ࡱ> QSLMNOPq` bjbjqPqP 4::&8&tt2m2"<<<jjjjjjj$dnhpk   k<<lo9o9o9 <<jo9 jo9o9n]`< Ќ3^ aj|m02m^Vq8Vq@`Vq` o9 kk9X2m    D CONSTITUTIONAL LAW Introduction Con law has 6 aspects: 1) Conception that people have human rights 2) Internal dynamic- call for reform which align conception of human rights. 3) Politics is group activity, but need constraints b/c people do things in groups that wouldnt do individually. Rosseau, Madison 4) Sense of comparative political experience- Rome, Athens. 5) Political experience. Founders politicians, had to learn from mistakes (slavery). 6) Constitution is supreme over all other laws. Supremacy Clause, but also belief. History: Madison: central figure and intellectual architect of Con of 1787. Letter to Jefferson: Con morally bankrupt b/c what legitimated written con was that is in service of human rights. Wanted constraints on natl and state power b/c states more likely to violate human rights (slavery). So writes Federalist Papers and Americans agree and ratified con. Reconstruction: Civil War, then Madisons vision led to 13-15th amendments 13th Amendment: ends slavery 14th Amendment: equal protection clause 15th Amendment: vote to all (but not women) Written con is British idea. English Civil War of 1640-60- British get rid of hereditary monarch and Charles 1 executed as tyrant. Lots of literature and political freedom. The Levelers- call for written con Harrington in Oceana- invents system w/ federalism, sep of power, judicial review. John Locke- govt to be determined by whether respects human rights. During Colonial, American leaders absolutely believe. Shocked when Brits try to tax w/o representation-violation of basic terms of British con. Articles of Confederation- 1781. American Revolution. Articles of Confed illegitimate. States violating human rights and so little power in natl govt that couldnt pay bills(Annapolis Conv.( Philly Conv. Civil War- total defeat of south, more racist. 13-15th amendments ratified. Racism, feminism, and other movements since WWII CONSTITUTIONAL INTERPRETATION 1) Judicial Review Marbury v. Madison-1803 Facts: Marbury was judge whose commission never delivered so not appointed judge. Says has right to commission, goes to SC in original jurisdiction for mandamus (Judiciary Act) Case created judicial review of co-equal branch of gov t. " has right and remedy, but not in SC under original jurisdiction. For SC to issue mandamus, must be exercise of appellate jurisdiction. Congress cant add to original jurisdiction of SC. Jeff. thought won b/c holding was that SC refuses to give remedy to Marbury. Marshall thinks he won b/c exercised power of judicial review of act of Congress. Collision btw Judiciary Act and Con: Popular sovereignty- peope can limit power of legislature. Con meant to constrain everyone. Ratification was expression of deliberative democratic rationality. Argument against: Con is supreme but involves politics, not judicial review. Appeal to judicial role- judges apply law to facts before him. Judiciary Act and Art 3 is law, not politics, and judges can exercise power of interpreting law. Chamber of horrors- Art. 3 put sharp constraints on what is treason. Would be treason to suggest judge cant exercise power of judicial review. Judicial oath- take oath to uphold laws, so that sounds like judicial review. Supremacy Clause- Con is supreme over laws and courts bounds by Con. Dred Scott Held that slaves not citizens- cant invoke jurisdiction of fedl court. Illustrates limits of Marbury Cooper v. Aaron Facts: Ak opposition to school desegregation Latest since Marbury- SC is supreme interpreter of Con. State IS bound to SCs Brown decision/ court orders in general. Eisenhower disagreed w/ Brown but said must enforce Marbury law and orders fedl troops into AK to enforce desegregation. Democratic Objection to Judicial Review Court-skeptical: Thayer, Rosenberg Rule of Clear Mistake: should only use power of judicial review when there are no reasonable grounds for legislation. Role of judiciary to set outside border of reasonable legislative action. Undemocratic, undercuts popular responsibility. Laws reflect will of people. Rights-skeptical: Hand, Ely Rights dont exist. Limited judicial review to keep govt from foundering. Otherwise Ct turned into 3rd legislative chamber. Judicial review is interpolation on Con. Utilitarianism: Mill, Hand, Holmes Human rights dont exist b/c require you to give decisive weight to suffering of very small #s of people. Dont need judicial review to ensure those rights, should be through political process. Truth-seeking. Wechsler: response to 3 (see Bickle) Courts cannot escape duty of deciding constitutionality of other branches actions Neutral principles theory. Judiciary not 