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CON LAW II OUTLINE
I. ART IV, § 2: PRIVILEGES & IMMUNITIES CLAUSE
1) Citizens of each state can claim the privileges [fundamental rights] of citizens of the several states.
a) The states bestow these privileges, not nat’l gov. USSC defines them (fundy and/or non-fundy).
b) Ultimately, state v. fed’l government argument
i) If defined by fed’l gov, we carry those privileges with us wherever we go.
2) Corfield: PA residents did NOT have privilege to rake oysters in NJ. (source of privilege: NJ law)
a) Held: Fundamental right to work; no fundamental right to rake oysters
i) Oysters are a unique NJ property
b) Historically important dictum: Justice WASHINGTON: life, liberty, property, pursuit of happiness, have
commensurate taxes, vote
c) Held: P shouldn’t have been suing for trespass. (Justice’s backup position)
3) Baldwin: no privilege for non-residents to hunt elk for same cost as Montana residents (source: MT law).
a) Elk hunting by nonresidents in Montana is a recreation and a sport
b) Dissent (BRENNAN): alternative interpretation of Art. IV § 2.
i) Privilege ≠ fundamental rights. Should be ANY right.
ii) Thinks purpose of Art. IV, § 2 is to discourage discrimination (here, based on non-residency).
(1) Must have justification.
4) Piper: the right to work (practice law) is a fundamental right.
a) Rat: More important than shrimping; lawyers aren’t like oysters (not state property)
i) Non-commercial role; officer of the court; enforce laws
ii) See Doe v. Bolton, pg 17 ls.
(1) GA abortion statute limited abortions to only GA residents
(2) Held: obtaining an abortion (or medical care) is a fundamental right under Art. 4 § 2.
(a) GA residents have access to medical care; so should non-residents
(3) Companion case to Roe v. Wade (but there = right to privacy)
b) Piper important because it reinforces and broadens Doe v. Bolton:
i) You can provide non-residents w/ medical services.
ii) P&I clause applies to commercial and non-commercial rights.
c) State does not have justification for infringing non-absolute right
i) For justification:
(1) Substantial reason for infringement (here: proximity to NH) = OKAY
(2) Substantial relationship between the means and the end
(a) Narrowly tailored (“least restrictive means”) = NO. Many other ways around this problem.
ii) Strict Scrutiny (REHNQUIST’s issue/problem w/ the case)
II. POST-CIVIL WAR AMENDMENTS: “FUNDAMENTAL” RIGHTS & THE INCORP. DISPUTE
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13A: banning slavery (for everyone)
o Civil Rights Act of 1866 (to counteract Black Codes): lots of rights (see p 25 ls), but only for
equality on basis of race
o President argued that this was not appropriate legislation, then…
14A: no state shall make law that abridges privileges… we all enjoy (P&I Clause; DP Clause; EP Clause)
o Purpose: to make CR Act of 1866 enforceable
o Aimed at Black Codes: to give basis to USSC to reverse the Black Codes
o No absolute rights in 14A (DP and PI clauses)
5) Slaughter-House Cases: LA law creating corp. to centralize all slaughterhouses in New Orleans = CONST
a) Court is asked to give construction to the 13th and 14th Amendments (PI Clause)
b) But Ps are here re: monopoly and right to work!
i) Right to work: Art. IV, § 2 (see NH lawyer case) – in original CONST
ii) Privileges can be fundamental or non-fundamental
(1) Here, MILLER seems to think they are fundamental. Consistent w/ Art. IV § 2.
(2) But protections intended only to adhere to white people, not blacks
c) Holding:
i) 14A protects only "privileges or immunities" conferred by U.S. but not by state citizenship
d) Dissent (FIELDS): finds right to work. Privileges are fundamental common rights. p. 345.
i) Must be justification for the discrimination (p. 345 bottom)
(1) Here, public health and safety.
e) Dissent (BRADLEY): privilege of U.S. is a fundamental right.
6) Bradwell v. State: Illinois law re: no women lawyers = CONST
a) Holding: As w/ Slaughterhouse, no fundamental right to work as a lawyer in Illinois
b) BRADLEY: there is a fundamental right to work in Art. IV § 2
i) But, here, state has justification to abridge this privilege
(1) Men are better suited for law than women. Women should be wives and mothers.
7) Saenz v. Roe: CA law requiring year of residency before getting full welfare benefits UNCONST
a) P says violates right to travel in P&I clause (citing Slaughterhouse Cases)
b) Holding: STEVENS: There is fundamental right to travel.
c) Dissent: THOMAS: distinction between (negative) liberties and positive legal rights.
i) Negative liberty: gives you freedom; you can tell State to butt out of your rights. Natural law.
(1) Steven’s majority framed it as negative liberty – right to travel.
ii) Positive legal rights: statutory in nature; give us real, tangible benefits. Gift to you from state. You
consent to be governed by the state, and it gives you something back. Ex: right to welfare benefits.
(1) Here, P asking for something you can’t get from the CONST.
iii) Thomas doesn’t like the substantive DP stuff, giving liberty (privacy) to have abortion.
(1) Would resuscitate “privilege” as a negative liberty.
The “Incorporation” of the Bill of Rights through the Due Process Clause
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14A: No state shall abridge the privileges of any U.S. citizen. [without justification]
Privileges can be fundamental or non-fundamental
o Where do you find fundamental rights?
 Bill of Rights. Selective.
 Also, unenumerated fundamental rights. (Corfield right to work (Art IV, § 2))
8) Twining: no fundamental right for privilege against self incrimination (not valid law today)
a) Issue: Whether 14A DP clause applies to the state, through the “liberty” portion
b) Held: Privilege against SI (5A) is non-fundamental liberty. You do not incorporate n-f liberties.
9) Palko v. Connecticut: no fundamental right against double jeopardy
a) Issue: whether we can incorporate 5A via the 14A?
b) Holding (CARDOZO): this right is important, but not fundamental.
i) Selective incorporation.
ii) For incorporation, must be a fundamental liberty (e.g., free speech, freedom of religion)
c) BLACK wants total incorporation. Because too much subjectivity otherwise.
d) Now: full criminal procedural rights, except: no right to grand jury indictment (in state crim trial), & 8A
10) Duncan v. Louisiana: fundamental right to jury trial in criminal cases (WHITE)
a) Issue: Whether to incorporate criminal right to jury trial via 14a. YES.
b) Note 1, p 360 (know rights: speech, religion, property. Not incorporated 2a, 3a, 7a (civil right)
c) CARDOZO (selective incorporation – winner!) v. BLACK (total incorporation)
d) 14A clause recognizes fundy right. Can include selective application of BoR: 6a right to jury trial
e) Now: 2A will be before USSC soon. 7a not addressed because state CONSTs already include.
f) Today: selective incorporation: all criminal process guarantees of BoRs applicable to states, except 5A
(grand jury indictment) and 8A (excessive bail)
III. SUBSTANTIVE DUE PROCESS – focuses on the “Liberty” in the Due Process Clause
 14A: No state shall deprive any person of life, liberty, or property w/o due process [w/o justification]
 Liberty = fundamental or non-fundamental rights
o These fundamental rights can be found in:
 Selective incorporation of Bill of Rights. Such as jury trial (Duncan).
 Unenumerated (ex: right to work as a lawyer [no longer], right to marry)
 Now, if you want right to work as a lawyer, you can allude to prior case law, such as Piper. (Lochner)
o Fundamental liberty interest in the right to work. Lochner, Piper.
 Lochner: 14A DP clause protects freedom to contract.
 Substantive due process! Using the DP clause as substitute for PI clause
 Today, Lochner era is over. No fundamental right to work as a lawyer.
 Lochner leftovers: Meyer (right to teach German), Pierce (right to direct kids’
education)
 Slaughterhouse cases: no fundamental rights in P&I clause.
Substantive Due Process: Liberty = Privacy
11) Griswold v. Connecticut: law prohibited use of (and assisting in) contraception.
a) About promoting procreation, and is pro-life.
b) P arg: married couple has liberty interest – PRIVACY
i) Cites Meyer: liberty = right to marry (right to choose who you’ll marry, where you’ll marry, etc.)
c) DOUGLAS: Unenumerated liberty interest (i.e., not in Bill of Rights) in privacy
i) Doesn’t want to go back to Lochner.
d) HARLAN: concur. Selective inc. of 14A (selected portions of BoR + unenumerated rights!)
i) Case by case basis.
e) BLACK: dissent. No unenumerated rights. Only willing to incorporate Bill of Rights
f) STEWART: dissent. To get rid of this law, need to address via your state CONST.
12) Loving v. Virginia: VA’s ban on black/white marriage UNCONST (DP substantive, EP)
a) Prohibited only interracial marriages involving white persons = white supremacy law
13) Zablocki v. Redhail: Law re: can’t get marriage license until proven you’re not a deadbeat dad UNCONST
a) P theory: DP. Interferes w/ unenumerated liberty interest (right to marry)
b) Held: UNCONST under strict scrutiny (not narrowly tailored, not best way to ensure dad pays)
c) Concurrence (POWELL): intermediate scrutiny
d) Dissent (REHNQUIST): dissent. Should be low-level scrutiny.
14) Turner v. Safley: prison regulation restricting prison inmates’ right to marry UNCONST
a) O’CONNOR: decision to marry is a fundamental right
b) Intermediate scrutiny. See wording re: “reasonable relationship” p. 452.
i) Looking for important gov’t interest (IGO): rehab and security concerns.
(1) Law related to IGO? No.
(2) Problem in relation from means to end. Like Zablocki.
c) POWELL and REHNQUIST concurred.
