the US government? No.
Rule: As Hand wrote, “Courts must ask whether the gravity of the ‘evil,’ discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid the danger.”
Quote: “[T]he basis of the First Amendment is the hypothesis that speech can rebut speech,
propaganda will answer propaganda, free debate of ideas will result in the wisest governmental
policies.”
Yates v. United States (1957)
Facts: Second-tier Communists were prosecuted for advocating violence under the Smith Act
Question: Does the First Amendment protect the defense of nonspecific violence? Yes.
Rule: To prosecute, the government must show that a person has advocated a specific act of
violence, not merely argued that is desirable.
Quote: “The essential distinction is that those to whom the advocacy is addressed must be urged to
do something, now or in the future, rather than merely to believe in something”
Brandenburg v. Ohio (1969)
Facts: Brandenburg, a KKK leader, was charged with violating Ohio’s Criminal Syndicalism law by
speaking at a KKK rally.
Question: Does the First Amendment protect advocacy of nonspecific future lawless action? Yes.
Rule: Speech that incites lawless action is unprotected only if violence is imminent and likely.
Quote: “The constitutional guarantees of free speech and free press do not permit a State to forbid
or proscribe advocacy of the use of force or of law violation except where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or produce such actions.”
Hess v. Indiana (1973)
Facts: Anti-war demonstrator was arrested for saying, “We’ll take the fucking street later” to a
police officer
Question: Does the First Amendment protect the implication of committing future lawless action?
Yes, if that action is indefinite.
Rule: Brandenburg upheld. There must be imminence of lawless action for speech to lose protection.
Communist Party of Indiana v. Whitcomb (1974)
Indiana improperly required political candidates to pledge that their party did not advocate violent
overthrow of the government, since Brandenburg decreed that the Party would have to advocate
action, not belief.
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New York Times v. Sullivan (1964)
Facts: The Montgomery, Alabama police commissioner sued NYT for libel based on an
advertisement that (falsely) alleged violence against MLK by the police
Question: Does Alabama’s libel law violate the First Amendment in requiring absolute truth as the
only defense for a damaging statement? Yes.
Rule & Quote: When a public official claims libel, he must prove that the publication acted with
“actual malice,” or “knowledge that [the claim] was false or with reckless disregard of whether it was
false or [not]”
Rosenblatt v. Baer (1966)
Sullivan’s classification of “public official” applies to “those who appear to the public to [have]
substantial responsibility for or control over the conduct of government affairs,” such as the
supervisor of a public ski resort.
Garrison v. Louisiana (1964)
Sullivan’s protections are maintained even when the conduct of a public official being alleged is
private or when it occurred before the official first held office.
Curtis Publishing Co v. Butts and Associated Press v. Walker (1967)
Public figures, even if they are not public officials, still must meet the Sullivan standard to sue for
libel.
Rosenbloom v. Metromedia (1971)
Sullivan protections extend to statements “involving matters of public or general interest ‘without
regard to whether the persons involved are famous or anonymous’”
Hustler Magazine v. Falwell (1988)
Facts: Falwell sued Hustler for emotional damages after Hustler printed a fake advertisement
claiming that Falwell drunkenly lost his virginity…in an outhouse…to his mother.
Question: Must public figures prove “actual malice” to recover emotional damages? Yes.
Rule: First Amendment protections in general and Sullivan protections in particular apply when
publications disparage or mock public figures
Time v. Hill (1967)
Sullivan protections, not a negligence standard, apply when a published report about “private
individuals involved in an incident of public interest” is incorrect but not defamatory
Zacchini v. Scripps-Howard Broadcasting (1977)
Sullivan protections do not apply to a broadcaster televising an event that is proprietary and “closely
analogous to the goals of patent and copyright law,” such as a person getting shot out of a cannon.
The event may be of public interest, but the human cannonball still gets to determine publishing
rights.
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5. Obscenity (Kelby Russell)
SUMMARY
A. The lecture began with a discussion of Chaplinsky (1942), a fighting words case (see below) in
which a police officer arrested a Jehovah’s witness for calling him a “damned fascist.” The concept
comparing value of speech and harm of speech was introduced. Next we moved on to a discussion
of obscenity. Obscene speech is not protected by the First Amendment. There are three things that
define obscenity: It appeals to the prurient interest, it consists of patently offensive depictions of
organs or sex acts, and it is of no real value. The history of obscenity legislation and law is that at
first, it was assumed to be illegal and states regulated it. In 1937, in Roth v. US, the Court established
the first two criteria. The third was added in Miller (1973). Stanley v. Georgia (1969) established a zone
of privacy within the home, meaning that people could look at obscene material in their home
because the ability to receive information, regardless of its worth, is a fundamental part of the
American society. By far the most important case was Paris Adult Theater (1973) which established
the principle that private, consenting adults could be prohibited from viewing obscene material,
based on the assumption that society is somehow worse when the material is around. An interesting
thing to wonder about is that the Court usually regulates “harmful” speech. However, this speech is
the type that might change the way people think, and isn’t that the purpose of the 1st Amendment?
So that we can alter how others think? We then discussed the Dworkin-Mackinnon Ordinance,
which forbade display of and trafficking in graphic, sexually explicit subordination. The ordinance
was supported by the Theory of Harms, which says that this kind of speech might hurt someone
(more rapes result, enforces gender stereotypes, enhances discrimination). American Booksellers v.
Hudnut (1986), however, said that the government couldn’t just regulate everything, but that there
was some material that might be thought of as obscene but didn’t actually fit the description.
Questions were posed by Fallon at the end of lecture about what effect tolerance has on repression
of ideas. Finally, the reading addresses the problems of “overbreadth” and “vagueness,” pointed out
often in J. Brennan’s dissents.
Chaplinsky v. New Hampshire (1942)
Facts: A Jehovah’s witness was convicted under a law against “offensive or derisive” speech in
certain contexts. The Court upheld the lower court’s ruling.
Issue: Is there some speech (fighting words) that is not protected by the First Amendment? Yes.
Rules: Some speech, like profanity, words that immediately promote a breach of the peace, and
libel, is not protected by the 1st Amendment.
Quotes: “Such utterances... are of such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in order and morality.”
B.
Paris Adult Theater v. Slaton (1973)
Facts: The sign outside the adult theater was very clear, but the Court ruled that the material within
was obscene and thus could be regulated even though it was private property and involved
consenting adults both acting and watching.
Issue: Can the Government regulate obscene speech watched/exhibited in private amongst
consenting adults? Yes.
Rules: The decision dealt a lot with states’ rights to “maintain a moral society.” It also declined to
recognize a zone of privacy inherent in places of public accommodation.
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Quotes: “The States have the power to make a morally neutral judgment that public exhibition of
obscene material, or commerce in such material, has a tendency to injure the community as a whole,
to endanger the public safety, or to jeopardize... the States’ ‘right [to] maintain a decent society.’”
Miller v. California (1973)
Facts: This case was a companion to Paris but was written more as a review of how the law stands.
The Court remanded a lower court’s ruling in the case involving Miller’s mass mailing of
pornographic materials to people that had not solicited them.
Issue: What are the criteria for obscene material? (See section A for the answer- 3 parts.)
Rules: The Court decided that what is obscene is to be decided through the use of “contemporary
community standards.” Also, the “value” test was added to prove obscene.
Quotes: “At a minimum, prurient, patently offensive depiction or description of sexual conduct
must have serious literary, artistic, political, or scientific value to merit First Amendment
protection.”
American Booksellers Association v. Hudnut (1986)
Facts: The Court invalidated an Indianapolis law banning pornography, on the grounds that it did
have some value, and that the Government couldn’t regulate all speech, even offensive or false
speech.
Issue: Can the government regulate speech that is harmful to groups like women and offensive?
No.
Rules: Must follow obscenity definition to ban obscene materials. The work must be judged as a
whole when assigning value to it, and thereby determining if it is protected speech.
Quotes: “we accept the premises of this legislation. Depictions of subordination tend to perpetuate
subordination. The subordinate status of women in turn leads to affront and lower pay at work,
insult and injury at home, battery and rape on the streets.”
“True, pornography and obscenity have sex in common. But Indianapolis left out of its definition
any reference to literary, artistic, political, or scientific value.”
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6. Student Speech (Jason Kirschner)
SUMMARY
The two BIG cases are Tinker and Hazelwood. While the ruling in Tinker acknowledged the
democratic benefits of a marketplace of ideas in schools, Hazelwood affirmed that schools also have a
duty to promote civic education if it means some restrictions on student speech and expressive
conduct.
Tinker v. Des Moines School District (1969)—
Facts: A DesMoines school district got wind of a plan that some students were going to wear black
armbands to demonstrate their objection to America’s involvement in the Vietnam War.
The district issued a ban on the armbands, but some students wore them anyway and were
suspended for their expressive conduct.
Issue: Do students in school have the First Amendment right to free speech, or can schools restrict
whatever student speech they deem controversial?
Ruling: The Court ruled that students “do not shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate.” Under the freedom of speech, students have the
right to expressive conduct in school as long as the conduct does not cause “material and
substantial interference with school work or discipline.”
Dissent: Justice Black’s dissent was basically just a disagreement—he believed that the evidence in
the case did show a substantial interference with school work because the arm bands were
distracting to other students.
Hazelwood School District v. Kuhlmeier (1988)—Took Tinker and molded it in a way that allowed schools
to have some control over student speech. The difference between this case and Tinker is
that in Tinker, the Court said the school had to tolerate particular student speech while in
Hazelwood, the school did not have to promote particular student speech using its own
resources.
Facts: A high school student newspaper (The Spectrum) was scheduled to print imminently, but the
principal reviewed its content and deemed that sensitive and personal articles on parental
divorce and teen pregnancy (both with the student subjects being identifiable at least
indirectly) were inappropriate for some of the younger students at the school. So the two
pages containing the sensitive articles were not allowed to be printed.
Issue: Can a school censor certain peaceful student speech based on content, or do students’ First
Amendment rights prevail in all cases of nonviolent expressive conduct?
Ruling: In this case, the Court upheld the right of the school to regulate student speech in a school
sponsored publication, as it helps promote the school’s purpose in disseminating a civic
education.
Good quotations: Two good quotations from the case that explain the Court’s reasoning:
1) “The First Amendment rights of students in the public schools are not automatically coextensive
with the rights of adults in other settings and must be applied in light of the special
characteristics of the school environment.” And
2) 2) “We hold that educators do not offend the First Amendment by exercising editorial control
over the style and content of student speech in school-sponsored expressive activities so long as
their actions are reasonably related to legitimate pedagogical concerns.”
Dissent: The dissent (Brennan, Marshall, and Blackmun) was basically citing Tinker and suggesting
that the articles posed no material disruption to the learning process.
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Morse v. Frederick (2007)—also known as the BONG HiTS 4 JESUS case—Court upheld the validity
of the suspension of a student for refusing to take down that banner at a school-sponsored event.
“The concern is not that the student’s speech is offensive, but that it was reasonably viewed as
promoting illegal drug use.” Clarence Thomas’s concurring opinion would overrule Tinker because
an originalist interpretation would take into account that schools at the time of the framing allowed
for total control over students.
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7. Freedom of Speech in the Media: Traditional Print, Broadcast, Cable, and Internet
(Matt Trout)
SUMMARY
First Amendment cases involving the media do not follow a set doctrinal test across the board.
Rather what falls under the protection of the First Amendment depends on the type of media. Over
the course of the past century, new types of media have required the Supreme Court to develop new
standards for each new medium. Consequently, broadcasting comes under new restrictions that
traditional print media does not have. Even still, cable falls under a different category than
broadcast media. More recently still, the internet has become a new realm of speech where the
Court must decide what is protected and what is not.
Historically, the print media has had virtually no regulation outside of obscenity. It serves as
a watchdog of other more regulated media to ensure that when the FCC regulates broadcast media
because of frequency scarcity the government preserves values behind the First Amendment such as
the marketplace of ideas. Cable is not uniquely invasive into the home; it can be restricted upon
request. As a result it is not regulated as severely as broadcast media, but it still has some amount of
regulation. The internet seems to most closely resemble print media in that regulation is minimal.
This probably is due, at least in part, to the nature of the internet as international.
Miami Herald Publishing Co. v. Tornillo (1974)
Facts: A Florida statute required any newspaper that “assails” a candidate’s record or character to
allow a rebuttal by that candidate—a candidate’s so called “right of access.”
Issue/Holding: Can laws force a newspaper to print something? The Court unanimously said no.
Rules: Traditional print media such as newspapers and magazines, as long as the material printed is
protected by the First Amendment (not obscene or libelous for example), is generally not able to be
regulated further. There is a general distrust of government regulating what people read and hear
through the media.