3rd legislative chamber b/c demand judiciary to judge by neutral principles that transcend case at hand. Legislature/ executive can change mind as public opinion changes, judiciary moves in prospective way which is constraint on power. Duty to decide cases, not by policing legislature, but in accordance w/ law satisfying procedural and jurisdictional requirements. Dworkin: judicial decisions should be generated by principle (justify decision by showing that it respects or secures some individual or group right). Hard cases: Judge must decide based on fit of precedents and institutional history. In hard cases, fit fails b/c more than 1 theory in precedents. So turn to background rights. Hercules: must construct scheme of abstract and concrete principles that provide coherent justification to precedents, and constitutional and statutory provisions. Ely: Democracy of Distrust- persisting rights-skepticism 2 parts to con law: interpretive (account for history of time, text, dominant precedents) and non-interpretive. Theory of fair representation- judicial review proper when strikes down something until process is fairer. . Originalists: also rights-skepticism Interpret from perspective of Founding generation. All you need is history. See Scalia and Thomas. Problems: No one consistently can defend it 2) History and Interpretation Williams v. Florida Facts: challenge to jury of 6 instead of 12 people. Issue: how to interpret word jury. Denotative: whatever in world speaker is identifying. Meaning frozen in time. Connotative: speaker means to impart certain definition and have to apply that to world. Allows each generation to interpret intent of Framers. Text consistent w/ denotative or connotative reading. Ct adopts connotative meaning. Looks to: History of jury guarantee- British common law tradition. Prior SC decisions- always 12 people, always unanimity. Con Conv. and Bill of Rights debate Madison proposed vicinage and unanimity but version didnt prevail. Jury guarantee doesnt require 12: Need group of people of sufficient size Has to be representative, resistant to tyranny and intimidation 6 achieves these things Harlans concurrence/dissent: Jury guarantee bears on central values of human rights. No compelling argument to depart from history, which said jury is 12. Lovett v. United States Facts: Challenge to amendment to appropriation bill which denied salary to named people b/c/o communist background. Art. 1 9, 10- Neither fedl govt nor states shall pass bills of attainders or ex post facto laws. Bill of attainder= legislative act where individual/group is guilty of crime w/o trial. Ex post facto law= attempt to give retroactive application to criminal statute. SC: violates principled understanding of prohibition on bills of attainder b/c is one. Is to prevent govt from undermining rights that should be guaranteed United States v. Brown Facts: If member of Communist Party, cant be officer of labor union. Not ex post facto b/c observing all requirements of separation of powers on criminal side and represented by jury. No con violation. Home Building & Loan Ass. v. Blaisdell Facts: Great Depression and states create stay laws Art.1, 10- No state shall pass any law impairing obligations of contracts Sutherlands dissent: Founders worried about stay laws. Hughes opinion: meanings change, SC has duty to see contracts clause in different way, ascribe connotative meaning to take into acct social change. Con. Richardson v. Ramirez Facts: disenfranchisement of ex-felons. Does it violate equal protection clause? W/out language of amend, yes b/c fundamental right to vote. W/ text, amend 2 intended to curb disenfranchisement of former slaves. SC says matter not to be decided under 1. At ratification, 20 states had clauses that disenfranchised felons. To be let back in union, state constitution reviewed by Congress and were all welcomed back despite this- Congressional stamp of approval. FEDERALISM 1) Federalist No. 10 Argues for fedl system- state at natl level and limit power of states. Democracy not immune from faction (group of people w/ united cause). Group psychology has demonic tendency- people in groups behave in ways wouldnt as individuals. Representative structure of fedl system will democratically lower effects of faction. 2 examples: Religion: founders dominantly Christian, could exclude non-Christians. Race: everyone is largely white at state and natl level Democracy (Rosseau) versus Republic Democracy is participatory- Athens 1 man, 1 vote. Republic- govt where representatives are voted for and delegated to have power. Heart of legitimacy of judicial review is that HAS addressed, more than other form of govt, problem of religious intolerance and racism. 