15) Bowers v. Hardwick
16) Lawrence v. Texas: Sodomy law criminalizing homosexual sex = UNCONST
a) KENNEDY: liberty interest in private sexual activity (gay sex)
i) “…liberty of the person both in its spatial and more transcendent dimensions”
b)
c)
d)
e)
f)
g)
ii) Vs. Bowers (GA) forbade any sodomy, even heterosexual. Moral justification: wrong to have sex
without procreation. Back to Griswold!
Struck down! Not an EP decision; it’s a LIBERTY (sDP) decision!
What level of scrutiny?
i) If fundamental interest, strict or intermediate scrutiny. If not, low.
ii) Strict scrutiny? (just like HARLAN in Griswold)
(1) CSI in Bowers? Not enough that it wants to promote public morality
iii) If low scrutiny, would need LGO + rationally related means
BUT, KENNEDY never says there’s a fundamental liberty interest in private sexual activity.
i) So, he’s applying low-level scrutiny. But how, if it’s a fundamental liberty interest?
ii) Prof: KENNEDY should have said what STEVENS said in Bowers dissent.
Bowers overruled.
O’CONNOR concurrence:
i) Agrees law is UNCONST, but for violating 14A EP Clause, NOT for 14A DP Clause
ii) “More searching review” = LL scrutiny with bite  intermediate scrutiny
iii) Bare desire to harm politically unpopular group can never be LGO.
(1) Moral disapproval is insufficient to satisfy rational basis review.
iv) Still approves of Bowers (law forbidding any sodomy CONST)
v) OK w/ law prohibiting same-sex marriage, w/ LL scrutiny. LGO = maintaining traditional marriage.
Dissent: SCALIA.
i) Apply LL scrutiny. Promotion of morality is good enough.
(1) He’ll have to think of another reason, since Bowers overruled and morality isn’t enough
ii) No liberty in 14a (sDP). If this opinion reads like low-level scrutiny, then all kinds of stuff would
be allowed. You didn’t use the right analysis. GOTCHA!
iii) If TX ss-sodomy is in violation of EP, then many other statutes will be stricken. Need state CONST
amendments. There will be spate of marriage lawsuits. Prophetic!
IV. EQUAL PROTECTION: Race Discrimination
No state shall deny EP [without justification] – 14A
17) Strauder v. West Virginia – very important case! All white jury = UNCONST
a) STRONG: Didn’t say what level of scrutiny, but did analyze CSI. No CSI!
i) “Badge of inferiority”
ii) Okay to discriminate re: age, males, etc., on juror requirements, just not on racial basis
b) Dictum: EP applies to non-blacks, too.
c) Note 2, p 488
i) Social functions harder to enforce equal treatment for blacks than civic functions
V. THE RECONSTRUCTION AMENDMENTS:
State Action & Congressional Power to Enforce Civil Rights
1. Civil Rights Statutes of the Reconstruction Era
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1875 Civil Rights Act: contained “public accommodation” provisions and mostly held UNCONST as
exceeding C’s power in the Civil Rights Cases (see below)
1871 Act (AKA Ku Klux Klan Act) established civil liabilities w/ parallel criminal liabilities
2. The Requirement of State Action
18) Civil Rights Cases (1883): C didn’t have CONST authority to outlaw racial discrimination by private
individuals and organizations.
a) BRADLEY: can’t give anyone special rights under our CONST because we are all equal. If you
have a problem w/ discrimination, go to Congress to get legislation to remedy it.
i) 1875 Civil Rights Act = UNCONST
ii) No violation of 14a because Ds not state actors
iii) No violation of 13a – “nothing to do with slavery.”
iv) Plants the seed for Commerce Clause regulation (interstate commerce clause)
b) Dissent (HARLAN)
i) 13A protected against slavery AND its “badges and incidents”
ii) Civil Rights 1875: CONST
iii) Can enforce under 14A: all races be treated equally in the U.S.
(1) 14A: C not restricted to the enforcement of prohibitions upon State laws or State action. 14A
targets not only states, but people who run places of public accommodation. Broad view.
iv) Legal v. social rights, p. 680. C protects LEGAL rights such as these.
19) Shelley v. Kraemer – State’s participation in enforcing restrictive covenants = state action
a) VINSON (appointed by Truman): Judicial action = state action = denial of E/P.
b) Equal application doesn’t matter (first time USSC says that)
c) Stronger 14A enforcement
d) Saying there’s a RIGHT TO PROPERTY (14a; defined as privilege here), as well as EP (14a)
20) Evans v. Abney
a) First Evans case: it’s state action to establish a park for whites only.
b) Second Evans case: park reverting back to owner (via will) = NO state action.
c) BLACK: Just acknowledging the failure of a trust (HM: loss of park shared equally by whites/blacks?)
21) PA v. Board of Directors of Trusts: city enforcing school trust solely for “poor white male orphans” = SA
a) City very involved. The school board was an agency of the state.
b) Shows affirmative action vs. sitting back
22) Burton v. Wilmington Parking Authority: discriminatory coffee shop in public parking lot = state action
a) CLARK: city parking lot + coffee shop so interdependent that city = joint participant in discrimination
i) This is at the very edge of finding state action.
b) STEWART concur: State law had been construed by ct. to permit race discrimination in places of PA
c) Then Congress passed Civil Rights Act of 1964 (applies to private & public – CC)
State involvement through licensing
23) Moose Lodge: REHNQUIST: private club’s racial discrimination NOT state action
a) DOUGLAS dissent: democrat
b) BRENNAN dissent: pervasive regulatory scheme = state action
State “encouragement” of private discrimination
24) Reitman v. Mulkey: CA Prop 14 repealed anti-discriminatory housing laws = state action (WHITE)
a) HARLAN dissent: a repeal of a statute is inaction; nonfeasance!
25) Jackson v. Met Ed Co. – Monopoly ≠ state action
a) P claims denial of procedural state action of 13a.
b) Tests used in the past: interaction between state and private entity (intertwining of state/private action)
c) REHNQUIST: has the agency become sufficiently involved w/ Met Ed to say Met Ed is state actor?
i) No. Key: PUC didn’t say anything about method of termination.
d) Dissent (MARSHALL):
i) We must apply Burton (intertwining) test, and there is sufficient intertwining here to = SA
ii) Wants Burton doctrine to apply to race-based classifications
iii) Private parties can still be held liable if they’re so involved w/ public entity
Note 4, p. 695: Decisions Finding State Action to be Present
26) Lugar v. Edmonson: Creditor attaching debtor’s property pursuant to state law = SA
27) Edmonson v. Leesville: private party’s use of peremptory challenges in civil proceeding to exclude jurors
on basis of race = SA (5-3)
a) KENNEDY: when gov’t actor helps private litigation in court order, etc., state action (Shelley)
b) Dissent: O’CONNOR, Rehnquist, Scalia
i) O’C: necessary to show that the gov’t was involved in the specific decision challenged
ii) SCALIA: Distorting the doctrine of state action where race at issue!
28) Brentwood Academy: interscholastic athletics association of public/private schools = state actor
a) Here, an association is a D. 83% are public. So predominantly public that there is state action
b) The public and private schools are intertwined; therefore, the association is a state actor
Note 3: The Insufficiency of State Inaction
29) DeShaney v. Winnebago County Social Svcs. Dept. – KNOW THIS
a) Holding: child welfare dept’s failure to protect child from known child abuse does not violate DP
b) Claim: substantive due process. Deprived of his liberty w/o Due Process
i) Negative liberties (that’s the problem here; “liberty” doesn’t give him what he wants)
ii) Positive liberties
c) REHNQUIST:
i) Point is moot; there’s not ACTION here, just INACTION (non-feasors) (see Jackson)
ii) Applies tort law (1/2)
(1) If you have someone in custody, you must protect
(2) But if you have special relationship w/ the plaintiff, you’re not under obligation
iii) Two ways to see REHNQUIST argument
(1) Kid trying to get a positive liberty – strict constitutionalist argument
(2) Pragmatic floodgate argument
d) Dissent by BRENNAN, MARSHALL and BLACKMUN
i) Inaction is as abusive of power as inaction
ii) BLACKMUN: too formalistic argument between action and inaction
e) Legislation is another avenue for relief
f) Shrinking of Burton (intertwining test) in this case
Back to E/P and Racial Discrimination
School discrimination
30) Missouri v. Canada: law discriminating against blacks attending state law school UNCONST even where
state will pay for tuition for an out of state law school (p. 490)
a) HUGHES: state obligated to furnish P w/ education substantially equal to those offered to whites
b) No separate school for him to go to in MO, therefore, P must be admitted to existing law school
c) Dissent: McREYNOLDS – P didn’t really want to go to law school
31) Sweatts v. Painter: required blacks’ admission to TX law school although state had law school for blacks
a) VINSON: Unequal school; in terms of tangible and intangible (alumni, reputation, etc.) qualities
32) Plessy v. Ferguson: segregated RR cars okay if “separate but equal”
a) Majority (BROWN): no different than segregated schools. Everything is segregated.
i) 13A inapplicable
ii) Equal Application Doctrine: if law applies equally to whites / non-whites, no denial of EP.
b) Dissent (HARLAN):
i) Purpose was to exclude blacks from white coaches, not vice versa
(1) Statute interferes w/ personal freedom of citizens.
(2) No superior, dominant, ruling class of citizens. No castes. Our CONST is color blind!
(3) Race-based classification
c) Prof: denial of EP if you see a case where it is burdening X and benefiting non-X.
33) Kore-Matsu v. U.S.: strict scrutiny used for the first time; denial of EP CAN be justified
a) Fed’l order said curfews could be imposed among Japanese; those living on coast had to move inland.
b) Objective: protect national security.
c) Race-based classification.
d) BLACK: no violation of EP clause; must give state an opportunity to justify its denial of EP.
i) Compelling state interest?