Quotes: “‘Compelling editors or publishers to publish that which ‘reason’ tells them should not be
published’ is what is at issue in this case.”
“Faced with the penalties that would accrue to any newspaper that published news or commentary
arguably within the reach of the right of access statute, editors might well conclude that the sage
course is to avoid controversy and that, under the operation of the Florida statute, political and
electoral coverage would be blunted or reduced.”
Red Lion Broadcasting Co. v. FCC (1969)
Facts: The FCC imposed the “fairness doctrine” on radio and television broadcasters. They had to
spend a certain amount of time on public issues and ensure fair coverage of both sides of the issue.
Issue/Holding: Can the FCC compel broadcasters to air certain material? The Court says yes it
can.
Rules: Although the regulation here seems almost identical to that in Tornillo, the Court
distinguished broadcasters from the print media because broadcasters have a scarcity of frequencies
to work with. All viewpoints were not guaranteed to be expressed unless the government regulated
the frequencies available. Plus, traditional print media remained as a sort of watchdog in case the
government became overbearing in its regulation.
Note that the fairness doctrine was later repealed by the FCC.
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Quotes: “Although broadcasting is clearly a medium affected by a First Amendment interest,
differences in the characteristics of new media justify differences in the First Amendment standards
applied to [them].”
“[It] is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in
which truth will ultimately prevail, rather than to countenance monopolization of that market,
whether it be by the Government itself or a private licensee.”
FCC v. Pacifica Foundation (1978)
Facts: A monologue containing “patently offensive” words was aired between 6am and 10pm, a
time when the FCC prohibited “indecent” material, which includes substantially more than
“obscene” material.
Issue/Holding: Can the FCC prohibit speech that only qualifies as indecent during certain hours?
The Court says it can.
Rules: There is a distinction between channeling speech and outright prohibiting it. Time, place, and
medium test: There need to be times, places, and media where all protected speech is allowable, but
channeling during certain times is acceptable. The medium also plays a role; special characteristics
of broadcasting that need to be considered are 1) It is uniquely accessible to children and 2) It is
uniquely invasive in the home.
Quotes: “Patently offensive, indecent material presented over the airwaves confronts the citizen,
not only in public, but also in the privacy of the home, where the individual’s right to be let alone
plainly outweighs the First Amendment rights of an intruder.”
Justice Powell concurring: “This is not to say, however, that the Commission has an unrestricted
license to decide what speech, protected in other media, may be banned from the airwaves to
protect unwilling adults from momentary exposure to it in their homes.”
Turner Broadcasting System, Inc. v. FCC (1994 and 1997)
Facts: A law required cable systems to devote a portion of their channels to local broadcasting.
Issue/Holding: Can a law require a cable system to include certain types of channels? The Court
says it can.
Rules: In one sense, controlling who can speak is not equivalent to controlling what is spoken, so
requiring local broadcasting is not necessarily content regulation. Because this was not content
regulation, the O’Brien test applied. The Court found that the interest in providing “widespread
dissemination of ideas from a multiplicity of sources” was legitimate, unrelated to the suppression of
ideas, and narrowly tailored.
Quotes: Justice Breyer concurring however notes the price of this law: “It interferes with the
protected interests of the cable operators to choose their own programming; it prevents displaced
cable program providers from obtaining an audience; and it will sometimes prevent some cable
viewers from watching what, in its absence would have been their preferred set of programs.”
Prof. Fallon notes that this holding is unstable and may change due to the status of cable being in
between broadcast and traditional media. Another ruling will likely occur in the future.
United States v. Playboy Entertainment Group (2000)
Facts: A Law required cable channels that are “primarily dedicated to sexually-oriented
programming” be blocked or scrambled to non-subscribers. However, in the case of imperfect
scrambling, so-called “signal bleed,” where some audio or video still comes through, the
programming must be outright blocked for everyone during hours of 6am and 10pm when children
may be watching.
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Issue/Holding: Can a law prohibit indecent material from being accessible to people who have not
asked for it even if the material is only accessible on a minimal level? In a split decision, Justice
Kennedy for the Court says it cannot.
Rules: Justice Kennedy distinguishes cable broadcasting from other broadcast media on the basis
that cable is not uniquely invasive to the home and can be prohibited from entering a single home
upon request. The law does not pass strict scrutiny when the less restrictive option of targeted
blocking exists in lieu of outright banning (the dissenting opinion relies on the argument that
targeted blocking is not effective).
Prof. Fallon notes an apparent disparity between Playboy and Pacifica, but cable seems to fall roughly
between traditional media and the airwaves in terms of restriction allowed.
Quotes: “[A] key difference between cable television and the broadcasting media [is] the point on
which this case turns: Cable systems have the capacity to block unwanted channels on a householdby-household basis.”
“[When] a plausible, less restrictive alternative is offered to a content-based speech restriction, it is
the Government’s obligation to prove that the alternative will be ineffective to achieve its goals.
The Government has not met that burden here.”
Ashcroft v. ACLU (2004)
Facts: The Child Online Protection Act requires any commercial interest that publishes material
“obscene to children” online to require proof of age through credit card or other adult verification
screening.
Issue/Holding: Can a law prohibit children from viewing obscene material on the internet through
proof of age screening? The Court says no.
Rules: In some ways this case is similar to Playboy. Justice Kennedy again cites the less restrictive
alternatives test as his main argument. Filtering software, in his opinion is a viable alternative, and
filters “impose selective restrictions on speech at the receiving end, not universal restrictions at the
source.” In a concurring opinion, Justice Stevens takes issue with the fact that the speech which is
protected in many cases is subject to criminal penalties in others.
Prof. Fallon notes that the internet is however even less regulated than cable, in some ways taking
on the role of watchdog that traditional media has historically held.
Quotes: “The court should ask whether the challenged regulation is the least restrictive means
among available, effective alternatives.”
Justice Breyer dissents: “But the Constitution does not, because it cannot, require the Government
to disprove the existence of magic solutions, i.e., solutions that, put in general terms, will solve any
problem less restrictively but with equal effectiveness.”
Justice Stevens concurs: “Criminal prosecutions are, in my view, an inappropriate means to regulate
the universe of materials classified as ‘obscene’ since ‘the line between communications which
‘offend’ and those that do not is too blurred to identify criminal conduct’.”
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8. Free Exercise (Julie Duncan)
SUMMARY
The history of the Supreme Court's interpretation of the Free Exercise Clause follows a broad arc,
beginning with approximately 100 years of little attention, then taking on a relatively narrow view of
the governmental restrictions required under the clause, growing into a much broader view in the
1960s, and later receding again.
The first case to closely examine the scope of the Free Exercise Clause was Reynolds v. United
States in 1879. A case dealing with the prosecution of a polygamist under federal law, and the
defendant's claim of protection under the Free Exercise Clause, the Court upheld the law and the
government's prosecution. This case, which also revived Thomas Jefferson's statement regarding the
“wall of separation” between church and state, introduced the position that although religious
exercise is generally protected under the First Amendment, this does not prevent the
government from passing neutral laws that incidentally impact certain religious practices.
This interpretation of the Free Exercise Clause continued into the 1960s and the ascendancy of the
Warren Court. Applying a new standard of “strict scrutiny” in various areas of civil rights law, the
Court began to apply this standard to the First Amendment religion clauses as well, reading the
Free Exercise Clause to require accommodation of religious conduct except where a state
could show a compelling interest and no less burdensome means to achieve that end. One
example was Sherbert v. Verner, where the Court overturned the state Employment Security
Commission's decision to deny unemployment benefits to a practicing member of the Seventh-day
Adventist Church who was forced out of a job after her employer adopted a 6-day workweek, which
would have required her to work on Saturdays against the dictates of her religion. As Justice William
Brennan stated for the majority, “to condition the availability of benefits upon this appellant's
willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise
of her constitutional liberties.” This test was used through the years of the Burger Court, including
particularly in the landmark case of Wisconsin v. Yoder (1972).
This view of the free exercise would begin to narrow again in the 1980s, culminating in the 1990
case of Employment Division v. Smith. Examining a state prohibition on the use of peyote, the
Supreme Court upheld the law despite the drug's use as part of a religious ritual, and without
employing the strict scrutiny test. Instead, the Court again held that a “neutral law of general
applicability” generally does not implicate the Free Exercise Clause. This was followed by intense
disapproval from Congress and the passage of the Religious Freedom Restoration Act in 1993 to
attempt to restore the prior test. However, in City of Boerne v. Flores (1997), the Supreme Court
struck down that act as well, holding that it unconstitutionally attempted to usurp the Supreme
Court’s role in interpreting the Constitution, thus leaving the Smith test in place.
Reynolds v. U.S. (1878), a.k.a. “The Polygamy Case”
Facts: The first major Free Exercise case, this challenged a federal law making polygamy illegal as
applied to a Mormon whose religious duty was to practice polygamy.
Issue/Holding: Is religious duty a suitable defense to a criminal indictment? No.
Rules: The Court recognized that Congress cannot pass a law that prohibits the free exercise of
religion. However, it argued that the law prohibiting bigamy did not violate this. The Court claimed
there was a difference between preventing someone’s belief in a certain religion and preventing them
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from carrying out certain actions. The Court also noted that permitting illegal action simply because
of religious belief is a slippery slope.
Key Quotes:
1) Reynolds, under religious influence, “deliberately married a second time, having a first wife
living, the want of consciousness of evil intent…[T]he want of understanding on his part
that he was committing crime…did not excuse him, but the law inexorably, in such cases,
implies criminal intent.”
2) “Congress was deprived of all legislative power over mere opinion, but was left free to reach
actions which were in violation of social duties or subversive of good
order.”http://en.wikipedia.org/wiki/Reynolds_v._United_States - cite_note-0
3) The Court, quoting from a letter by Jefferson: "to permit this would be to make the professed
doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law
unto himself.”
No dissent.
Cantwell v. Connecticut (1940), a.k.a. “The Incorporation Case”
Facts: A Connecticut statute required licenses for those soliciting for religious or charitable
purposes. Some Jehovah’s Witnesses were arrested for proselytizing door-to-door without a license
and for disturbance of the peace.
Issue/Holding: Does the state's action in convicting the Cantwells with inciting a breach of the
peace and violating the solicitation statute violate their right to free exercise of religion? Yes.
Rules: 1.) 14th Amendment makes Free Exercise clause applicable to the states. 2.) Reemphasized
distinction between religious opinion or belief and action taken because of religion.
Key Quotes:
“Freedom of conscience and freedom to adhere to such religious organization or form of worship as
the individual may choose cannot be restricted by law. [Free exercise] embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second
cannot be.
No dissent.
Sherbert v. Verner (1963), a.k.a. “The Sabbatarian Case”
Facts: South Carolina denied unemployment benefits to a woman who refused to work on
Saturdays because of sincerely held religious convictions.
Issue/Holding: Was denying Sherbert’s claim to unemployment benefits an unconscitutional
burden on the free exercise of her religion? Yes.
Rules:
1) Reaffirmed that a.) “such infringements must be subjected to strict scrutiny and could be
justified only by proof by the State of a compelling interest” and that b.) it was “incumbent
upon the [state] to demonstrate that no alternative forms of regulation would [satisfy its
interests] without infringing First Amendment rights.”
2) This case also developed the “Sherbert Test,” which was later rejected as inapplicable in
Employment Div. v. Smith.
a. For the individual, the court must determine
i. whether the person has a claim involving a sincere religious belief, and
ii. whether the government action is a substantial burden on the person’s ability
to act on that belief.
b. If these two elements are established, then the government must prove
i. that it is acting in furtherance of a "compelling state interest," and
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ii. that it has pursued that interest in the manner least restrictive, or least
burdensome, to religion.
Key Quotes:
The State’s disqualification of Sherbert “forced her to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion
in order to accept work, on the other. Governmental imposition of such a choice puts the same kind
of burden upon the free exercise of religion a would a fine imposed against [her] for her Saturday
worship.”
Dissent from Harlan, joined by White: Harlan, in a characteristically literal reading of the relevant
law, argued that the Commission denied Sherbert unemployment based on the same reason they
might any secular claimant, that she was not “available for work.” More centrally, he rejected the
majority opinion, arguing that the Free Exercise Clause only required neutrality toward religion in
this case, which would not include exempting Sherbert, though the Constitution would permit a
legislature to create such an exemption.
Wisconsin v. Yoder (1972), a.k.a. “The Amish Case”
Facts: A Wisconsin law required people to send their children to school until they were 16 years
old. Amish said that kids shouldn’t go to school past the 8th grade.
Issue/Holding: Can the government place Amish children under compulsory education beyond
the 8th grade? No.