3 dominant interpretations: Beardian: liberal progressive attack on SC which was stopping progressive legislation. No. 10 not worthy of respect b/c is triumph of one class over another Shouldnt feel allegiance to Founders Dahl: No. 10 states poliarcy: interest group politics (you scratch my back, Ill scratch yours). Wills, Epstein, Richards: Explains originality of No.10 Founders read Montesquieu who thought ancient republics was high point of human achievement but modern nations enormous, not possible to have republican govt b/c requires ethnically homogenous population. No. 10 turns Mont on head using argument from Hume- can have republican govt in large territory McCulloch v. Maryland Facts: Maryland taxes activities in local branch of Natl Bank Two issues: Con for Congress to create the National Bank? (McC1)-Yes Can state tax it? (McC2)- No McC1: creation a national bank: Legislative practice: defer to congressional and executive practice- are voice of people. Not dealing w/ liberty/human rights. Popular sovereignty: Con didnt come from states but from people, who are supreme over state and natl govt. Congress fairly represents people so should address issue. Text: By leaving out expressly, allowed for inference that natl bank could be created. Judicial role: not role of judiciary to monitor except in v. extreme case. Is economic policy, deeply democratic. If rational basis, SC must defer McC2: state taxation if natl bank: Bank created by power of Con which comes from people of all states, but MD is one state taxing something natl. Taxation w/out rep is tyranny. Power to tax is power to destroy. 2) Commerce Clause (C.C.) Art. 1 8- Congress has power to regulate commerce among several states. Goal to end hostile state and retaliatory trade regs, and protective tariffs on imports to other states. Rise of industrialism, America as engine of economic growth. Congress started regulating b/c was something to regulate- teeming industrial economy. Case law takes off. Broad interpretation: Gibbons v. Ogden: Ferry service btw NY and NJ is commerce Shreveport case: to regulate rates in interstate railway system, also have to regulate intrastate rates. Cant preserve natl railway system unless regs extended to intrastate business. Economic reasoning. Swift v. US: If product going to go into interstate commerce eventually, part of natl commerce. Narrow interpretation: Sugar Trust (US v. Knight): Distinction btw manufacturing and commerce. Hammer v. Dagenhart: child labor law doesnt regulate commerce, rather standardizes age. Carter v. Carter Coal: Natl govt cant regulate production (coal miners hours) US v. Darby- overruled Hammer. Max hours, min wages applied to lumber industry. Matter for legislative judgment. Invokes Shreveport and Swift. Concerned by race to bottom- cant have natl standard if state can regulate in different way. Wickard v. Filburn: Govt put a quota on bushels of wheat and F. went over. Outer limit of affecting commerce rational. Any economic activity anywhere in country, as long as might be plausibly regarded to some natl economic welfare, is sufficient for fedl regulatory power. Heart of Atlanta Motel v. US- CC extended to hotel which wanted to continue to refuse to rent to blacks. Katzenbach v. McClung- CC extended to restaurant near interstate highway- buying food in interstate commerce, but few interstate travelers. United States v. Lopez Facts: Gun-control statute made it fedl crime to possess firearm on school property. Exceeds authority granted to Congress under CC. Education highly decentralized. Little supervision by natl govt, run by local school boards. Breyer dissent: education crucial to guarantee equal opportunity, key to mobility and success. Cant separate education from economy. United States v. Morrison Facts: Statute provides fedl civil remedy to victims of gender-motivated violence Economic studies showed direct link btw violence and womens ability to succeed. SC says gender-motivated violence not economic crime. No authority under CC. Gonzales v. Raich Facts: Fedl prohibitions on growing marijuana for medical purposes Okay for Congress to do this. Like Wickard which is good law. 3) Negative Commerce Clause Congress is silent, taken no action, express or implied, indicating policy. Objection to authority rests on negative implications of CC. Transportation cases: issue is whether state imposes undue burden on interstate commerce. If yes, purpose has to be legit police power. Then, is there rational connection btw purpose and effect of state regulation? Import restriction cases: Undue burden either on face or total effect of total ban. Purpose has to be health, safety, environmentalism. Least restrictive alternative analysis: essentially strict scrutiny standard