(1) BLACK: national security.
ii) Means necessary to the end? (prof: this is where the judges do their real scrutiny)
(1) BLACK: blanket protection OK here because not time to sort good/bad Japanese out
(2) (If not, go back and challenge the truth of the state interest.)
e) Dissent (shows us how to apply strict scrutiny)
i) MURPHY really does intermediate scrutiny.
(1) Yes, CSI. But are means substantially related to the end? No. We could take the time. Racism.
34) Brown v. Board of Education [Brown I]: separate is NOT equal
a) WARREN court accepted the proposition that schools were equal.
b) Must look to the effect of segregation itself on public education. INTANGIBLE FACTORS.
i) Holding #1: “Sense of inferiority” affects motivation of child to learn. (social science data)
(1) Possible long-term remedies: injunctive relief (preferred), damages
ii) Holding #2: “separate but equal” has no place in public education (p. 492)
(1) WARREN: Public education is a right/benefit that must be available to all, on equal terms.
iii) Holding #3: “separate but equal” is inherently inequal, wherever it is.
(1) WARREN: See bottom p 493 in Bolling: not reasonably related to any proper gov’t objective
(a) Fails to apply strict scrutiny, even if he wants to.
(2) Sounds like HARLAN’s dissent in Plessy.
35) Loving v. Virginia: VA law banning interracial marriage UNCONST
a) Really more concerned about white purity. Other races can intermarry.
b) Burdened whites and non-whites
c) VA: statute of “equal application” – burdens both parties. So must apply some kind of scrutiny.
d) WARREN: equal application does not shift the scrutiny to rational basis.
i) Racial classifications = strict scrutiny
ii) Promotion of racial integrity NOT CSI.
(1) Even if CSI, means not tailored to end. Preserves racial integrity of white race, not all races.
Affirmative Action
No state shall deny (intentionally) (negligently?) EP (without justification)
Racially discriminatory Purpose and Effect
Racially discriminatory application of facially neutral laws
36) Yick Wo: Law re: board of supervisors approving laundry operations in wooden buildings UNCONST
a) Facially neutral law can impose purposeful discrimination because of the manner of its application
i) Intentionality (in clause above) can be proven in two ways
(1) Direct evidence
(2) Circumstantial evidence (here)
(a) Important because now enforce against executive branch
Racially discriminatory purpose underlying facially neutral laws
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USSC declined to find race discrimination in facially neutral laws w/ a racially disproportionate effect.
But racially discriminatory purpose may be inferred in extreme cases:
37) Gomillion v. Lightfoot: gerrymandering to keep blacks from voting on city matters UNCONST
a) FRANKFURTER: Statistical data applies here, too.
38) Griffin v. County School Board: closing of public schools as result of desegregation UNCONST
a) Gave whites vouchers for private schools
b) BLACK: statute’s purpose was to segregate schools
i) Grounds of race and opposition to desegregation = UNCONST reasons
Facially neutral laws with racially discriminatory effect
39) Washington v. Davis: police qualifying test w/ racial discriminatory effect = CONST
a) WHITE: Must prove intent to show violation of US CONST.
i) Employer not intentionally discriminating on the basis of race; same test for all U.S.
ii) Employer acting negligently? Yes. But doesn’t apply to CONST.
Discriminatory Purpose
40) Hunter v. Underwood – blocked people from voting whom had bounced checks
a) REHNQUIST: blacks disenfranchised 10x as many times as whites
i) Statistical imbalance proves intent
ii) In Alabama CONST Convention of 1901: “zeal for white supremacy ran rampant.”
(1) Race was a motivating factor
Affirmative Action & Race Preferences
41) Regents of Univ. of CA v. Bakke: racial preferences in med school admissions program UNCONST
a) CA Supreme Court: violation of EP clause. 14a doesn’t allow the use of any race-based classification
b) POWELL: Admit the student. But don’t enjoin UC from considering race.
i) Use race as just one factor. Diversity in economic, racial and ethnic groups.
ii) Racial classifications are inherently suspect (takes from Brown, p. 493) given our history (civil war)
(1) Backs off from Brown “badge of inferiority” rationale
iii) Carolene Products footnote four (p 378)
(1) STONE: judicial intervention is more appropriate the less political processes may be trusted to
even out winners and losers over time (where a discrete and insular minority) – but there, blacks
iv) Malign v. benign classifications rationale no good either. No difference.
v) Whether the classification is good or bad, if race based, it gets strict scrutiny
(1) UC’s program purposes
(a) Reducing the historic deficit of traditionally disfavored minorities in medical schools and the
medical profession (CSI, but no proof of that at Davis)
(b) Countering the effects of societal discrimination (no CSI; it could go on forever!)
(c) Increasing number of doctors who will practice in underserved communities (no CSI)
(d) Obtaining the educational benefits of an ethnically diverse student body
(i) Compelling state interest!
1. 1A diversity – freedom of association, speech. Make UCD a better place.
(ii) Plus, can prove.
(iii)Means necessary to the ends? NO.
vi) If race is just one factor, then there is NO race-based classification. It’s a neutral classification.
vii) Two ways to get diversity
(1) Quota, etc.
(2) Harvard, where race one factor, no race-based classification. Low-level scrutiny at most.
viii) Dissent
(1) BRENNAN, WHITE, MARSHALL & BLACKMUN
(a) Malign classifications should be subject to strict scrutiny
(b) Benign should be intermediate-level scrutiny (same as UCD argument) – first time
that’s mentioned in USSC!
(i) Important gov’t objective: remedy societal race-based discrimination
(ii) Means related to the end.
1. 16 seats for race/ethnic classifications
Review:
No state shall deny EP [without justification]
Justification: three levels of scrutiny
Low = legit gov’t objective. Rationally related to end. P burden of proof.
Intermediate = important gov’t objective. Substantially related to end.
Strict = compelling state interest. Must be narrowly tailored.
42) Fullilove: C spending program with minority “set aside” program CONST w/ inter. scrutiny
a) Challenge to C statute. 5a (states violate 14a; C violates 5a)
b) BURGER
i) Preventing/remedying societal discrimination.
(1) CSI for past author-specific discrimination
ii) Says important gov’t objective, and is substantially related (standard for C statute; state is different)
(1) Becomes: No state [or Federal Government] shall deny EP [without justification]
c) POWELL concurrence: quota = SS.
i) CSI: eradicating the continuing effects of past discrimination identified by Congress
43) Wygant v. Jackson Board of Education: minority preference in teacher layoffs = UNCONST
a) POWELL: No CSI to remedy societal discrimination when the 14a (states) at issue
44) Richmond v. J.A. Croson Co.: City of Richmond “set aside” program UNCONST
a) O’CONNOR (new to the court)
i) Even race preferences require strict scrutiny
(1) Race = strict scrutiny (no matter malign v. benign) in 14A
ii) Applies POWELL’s analysis to determine whether CSI
(1) No proof here that Richmond discriminated against Orientals, Aleuts, etc.
iii) Alternative holding: Quotas aren’t narrowly tailored. Goals can be.
(1) Need stats/proof to show past discrimination by the city. To satisfy strict scrutiny.
(2) Top p. 528: Gov’t Ds should first go to race-neutral devices (not race goals)
(a) simplification of bidding procedures
(b) relaxation of bonding requirements
(c) training/financial aid for disadvantaged entrepreneurs.
*These are also gender neutral devices!
45) Adarand Constructors v. Pena: C set aside for socially/econ disadvantaged individuals (5A claim)
a) Majority
i) O’CONNOR
(1) Presumption that certain races are disadvantaged.
(2) Race-based classification = strict scrutiny
(a) CSI?
(i) Remedying societal discrimination is NOT a CSI (Power to the Woman, POWELL!)
(ii) But, remedying past discrimination by D is a CSI
(3) P. 530: racial classifications require:
(a) Skepticism (strict scrutiny)
(b) Consistency
(c) Congruence (same analysis whether 5a/14a)
(4) Says Metro (BRENNAN’s intermediate scrutiny) doesn’t bind her
ii) SCALIA (concurrence)
(1) Remedying past discrimination is a valid goal only if the person to whom the remedy is given is
really a victim of the discrimination (reparations)
iii) THOMAS (concurrence)
(1) Affirmative action = badge of inferiority (p. 532)
(2) CONST should be color blind
b) Dissent
i) STEVENS and GINSBERG: there IS diff between malign/benign discrimination; use inter. scrutiny
ii) GINSBERG and BREYER: O’C’s SS is not fatal in fact. She’ll uphold some type of AA.
Race Preferences in Electoral Districting Cases
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P. 567. KENNEDY
o Sometimes you have to take race into account
o Presume GF of legislature where race is just one factor, in some cases (read: low-level scrutiny)
Focus on O’Connor and Kennedy
Kennedy replaced Powell in 1988. (Important!)
When race is just ONE factor = LL scrutiny (LGO, means rationally related to the end)
Where race is dominant factor (or BASIS for redistricting)= SS
In voting, even if ONE factor, SS.
46) Shaw v. Reno (O’C w/ Rehnquist, Kennedy, Scalia and Thomas): Gerrymandering here = UNCONST
a) Issue: whether a squiggly redistricting was UNCONST
b) Race-based classification can be proven by direct or circumstantial (Yick Wo) evidence
i) Here, circumstantial. The line by itself doesn’t show race-based classification. But the fact that it
picks up a huge majority of blacks, and follows where they live, shows that it is.
c) Since race based, then:
i) Strict scrutiny
(1) Compelling state interest?
(a) State: remedying past discrimination. O’CONNOR agrees here.
(i) Prof: she should have said districts need to be cleanly designed
(2) Means tailored to end?