Rules: Since Wisconsin v. Yoder, all states must grant the Old Order Amish the right to establish
their own schools (should they choose) or to withdraw from public institutions after completing
eighth grade. (This is a very narrowly drawn case, but it is interesting to contrast it with Employment
Division v. Smith, which rejected the idea of religious exemptions from generally applicable rules, as
Yoder involved not only the right to Free Exercise but also the right of parents to educate their
children as they choose.)
Key Quotes:
1) "The evidence showed that the Amish provide continuing informal vocational education to
their children designed to prepare them for life in the rural Amish community. The evidence
also showed that respondents sincerely believed that high school attendance was contrary to
the Amish religion and way of life and that they would endanger their own salvation and that
of their children by complying with the law."
2) "...sustained respondents' claim that application of the compulsory school-attendance law to
them violated their rights under the Free Exercise Clause of the First Amendment, made
applicable to the States by the Fourteenth Amendment."
Douglas’s dissent in part: “On this important and vital matter of education, I think the children
should be entitled to be heard. While the parents…normally speak for the entire family, the
education of the child is a matter on which the child will often have decided views. He may want to
be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish
tradition. It is the future of the students, not the future of the parents, that is imperiled by today's
decision. If a parent keeps his child out of school beyond the grade school, then the child will be
forever barred from entry into the new and amazing world of diversity that we have today.”
Employment Division v. Smith (1989), a.k.a. “The Peyote Case”
Facts: Two men were fired from their jobs with a private drug rehabilitation organization because
they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of
which both were members. When they applied for unemployment benefits, they were denied
because they had been discharged for work-related “misconduct.”
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Issue/Holding: May the state blanket-prohibit peyote, or must it make an exception for religious
uses?
Rules: 1.) Although states have the power to accommodate otherwise illegal acts done in pursuit of
religious beliefs, they are not required to do so. 2.) The First Amendment's protection of free
exercise of religion does not allow a person to use a religious motivation as a reason not to obey generally applicable
laws. (Note that the Court had allowed a religious motivation to exempt a person from a neutral,
generally applicable law when it involved the assertion of the right of free exercise along with some other
right. For example, in Yoder, we see that the government may not require the Amish to send their
children to school because their religion demands otherwise, and Amish parents, like all parents,
have the right to direct the education of their children.)
Key Quotes:
1) “It would be true, we think…that a state would be ‘prohibiting the free exercise [of religion]’
if it sought to ban such acts or abstentions only when they are engaged in for religious
reasons, or only because of the religious belief that they display.”
2) “We have never held that an individual’s religious beliefs excuse him from compliance with
an otherwise valid law prohibiting conduct that the State is free to regulate.”
3) “We have never invalidated any governmental action on the basis of the Sherbert test except
the denial of unemployment benefits.”
4) “…a private right to ignore generally applicable laws…is a constitutional anomaly”
Dissent from Blackmun, joined by Brennan and Marshall: 1.) The ban does not support a
compelling interest that is narrowly tailored. (Blackmun focused narrowly on the state's interest in
not exempting religious use from its otherwise generally applicable ban on peyote rather than the
state's broader interest in “fighting the critical ‘war on drugs.’”) 2.) No evidence that peyote actually
harmed anyone. 3.) Concern for “the severe impact of a state's restrictions on the adherents of a
minority religion.”
Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993) a.k.a. “Animal sacrifices”
Facts: Practitioners of Santeria challenged city ordinances barring ritual animal sacrifices.
Issue/Holding: Can govt. make a generally applicable law that, in practice, affects only (or
primarily) practitioners of a certain religion? Yes, but only if it is “justified by a compelling interest
and is narrowly tailored to achieve that interest.” In this case, the ordinances did not pass this test
and were struck down.
Rules: 1. Because this law bans not all animal sacrifices but only “ritual” animal sacrifices, it is not
neutral. 2. A law designed to restrict practices because of their religious affiliation must be subjected
to strict scrutiny.
Key Quotes:
1) “[I]f the object of a law is to infringe upon or restrict practices because of their religious
motivation, the law is not neutral, see Smith.”
2) “[A] law that targets religious conduct for distinctive treatment or advances legitimate
governmental interests only against conduct with a religious motivation will survive strict
scrutiny only in rare cases.”
No dissent.
Locke v. Davey (2004), a.k.a. “Promise Scholarships”
Facts: This case challenged Washington state’s exclusion (as required by the state constitution) from
its postsecondary education Promise Scholarship Program of those pursuing a devotional theology
degree (i.e., one “designed to induct religious faith”). The program permitted students to attend
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pervasively religious schools, so long as they were accredited, and students were still eligible to take
devotional theology courses.
Issue/Holding: Can the govt. choose not to subsidize certain categories of instruction with tax
dollars? Yes.
Rules: 1.) The idea that singling out religion for differential/discriminatory treatment is
unconstitutional does not apply in cases in which the government is deciding which things to
subsidize. 2.) The government could choose to subsidize religious training if it wanted to, but not
everything allowed by the establishment clause is required by the free exercise clause.
Key Quotes:
1) “[Here] the State’s disfavor of religion (if it can be called that) is of a far milder kind [than in
Lukumi].”
2) “The State has merely chosen not to fund a distinct category of instruction.”
3) “Since the founding of our country, there have been popular uprisings against procuring
taxpayer funds to support church leaders, which was one of the hall marks of an ‘established’
religion.”
Dissent from Scalia, joined by Thomas: “When the State makes a public benefit generally
available, that benefit becomes part of the baseline against which burdens on religion are measured;
and when the State withholds that benefit from some individuals solely on the basis of religion, it
violates the Free Exercise Clause no less than if it had imposed a special tax.”
City of Boerne v. Flores (1997) a.k.a. “The ‘No you di’int!’ [,Congress] Case”
Facts: (We just barely mentioned this case on the last day of class, and there we focused more on the questions of
Congress’ power, but it has to do with Free Exercise, too, since it struck down the Religious Freedom Restoration
Act.) Flores, a bishop, applied for a building permit to enlarge his church. Local zoning authorities
denied the permit, relying on an ordinance governing construction in a historic district that included
the church. The Archbishop brought a lawsuit challenging the permit denial under the Religious
Freedom Restoration Act of 1993 (RFRA). Flores argued that his congregation had outgrown the
existing structure. He claimed his ability to act on his beliefs was substantially burdened by the denial
of his proposed addition.
Issue/Holding: Was the RFRA an unconstitutional use of Congress’s enforcement powers? Yes.
Because it was the Court that had the sole power of defining the substantive rights guaranteed by
the Fourteenth Amendment—a definition to which Congress could not add and from which it
could not subtract—and because RFRA was not legislation designed to have “congruence and
proportionality” with the substantive rights that the Court had defined, Congress could not
constitutionally enact RFRA. RFRA also violates the Establishment Clause in that it provides a
significant legal advantage to owners of religious property.
Rules: Congress can provide remedies for acts that the Courts would say violate the 14th
Amendment, but it can’t interpret the 14th Amendment on its own and say that certain acts violate
the 14th Amendment when the Court wouldn’t agree. (If Congress could define its own powers, no
longer would the Constitution be superior law; it would be alterable when the legislature should
please to alter it.) This basically spelled the end for any legislative attempts to overturn Employment
Division v. Smith.
Key Quotes:
“Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the
Clause. While the line between measures that remedy or prevent unconstitutional actions and
measures that make a substantive change in the governing law is not easy to discern, and Congress
must have wide latitude in determining where it lies, the distinction exists and must be
observed...Congress does not enforce a constitutional right by changing what the right is.”
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Dissent from O’Connor, Breyer, and Souter: Smith's interpretation of the Free Exercise Clause
departs from the understanding reflected in various statutory and constitutional protections of
religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the
Bill of Rights. “The [Smith] decision has harmed religious liberty.”
Historical note: the scope of this decision has been limited by the subsequent case of Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal (which we didn’t discuss in class). In a footnote, Chief
Justice Roberts states that Boerne holds RFRA unconstitutional only as to the states. While a reading
of Boerne does not lend itself to this conclusion, Gonzales does apply RFRA to federal statutes.
Less important cases mentioned in the CB
West Virginia State Bd. Of Educ. V. Barnette (1943): held that compelling a flag salute violated the
First Amendment: “[T]he compulsory flag salute and pledge requires affirmation of a belief and an
attitude of mind. [If] there is any fixed star in our constitutional constellation, it is that no official, high
or petty, can prescribe what shall be orthodox in politics, nationalism or other matters of opinion or
foce citizens to confess by word or act their faith therein.
Jimmy Swaggart Ministries v. Board of Equal. (1990): held that the Free Exercise Clause does of
prohibit imposing a sales tax on sale of religious materials by a religious organization: “To the extent
that imposition of generally applicable tax merely decreases the amount of money appellant has to
spend on its religious activities, any such burden is not constitutionally significant.
United States v. Lee (1982): held that the Free Exercise Clause does not require an exemption for
members of the Old Order Amish from payment of social security taxes even though both payment
and receipt of social security benefits is forbidden by the Amish faith. “The tax system could not
function if denominations were allowed to challenge the tax system because tax payments were
spent in a manner that violates their religious belief.”
Gilette v. U.S. (1971): held that the Free Exercise Clause does not forbid Congress from
conscripting persons who oppose a particular war on grounds of conscience and religion.
Johnson v. Robison (1974): held that it was okay to grant educational benefits for veterans who
served on active duty and to exclude conscientious objectors who performed alternate civilian
service. Court said there was a “rational basis” for the classification because the “disruption caused
by military service is quantitatively greater [and] qualitatively different.”
Bob Jones University v. United States (1983), a.k.a. “The Case about the School that Forbids
Interracial Dating”: this case upheld the IRS’ denial of tax exempt status to private schools that
practice racial discrimination on the basis of sincerely held religious beliefs.
Lyng v. Northwest Indian Cemetery Protective Association (1988): held that the federal
government’s building a road in a national forest did not violate the free exercise of American Indian
tribes even though this would “virtually destroy the Indians’ ability to practice their religion,” saying,
“The FEC simply cannot be understood to require the Government to conduct its own internal
affairs in ways that comport with the religious beliefs of particular citizens.”
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9. Establishment Clause (Mike Small)
SUMMARY
The Establishment Clause in the 1 Amendment says, “Congress shall make no law
respecting an establishment of religion.” This Clause was extended to the states under the 14th
Amendment. The Establishment Clause has often been in contention with the Free Exercise Clause
as religious exemptions from laws (such as draft exemptions) have been seen by some as an
endorsement or preference for religion. Another problem that plagues the Establishment Clause is
the nation’s own religious history. As the Bill of Rights and the 1st Amendment were being written,
the legislature hired a chaplain to begin sessions with a prayer, and every president has declared a
national day of prayer and thanksgiving. As originally understood, the Establishment Clause was
very weak. It effectively meant that Congress could not create a national church or religion. Also,
the Clause didn’t apply to the states until the 14th Amendment, which led to a greater intertwining of
church and state. As defined today, the Clause is much stronger, with much emphasis placed on the
possibility of coercion of citizens and more importantly children and young persons, neutrality
toward religious and non-religious persons alike, and the necessity that a laws purpose and primary
effect are secular in nature. The current test is the Lemon test with O’Connor’s ‘reasonable observer’
gloss, although it is sporadically applied and much more often used in lower courts than in the
Supreme Court. The stances on the Establishment Clause range from Originalism to Common Law
Constitutionalism. Originalism, generally the conservative stance, takes into account the religious
nature of our country and the religious influences allowed in the government even when the
Establishment Clause was being written. Common Law Constitutionalism tries to reconcile the
religious history of the United States to the evolving secular nature and religious pluralism of today’s
society. This is the more liberal approach
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Major and Discussed Cases
Everson v. Board of Educ. (1947)
Facts: This case challenges a New Jersey township’s reimbursement for student bus fares to and
from school, including private and parochial schools.
Issue/Holding: Can New Jersey provide transportation cost reimbursement for children attending
parochial schools? Yes.
Rules: The government can provide benefits to individuals, even if they in turn use them for
religious purposes.
Key Quotes: “[New Jersey] cannot exclude individual Catholics, Lutherans… or members of any
other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”
Walz v. Tax Com’n (1970)
Facts: The case challenges a New York statute that provides tax exemption for religious property.
The statute also provides exemption for other nonprofit, quasi-public corporations.
Issue/Holding: Can New York exempt religious property from taxes if also exempting many other
similar non-profit properties? Yes.
Rules: The result of a statute cannot be an excessive government entanglement with religion.
Key Quotes: “The legislative purpose of a property tax exemption is neither the advancement nor
the inhibition of religion.”
“Elimination of exemption would tend to expand the involvement of government.”