of review Cooley v. Board of Wardens Facts: PA law requires ships entering/leaving port to engage local pilot to guide them. Had fedl law purporting to allow state law. Marshall claimed that fedl govt cant delegate such powers. SC says if reg is targeted at area that requires fedl uniformity, state law will be declared uncon. If is area that can tolerate diverse approaches across states, then will be upheld. Later rejected b/c not clear standard. Other tests: Indirect/direct: con if indirect relation to commerce, uncon if direct relationship. Later rejected b/c not predictable. Package/out of package: con if not in original package and regulated, but uncon if in original package. Rejected b/c though predictable is non-sensical. Buck v. Kuykendall Facts: WA denied certificate to applicant seeking to operate btw Seattle and Portland Statute uncon b/c purpose is to regulate commerce. Highlights that protectionism is per se uncon- beginning of purpose-based analysis. Bradley v. Public Utilities Facts: OH denial of certificate to operate btw Cleveland and Flint. Statute about regulating traffic congestion so is ok. Privileges and Immunities Art. 4, 2. 2 prong test: Has state discriminated btw residents and non-residents? Has it infringed on fundamental right? South Carolina v. Barnwell Facts: SC law prohibits use of trucks over 90 wide or over 20K lb. on highway Purpose: regulating for safety Adequate state ground: yes Law applied to in-state and out-of-state business. Southern Pacific v. Arizona Facts: AZ prohibits train w/ more than 14 passenger cars or 70 freight cars. Formally nondiscriminatory. Undue burden on interstate business. Purpose- not convinced by safety concerns which is generally acceptable grounds. Gain from shorter trains outweighed by more frequent trains running. Bibb v. Navajo Freight Lines Facts: IL law requiring use of contour mudguards on trucks on state highways. Struck down b/c is undue burden on interstate commerce and no legit state purpose. Kassel v. Consolidated Freightways Corp. Facts: Iowa statute prohibits use of certain large trucks w/in state. Law only applies to out-of-state trucks. Not formally discriminatory but does create undue burden. No showing that lives saved, so no legit state purpose. Philadelphia v. New Jersey Facts: NJ bans import of out-of-state waste Clearly discrim and raises higher standard of review than mere reg. Purpose is environmental protection/health/safety. Is legit purpose, not obviously protectionist. Test: least restrictive alternative analysis. Reg must be least restrictive alternative to achieve purpose. Here, less restrictive means could be cap on all garbage. Dean Milk v. Madison Facts: Madison WI ordinance barred sale of milk not pasteurized w/in 5 miles. Least restrictive analysis: are alternatives less burdensome to commerce while equally attaining health goals. Must use such alternatives, even if costly, when con right in question, which here is interstate commerce Baldwin v. Seelig Facts: Price restrictions on milk from NY bought in other states. Set up barriers btw states. Meaning of free market system is right to competitive advantage everywhere. Consumers have right of access to cheaper products. States cant protect local econ interest by limiting access to local markets by out-of-state sellers. Henneford v. Silas Mason Facts: WA use tax on goods bought in other states but used in-state. Upheld. Local retailers can compete w/ retailers in other state who are exempt from sales tax. Burden of owner (use tax) is balanced by burden where sale is local (sales tax). Hood & Sons v. Du Mond Facts: NY tries to shore up failing business by denying license for additional milk depot to Boston milk distributor. Destructive competition not valid argument. Uncon. Hughes v. Oklahoma Facts: OK law forbid transport of minnows outside state Overruled Geer which held state could limit export b/c resource natural and want to conserve ir Uncon b/c have alternatives for conserving resource. Clear example of least restrictive alternative analysis. 4) Preemption When Congress exercised power, fedl law supersedes state laws and preempts state authority b/c/o supremacy class of Art. 4 and CC. Pacific Gas & Electric v. State Energy Resources Conservation Facts: CA law put moratorium on certification of nuclear power plants until Commn finds way to dispose of nuclear waste. Fedl law does not require or prohibit states to build nuclear plants Unclear if Congress meant to preempt CA state law. See if regulatory scheme is so pervasive to make reasonable inference that Congress left no room to supplement it. Not predicated on safety concerns, conflicts w/ fedl waste disposal and policy goal of reducing nuclear power. Negative CC cases often used for interpretation in preemption cases. 