(a) O’CONNOR: Voting Rights Act doesn’t require gerrymandering race-based districts.
(i) VRA as applied in shape of this district is UNCONST.
d) P. 564: Race classifications for voting carries particular dangers
e) REHNQUIST: a swing justice on whether you can use race as factor here.
47) Miller v. Johnson
a) MILLER: If race is BASIS for redistricting, then apply SS and will probably strike it down. P. 566
48) Hunt v. Cromartie, 1999, p 570 – redistricting CONST where LGO = keeping diverse parties
a) Split 5-4 again.
b) BREYER, O’Connor for majority.
i) Race is one factor here, so low-level scrutiny.
ii) LGO re: when VRA was being enforced in the south, whites were switching to the Republican party.
c) THOMAS dissenting, with Kennedy – same as O’C’s Shaw analysis (UNCONST)
i) This is racial gerrymandering. Drawn exclusively by reference to race. Politics had nothing to do
with it. Therefore, race is the only factor and SS must apply. Means not narrowly tailored to end.
Race-based Classifications in Education
49) Grutter v. Bollinger – Tailored admissions program using race as one factor = CONST
a) Arguments
i) Defendant school at appeal:
(1) Race is just one factor. Therefore, LL scrutiny should be applied
(2) It satisfies LL scrutiny.
ii) Plaintiff (white; claims reverse discrimination by D (University of Michigan Law School)) (EP)
(1) Race is predominant factor and SS should apply
(a) Bakke: race-based classification can only be ONE of factors in achieving 1A diversity
iii) Defendant school:
(1) CSI = 1A diversity. Means tailored because they have Harvard plan, referred to in Bakke.
(a) BUT Harvard uses race as just ONE factor of many. Harvard = LL scrutiny.
b) O’CONNOR: race is THE factor here. (Surprising since she found politics as dominant factor above).
i) Strict scrutiny must apply
(1) CSI = diversity in the classroom (not 1a diversity)
(2) Narrowly tailored
(a) Achieving “critical mass” via “an individualized” reading of the files is okay (but she started
with assumption that race was the ONLY factor!)
ii) O’C wants to hold AA in place long enough for next generation to get a decent education (25 years)
(1) Military officers and businesses wrote amicus briefs, helping strengthen her spine.
(2) Prof: she should have said it was just one factor, LL scrutiny, means related to end because just
one factor. Given the precedents!
(a) Why didn’t she? She doesn’t want affirmative action to end in other arenas. Proving:
strict scrutiny not fatal in fact. Doesn’t matter whether only factor, or one factor.
(i) Softening strict scrutiny where education/kids involved.
c) THOMAS, SCALIA, REHNQUIST dissent
i) Agree w/ O’C in that race is THE factor. SS applies.
ii) CSI? No.
(1) Scalia, Rehnquist: okay only where there is a victim in a lawsuit. Compensation/reparations.
(2) THOMAS: race-based classifications never CSI. Similar as AA cases: “badge of inferiority”
50) Gratz v. Bollinger: Not tailored program, individualized review of student apps = UNCONST
a) REHNQUIST (6-3)
i) Race is a factor = SS
(1) CSI: diversity in classroom.
(2) Means tailored to the end? NO. Same as UCD set-aside; race = predominant factor
(a) Circumstantial E about the way undergrad admission works
 “No state shall deny EP [without justification]”
o EP aligns to three different types of classifications
 Suspect: race, ethnicity
 Quasi-suspect classifications: sex
 Non-suspect classifications: sexual orientation
o Justification
 Strict scrutiny (suspect)
 Intermediate scrutiny (quasi-suspect)
 LGO
 Means substantially related to ends
 LL scrutiny (non suspect)
o Two ways of looking at strict scrutiny
 Fatal in fact (example: any time you have race-based classification = UNCONST).
ROBERTS.
 Not fatal in fact (O’CONNOR; Grutter). KENNEDY.
o Prof: could have six levels of scrutiny! Hasn’t happened yet, except LL scrutiny.
 “With bite” (can be same as intermediate scrutiny) KENNEDY
 “Without bite”
o Regardless of which level of scrutiny, analysis is the same
 Compelling state interest?
 Means narrowly-tailored or necessary to the end?
Difference in analysis between race-based classifications in higher education, and race-based classifications in
K-12. Why? Politics? Fatal in fact v. not fatal in fact. ???
51) Seattle School District – race-based student transfers to other districts for integration = UNCONST
a) Seattle uses race-classification to transfers students from majority minority districts to majority white
districts to promote integration
i) Problem: no history of segregation in WA/Seattle; nor state-ordered de-segregation.
(1) Contrast Jefferson, where history of segregation/desegregation
(2) Prof’s counterarg: Jefferson remedied. Enough time had lapsed, Ct no longer looking at effects
of past racial segregation. Then okay to implement same plan!
b) Court splits: 4-1-4. Like Bakke (POWELL was the one). Here, KENNEDY (he replaced POWELL on
the Court!). Grutter was a firm 5-4 under O’CONNOR.
i) After Grutter, we know that Bakke is rock solid, 5-4. For professional schools.
c) ROBERTS: wants to show color-blind view of CONST
i) Race is only criteria here (v. Grutter) = suspect classification = SS  FATAL IN FACT
(1) Compelling State Interest?
(a) State has two arguments
(i) Using the transfers to promote classroom diversity (1A)
1. Roberts: this has nothing to do w/ 1A, and Seattle never discriminated before
(ii) Promote racial integration / diversity (vs. housing preferences = blacks/whites)
1. ROBERTS doesn’t answer
(b) Means aren’t tailored to the end. Quotas here, not goals. (Bakke revisited)
d) Concurring:
i) THOMAS: same as before. Want color-blind CONST, and proponent of all-black schools.
ii) KENNEDY (in dissent in Grutter) + REHNQUIST (concurred in part, and in the judgment)
(1) New CSI OK
(2) Means not narrowly tailored to end. Quotas here.
(3) KENNEDY dissenting from ROBERTS’ rationale
(a) Sees race as the only factor here (like ROBERTS)
(b) CSI = avoiding racial isolation, and achieving a diverse student body.
(c) Race as one of many factors OK in K-12 (vs. his dissent in Bakke!)
(i) Race as one factor in achieving diversity = non-suspect classification = LL scrutiny
1. LGO = promoting “racial diversity”
2. Means rat. related to end? Could do zoning, redistricting, special programs, etc.
a. Since Kennedy joins the other four, K-12s can do all this, if there are boundaries.
(d) Setting up the court to uphold voluntary integration. ROBERTS not likely to prevail unless
KENNEDY or one of the dissenting judges agree (they follow O’CONNOR in Grutter).
iii) BREYER: wanted to write this opinion b/c he wanted to become new O’C. Prof: KENNEDY is!
Gender Discrimination (quasi suspect)
 Suspect classification?
o Must show (Carolene Products Footnote Four)
 History of discrimination
 Immutable
 “Trait” has nothing to do with ability
 “Political powerlessness”
o But women are a political majority!
52) Reed v. Reed: state law giving automatic preference for men administrators of estates UNCONST
a) Declined to find sex a suspect classification; applied “rationality” standard
b) Reducing workload via mandatory preference for one sex = arbitrary legislative choice violating EP
53) Frontiero v. Richardson: fed’l saw giving servicemen’s wives automatic dependency allowance, but
requiring servicewomen to prove their husbands were dependent UNCONST (E/P)
a) BRENNAN: wants gender to be suspect classification, subject to SS – can’t get majority
i) Immutable characteristic, no bearing on ability
ii) Administrative convenience is NOT CSI
b) POWELL, Burger, Blackmun concurrence: not a suspect classification.
54) Craig v. Boren (1976) – men can’t buy near-beer as young as women can = UNCONST
a) BRENNAN: gave up on strict scrutiny. 7-2 (everyone vs. REHNQUIST, BURGER)
i) Pretended he was applying Reed (but low level scrutiny; note 3 pg. 574)
ii) Really creating intermediate scrutiny – quasi suspect classification
(1) Until now, sex-based classifications subject to low-level scrutiny
(2) History: Civil Rights Act of 1964. Senator tried to derail it. Added “sex” as prohibited
discrimination. Title VII still passed! C ahead of USSC here!
(a) Therefore, sex-based classification = quasi suspect
(3) IGO = traffic safety
(4) Means substantially related to end? NO.
(a) Stats not related to goal of traffic safety; statute doesn’t prohibit drinking at any age; girl will
buy the booze (age differential in dating)
b) POWELL: concurs
i) Low-level scrutiny w/ a bite (first time we’ve seen this)
c) STEVENS: concurs. IMPORTANT
i) Doesn’t like three-tiered EP clause analysis (low, intermediate, strict)
(1) Doesn’t know what to do w/ intermediate. Classification is becoming outcome determinative.
Wants to evaluate classifications one by one.
ii) Perverse outcome due to weight differences between men and women
d) REHNQUIST: dissents. Low-level scrutiny because males not insular minority
i) LGO and means rationally related? Yes.
55) U.S. v. Virginia – No women at VMI = UNCONST
a) Adversative method
b) Three options lower court gave: admit women, establish parallel institutions, abandon state support
c) Back to trial court. VMI opted for parallel institutions. VWIL.
d) Issue: whether parallel institutions violate the EP clause
i) Sounds like Plessy and Sweatt v. Painter
ii) Separate is NOT equal!
e) GINSBERG: p. 587:
i) VWIL not nearly equal to VMI (p. 587)
ii) Level of scrutiny: “exceedingly persuasive justification” + IGO (leaning toward SS)
(1) See Hogan (O’CONNOR)
iii) Sex is not a suspect class.