Lemon v Kurtzman (1971)
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Holding: The case invalidated state salary supplements to teachers of secular subjects in non-public
schools.
Rules: Created the Lemon Test! There are three prongs: 1.) “The statute must have a secular
legislative purpose.” 2.) The “principal or primary effect must be one that neither advances nor
inhibits religion.” 3.) “The statute must not foster ‘an excessive entanglement with religion.’”
Quotes: From the CB: “The Lemon Court began with a critical premise: the mission of church
related elementary and secondary schools is to teach religion, and all subjects are, or carry the
potential of being, permeated with religion.”
Allegheny County v. ACLU (1989)
Facts: The case concerns two holiday displays in Pittsburgh. One is a crèche in the Allegheny
County Courthouse, the other is a menorah, placed by a Christmas tree and a sign saluting liberty
outside the City-County Building.
Issue/Holding: 1.) Does the crèche, without a secular context, violate the Establishment Clause?
Yes. 2.) Does the display of the sign, tree, and menorah violate the Establishment Clause by
endorsing both Christian and Jewish faiths? No.
Key Quotes and ideas: This opinion is confusing since it contains two decisions, with only
Blackmun and O’Connor following the majority opinion in both instances. Now for the quotes.
“[The] question… is whether the combined display of the tree, the sign, and the menorah has the
effect of endorsing both Christian and Jewish faiths, or rather simply recognizes that both Christmas
and Chanukah are part of the same winter-holiday season, which has attained a secular status in our
society… the latter seems more plausible.”
With the 45-foot tree occupying the central position and the 18-foot menorah off to the side, “it is
much more sensible to interpret the meaning of the menorah in light of the tree, rather than vice
versa.”
Lynch v. Donnelly (1984)
The city of Pawtucket’s nativity scene, in light of its secular surroundings, including a Santa Claus
house and a Christmas tree, does not violate the Establishment Clause.
In Lynch, O’Connor’s concurrence introduced a gloss to the Lemon test, the ‘endorsement’ or
‘reasonable observer’ test, which finds a statute or government act unconstitutional if a reasonable
observer views it as an endorsement of a religion or religion in general.
Brennan’s dissent argued that “such practices as the designation of ‘In God We Trust’ as our
national motto, or the references to God contained in the Pledge of Allegiance can best be
understood [as] a form of ‘ceremonial deism,’ protected from Establishment Clause scrutiny chiefly
because they have lost through rote repetition any significant religious content.” (Footnote c. in
Allegheny)
Van Orden v. Perry (2005)
Facts: A monument inscribed with the Ten Commandments on the Texas State Capitol Grounds
was donated by the Eagles in 1961.
Issue/Holding: Does Texas’ display of the Ten Commandments amount to endorsement of a
religion? No.
Rules: 1.) The Ten Commandments have historical meaning, and so cannot be viewed as
completely or explicitly religious. 2.) The passive use of religious content or the environment in
which it is displayed affects can exempt some displays from the Establishment Clause.
Key Quotes: The opinion was decided by a plurality. This is from Breyer’s concurrence: “On the
one hand, the Commandments' text undeniably has a religious message, invoking, indeed
35
emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone
cannot conclusively resolve this case. Rather, to determine the message that the text here conveys,
we must examine how the text is used. And that inquiry requires us to consider the context of the
display.” Breyer switched positions from his in McCreary which led to the different decision. The
deciding factor in the switch was the age of the Ten Commandments statue in Van Orden and that
the statue is a physical monument that would have to be chiseled out, whereas the Kentucky copies
were much less substantial and more recent.
Minor Cases
Texas Monthly, Inc. v. Bullock (1989)
Issue/Holding: Can Texas provide a sales tax exemption for books and periodicals published or
distributed by a religious faith that consist wholly of “writings promulgating the teaching of the
faith”? No.
Rules: A state cannot provide a narrow subsidy for only a religious cause.
Mitchell v. Helms (2000)
Facts: A federal program lends “secular, neutral, and nonideological” educational materials to
public and private elementary and secondary schools.
Issue/Holding: Can the government give secular materials to religious schools? Yes.
Rules: The government can offer aid for a secular purpose to all parties that further that purpose
regardless of religious affiliation.
Key Quotes: “[T]he inquiry into the recipient’s religious views required by a focus on whether a
school is pervasively sectarian is not only unnecessary but also offensive.”
Zelman v. Simmons-Harris (2002)
Facts: Ohio enacted a scholarship program that provides tuition aid to students in school districts
where the school is, by federal court order, under supervision and management of the state
superintendent (Cleveland). In 1999-2000, 82% of participating private schools were religiously
affiliated, and 96% of students in the scholarship program were enrolled in these schools.
Issue/Holding: Does the Ohio program have the effect of advancing or inhibiting religion? No.
Rules: Where a government aid program is neutral with respect to religion, and provides assistance
directly to a broad class of citizens who, in turn, direct government aid to religious schools of their
own free will, the program is not readily subject to challenge under the Establishment Clause.
Key Quotes: “[W]e have never found a program of true private choice to offend the Establishment
Clause.”
Wallace v. Jaffree (1985)
Facts: A 1981 Alabama statute authorized a 1-minute period of silence “for meditation or voluntary
prayer,” changing the wording of the 1978 statute that authorized a period of silence “for
meditation.”
Issue/Holding: Can the government create a statute that promotes prayer in schools as an option?
No.
Rules: A statute must be invalidated if it is entirely motivated by a purpose to advance religion.
McCollum v. Board of Educ. (1948)
Held that a public school released time program allowing opt-in weekly religious classes violates the
Establishment Clause. The state cannot use public school buildings for dissemination of religious
doctrines nor provide sectarian groups “use of the state’s compulsory public school machinery.”
Zorach v. Clauson (1952)
Upheld a released time program when religious classes were held in church buildings. Distinguished
from McCollum.
Stone v. Graham (1980)
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Held that the posting of the Ten Commandments in public classrooms had “no secular legislative
purpose.”
Epperson v. Arkansas (1968)
Found that a statute forbidding public school teachers to teach evolution violated both religious
clauses.
Edwards v. Aguillard (1987)
Held that a Louisiana statute barring “teaching of the theory of evolution in public schools unless
accompanied by instruction in ‘creation science,’” had “no clear secular purpose.” Also, “because
the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act
furthers religion in violation of the Establishment Clause.”
Board of Educ. v. Mergens (1990)
Held that allowing a High School Christian Club to meet on school premises during noninstructional time according to the Equal Access Act did not violate the Establishment Clause.
Good News Club v. Milford Central School (2001)
Similar decision to Board of Educ. v. Mergens.
McCreary County v. ACLU (2005)
“Held that posting copies of the Ten Commandments in two Kentucky county courthouses violated
the Establishment Clause because of a “predominantly religious purpose.” It violated the
Establishment Clause value of religious neutrality.
Lee v. Weisman (1992)
The Practice of public school officials inviting members of the clergy to offer invocation and
benediction prayers at graduation ceremonies violates the Establishment Clause. It fails the coercion
test.
Elk Grove Unified School Dist. v. Newdow (2004)
The recitation of the Pledge of Allegiance in a classroom does not violate the Establishment Clause.
Even with the presence of ‘Under God’ the exercise is patriotic, not religious.
Santa Fe Ind. School Dist. v. Doe (2000)
Found that a school policy titled “Prayer at Football Games,” authorizing a student election on (a)
“whether to have a student ‘invocation or statement’ before each varsity game “to solemnize the
event,” and (b) to select the student to deliver it and to decide its content, violates the Establishment
Clause.” The policy’s purpose encouraged religious messages, and it resulted in the majoritarian
process silencing minority views. There is informal yet “immense social pressure” for students to
attend the games.
Capitol Square Review & Advisory Board v. Pinette (1995)
The petitioner’s permitting the KKK to place a Latin cross in a state-owned plaza surrounding the
Ohio Statehouse does not violate the Establishment Clause.
Quotes: “The State did not sponsor respondents’ expression, the expression was made on
government property that had been opened to the public for speech, and permission was requested
through the same application process [for] other private groups.”
In his dissent, Stevens thought the reasonable observer would have caused the cross to be
seen as an endorsement by the government: “[The] ‘reasonable observer’ of any symbol placed
unattended in front of any capitol in the world will normally assume that the sovereign [has]
sponsored and facilitated its message.”
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10. Equal Protection: History and Rational Basis Review (Josh Rosenthal)
Amendment 14, Sec. 1: All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I. Historical Background
A. At the adoption of the Constitution
1. “The original Constitution included no general guarantee of equal protection of
the laws.” (Fallon 109)
It wasn’t until the Fourteenth Amendment that “equal protection” was made explicit. However
Fallon’s point is slightly murky. Was it merely a literal guarantee? Though the Constitution might
not have explicitly discussed equal protection, perhaps the idea of equal protection was included.
2. “The original Constitution contemplated the continued existence of slavery.”
(Fallon 109)
This might tell against some Originalists. Do their interpretations allow slavery?
B. At the adoption of the Fourteenth Amendment
1. “No State shall make or enforce any law…” (Excerpted from the Fourteenth
Amendment)
It used to be unclear whether the Fourteenth Amendment only applied to States. But in Bolling v.
Sharpe, the Court called it “unthinkable” that the Constitution could tolerate federal race-based
discrimination and not state race-based discrimination. Though, this decision had no obvious
Constitutional precedent (Fallon 110).
2. “…which shall abridge the privileges or immunities of citizens of the United
States…”
This passage is quite close to the “privileges and immunities” clause of Article IV of the
Constitution. In fact the Court in the 1872 Slaughter-House Cases decided that the Privileges or
Immunities Clause of the Fourteenth Amendment “merely ratified” rights already implicit in the
original Constitution (Fallon 80). Of course this is nonsensical, since that means the Privileges or
Immunities clause basically did nothing. But the context to the Court’s decision is important: the
decision came after Dred Scott and the Civil War, so the Court was nervous. And, broader
decisions would require substantively interpreting “privileges” and “immunities”, giving the Court
immense power.
3. “…nor shall any State deprive any person of life, liberty, or property, without due
process of law…”
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In the 1890s, the Court did what it couldn’t in 1872. It made a substantive interpretation, not of
the Privileges or Immunities Clause, but of the Due Process Clause. This substantive due process
reading gave rise to the Lochner Era, following the Lochner decision to strike a New York statute
limiting bakery employee’s work weeks to sixty hours. Thus, economic regulatory legislation was
struck down left and right, putting the Court squarely against 1930s President Franklin Roosevelt
and his New Deal. The Lochner Era ended in West Coast Hotel, which upheld an economic
regulation mandating a minimum wage for women, and with the appointment of non-conservative
justices to the Court. Interestingly, these new liberal justices argued the Due Process Clause could
not be interpreted substantively (Fallon 85).
4. “…nor deny to any person within its jurisdiction the equal protection of the
laws.”
Strictly defined, “equal protection” means that like cases should be treated the same. Dworkin
interpreted “equal protection” to mean that States should treat everyone with dignity and respect.
Clearly values, and by consequence cultural context, play a crucial role in understanding the Equal
Protection Clause (Fallon 110). This tells against Originalists, who by definition eschew context.
Some historians claim that the Privileges or Immunities Clause was intended to be primary, and
that the Equal Protection Clause was to reinforce “the demand for equality with respect to
fundamental rights.” That intent no longer exists, thanks to the Slaughter-House Cases. But the
framers debated intensely, so it is not even clear that one obvious intent existed behind the
Fourteenth Amendment (Fallon 111). Again this tells against Originalists.
These historians also claimed that the framers enumerated two kinds of rights, “fundamental” –
which everyone was guaranteed – and the wimpier “social” – which everyone was not guaranteed
(Fallon 110).
C. Current
Current governmental classifications are subject to the rational basis test,
unless the classifications are “suspect”. Suspect classifications include race
and religious groups (See Caroline Products Footnote 4) and alienage (See
New Orleans v. Dukes). These suspect classifications are subject to the strict
scrutiny test.
1. “The Equal Protection Clause does not prohibit all forms of governmental
discrimination, nor do all bases for governmental discrimination trigger searching
judicial scrutiny.” (Fallon 107)
This follows from the fact that there are reasonable situations in which the government would want
to classify, and that not all classifications are suspect, a la Carolene Products Footnote 4. Consider
that the government does not allow the blind to own driver’s licenses.
2. “In contrast with nearly all bases for governmental decision making, race-based
classifications draw heightened judicial scrutiny.” (Fallon 108)
This follows from Carolene Products Footnote 4.