(1) Sex is always going to matter, unlike race.
iv) Sex is quasi-suspect classification (intermediate scrutiny)
(1) Court will decide on case-by-case basis
v) Prof: GINSBERG may uphold single sex school in the future, as long as it’s really equal.
56) Geduldig v. Aiello – CA exclusion of “disability that accompanies normal pregnancy / childbirth” CONST
a) Benefits/Burdens analysis
b) Holding: Pregnancy-based classification = NOT suspect
c) LL scrutiny
d) Prof: TODAY’s analysis would be different
i) Pregnant person = women, and a woman is burdened.
ii) Men and non-pregnant women benefit.
iii) When only some women are burdened = suspect classification
e) This case has effectively been overturned by Congress. See footnote 1 p. 591.
i) Title 7, + Pregnancy Non-Discrimination Act (PNDA). Can’t discriminate on pregnancy or race.
Pregnancy discrimination = sex discrimination.
57) Caban: all married men and women, and unwed women could demand right to veto adoption by someone
else. Unwed men not given right to veto adoption of his child. UNCONST.
a) Flip of Geduldig.
b) POWELL: gender-based classification (vs. Geduldig above).
i) Intermediate scrutiny
(1) IGO? No. Men just as capable of being parents as women.
(2) No substantial relationship to the interest in promoting the adoption of illegitimate children
ii) Benefits: married people + unwed moms
iii) Burdens: unwed man
c) STEVENS, Burger, Rehnquist dissent: there are real differences between men and women
58) Nguyen – Child can get U.S. citizenship if unwed mom is U.S. citizen, not dad. CONST.
a) Benefits: unwed woman. Burdens: unwed man.
b) KENNEDY: sex-based classification
i) Intermediate scrutiny
(1) IGO = must be able to determine biological relationship btwn child and U.S. citizen parent
(a) C worried about men who go abroad, get foreign woman pregnant (army, etc.)
(2) Means substantially related to end? Yes, b/c mothers give birth and fathers don’t.
c) Dissent: O’CONNOR, Souter, Ginsberg, Breyer
i) IGO – yes.
ii) Means not narrowly tailored. Other ways to test paternity (DNA, etc.)
d) Prof: this case will likely be overruled in the future.
Sex Preferences: Affirmative Action for Women v. Ladies
59) Kahn v. Sheven: state property tax exemption for widows but not widowers CONST (uses Reed)
a) LL scrutiny, upholds affirmative action for women (where it wouldn’t for race-based classifications)
b) Craig said sex-based classifications subject to intermediate level scrutiny (tf, could be overruled)
60) Orr, Califano (post Craig): USSC (BRENNAN) applied intermediate scrutiny to AA plans; struck down
a) Ct. began to question whether ALL women needed compensation
b) Ct. can’t distinguish between malign and benign classifications any longer
c) Intermediate level scrutiny applies to all sex-based classifications
i) Fact-based
ii) Sometimes uphold sex-based affirmative action plans
d) Race-based = strict scrutiny
In federal government, race = strict scrutiny. Gender = intermediate scrutiny.
In CA, strict scrutiny for both race- and gender-based classifications.
Not fatal in fact.
Alienage




EP clause: no person shall be deprived of EP of the law (not citizen)
Scrutiny varies between strict and low; according to prong 3 of Carolene factors)
o 3 out of 4 factors = SS (for menial jobs)
o In cases of police work, etc., resident alien may NOT be able to do the job
 2 out of 4 criteria met = LL scrutiny
Governed more by Congress than CONST (via Art. I)
Illegal aliens can’t be a suspect class.
61) Graham v. Richardson: legal resident aliens denied welfare benefits UNCONST
a) BLACKMUN must meet four Carolene factors (see above)
i) Criteria #1 = yes.
ii) Criteria #2 = NO. CAN become citizen in the future.
iii) Criteria #3 = ??? Sometimes Y (welfare benefits, work), sometimes N (voting, high-level gov’t jobs)
iv) Criteria #4 = YES. Can’t vote.
(1) But where majority of people support rights for resident legal aliens, may not be powerless.
(2) BLACKMUN. Yes, politically powerless.
b) Strict scrutiny applies
62) Sugarman: NY law that says only U.S. citizens can hold (menial) civil service positions UNCONT
a) BLACKMUN: state barrier didn’t cover all high policy-making functions, but many menial ones
i) Strict scrutiny here?
b) “Governmental Function” Exception
i) Lower-level scrutiny for excluding aliens from “public policy functions” that are key to rep. gov’t.
Disability, Age, Poverty
63) Cleburne v. Cleburne Living Center – denial of special use permit to retarded people UNCONST
a) Apply four Carolene criteria
i) History of discrimination? Yes.
ii) Immutable? ??? Depends on nature of the disability. Here, yes.
iii) Able? Here, no, because they have a disability.
iv) Members of politically powerless group? Yes?
b) Low-level scrutiny (with a bite)
c) Held: UNCONST
Sexual Orientation





Key issue: Classification. Suspect class, quasi suspect, non-suspect?
BRENNAN suspect classification (Rowland? dissent). Remember four Carolene factors:
o Brennan also adds “animus.” He says nothing about #2 or #3 above. But he also had #3, just didn’t
have it listed. Never talked about #2, immutability.
Prof: alienage is not immutable, but sometimes subject to strict scrutiny anyway.
o So, have seen 3 of 4 classifications met before, only for resident legal aliens.
Arg for ss: they’re discriminated against at home, might as well have some safe space (public)
o CA does this.
Arg for qs:
o Why is Brennan saying gays are politically powerless? Because so many are still in the closet.
(remember, this is 1985)
64) Romer v. Evans – KENNEDY
a) CO amendment preventing any city, town or county from protecting homosexual citizens from
discrimination on basis of sexual orientation UNCONST (E/P) (6-3)
b) P argument
i) Amendment II violates EP clause – a per se violation
ii) Even if non-suspect class, law is subject to LL scrutiny w/ a bite and should be struck down
c) D argument
i) Amendment had one purpose – to prevent special rights for gays
d) Prof: KENNEDY started grand and then just couldn’t figure out how to classify LGB stuff as subject to
SS. Could have just started w/ what he wrote w/ bottom of 618, top 619
i) He’s planting seeds for the future…pernicious kind of amendment.
e) If writing exam on this
i) Find intentional classification (direct or Yick Wo E).
ii) Level of scrutiny?
(1) Is it animus or not – first part. (OUR GOAL IS TO PROVE ANIMOSITY)
(2) Look at four Carolene factors
(a) if lacking one of the four, possibly ns, qs, or s (see alienage)
(i) For P, if LL scrutiny wouldn’t strike the law, try quasi suspect, and strict scrutiny
(3) Look at state’s objectives to determine level of scrutiny
(a) low w/ bite
(b) low w/ deference
(i) Colorado citizens worried about gays getting their jobs
f) Holding 1: 618: CO amendment is per se violation of EP.
i) P. 615. “You can’t make a group of people a stranger to the laws of the state.”
g) Holding 2: No LGO  UNCONST
i) KENNEDY purports to use deferential low-level scrutiny
(1) BUT: Laws survive w/ deferential LL scrutiny. Free exercise of religion could be legit rationale!
ii) KENNEDY really used LL scrutiny “With bite”
(1) Cites Moreno for animosity (anti-hippie law was animus).
(2) Prof: KENNEDY doesn’t believe the state’s rationale
(a) Landlord wants to discriminate on the basis of religion (statute too broad)
(b) Conservation of resources
(3) Status-based enactment. Divorced from legitimate state interest.
(4) No LGO! Doesn’t pass.
h) O’C joined majority; changed from Bowers
P. 695 Economic regulations


We don’t do strict-scrutiny any more.
Should we use LL scrutiny, to honor Lochner? Yes (see ad on vehicle case)
o See DOUGLAS, p 626, halfway down. Very deferential.
o JACKSON concurs. Need distinction between Due Process and E/P
o DP violation = strike it down
o EP violation = extend the statute
o KENNEDY blended in Lawrence. DP violation, but since also violation of EP, will extend marriage
law.
65) P. 629 Moreno
a) Circ E proves that C acting to harm the hippies; animus = violation of E/P
66) Note 4, 630-32
a) Allegheny Pitts. Coal v. Webster County – exception to means-end deference
i) No animus, but no LGO.
ii) REHNQUIST: the relative undervaluation of comparable property…denies petitioner EP.
b) Nordlinger v. Hahn – upholding prop 13 (acquisition value property taxation) (8-1)
i) BLACKMUN: Unlike Allegheny, there is a rational basis, even if not articulated.
ii) See 1/3 down p. 631. Benefits of an acquisition value system
iii) THOMAS concur: agree, but wants Allegheny overruled.
iv) STEVENS dissent: “the severe inequalities…are arbitrary…unreasonable…do not rationally further
a LGO.”
c) Village of Willowbrook v. Olech
No state shall deny any person EP [by an “intentional” classification][burdening a fundy interest][w/o
justification]
When we talk about fundamental interests = right to happiness, liberty (don’t talk about liberty here
because that’s covered by substantive DP)
Without justification = SS, IS, LS
Low with bite
Low with deference to state actor
Above two classifications apply to ns classifications with
Animosity
Not animosity
For exam, start w/ ll scrutiny and work your way up.
If opposite sex (qs, inter) vs. same sex (sus, non susp; w/ bite or without) dichotomy w/ EP twist, do: Suspect,
or non-suspect. Then whether scrutinized w/ bite or without.
Section 4. The “Fundamental Interests” branch of EP


Peaked in late ‘70s. Saenz v. Roe.
o Important today because USSC pending: ID requirement to vote.
Also, right to marry might be a fundamental interest
67) DUE PROCESS REVIEW
a) No state shall deprive any person of “liberty” [without justification]
i) Under liberty – enumerated (in BoR), or unenumerated (not mentioned in CONST)
ii) Under enumerated, can have fundy (free speech, religion; everyone wants to be here) or non-fundy
iii) Under unenumerated – can have fundamental (want this) or non-fundamental
iv) Under justification – strict or low scrutiny
b) USSC closely divided on this issue
i) Dissent worried about reinterpretation of Lochner. Transform from something….to substantive DP.
c) Key question: whether we should provide CONST scrutiny to statutes that don’t impinge on rights
which don’t make it to the category of fundamental unenumerated rights.
d) Can you do any claim for affirmative action under DP claim under subs. DP clause? Right to
welfare? Right to education? NO. Just has to do w/ liberty.
i) Right to marry, right to choose who you want to marry – OF THE OPPOSITE SEX
68) EQUAL PROTECTION
a) No state shall deny EP [by an intentional classification that burdens a “fundy right”] [w/o justification]
b) Architects: LAWRENCE, MARSHALL, BRENNAN, DOUGLAS
c) Here, classifications are typically non-suspect. If suspect, you would use standard EP clause
d) What is a fundamental right?
i) Original idea was that fundamental would = SS
69) Harper v. Virginia State Board of Elections – Poll tax violates E/P (targeted at poor white guys)
a) State imposed $1.50 poll tax
b) Held: Voting is fundamental right (also, access to courts)
c) DOUGLAS: went to fundamental branch of EP law
d) 14A only acknowledged that black men had right to vote, not black women
e) 15A was then enacted to clarify NO discrimination on account of race
i) Still doesn’t help (black) women!
ii) Still doesn’t help white men (give affirmative right to vote)
f) Poverty not a suspect class. American dream. Poor  $$$ and vice versa. Not targeted for long time.
g) How to convince USSC that voting is a fundamental interest?
i) Voting  political power. EP protects people who are powerless.
ii) Cite 15a and 19a (they acknowledge right is fundy, even though didn’t give right to everyone)
iii) Strict scrutiny
(1) Compelling state interest?
(a) VA saying they want a “well qualified” voter -- really don’t want poor blacks to vote
(2) Assuming that’s CSI, are means narrowly tailored?
(a) No. $1.50 doesn’t make you qualified. Well qualified = self-educated on the issues.
(b) NOT BEST MEANS TO THE END
70) Kramer v. Union Free School District No. 15 (above analysis applies)
a) WARREN/BRENNAN: EP violated where right to vote in school district exists only where own/lease
property w/in district or are parents or have custody of kids enrolled in public school
b) Means not tailored. Better ways to reach result.
c) Close scrutiny = form of SS, but not fatal in fact scrutiny (AKA “soft” scrutiny)
71) Salyer – water storage (notes p. 642)
a) REHNQUIST says use LL scrutiny. See change below:
b) Subs. EP clause: No state shall deny EP [by an intentional classification that burdens an “interest”
without justification]
i) Under interest – fundamental or non-fundamental (right to vote in special election)
ii) Under justification – SS or LL scrutiny (LGO, means RR to end)
72) Crawford – 472….what is the cite?
a) Indiana law: if you don’t have voter id when you go to vote, can’t vote.
b) Substantial burden on right to vote = denial of right to vote
c) Non-suspect class here = people who don’t have voter ID
i) Just as in Harper, they tend to be poor.
d) Issue: whether DNC had standing.
e) Under “deny” in above clause, you can have undue burden or due burden
i) Practically anyone can get photo ID
ii) Due burden = low or intermediate scrutiny
iii) In Casey, undue burden was denial of right to obtain abortion pre viability (O’C)
iv) We would arg this is undue burden, in order to get soft SS
v) So criticized under Casey, so Court just says “no standing”
CHAPTER 11: FREEDOM OF SPEECH (FIRST & 14TH AMENDMENTS)
Government [fed’l = 1a] [state = 14a] shall make no law abridging [ban = worse, higher scrutiny; or regulation]
freedom of speech [without justification]
 A prohibition on a ban – see Plyler case.
 Can also deprive LL or P by imposing a burden – see abortion cases.
 Speech
o High value (political = SS)
o Intermediate value (commercial = IS)
o Low-value (many types = LLS)
 LLS: LGO could be public morality. Today?
 Means rationally related?
 Regulation of speech v. conduct
o Conduct – can’t be regulated. See P or I clause, subs. DP (abortion), EP (classification cases;
race), EP (fundamental interests)
73) Schenck v. United States – 1917 Espionage Act doesn’t violate 1A
a) Document against the draft
b) Go through flow-chart analysis
i) C enacted law (1A). Ban on specific type of speech. Key issue: hi- or low-value speech?
(1) Political speech (high-value) or low-value (incitement)?
(a) Lawyer for D would say it’s political speech, and SS should be applied.
(i) CSI = military recruitment. CSI when at war.
(ii) Means NOT narrowly tailored.
1. If you want to stop citizens from adversely impacting the draft, tell C to write a law
banning people from interfering w/ signing up for war (at recruitment offices, etc.).
(b) HOLMES: there is clear and present danger (p. 755).
(i) Examines intent of document
(ii) Determines whether ban on speech or conduct
1. Here, both.
(iii)“Clear & present danger”& it is question of “proximity and degree”: IMPORTANT
(iv) Speech you can regulate during war = conduct = LL scrutiny
(v) No war = political speech = SS
74) Brandenburg v. Ohio – State law applied against KKK speech UNCONST (per curiam)
a) Law really aimed at organized labor and communism
b) Was the speech advocating violence as a means of political reform? Possibly (“revengeance” wording).
c) Clear and present danger? No. Same as holding up the sign of 13a “Assert Your Rights”
d) New test replaces “clear and present danger” test: likely incite others to imminent lawless action?
i) Here, no. Too much later in time.
e) Political speech – SS.
i) CSI = ?
ii) Means tailored? NO.
f) BLACK / DOUGLAS concurrence: no C and P danger test for 1A, ever! HOLMES’ case is dead.
75) Cantwell v. Connecticut: Jehovah’s Witness’ arrest for breaching peace by preaching on street UNCONST
a) JV’s conduct didn’t amount to a breach of the peace
b) Could be guilty if likely to provoke violence, and disturbance “of good order” even if unintended
c) Clear and Present Danger test used
76) Chaplinsky v. NH: JV’s arrest for calling PO “God damned racketeer” & “damned fascist” = CONST
a) 1A right to free speech is not absolute
b) Low-value speech
i) Intimidating (by their utterance inflict injury)
(1) It’s low value because the very utterance of the words inflict injury
ii) Fighting (incite a breach of the peace)
(1) When spoken, they prompt listener to hurt the proclaimer
iii) “Lewd and obscene”
(1) (Now: can’t ban lewd speech as to adults)
(2) Obscenity can be pictorial or written – is another category of LV speech
c) p. 793: dual prong test re: fighting words
i) [I]t is well understood that the right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which has never been thought to raise any constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which
by their very utterance inflict injury or tend to incite an immediate breach of the peace.
77) Cohen v. California: “Fuck the Draft” t-shirt = protected by 1A. IMPORTANT 1A CASE.
a) First, ask yourself, which category of speech does this fall into?
i) Fighting words? NO – case focused on “women and children”
ii) Profanity
b) HARLAN: p. 797
i) Could have averted their eyes
ii) Issue: p. 797
iii) Says profanity is NOT low-value speech. It’s POLITICAL. So SS applies!
(1) Here, public morality is not a CSI (Lawrence)
iv) More speech is better, under 1A. “One man’s vulgarity is another’s lyric.”
v) 1A protects speech, and more important, expression of ideas (emotion)
A regulation, even if political, gets intermediate-level scrutiny.
Regulation of LL speech = LL scrutiny
78) R.A.V. v. City of St. Paul – bias-motivated crime ordinance UNCONST b/c content-based
a) You can only limit the type of SPEECH; not the type of PERSON you are affecting.
b) Teenagers made cross and burned in front of black family’s home
c) See statute p. 828
d) SCALIA: even if proscribable under Fighting Words, ordinance is UNCONST
i) Problem: the statute is content based.
(a) If C-based or V-based text, triggers strict scrutiny
(i) Don’t want gov’t to abridge/censor free speech
ii) CSI = anti-discrimination. OK.
iii) Means narrowly tailored? NO. Overly broad, not best means to end.
(1) Better to write neutral statute. “…in others.”
(2) Prof: he doesn’t want the state telling someone in particular that they can’t say hateful words; he
wants everyone not to be able to use hateful words. To encompass ALL hate speech.
iv) P. 829: exceptions. If C-based classifications in order to define contours of L-V speech contours,
that’s okay. You can’t draw a line thru all of the boxes and say some people can’t speak these words,
but others can. Okay for state to draw little box inside of big box – a core portion of fighting words
(see VA p. 837 – “ANY PERSON to burn a cross on the property of another”)
(a) New box under LV speech: true threats or intimidating speech: – you can have a core box
there, too, that would be a statute that precludes people from making a threat to the president
(b) Note: cross-burning at the “core” of fighting words.
e) WHITE applied the “overbreadth doctrine.” P. 828
i) Designed to ensure state doesn’t ban political speech.
ii) If promotes alarm or resentment, gets into a higher-value speech.
(1) Enables judge to look at entire scope of statute, not as applied to D in court, but as whether it
has potential apps that make it a ban on intermediate or high-value political speech.
iii) Whole statute is struck down and C has to go back to square one.
f) Contrast WHITE and SCALIA
i) WHITE
(1) See whether statute fits in one of the boxes – ll, uphold
(2) If outside the box (fighting words), then ct determines whether overbroad (apps that will
criminalize political speech). Then statute is struck down. Strict scrutiny first?
ii) SCALIA
(1) Turned categories outside scope of 1a (inciting speech, fighting words), to low-value speech
(subject to 1A protection).