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3. “In treating some bases for discrimination as ‘suspect’ and others as not, modern
equal protection doctrine does not reflect the original understanding of the Equal
Protection Clause.” (Fallon 108)
This follows from the fact that modern doctrine allows affirmative action. This, the framers did not
accept, since they did not even view the Equal Protection as banning all laws discriminating against
racial minorities (Fallon 108). However there is some play between the idea of “fundamental”
rights and “suspect” classifications.
4. “Whether the Supreme Court admits it or not, it inevitably makes lots of moral
judgments in applying the Equal Protection Clause.” (Fallon 109)
This makes it extremely difficult for the Court to rule consistently on Equal Protection Cases, given
that justices have their own views of morality. Consider Lochner.
Lochner v. New York (1905):
Facts: New York adopted a statute forbidding employment in a bakery for more than 60 hours a
week or 10 hours a day.
Issue/Holding: Do work-week limits violate the Due Process Clause of the 14th Amendment?
Rules: 1. A state’s interference must be “fair, reasonable, and appropriate” and not “unreasonable,
unnecessary, and arbitrary.” 2. The Court may discover rights implicit to the Due Process Clause.
Key Quotes:
1) “This is not a question of substituting the judgment of the court for that of the legislature. If the
act be within the power of the State it is valid… but the question would still remain: Is it within the
police power of the State?”
2) “[The] act is not, within any fair meaning of the term, a health law, but is an illegal interference
with the rights of individuals, both employers and employees, to make contracts…”
3) (In Holmes’ dissent) “This case is decided upon an economic theory which a large part of the
country does not entertain.”
4) (In Holmes’ dissent) “[I] think that the word “liberty,” in the 14th Amendment, is perverted when
it is held to prevent the natural outcome of dominant opinion…”
Nebbia v. New York (1934):
Facts: New York enacted a law which established a Milk Control Board with power to fix
maximum and minimum retail prices. Nebbia, a grocery store owner, was convicted of selling milk
below the minimum price set.
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Issue/Holding: Do State-mandated price floors violate the Due Process Clause of the 14th
Amendment?
Rules: 1. State laws must also have real and substantial relation to their goal. 2. States can adopt
and enforce whatever economic policy “may reasonably be deemed” to promote public welfare,
provided they are not arbitrary or discriminatory.
Key Quotes:
1) “[T]he guaranty of due process [demands] only that the law shall not be unreasonable, arbitrary,
or capricious, and that the means selected shall have a real and substantial relation to the object
sought to be attained.”
2) “[There] can be no doubt that upon proper occasion… the state may regulate a business in any
of its aspects, including the prices to be charged…”
3) “So far as the requirement of due process is concerned, [a] state is free to adopt whatever
economic policy may reasonably be deemed to promote public welfare…”
Loving v. Virginia (1967):
Facts: A black woman and white man were married in DC. But after returning to Virginia, they
were convicted of violating a Virginian statute. That statute outlawed marriages between certain
races.
Issue/Holding: Do miscegenation laws violate the 14th Amendment?
Rules: 1. Racial classification involves strict scrutiny. (Which means the classifications must be
necessary for the State’s permissible objective, and be distinguishable from the racial discrimination
“which it was the object of the Fourteenth Amendment to eliminate.”)
Key Quotes:
1) “… the fact of equal application does not immunize the statute from the very heavy burden of
justification which the Fourteen Amendment has traditionally required…”
2) “… although these historical sources “cast some light” they are not sufficient to resolve the
problem; ‘[a]t best, they are inconclusive.’ Brown.”
3) “[The] clear and central purpose of the Fourteen Amendment was to eliminate all official state
sources of invidious racial discrimination in the States.”
4) “[The] Equal Protection Clause demands that racial classifications, especially suspect in criminal
statutes, be subjected to the ‘most rigid scrutiny’.”
Other historical cases:
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Slaughter-House Cases (Neutered the Privileges or Immunities Clause)
Lochner (Introduced Substantive Due Process, wages and hours)
Related: Muller (hours and gender), Adair (unions), Adkins (wages)
Nebbia (Beginning of overturning Lochner, deference to legislature, price regulation)
West Coast Hotel (Bluntly rejected Lochner, deference to legislature, wages and gender)
Carolene Products Footnote 4 (Introduced levels of judicial scrutiny)
Loving v. Virginia (No legitimate purpose for racial discrimination, interracial marriage)
II. “Rational Basis” Review
A. What it is
1. “In its central range of operation, equal protection doctrine answers this question
by applying a test of means-ends rationality to governmental classifications.” (Fallon
112)
That is, the government can take reasonable means for legitimate ends. The government can give
driver’s licenses to people with good vision and keep licenses from the blind, since the government has
a legitimate interest in highway safety and the blind are likely dangerous drivers. In fact the Court
will allow any “imaginable” basis for governmental classifications, not only the ones that the
government cites (Fallon 114).
2. “The Supreme Court hesitates to say either a government’s ends or purposes are
not legitimate or that there is no rational connection between ends and means.”
(Fallon 112)
This is all to say, government regulations normally pass the rational basis test.
B. What it isn’t
1. Intermediate Scrutiny
This covers gender classifications.
2. Strict Scrutiny
This covers fundamental rights.
Washington v. Davis (1976):
Facts: Applicants to the DC police force had to take an entrance exam, testing verbal skill, and
score at least 40 out of 80. But four times more blacks than whites failed the exam.
Issue/Holding: Does a facially neutral requirement, with disproportionate impact, violate the
Equal Protection Clause?
Rules: 1. Disproportionate impact does not trigger strict scrutiny.
Key Quotes:
1) “Necessarily, an invidious discriminatory purpose may often be inferred from the totality of
relevant facts.”
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2) “Our cases have not embraced the proposition that a law… is unconstitutional solely because it
has a racially disproportionate impact.”
3) “Respondents, as Negroes, could no more successfully claim that the test denied them equal
protection than could white applicants who also failed.”
3) “A rule… to serve neutral ends is nevertheless invalid, absent compelling justification, if in
practice it benefits or burdens one race more than another.”
Other relevant cases:
Railway Express (Visual clutter, rational relation to legitimate ends)
New Orleans v. Dukes (Rational basis test does not apply to fundamental rights, suspect classifications)
United States R.R. Retirement Board v. Fritz (Rational basis test with “bite”)
Moreno (Example where rational basis test failed)
Yick Wo v. Hopkins (Facially neutral but discriminating effect, Chinese dry cleaners)
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11. Affirmative Action (Dave Rhein)
SUMMARY
In Carolene Products the court applied intermediate scrutiny, and established the basis for a
higher level of scrutiny in cases involving minorities. In Bakke Justice Powell applied strict scrutiny
and established the distinction between affirmative action programs that have quotas and programs
that consider race among other factors, finding the UC Davis Medical school’s quota policy
unconstitutional. He also established that strict scrutiny would apply regardless of minority status.
In Grutter and its companion case Gratz (both v. Bollinger), the court uses Bakke as a precedent
and upholds that some affirmative action policies are constitutional and others are not. To pass
strict scrutiny, the policy must be “narrowly tailored” to serve a “compelling governmental interest.”
In Grutter, the University of Michigan Law School’s policy is upheld while in Gratz UM’s
undergraduate admissions policy is found unconstitutional because it uses a point system that gives
too much emphasis to race.
In Parents Involved the court overturned a policy that sought to increase diversity in public
schools by using race as the determinant factor in choosing which school a student would attend.
The court found that the policy failed to promote a compelling interest because it did not effectively
promote diversity.
In the years between Bakke and Grutter two other cases upheld the opinion in Bakke. In
Croson the court applied the compelling interest and narrow tailoring tests in overturning a policy
that awarded a set percentage of government contracts to minorities. In Pena the court incorporated
the “strict scrutiny” doctrine to include federal affirmative action programs as well
Cases:
1. United States v. Carolene Products Company (1938); “Carolene Products”
a. Facts: Carolene challenged a law prohibiting interstate shipping of “filled milk.” The
court found the law constitutional under rational basis review.
b. Issue/Holding: Is the law constitutional? Yes, under the rational basis review, as the
government has a substantial interest in public health.
c. Rule: In a footnote by Justice Stone, he affirms the use of the rational basis test in this
case of economic regulation, but introduces the idea of higher levels of scrutiny to
protect “discrete and insular” minority groups from “prejudice.” This will be the basis
for the development of strict scrutiny in future cases.
d. Quotes: “Whether prejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities, and which may call for a
correspondingly more searching judicial inquiry.” – Stone in the famous “footnote 4”
(CB 171).
2. Regents of the University of California v. Bakke (1978); “Bakke”
a. Facts: UC Davis Medical School set aside 16 of 100 spots for African American
applicants. Alan Bakke, a white applicant, is rejected and challenges the admissions
policy under Equal Protection.
b. Issue/Holding: 1.) Is Affirmative Action constitutional? Yes. 2.) Is the quota system
constitutional? No, it must be “narrowly tailored” to a specific interest. Justice Powell
wrote the decisive opinion.
i. Stevens, Burger, Stewart, Rehnquist, dissenting: Did not find a constitutional
issue, and did not believe the case addressed the issue of whether race could be
44
used as a factor in admissions decisions. However, did find the admissions
program illegal under title VI.
ii. Brennan, Marshal, Blackmun, White, concurring in part and dissenting in part:
Agree with rules 1-3 (below) on the fact that affirmative action is constitutional
in general. However, because Bakke is not a minority then strict scrutiny is too
strict, but would not use rational basis either. Instead, borrow a policy from
gender discrimination cases (Craig v. Boren), that racial classifications designed to
further remedial purposes ‘must serve important governmental objectives and
must be substantially related to achievement of those objections.” They believe
that quotas do not necessarily violate that policy and would not overturn the
quota system at UM.
iii. Conclusion: Powell’s opinion that affirmative action is constitutional if applied
correctly holds 5-4 (with Brennan’s 4). His opinion that the UM policy is
unconstitutional also wins 5-4 with support from Stevens’ conclusion that the
policy violated Title VI. However, Powell is the only justice to rule it
unconstitutional specifically because it is a quota system.
c. Rules: 1.) The state does have a “legitimate and substantial interest in ameliorating” the
disabling effects of discrimination. 2.) the attainment of a diverse student body is a
“permissible goal” for an institution of higher education. 3.) Race is only one of many
important factors in admission, and cannot be the sole factor in the decision; the quota
system is unconstitutional. 4.) Classifications based race and ethnicity trigger strict
scrutiny even if the group being adversely affected is not a “discrete and insular
minority.”
d. Quotes: “A properly tailored affirmative action program designed to promote diversity
could survive strict judicial scrutiny.” -Powell, (CB 683). “Ethnic diversity, however, is
only one element in a range of factors a university properly may consider is attainting
the goal of a heterogeneous student body.” –Powell (CB 683). “For the purpose of
constitutional adjudication, there is no difference between the two approaches.” –
Brennan, regarding Powell’s distinction between systems using quotas and those that do
not (CB 684). “Racial and ethnic classifications, however, are subject to stringent
examination without regard to these additional characteristics [re: discrete and insular]”
–Powell (CB 682)
3. Grutter v. Bollinger (2003); “Grutter”
a. Facts: Barbara Grutter, a white female with good grades and test scores, is rejected from
University of Michigan Law School. She challenges the constitutionality of their
admissions policy that gives underrepresented minority groups a greater chance of
admission. She claims they do not have a compelling interest to do so.
b. Issue/Holding: Is the UM admissions policy and consideration of race constitutional?
Yes, 5-4.
c. Rule/Precedents: 1. Court confirms that strict scrutiny applies here, as with all race
related distinctions. 2. Diversity has educational benefits, and UM has a “compelling
interest” in promoting diversity. 3. Their policy of creating a “critical mass” is
“narrowly tailored” to achieve their compelling interest. O’Connor’s majority opinion
draws strongly from Powell’s opinion in Bakke, affirming its importance as a precedent.
4. Court confirms the unconstitutionality of policies that promote “Racial balancing,”
but do not find that UM’s policy in this case promotes racial balancing.
45
i. Rehnquist dissenting claims the policy is not “narrowly tailored” but is in fact a
policy of racial balancing. Kennedy dissenting claims the court has not properly
applied strict scrutiny.
d. Quotes: “[When] race-based action is necessary to further a compelling governmental
interest, such action does not violate the constitutional guarantee of equal protection so
long as the narrow-tailoring requirement is also satisfied.” –O’Connor (CB 686). “We
have never held that the only governmental use of race that can survive strict scrutiny is
remedying past discrimination.” –O’Connor (CB 686). “We expect that 25 years from
now, the use of racial preferences will no longer be necessary to further the interest
approved today.” –O’Connor (CB 688).
4. Gratz v. Bollinger (2003), a companion case to Grutter, in brief:
a. Gratz is a white female rejected from University of Michigan’s undergrad College of
Literature, Science, and the Arts (LSA). She claims their admissions policy is
unconstitutional.
b. The system awards points that determine admission, 150 maximum. Awards 20 points
for “minority status.” Rehnquist’s opinion: unconstitutional because it “is not narrowly
tailored to the interest in educational diversity,” (CB 694). Also, the 20 points is seen as
too large a reward, it “makes race a decisive factor for virtually every minimally qualified
underrepresented minority.” (Rehnquist for the majority, CB 695).
5. Parents involved in Community Schools v. Seattle School District No. 1 (2007); “Parents involved”
a. Facts: Schools in Seattle, WA and in Jefferson County, KY adopted plans to use race to
determine which public schools a student will attend (ensuring that all schools have 1550% African Americans). The Seattle schools were never segregated; the Kentucky
schools were segregated in the past but had “achieved unitary status.” The actually
impact of these policies would effect less than 3% of students.
b. Issue/Holding: Is the policy of assigning students based on race constitutional? No. 44-1 (Kennedy is the 1, concurring in the judgment).
c. Rule/Precedents: 1.) the government does distribute burdens or benefits based on race,
and these policies are subject to strict scrutiny (as per Grutter). Must demonstrate that
they are “narrowly tailored” to achieve a “compelling governmental interest.” 2.)
Because Seattle was never segregated, and Kentucky has reached “unitary” status
(eliminated vestiges of its old policies of segregation) then this eliminates the potentially
compelling interest of correcting for past discrimination (which was established in
Freeman v. Pitts 1992). 3.) Another recognized compelling interest, diversity, is also not
satisfied because the policy is poorly designed and takes into account only
white/nonwhite rather than attempting to achieve actual diversity. Also, relies on race
alone as a determinant factor. Grutter does not hold here.
d. Quotes: “The way to stop discrimination on the basis of race is to stop discriminating
on the basis of race.” –Roberts (CB 700)
Other cases in brief:
1. City of Richmond v. J.A. Croson (1989)
a. Court found City of Richmond’s policy of setting aside a specific percentage of
contracts for minorities to be unconstitutional under Equal Protection. This is
because it 1.) failed to demonstrate a history of discrimination against the minorities
encompassed, including Spanish speaking people, Asians, Indians, etc. and 2.) it fails
to satisfy the “narrowly tailored” distinction.
2. Adarand Constructors Inc. v. Pena (1995)
46
a. Overruled earlier decision in Metro Broadcasting v. FCC (1990), which held that
intermediate scrutiny applied to federal affirmative action plans. This case holds that
all federal and state policies that include race-based classifications should be held to
strict scrutiny.
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12. Equal Protection and Gender (Shaun Vigil)
SUMMARY
The Supreme Court began taking on issues of gender discrimination in the 1970s. Before this time,
gender issues were largely decided with a paternalistic mindset that did not view discrimination as an
issue because it was simply a natural part of life that women should be treated unequally. The main
battle that occurred in gender discrimination cases, once they were given a deeper seriousness, was
deciding on whether they should be deliberated upon from the rational basis test or with strict
scrutiny. The Supreme Court now deliberates with intermediate scrutiny, in which important
governmental interests must be furthered by substantially related means. It is less rigorous than strict
scrutiny, but more than rational basis. It applies to federal, state, and local governments.
Pre Reed v. Reed Cases (1908-71) – Women as the central family figures, to be kept out of
dangerous affairs, and to maintain a traditional female role
Muller v. Oregon (1908): upheld a statute preventing women from working in factories for more than
ten hours a day. The Court cited that “as healthy mothers are essential to vigorous offspring, the
physical well-being of a woman becomes an object of public interest and care.”
Goesaert v. Cleary (1948): upheld the barring of bartender’s licenses to most women because although
women had been exposed to many of the same “virtues” and “vices” as men, they should not be
involved in dangerous areas such as “liquor traffic.”
Hoyt v. Florida (1961): upheld a law putting women on juries only by special request of the woman
because a “woman is still regarded as the center of home and family life.”
Reed v, Reed (1971)
Facts: This case challenged an Idaho law preferring men to women as being administrators of
estates when two persons were otherwise equally entitled.
Issue/Holding: Does the Equal Protection Clause prevent discrimination against women? Yes, but
only under rational basis review. Administrators of estates could not be determined in a manner that
discriminates based on gender.
Rules: 1. Unequal treatment is fine if there is a reasonable government interest. 2. Discrimination is
not allowed if the basis is arbitrary in the view of the Court. 3. Gender discrimination issues were
subject to a case-by-case basis; the Supreme Court went against the doctrinal history, saying that it
was irrational for the state of Idaho to prefer men to women as administrators of estates
Key Quotes:
“A 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 [law].’”
Frontiero v. Richardson (1973)
Facts: This case challenged a military policy giving all male, married officers a salary supplement to
take care of their wives, but did not allow females the same for their husbands because of the
administrative convenience of not automatically providing such.
Issue/Holding: Is the Equal Protection Clause applicable in this situation and should strict
scrutiny be adopted as the basis of review? Although it was ruled that the policy discriminated
against women, strict scrutiny was rejected.
Rules: 1. Unequal treatment is still fine if there is a reasonable government interest. 2. “Romantic
paternalism” was rejected as a government interest and other forms of “invidious discrimination.” 3.
According to Ginsburg, gender should be viewed in a light similar to race because the stigmatizing
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effects have left a residue of inequality, political powerlessness, and because of the fact that it is an
unfair/immutable characteristic. 4. The other members of the majority were open to further
expansion of scrutiny, but not strict scrutiny
Key Quotes:
“[Any] statutory scheme which draws a sharp line between the sexes, solely [for] administrative
convenience [violates equal protection].”
Craig v. Boren (1976)
Facts: This case challenged an Oklahoma statute prohibiting men from buying a certain low-alcohol
beer until 21 that women could purchase at 18.
Issue/Holding: Is the Equal Protection Clause applicable in this situation and what should be
utilized if not strict scrutiny if rational basis review was not enough? The Supreme Court invalidated
the statute. It split the difference between strict scrutiny with rational review. Things can only be
upheld if they apply intermediate scrutiny.
Rules: 1. This classification was struck down because it discriminated against men. 2. Craig split the
difference and gave us the Intermediate Scrutiny standard. Not all classifications subjected to it are
invalidated, but some are. 3. Rehnquist dissented arguing that all of the arguments about scrutiny
regarded the historic oppression of women. There was no history of stigmatization against men and
that thus the case should not have been decided the way that it was.
Key Quotes:
“[To] withstand constitutional challenge, previous cases establish that classifications by gender must
serve important governmental objectives and must be substantially related to achievement of those
objectives.”
United States v. Virginia (1996)
Facts: This case challenged the validity of the last all-male university in Virginia, the Virginia
Military Institute and its refusal to accept women because it argued that its mission and methods
could not be fully realized if women were present.
Issue/Holding: Had Virginia done enough by setting up a parallel program, and were the merits of
an all-male program acceptable to being with? No, a separate school could not be equal or fulfill the
needs of women wishing to attend VMI.
Rules: 1. The state of Virginia was not trying to promote diversity and by looking at the history, it
was always trying to do things for men that it wouldn’t do for women. 2. The Supreme Court argued
that it would take alterations to the education from both sexes. Equality requires something
approaching an anti-subordination idea. There needs to be some accommodation on the side of
Virginia in order to help the historically subordinated group. 3. Scalia dissented by essentially calling
them arrogant, Washington elitists. He argued that in the real world this was all that Virginia could
do to promote diversity. The Supreme Court was now working in the fairness business.
Key Quotes:
Opinion - “A tenable justification must describe actual state purposes, not rationalizations for
actions in fact differently grounded.”
Dissent – “Intermediate scrutiny has never required a least-restrictive-means analysis, but only a
‘substantial relation’ between the classification and the state interests that it serves.”
Geduldig v. Aiello (1974)
Facts: It challenged a state-funded medical insurance program that only paid for pretty much all
expenses except for pregnancy.
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Issue/Holding: Was this gender discrimination? No, Stewart gave the opinion that it was
constitutionally permissible because it only discriminated against pregnant persons, not women in
particular or altogether.
Rules: 1. Fiscal and actuarial benefits were given to members of both sexes equally and there was no
risk which women were protected that men were not, and vice-versa. 2. The dissent argued that this
was sex discrimination because there were health issues specific to men that were covered, but this
gender specific issue was not. 3. The Court is moving backward again in the 1970s.
Key Quotes:
“[The] program divides potential recipients into two groups—pregnant women and nonpregnant
persons. While the first group is exclusively female, the second includes members of both sexes.”
Dissent – “…men receive full compensation for all disabilities suffered, including those that affect
only or primarily their sex, such as prostatectomies, circumcision, hemophilia and gout.
Dothard v. Rawlinson (1977): the Court upheld a state statute that prevented women from being
prison guards in men’s penitentiary because “a woman’s relative ability to maintain order in a male,
maximum-security, unclassified penitentiary could [be] directly reduced by her womanhood.” The
state interest was enough to allow discrimination of hiring and employment.
Michael M. v. Superior Court (1981): the Court upheld a statutory rape law that punished males
over 18 who engaged in sexual-intercourse with his wife who was under 18 without punishing the
girl because “the State has a strong interest in preventing [underage] pregnancy...Because virtually all
of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the
young female…”
Nguyen v. INS (2001) – upheld a provision distinguishing between American citizen mothers and
American citizen father who are parents of illegitimate children born abroad, allowing mothers to
pass citizenship automatically but not fathers because “[a] relationship [that] consists of the real,
everyday ties that provide a connection between child and citizen parent and, in turn, the United
States” with mothers but not necessarily fathers out of wedlock.
Califano v. Webster (1977): a calculation under the Social Security Act that gave higher old-age
benefits to female wage earners than males was challenged as a violation of equal protection. It was
decided that it was alright because it “was deliberately enacted to compensate for particular
economic disabilities suffered by women.”
Mississippi University for Women v. Hogan: a state-supported all-female college denied a man
admission to its School of Nursing solely on the basis of gender. The policy was ruled invalid
because it was said to cater to the idea that the nursing profession was primarily for women and thus
did not provide men, the discriminated minority in this instance, equal opportunity.
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13. Sexual Autonomy and Gay Rights (Will Houghteling)
“I wanna make love in this club.
In this club
In this club
In this club
I wanna make love in this club.
In this club
In this club
In this club.”
[Usher Raymond IV]
Sexual Autonomy (Themes)
One central theme is the “fundamentality” of sexual issues. Under modern substantive Due
Process theory, whether a right is “fundamental” or not determines whether an infraction on that
right is submitted to strict scrutiny, a test most restrictions fail. The rights to vote and to marry, as
well as rights of free speech and religion, have been accepted as fundamental. At issue in the sexual
autonomy cases is whether jurisdiction over one’s own individual right to “bear and beget” a child is
a fundamental right. Determining how we define fundamental rights is controversial. Some argue for
the basis of that determination to be in history – and historically, homosexuality has never been
considered a fundamental right. Nor has the use of contraception.
Another central issue is the extent to which the Constitution presupposes certain rights that
are not formally “enumerated” within the text. Griswold and Eisenstadt both uphold the theory that
there are rights beyond those defined in the Constitution which nevertheless are guaranteed
protection by the Constitution.
Gay Rights (Themes)
One common thread throughout the gay right’s cases is the court’s anxiety about the
application of ‘substantive Due Process’ and related anxiety about recognizing ‘fundamental rights’
beyond what the constitution explicitly states. The right to make autonomous choices was implicitly
recognized in the word ‘liberty’ as discussed in Griswold and Roe. In Bowers the majority decision held
that fundamental rights are only those ‘implicit in the concept of ordered liberty’ or ‘deeply rooted in
this Nation’s history and tradition’. Under their definition homosexual sodomy did not pass this
test. Interestingly in Lawrence, which overturned Bowers, Kennedy (writing for majority) did not use
language of fundamental rights or strict judicial scrutiny. This issue is related to the power of the
courts to legislate on morally polarizing issues from the bench.
Another common thread is the court’s varying levels of contempt for homosexuality. Fallon
called the majority opinion in Hardwick one of the most ‘caustic’ in the court’s history. In contrast, in
Lawrence (2003) the majority opinion held that when ‘homosexual conduct is made criminal by the
law” it is an invitation to discriminate against gay people elsewhere. Most important doctrinally, in
Evans, majority opinion held that the law was enacted because of animus or hostility towards
homosexuals and this animus doesn’t pass rational basis review.