(2) Why? The more conservative justices really value their free speech rights.
g) STEVENS’ criticism: yes, there’s content-based classification in this statute. Still LV speech.
h) O’CONNOR: if Black convicted purely on context of intimidation, statute UNCONST as applied to
HIM; he was exercising his free speech. His conviction will be reversed.
Obscenity


State supreme courts control obscenity these days
NOT covered: sex and nudity, medical books w/ graphic illustrations
79) Miller v. California: defined standards that must be used by states to identify obscene material
a) BURGER: Miller test
i) Whether average person [juror], applying local state community standards (not national standards),
would find that the work appeals to prurient interests;
ii) Whether the work depicts or describes, in patently offensive way, sex conduct defined by state law;
iii) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
(1) Doesn’t have to be utterly w/o…value
80) Hamling v. United States: local rather than statewide or national standards
81) Smith v. US: determination of local “community standards” in fed’l obscenity proceeding was for jury
a) BLACKMUN: state law isn’t conclusive re: standards for appeal to prurient interest/offensiveness
b) STEVENS dissent: The average juror can’t be expected to answer w/ consistency (too subjective)
82) Pope v. Illinois
a) WHITE: reasonable person standard
b) STEVENS: “some reasonable persons” standard
Child Pornography
83) NY v. Ferber, p. 860
a) WHITE: creates a new category for low-value speech: child pornography
i) See five paragraphs p. 861 for justification. Why so concerned?
(1) To make sure kids stay safe
b) O’CONNOR (concur): thinks ALL child porn should be sanctionable (whether or not artistic)
c) BRENNAN: disagrees w/ above…thinks med textbooks w/ kids OK.
84) Ashcroft v. Free Speech Coalition – virtual child porn OKAY
a) KENNEDY: USSC wanted to protect children. So no crime here.
i) The staunchest proponent of 1A.
Obscenity as to Minors (kids who are post puberty)
85) Ginsberg, footnote 3, p. 885 – pre-Miller test
a) Permits state to regulate sale of soft porn to kids.
86) Erznoznik v. Jacksonville, p. 873, note 1 – statute re: no nudity on drive-in movie screens UNCONST
a) After Miller, USSC started to ask itself whether it should permit states to regulate nudity
b) State is worried about nudity offending people who can see from the street
i) “People can simply avert their eyes” (Cohen, HARLAN)
ii) POWELL: “statute discriminates among movies solely on the basis of content.” (p. 873)
(1) Could say box is nudity, and the content that could be banned would just be drive-in screen
(a) But if content-based classification, subject to SS (SCALIA from previous case)
(i) CSI: protecting minors from nudity that’s obscene to minors (but see above interest!)
(ii) Means narrowly tailored to end? (AKA: is there better way to protect kids from nudity?)
1. POWELL: way overbroad…irrespective of context or pervasiveness.
2. POWELL: nudity not obscenity as to adults OR KIDS.
(2) Prof: if banning ALL nudity, then LL scrutiny.
(a) LGO could be offensiveness (maybe; but Cohen says we shouldn’t, but that’s political
speech), or protecting minors (always a LGO, like national security)
(b) Means rationally related to end? Yes. Deferential review.
iii) BURGER dissent: nudity is low-value speech, subject to LL scrutiny. 1A interests here are trivial.
Indecency Bans in the Communications Media
87) FCC v. Pacifica Foundation – Regulation barring indecent speech on radio in afternoon/eve = CONST
a) George Carlin says &%#! on the radio; man in car w/ son
b) Issue: Whether FCC’s regulation of the speech (afternoon  night) is in violation of statute/CONST
c) STEVENS: FCC authorized by C to issue T/P/M regulation re: limiting profanity, indecency…
i) Arg for low-value speech box: Chaplinsky re: fighting words (hurtful or cause listener to fight back).
ii) These words offend for same reasons that obscenity offends: shocking b/c displays sexual content
(1) BURGER and REHNQUIST concur (see Erznoznik above)
d) Not majority. 886 is. Regulation can be upheld under deferential form of scrutiny.
e) Prof: indecent speech not low-value speech. At best, intermediate speech. IS applies.
i) IGO? STEVENS: protect kids.
ii) Means substantially related to end? STEVENS: yes, just time/place/manner regulation; not total ban.
f) The CONST protection for free speech not the same in every context; must review context
g) POWELL: not a total ban on speech; time/place/manner regulation. Therefore, IS
i) Then joins STEVENS, BURGER, REHNQUIST to uphold the ban. But for different reasons!
h) Dissent (BRENNAN, MARSHALL)
i) Indecent speech is high-value speech! TF, apply SS to regulation. CSI? Protect children.
BRENNAN: can only protect children as to what’s obscene as to minors.
i) STEVENS’ dictum, p. 885. “fleeting expletive dictum” -- it’s okay
i) FCC could continue to regulate obscene or profane broadcasting.
88) NOW, thanks to Janet Jackson, fleeting expletives in question
a) Fox fighting this (see syllabus)
i) Not CONST question; administrative (statutory interpretation) law question
ii) USSC has granted cert.
Total indecency bans. P. 890
89) Sable Communications, Inc. v. FCC – statute banning dial-a-porn services UNCONST
a) WHITE: high-value speech. Apply SS. (p. 890)
i) CSI? Protect kids.
ii) Not narrowly tailored, given numerous other options: credit cards, scrambling access, etc.
b) Prof: helped that it was a BAN. So either very tough intermediate scrutiny, or even SS.
c) When you have a total ban, triggers SS. High-value + (criminal) ban = SS.
Commercial Speech (varying values…intermediate, high…)
See hand-written flow chart.
90) Valentine: commercial speech = low value. TODAY – NOT a low-value speech. INTERMEDIATE.
91) Pittsburgh Press Co: same as above. Last case that says commercial speech not protected by 1A.
92) P. 912
a) Note 4: Bolger – USSC said promo + info = 1A protection (MARSHALL)
b) Board of Trustees – Commercial + non-commercial = commercial = qualified 1A protection
(intermediate scrutiny). SCALIA
i) IGO = don’t want students buying Tupperware on campus. Paternalistic.
93) Bates v. State Bar of AZ
a) BLACKMUN: statue must be stricken; lawyers can engage in regulation of commercial speech
94) Ohralik – statute banning ambulance chasing CONST
a) POWELL: No 1A protection for commercial speech. State may proscribe in-person solicitation
95) In re: Primus
a) POWELL: Attny’s solicitation re: ACLU protected via “associational freedoms.” 1A protection.
i) Gov’t objective: curbing undue influence “of a political strike”
ii) Associational (political) speech v. commercial speech
b) Dissent: REHNQUIST: no principled distinction between the cases
96) Shapero v. Kentucky Bar – 1A protection for targeted direct mail by lawyers
a) BRENNAN: states justification for statute (not wanting to overwhelm people) insufficient
i) Distinguished Ohralik, because it had special dangers re: face-to-face solicitation.
97) Edenfield v. Fane – FL law prohibited CPAs from direct, in person, uninvited solicitation. UNCONST.
a) KENNEDY: 1A protection
b) State objective: to avoid manipulating clients (again, face-to-face)
i) Contrast Ohralik: CPAs aren’t as good at persuading as attorneys!
c) O’CONNOR dissent: leave it to the states. No 1A protection.
d) Prof: very hard to know what Court will do when dealing w/ intermediate-level scrutiny!
98) Central Hudson Gas v. Public Service Comm’n – IMPORTANT CASE
a) POWELL: Regulation banning promotional ads by public utility co UNCONST
b) Four-part test for determining when restrictions on commercial speech violate 1A (p.917)
i) Is the expression protected by 1A? Must concern lawful activity and not be misleading.
ii) Is the asserted governmental interest substantial?
iii) Does the regulation advance the governmental interest asserted?
iv) Is the regulation more extensive than is necessary to serve that interest?
c) Commercial speech regs must be no more extensive than necessary to serve substantial gov’t interest
d) Intermediate value scrutiny of commercial speech
i) Substantial state interest
ii) Directly advances gov’t interest
iii) Narrowly tailored (not more extensive than necessary)
iv) See change to handwritten flow-chart: IGO  SGI. Means tests.
99) Board of Trustees, State Univ. of NY, v. Fox: state law re: no Tupperware parties on campus CONST
a) State interest: promoting educational vs. commercial atmosphere, security, preventing exploitation
b) SCALIA: don’t need to apply the “least restrictive means”
i) Intermediate scrutiny
(1) Substantial state interest = YES
(2) “Reasonable fit” between means and the end = YES
100) FL Bar v. Went for It: FL law prohibiting personal injury attorneys from sending direct mail to victims
and their relatives for 30 days following accident or disaster = CONST (5-4)
a) O’CONNOR (scooting from intermediate  low scrutiny)
i) State objective: protect those who have just been injured. OK.
ii) Means directly related? Yes. It’s just 30-day moratorium. Protecting people during vulnerable time.
b) KENNEDY dissent: (scooting from intermediate  strict scrutiny)
i) Means not tightly connected to end. Censorship.
c) Prof: Commercial speech not subject to scrutiny as high as political speech, or as low as profanity, etc.
101) Mosely
a) MARSHALL: Content-based TPM regulation = SS
b) Add sliver to regulation box
Expressive Conduct: AKA symbolic speech (P. 944) (see handwritten flowchart)
 Examples: burning anything (flags, bras, etc.)