The final common thread is about identifying places where the government cannot intrude
(4th and 14th Amendments). In Kennedy’s majority opinion in Lawrence he was careful to stress that
homosexual sodomy is a protected liberty involving the conduct of “private lives in matters
pertaining to sex”. Kennedy reframes the issue—not about a right to homosexuality as argued in
Bowers, but about human dignity to make your own choices re: sexual intimacy. Lawrence extends
ruling from Loving to state that the “reach of liberty extends to the way individuals choose to
conduct their personal relationships” (288—commentary on Lawrence).
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Griswold v. Connecticut (1965)
Facts: This case challenges the constitutionality of two Connecticut laws, one that prohibits the use
of contraception and another that prohibits doctors and others from assisting in the use of or
providing contraception.
Constitutional Questions: Does the Constitution provide a right of privacy that protects
individuals’ privacy in the bedroom? Yes.
Rules: The Constitution should be read to create a “zone of privacy,” that, while not defined in any
particular clause, is “older than the Bill of Rights” and is therefore assumed by the Constitution.
Key Quotes: “In other words, the First Amendment has a penumbra where privacy is protected
from governmental intrusion.” “We deal with a right of privacy older than the Bill of Rights”
From Justice Goldberg’s concurring opinion: “To hold that a right so basic and fundamental and so
deep-rooted in our society is not guaranteed in so many words by the first eight amendments to the
Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.”
From Justice Harlan’s concurring opinion: “The proper constitutional inquirt in this case is whether
this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because
the enactment violates basic values ‘implict in the concept of ordered liberty.’… I believe that it
does.”
Key Points from the Dissent: The Fourteenth Amendment is not about privacy. Judges should not
be deciding whether laws satisfy notions of “civilized standards of conduct,” which is a power the
Constitution gives, instead, to the legislatures. The Ninth Amendment does empower the Court to
strike down state legislation that it finds in violation of principles of liberty. The application of
Lochner-era adjudication to personal rights issues is no less dangerous than its application to
economic issues.
Eisenstadt v. Baird (1972)
Facts: This case challenges the constitutionality of a Massachusetts law making it a felony to
distribute contraception, except in the case of a registered doctor or pharmacist providing
contraception to married couples.
Constitutional Question: Does a law favoring married people over unmarried people in the
obtaining of contraceptives constitute a violation of the Equal Protection Clause? Yes.
Rules: 1. Married people do not gain special treatment. 2. Right to privacy is an individual right.
Key Quotes: “The marital couple is not an independent entity with a mind and heart of its won, but
an association of two individuals weach with a separate intellectual and emotional make-up. If the
right of privacy means anything, it s 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.”
Key Points from the Dissent: The Fourteenth Amendment says nothing about requiring
contraceptives to be available on the open market.
Bowers v Hardwick (1986) a.k.a. “Homosexual Sodomy”
Facts: Mr. Hardwick is charged with violating Georgia statue criminalizing sodomy by committing
sodomy with another adult male in the bedroom of his home.
Issue/ Holding: Does the Federal Constitution confer a fundamental right upon homosexuals to
engage in sodomy and hence invalidate the laws of many States that still make such conduct illegal?
No it does not.
Rules: 1. Homosexual sodomy is not related to the rights discussed in Griswold and Roe. 2.
Homosexual sodomy is not a fundamental right. 3. The court is wary of decisionmaking under the
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substantive due process clause that is untethered to historical practices. Don’t want judges imposing
their moral values on everyone.
Key Quotes: “We think it evident that none of the rights announced in such cases as Griswold and
Roe bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of
sodomy that is asserted in this case” (276)
Precedent dictates that fundamental rights are those “liberties that are ‘implicit in the concept of
ordered liberty’…or are ‘deeply rooted in this Nation’s history and tradition’” and neither of these
formulations convinces jury that they should extend rights to homosexual sodomy. (276)
“The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made
constitutional law having little or no cognizable roots in the language or design of the Constitution”
(276)
Lawrence v Texas (2003)
Facts: Houston Police enter man’s apartment (answering reported weapons disturbance) and find
two men having anal sex. Arrested both men because they broke a state law prohibiting ‘deviate
sexual intercourse’ (law explicitly forbids homosexual sodomy but not heterosexual sodomy).
Issue/Holding: Are the petitioners free as adults to engage in the private conduct in the exercise of
their liberty under [Due Process]? (277) Emphatically Yes.
Rules: 1. Consensual sexual conduct done in private is protected under Due Process Clause. This
right extends to homosexuals. 2. The Texas statute has no ‘legitimate gov’t interest’ that allows it to
violate liberty under Due Process of 14th amendment. 3. The holding from Bowers is overturned. The
ruling in Bowers invites discrimination against homosexuals and demeans their lifestyle. Bowers
incorrectly cited ‘historical precedent’ against sodomy—the historical/ ‘accepted morals’ case is
flimsy. Homosexual sodomy not about ‘fundamental rights’ but about personal liberty. 4. The Due
Process Clauses of the 5th and 14th Amendment provide mandate for courts to appreciate more fully
the changing definitions of liberty.
Key Quotes/Arguments:
“The laws involved in Bowers and here are statutes that purport to do no more than prohibit a
particular sexual act. Their penalties and purposes, though, have more far-reaching consequences,
touching upon the most private human conduct, sexual behavior, and in the most private of places,
the home…A personal relationship….is within the liberty of persons to choose without being
punished as criminals” (277)
“The liberty protected by the Constitution allows homosexual persons the right to make [a choice
about intimate contact with another person]” (277)
Bowers incorrectly cited historical roots of ‘anti-sodomy laws’. In fact there is no longstanding history
of laws that prohibit homosexual conduct in private. Early sodomy laws were not directed at
homosexuals but rather at prohibiting non-procreatory sexual activity more generally. In fact legal
history indicates that the court should show deference to consensual sexual conduct in privacy of
one’s home.
Unequivocal that Bowers is invalid rather than making Equal Protection Clause argument (b/c
homosexuals prohibited from sodomy but heterosexuals are not)
“When homosexual conduct is made criminal by law of the State, that declaration in and of itself is
an invitation to subject homosexual persons to discrimination both in the public and in the private
spheres. Bowers continuance as precedent demeans the lives of homosexual persons” (279)
“The petitioners are entitled to respect for their private lives. The State cannot demean their
existence or control their destiny by making their private sexual conduct a crime. Their right to
liberty under the Due Process Clause gives them the full right to engage in their conduct without
intervention of the government” (281)
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“Had those who drew and ratified the Due Process Clauses of the Fifth Amerndment or the
Fourteenth Amendment known the components of liberty in its manifold possibilities, they might
have been more specific. They did not presume to have this insight… As the Constitution endures,
persons in ever generation can invoke its principels in their own search for greater freedom.” (281)
This case does not involve “whether the government must give formal recognition to any
relationship that homosexual persons seek to enter” (286)
Dissent: Majority opinions applies unheard-of form of rational-basis review. Doesn’t touch the
issue of whether or not homosexual sodomy is a fundamental right. Ruling doesn’t pass stare decisis.
Majority created new version of stare decisis built on 3 principles: “1) its foundations have been
“eroded” by subsequent decisions; (2) it has been subject to ‘substantial and continuing criticism’
and 3) it ahs not induced ‘individual or societal reliance’ that counsels agains overturning” (282).
Those principles indicate that Roe should be overturned.
Laws in general rely on Bowers as Bowers demonstrates that laws governing on majority’s belief that
certain sexual behavior is ‘immoral and unacceptable’ are constitutionally valid. Overrule Bowers and
what about bigamy, same-sex marriage, incest etc etc?
Court is incorrectly entering into a culture war and leaving position as neutral observer.
“If the promotion of majoritatiran sexual morality is not even a legitimate state interest, none of the
above mention laws [bigamy, incest, adultery etc] can survive rational-basis review” (285)
Scalia argues that gay rights activists should have to convince their fellow ppl through democratic
means as nearly all other groups do.
If we take this ruling to its logical conclusion then gay marriage is protected under right to personal
liberty as well. If you put it before the ppl maybe they’ll allow homosexual sodomy but not
marriage—they don’t have to take everything to its end.
Future issues: Same sex marriage?
The court in Lawrence demonstrated that a successful due process challenge need not be rooted in
tradition—this same premise could be extended to a same-sex marriage case. However the court in
Lawrence did explicitly state that this principle of liberty extended exclusively to the right of sexual
liberty in the privacy of ones home—trying to distinguish this from future same-sex marriage cases
(making this an easier pill for the right to swallow?). That being said, Scalia in his dissenting opinion
argues that the majority made this too slippery of a slope—the majority cited that “constitutional
protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing and education’”(286). Previous cases indicated that right to marry is a
fundamental right under DP clause. Critical issue is the definition of ‘marriage’.
Just as Brown led to a gradual judicial ban on all racial classifications, it’s likely that Lawrence will
eventually lead to a ban on all homosexual activity, including marriage. Lawrence importantly held
that ‘moral disapproval’ of homosexuals is not a legitimate gov’t interest. Implausible to find bans
on gay marriage that don’t rely on ‘moral disapproval’. However, it’s likely that the court won’t rule
on this until public opinion begins to swing (much as the change in public opinion/state laws against
sodomy provided them the cover to overturn Bowers).
Romer v. Evans (1996)
Facts: This case challenges the validity of a Colorado state constitution amendment which
prohibited the state from providing special benefits or preferred status on the basis of homosexual
orientation.
Constitutional Question: Can Colorado use a single trait – homosexuality – as the basis for
imposing on a group a set of disparate disabilities? No.
54
Rules: 1. Hostility is not a sufficient reason for a state to legislate against a group, even if that
hostility is rationally reasoned. 2. If a state makes it more difficult for one group to be eligible for
government protection, that constitutes the denial of equal protection.
Key Quotes: “If the constitutional conception of ‘equal protection of the laws’ means anything, it
must at the very least mean that a bare desire to harm a politically unpopular group cannot
constitute a legitimate government interest.”
“[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then
denies them protection across the board.”
Key Points from the Dissent: 1. Being denied the right to preferential treatment does not
constitute a denial of equal protection. 2. Given that prohibiting homosexual conduct has been
accepted as constitutional, it should be constitutional to make it more difficult for those who engage
in homosexual conduct to gain preferential treatment.
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14. Abortion (David Daniels)
SUMMARY
1. Roe vs Wade (1973)
a. 7-2 decision: not closely divided.
b. Symbolizes the indeterminate constitution: reasonable people could disagree;
plausible cases on both sides.
c. In 1973, Supreme Court was a secular institution, believing it had reached a
compromise.
d. Ultimately, perhaps reason runs against fundamental convictions
(liberal/conservative). Perhaps no one can be persuaded about the key point – the
moral status of the fetus.
2. Possibly: Roe should have been regarded as an equal protection case involving the state’s
rights to impose on women a burden it does not impose on anyone else, rather than a due
process case.
a. However, see Geduldig v Aiello (1974): possibly Roe discriminates not against women,
but against “pregnant persons”.
b. Or, perhaps idea that women must support fetus is unacceptably based on
stereotype of women as natural caregivers. (Compare to men’s stereotype as being
the only gender suitable for the military draft).
3. Post-Roe
a. Religious right invigorates, states push Supreme Court to reconsider Roe:
b. See cases.
i. Undue burden: “a shorthand for state placing a substantial obstacle in
getting an abortion”
i. Ronald Dworkin: The state’s interest in abortion is a detached interest
(beyond each individual fetus) in getting people to take seriously the idea of
the sanctity of life.
ROE V WADE (decided alongside DOE V BOLTON)
Facts: Texas law criminalized abortion except “by medical advice for the purpose of saving the life
of the mother.”
Issue/Holding: Does a “right to privacy” justify a right abortion? Yes, but not an unlimited right to
abortion.
Rules:
 First trimester: Abortion must be free of State regulation. The woman and her doctor have
a right to choose.
 Second trimester: State interests in protecting health of the mother become “compelling.”
State can regulate abortion to protect mother’s health.
 Third trimester: State interests in protecting potential life become compelling at “viability.”
(There is no real justification for this point). States can restrict abortion, except when to
preserve the “life or health of the mother.”
Key quotes / points:
Majority ruling (Blackmun)
56

“The Constitution does not explicitly mention any right of privacy. [But] the Court has
recognized that a right of personal privacy…does exist.” Only personal rights that are
“fundamental” or “implicit in the concept of ordered liberty” are part of the right to privacy.
 The majority believes the right of privacy is founded in the Fourteenth Amendment’s
concept of personal liberty, i.e. substantive due process.
 This right “is broad enough to encompass a woman’s decision whether or not to terminate
her pregnancy.”
 Since a fundamental right to privacy is involved, abortion triggers strict scrutiny.
o At some point in pregnancy, the state interest in health, medical standards, and in
protection potential life become “sufficiently compelling” to regulate abortion.
 Different from previous cases because the woman is not “isolated in her privacy.”
Dissent (White)
 The Court “simply fashions and announces a new constitutional right [and], with scarcely
any reason or authority for its action, invests that right with sufficient substance to override
most existing state abortion statutes.”
 This prevents Congress and the state legislatures from weighing the importance of a fetus
and impact on the mother. The Court might be able to do this, but it should not.
Dissent (Rehnquist)
 The traditional test for social and economic legislation is rational basis.
 The majority’s decision is like Lochner. This requires the Court to judge the wisdom of
laws. This is “judicial legislation”, not a determination of original intent.
 Since most states have had abortion restrictions for 100 years, it seems that an abortion right
is not “so rooted in the traditions and consciences of our people as to be ranked as
fundamental.”
MAHER V ROE (1977)
Powell’s majority: Sustained Connecticut’s use of Medicaid funding to reimburse women for
“medically necessary” (including “psychiatric necessity”) first trimester abortions, but not for
elective first trimester abortions. Roe did not establish “an unqualified constitutional right to an
abortion,” but only a “right protect[ing] the woman from unduly burdensome interference with her
freedom to decide whether to terminate her pregnancy.”
Brennan’s dissent: This uniquely coerces poor women to bear children they would not otherwise
choose to have.
HARRIS V McRAE (1980)
Extending MAHER, limits federal funding of abortion under the Medicaid program to those
necessary to save the life of the mother and certain other exceptional circumstances.
WEBSTER V REPRODUCTIVE SERVICES (1989)
Most people thought this case would overrule Roe v Wade. The Court upheld incidental
restrictions, but said it didn’t need to overrule Roe v Wade in order to do so.
PLANNED PARENTHOOD V CASEY (1992)
Facts: like Webster, involved incidental restrictions on abortion
 Informed consent / risks of abortion
57
 Waiting period c.f.
 Spousal notification
 Parental consent (of at least one parent)
 Record-keeping
Issue/Holding: It reaffirms the central holding of Roe v Wade: a woman who is committed to
having an abortion is entitled to have one up to the point of fetal viability. But Roe said any
regulation that bears or burdens on the abortion right, it has to be shown to fulfill a compelling
governmental interest. The Court abolishes that, holding that restrictions on abortions are okay as
long as they do not put an undue burden on a woman’s abortion right.
Rules:
Undue burden is “a shorthand for state placing a substantial obstacle in getting an abortion.”
The only undue burden out of the five is the requirement of spousal notification, because the
Court worries that women might find their spouses abusive.
Key quotes / points:
Majority ruling (O’Connor, Kennedy, Souter)
 Upholds Roe under a substantive due process right that “[bars] certain government actions
regardless of the fairness of the procedures used to implement them.”
 The Court has “never accepted” the view that “liberty encompasses no more than those
rights already guaranteed to the individual against federal interference by the express
provisions of the first eight amendments to the Constitution.”
 Fallon: Essentially the court relies on precedent. Court follow stare decisis because it is
accepted by the public as law.
 Instead of evaluating whether Roe was seriously wrong, it is worried that: “[The] country can
accept some correction of error without necessarily questioning the legitimacy of the Court.
In two circumstances, however, the Court would almost certainly fail to receive the benefit
of the doubt in overruling prior cases…. Where, in the performance of its judicial duties, the
Court decides a case in such a way as to resolve the sort of intensively divisive controversy
reflected in Roe and those rare, comparable cases, its decision has a dimension that the
resolution of the normal case does not carry. It is the dimension present whenever the
Court’s interpretation of the Constitution calls the contending sides of a national
controversy to end their national division by accepting a common mandate rooted in the
Constitution… [To] overrule under fire in the absence of the most compelling reason to
reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious
question.”
Dissent (Rehnquist)
Follow Webster.
Dissent (Scalia)
 Abortion is not a constitutionally protected liberty:
o “The Constitution says nothing about it”
o “The longstanding traditions of American society have permitted it to be legally
proscribed.”
STENBERG V CARHART (2000)
A law that prohibited partial birth abortion, by 5-4, was held unconstitutional for 2 reasons:
58
First, the statute is so vague that doctors would feel chilled from performing any abortions at all out
of fear of prosecution
Second, the statute makes no allowance for partial birth abortion in cases where it is necessary to
preserve health, rather than life, of the mother.
GONZALES V CARHART (2007)
Facts: Partial-Birth Abortion Ban Act was signed by Bush in 2003.
Issue/Holding: Lets the act stand facially and allows the parties to fight about particular
applications.
Rules:
“Ethical and moral concerns” including an interest in fetal life are “substantial” state interests which
(assuming they do not impose an “undue” burden) could be a basis for legislation throughout
pregnancy, not simply after viability.
The Court distinguished Stenberg by holding that Stenberg was more ambiguous.
Key quotes / points:
Majority ruling (Kennedy)
 The Act “defines the unlawful abortion in explicit terms.”
 The Act “contains scienter requirements concerning all the actions involved in the
prohibited abortion… [The Act is not] unconstitutionally vague on its face.”
 It is “reasonable to think that partial-birth abortion…. ‘undermines the public’s perception
of the appropriate role of a physician during the delivery process, and perverts a process
during which life is brought into the world.’”
1. Fallon: this is passionate, morally outraged language!
Dissent (Ginsburg)
 “Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates,
indeed applauds, federal intervention to ban nationwide a procedure found necessary and
proper in certain cases by the American College of Obstetricians and Gynecologists. It blurs
the line, firmly drawn in Casey, between previability and postviability abortions. And, for
the first time since Roe, the Court blesses a prohibition with no exception safeguarding a
woman’s health….. Ultimately, the Court admits that ‘moral concerns’ are at work, concerns
that could yield prohibitions on any abortion.”
 “In candor, the Act, and the Court’s defense of it, cannot be understood as anything other
than an effort to chip away at a right declared again and again by this Court – and with
increasing comprehension of its centrality to women’s lives.”
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15. Rights to Travel and the Interests of the Poor (Tami Jafar)
SUMMARY
Relevant to this section is a discussion of “positive” and “negative” rights as discussed by Fallon.
Basically, the argument for “positive” rights deals (in reference to my section) with the
Government’s ability to grant welfare benefits to the poor. In general, positive rights are just those
that the government has to take affirmative action in order to protect.
The arguments for positive constitutional rights for the poor:
1) When Constitution confers rights, it must presuppose that people will be able to exercise or
enjoy them, and thus it must implicitly create positive rights to such things as education,
health care, food, and shelter.
2) If positive rights (such as the above) are recognized, they might be absolute, in which case
the government would have no choice but to honor them. Possible Equal Protection Clause
argument.
1950-60s, Warren Court tries to carve out a few positive rights and EP rights for poor, but never
establishes certain welfare rights as “fundamental”.
RIGHT TO TRAVEL CASES:
Crandall v. Nevada (1867): Is an early case that struck down a state tax of $1 on rail and stage
tickets for out-of-state destinations. In doing so, the Court did not produce constitutional evidence,
rather, it emphasized the concepts of “nationhood” and national unity. This case began the long
trend of cases upholding travel rights.
Shapiro v. Thompson (1969):
Facts: Federal Courts held unconstitutional Connecticut, Pennsylvania, and D.C. statutes that
denied welfare to residents who have not resided within their jurisdictions for at least one year. The
State gov’s wanted to deter needy persons from entering and becoming a recurring burden on the
welfare system.
Issue/Holding: Can the Government deny welfare to discourage needy persons from migrating to
certain places? No.
Rules: (Brennan, J. delivers Court opinion) “This Court long ago recognized that the nature of
our Federal Union and our constitutional concepts of personal liberty unite to require that all
citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules,
or regulations which unreasonably burden or restrict this movement”
Key points: The Court relies upon previous precedent for fundamental right to interstate
movement, Equal Protection Clause (“We do not perceive why a mother who is seeking to make a
new life for herself and her children should be regarded as less deserving because she considers,
among other factors, the level of a State’s public assistance.”- Brennan)
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Dissenting Points (Warren, Black.): The right to travel is not prohibited here. The people in
question are allowed to travel.
(Harlan): Court states that Government does not have a “compelling interest” in placing undo
burden upon interstate travel in this case (i.e. Carolene Products Footnote). He supports the use of
Carolene Products footnote for racial classifications but not for other groups, including potential
welfare recipients.
Saenz v. Roe (1999)
Decision delivered by Justice Stevens
Facts:
In 1992, California enacted a statute limiting the maximum welfare benefits available to new
residents (as of 12 months, similar to Shapiro).
Issue/Holding: Was the 1992 CA statute constitutional? No
Is the “rational” purpose CA submits, namely, to save money ($10.9million) compelling enough to
accomplish it based on discriminatory purposes? No.
Rules: Strict scrutiny must apply to cases that violate Privileges and Immunities Clause of 14th A.
There are 3 components to fundamental right to travel laid out in Court precedent. 1) right of a
citizen of one State to enter and to leave another State. 2) Right to be treated as a welcome visitor
rather than an unfriendly alien. 3) for those travelers who elect to become permanent residents, the
right to be treated like other citizens of the State.
This case deals with component #3. Though the right to travel isn’t explicitly mentioned under the
Constitution, this 3rd component is explicitly protected under Privileges and Immunities Clause of
the 14th A. This clause lays out a citizens right to become a citizen of any State of the Union and to
have the same rights as the other citizens of that State.
Key Dissent (Obviously Rehnquist and Thomas): They don’t get why the “right to become a
citizen of another State is a necessary ‘component’ of the right to travel” or why the Court tries to
marry these separate and distinct rights”
-Rehnquist is sassy here and basically no one ever uses the Privileges and Immunities clause so he
says things like “The Court today breathes new life into the previously dormant Privs and Immuns
Clause” and “In unearthing from its tomb the right to become a state citizen…” etc etc. Random, I
know…just trying to add some color.
Thomas in his dissent looks to the original meaning of the Privs and Immuns Clause (he points out
that this is something that the majority did not do) and he interprets the Clause to protect over
fundamental rights, not all public benefits. This he claims, is closest to the original intent.
CASES INVOLVING INTEREST OF THE POOR
(Welfare and Education)
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Dandridge v. William (1970)s:
Decision delivered by Justice Stewart
Facts: A state funded program called Maryland Aid to Families With Dependent Children gave
most eligible families their computer “standard of need,” but imposed a “maximum limitation” on
the total amount any family could receive.
Issue/Holding: Does the imposition of a ceiling on welfare violate Equal Protection? No.
Rule: A state does not violate equal protection merely because the classifications made by its law
are imperfect. “It is enough that the state’s action be rationally based and free from invidious
discrimination (Stewart)”. Key distinction: the State is treating families in a balanced way based on
income.
San Antonio Ind. School District v. Rodriguez (1973)
Decision delivered by Justice Powell
Fact:
5-4 decision. Context Nixon appoints 4 “strict constructionist” judges.
Mexican-American parents filed suit on behalf of schoolchildren throughout the State who are
members of minority groups or who are poor and reside in school districts having a low property
tax base. They challenged the constitutionality of the State’s overall scheme for funding public
education. Scheme relied heavily on local property taxes. Spent as much as 60% less per-pupil in
poor area public schools v. rich ones. Argued that education was a fundamental right under the EP
clause. Also, financing system unconstitutional because it disadvantaged the poor.
Holding: Education, not a fundamental right.
Rule: Equal protection clause does not require absolute equality or precisely equal advantages. The
children aren’t being deprived of anything as they are still receiving an education (albeit a poorer
quality one).
Court holds that for education to be a fundamental right it must be implicitly or explicitly
mentioned in the Constitution (as per Roe).
Key Point: Fallon points out that, ironically, this case might have had stronger constitutional
support than Roe. The key distinction between the cases is that the abortion right is a “negative”
right (one the government doesn’t have to take any affirmative action for) – free from governmental
interference. The desired right to education is a “positive” right that would have taken affirmative
governmental steps to implement.
Plyler v Doe (1982)
Brennan delivers
Facts:
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Court held that a Texas statute denying free public education to illegal alien children violated equal
protection. This is because “illegal children can affect neither their parents’ conduct nor their own
status.”
Holding: State cannot deny illegal alien children access to public education.
Rule:
Court rejects claim that illegal aliens are a “suspect” class. “Undocumented status is not irrelevant to
any proper legislative goal. Nor is [it] an absolutely immutable characteristic since it is the product
of conscious, indeed unlawful, action.”
Though the Court still doesn’t recognize public education as a right, it distinguishes it from other
social welfare benefits. Basically, it’s too important and the deprivation of it can have long-lasting
negative impact on the life of children.
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