 1A protects SPEECH. Regulations on conduct fall outside 1A.
o Conduct subjected to EP, subst. D/P or P or I.
 p. 947: very important introductory paragraph
o Symbolic conduct (e.g., flag burning) = CONST protected speech
 Stromberg v. CA = first flag-burning case (1931). SS. CA statute fell.
 P. 944: USSC says O’Brien test = standard applied to T/P/M restrictions
102)
a)
b)
c)
d)
e)
f)
g)
U.S. v. O’Brien – Statute re: no person can [destroy, change, forge] a draft card. CONST
Statute: doesn’t contain language referring to expression (just conduct: destroy)
Draft card burned in public place. To influence others to adopt his beliefs.
When a regulation prohibits conduct that combines "speech" + "nonspeech", "a sufficiently important
governmental interest in regulating nonspeech can justify incidental limitations on 1A freedoms."
WARREN: Justified by a significant gov’t interest unrelated to suppression of speech; tailored
Issue: what was the intent of C when it passed the amendment in 1965?
i) Stop conduct? Or stop expressive speech?
P. 947-48
i) CoA: statute was redundant. Others saying you have to keep your card on you at all times.
WARREN
h)
i)
j)
103)
a)
b)
c)
d)
e)
f)
g)
i) O’BRIEN TEST: The regulation must
(1) be within the constitutional power of the government to enact,
(2) further an important or substantial government interest,
(3) that interest must be unrelated to suppression of speech (or "content neutral"), and
(4) prohibit no more speech than is essential to further that interest
ii) For exam, start w/ technical third prong: is the gov’t actor really trying to suppress speech?
(1) If yes, which level of scrutiny? Political speech = SS
iii) Is there anything on the face of statutes suggesting intent to suppress expression?
(1) No (vs. TX). Targeting only conduct.
iv) Might statute be UNCONST as applied to O’Brien himself?
(1) Look at what C said, and what it meant
(2) WARREN: NO. C passed the statute for the purpose of ensuring smooth draft process.
(3) Heather: Yes. Statute becomes a suppression of speech. P. 948.
v) If C had no intent to suppress speech, go to intermediate scrutiny
(1) Significant gov’t interest
(2) Proof that the means are no greater than essential to further the end
vi) Upholds statute (w/ embarrassment)
O’B himself would say it was suppressing MY speech
Inquire about two actors’ intent: legislators and the actor himself
i) In TX case, BRENNAN had statute that facially admitted an intent to suppress speech
ii) In O’B, doesn’t admit to any intent to suppress speech
If you have intermediate scrutiny of expressive conduct (T,P,M regs), ask
i) SGI? Here, smooth admin of draft…
ii) Means are no greater than essential to further the end, OR
iii) Means leave open alternative channels of communication (see p. 983)
(1) Why attention on this? Difference between ban and reg. ensures Ct doesn’t uphold TPM
regulation unless it really functions as such.
TX v. Johnson (5-4) – State anti-flag-burning laws UNCONST; expressive conduct protected by 1A
Statute: desecrate, damage = conduct words at first, then EXPRESSIVE conduct.
(Language in footnote 1 of TX could be enacted today. Doesn’t say precisely who it’s targeting)
BRENNAN: Gov’t can’t proscribe particular conduct b/c it has expressive elements
i) Gov’t interest at stake is the key to determine whether restriction on that expression is valid
ii) Apply O’Brien test when gov’t interest is unrelated to the suppression of free expression (goes
under “Conduct” box)
(1) BRENNAN: it has a “switching factor” in it
(a) Expressive conduct bans or regulations can be seen differently:
(i) Congress sees as regulating non-communicative conduct
(ii) Criminal defendant sees as regulating 1A rights
(b) First prong of O’Brien test. See 958.
(i) First interest (breaching of the peace) not implicated
(ii) Second is related to suppression
Doesn’t want legislature to determine what the flag is a symbol of
i) No CSI. Done.
Concur: KENNEDY, p. 960
Dissent: REHNQUIST, WHITE, O’CONNOR
i) Uses 1A. Flag is very important symbol.
ii) Low value speech, LL scrutiny.
1A makes for strange bedfellows among the Court!
The Religion Clauses: Free Exercise and Establishment
Free Exercise
See PPT.
Gov’t shall make no law prohibiting the free exercise of religion [without justification]




104)
a)
105)
106)
a)
b)
c)
107)
a)
108)
a)
b)
c)
d)
e)
Incorporate 1a rights into 14a, under “liberty”
Voluntarism: church’s advancement comes only from voluntary support of followers, not from state
Separatism: Both religion and gov’t function best if each remains independent of the other
Nonpreferentialism: OK to give to ALL religions in a non-preferential way. REHNQUIST, THOMAS
Lee v. Weisman: prayer at middle school grad ceremony = UNCONST
SOUTER: doesn’t think framers had nonpreferentialism in mind. Madison’s writings evolved.
Torcaso: MD law requiring all public office holders to declare belief in God = UNCONST
Church v. City of Hialeah: law re: no ritual slaughtering of animals = UNCONST
KENNEDY: Violates the Free Exercise Clause
i) Rationale: Law neutral on its face, but actually targeted against practitioners of Santeria faith.
(1) Here, criminal law prohibits free exercise of religious conduct
(2) Then ask, by means of content-based or viewpoint-based classification that is “malign”?
(a) Look to direct or circumstantial (Yick Wo) E
(i) Direct = evidence of a facial classification. NOT FOUND HERE
(ii) Circumstantial (Yick Wo) = HERE. Religious gerrymandering. MALIGN.
1. Emergency meeting, emotional conduct by audience, clergyman, council, etc.
(3) If malign, apply SS wherever suppresses/discriminates against religion.
SCALIA concurrence: don’t try to interpret what legislatures where thinking. But agrees w/ result.
SOUTER, BLACKMUN, O’C concurrence:
i) Rare example of law aimed at suppressing religious exercise. SS. Almost always fatal.
Sherbert v. Verner – Must use strict scrutiny in free exercise cases
BRENNAN
i) Crim or civil penalty?
ii) Conditional benefit (that forces a choice btwn religion and gov’t benefit)?
iii) Goes right to strict scrutiny (Sherbert test: requiring demonstration CSI in Free Exercise cases)
Emp. Division, Dept. of HR v. Smith – OR Controlled Substance Abuse Statute
Ps ingested pot during religious ceremony
Ps argue they should be able to collect unemployment benefits; statute UNCONST as applied to them
i) Essential ritual.
Issue: constitutionality of law made by state of OR (Crim + unemp. comp law)
Previously, Court had to exercise SS whenever burden on Free Exercise right (Sherbert test)
SCALIA:
i) Prohibiting belief, or religious conduct? CONDUCT.
ii) Malign or benign?
(1) Direct E? No. Content-neutral statute.
(2) Circumstantial E?
(a) Here, most people who violate the law would NOT be Native Americans. BENIGN.
iii) Not intentional, or malign. Therefore, doesn’t violate Free Exercise clause
(1) Ignore E of disparate impact
iv) When content-neutral law w/ an incidental impact on religion, apply IS or (probably) LL
(1) Rat: If USSC presumed statute invalid, would have to do that w/ all criminal laws anytime
anyone had a religious objection to any law. Anarchy!
v) Didn’t overrule Sherbert: Unemployment benefits are ONE exception = SS
109) Restoration of Religion Act restored Sherbert (Fed’l only; USSC struck down as applies to states)
a) Claim involves sincere religious belief AND
b) Gov’t action is substantial burden on person’s ability to act on that belief; THEN
i) Government must prove CSI + least restrictive/burdensome means
110) WI v. Yoder (public education compulsory up to age 16; Amish complained) Note 2, p. 1269.
a) Law imposed criminal penalties? Y
b) Neutral law, burdened religion = SS
i) Here, not a compelling state interest. Court CONST mandated the Amish exemption.
c) “Hybrid Right”
i) Where P claims two CONST rights at same time, one of which is the Free Exercise of religion
(1) Here, Free Exercise + right to educate your kids the way you want
(2) Criticisms of Hybrid Claims
(a) You don’t need hybrid as long as both rights are fundamental. That would get SS.
(i) Example: Subs. DP = SS. EP = SS. Free speech = SS
111) Locke v. Davey – Promise Scholarship. Denial based on religious grounds CONST
a) P args that if State has this scholarship program, if school makes exception and refuses to fund someone
who wants degree in theology, that is a facial classification based on religion. (Prof: he’s right!)
b) REHNQUIST: Malign v. benign classification of religious conduct? See flow chart.
i) “WA’s CONST draws a more stringent line than the US CONST” – difference of interpretation
ii) Benign classification b/c the line was created in trying to interpret WA’s CONST.
iii) Low level scrutiny b/c no presumption of UNCONST
(1) LGI? Y. Est. clause (of state const) is legit gov’t objective
(2) Means rationally related? Y. Only those who MAJOR in theology denied. P could take courses.
c) SCALIA (dissent):
i) Malign classification = SS = UNCONST.
The Establishment Clause
Establishment (see flow chart):
Test/Judge
Official
Church
Penalty (SC)
Coercion (KEN)
Endorsement (O’C;
subst. of Lemon test;
didn’t like #3)
V
V
V
Tax
on
Religi
on
V
V
V
Lemon. State must show:
1. Secular purpose
2. Neutral impact
3. No entanglement
V
V
School
Prayer
Public Displays of
Religious Symbols
Financial Aid to
Religious Schools
NV
V
V
NV
NV
V = single symbol
NV = if surrounded
by secular symbols
V
BU: NV where
symbols all
together
BR: even if single,
V
NV
NV
NV as long as
state sends $ to
parents, who then
make the decision
where to go to
school
NV? REN: NV.
Others (BR) might
say V.
Legis.
Accom
modatio
n
NV
NV
NV
NV