5) Congressional Consent Congress cant override state laws under Marbury, but do allow under CC 3 theories of this power: Negative CC is kind of statutory interpretation of what Congress would have done Con common law. Courts strike down legis when inconsistent w/ human rights and also make law when Congress is silent (tort law). Real con value in play. Worried about state discrimination. So if extreme case where Congress consenting to something thats really discriminatory, court has to do something about it. Met Life v. Ward Facts: AL gives tax preferences to local insurance companies. Violation of negative CC but Ct doesnt apply act by which Congress gives consent. SC doesnt strike down under CC but rather EP clause b/c discriminatory. SEPARATION OF POWERS State/federal separation, separation btw 3 branches of govt. First defended by Locke: to be legit, govt must make people better off than would be in state of nature. Protect peoples basic human rights by observing sep of powers. W/out it, power subjects us to tyranny, egregious violations of human rights. Con clauses: Ineligibility clause: no overlap of personnel Courts are constitutionally independent Congress has no judicial powers at all, except in impeachment Impeachment: Founders expected it would be used more than it has been Power of removal by Congress to remove members of Executive branch Few attempts for Presidents, none to conviction/removal Article 2, 4: treason, bribery, or other high crimes or misdemeanors SC regards it as political question so wont step in. 3 grounds when something IS political question (and judiciary cant review) Where Con tells us so: ie. Impeachment. Standards are of sort that its inappropriate for court to look at them. Mechanically decided. Interbranch/intrabrach- might trust different branches of govt to handle this effectively SYSTEM OF FREE EXPRESSION Background 1st Amendment: Congress shall make no law abridging the freedom of speech, or of the press. History: Close connection btw free speech and religious speech Milton and Licensing- In UK, no book could be published w/out approval of church. No licensing in USA. Alien and Sedition Act (1798) Imposed criminal and civil penalties on criticism of govt. Found uncon by Times v. Sullivan. Abolitionist criticism of slavery: no free speech against slavery and racism 3 dominant political theories: Relationship to integrity of democratic process. Politicians cant be judges of what is free speech, need domain politicians cant touch. Meiklejohn- political speech is core of constitutionally protected speech and must have absolute protection. Utilitarian and constitutional privacy- allowing free speech secures more rational and enlightened process by which people see what interests are and demand govt based on rational conception of interests. Search for truth. Holmes, Mill. Equal autonomy- rooted in conception of equal liberty of conscience. American dissenting tradition in abolitionists and racism/sexism. Impt to allow space for dissenting voice to speak truthfully. Raulls 1) Political Speech and Subversive Advocacy Schenck v. United States Facts: Circulars object to WW1 and conscription. Free speech invented. Can be intervened in only if clear and present danger: ask whether words will create clear and present danger of bringing about evils Congress has right to prevent. Frohwerk v. United States Facts: Newspaper argues against WW1 and says draft riots understandable. Paper is sent to general public. SC not concerned w/ free speech. Appears to matter how powerful you are, whether youre likely to influence, that will actually obstruct policy. Debs v. United States Facts: Debs was head of Socialist party and candidate for President and says govt running amuck. Supports dodge drafters but doesnt instruct people to dodge. Guilty b/c/o influence and can infer his support for dodge/intent to obstruct govl policy. Intent/tendency test- favorable presumptions on part of govt. Abrams v. United States Facts: Russian immigrants advocated general strike b/c oppose sending troops to Russia. Not constitutionally protected- under Schenck/Frohwerk/Debs, have intent- to disrupt govt policy w/ strike making it less likely USA will aid Russia. Finds clear tendency to incite. Holmes dissent: should be worried on free speech grounds. Are silly leaflets by unknown man. Masses Publishing Co. v. Patten Facts: Masses is revolutionary journal which is denied access to mail. Contains cartoons, satire, op-eds. Hand/SDNY says is constitutionally protected. Looks at words themselves, not outcome. If sincere opinion- protected If legit agitation and protest- protected If it says theres no duty to break law- protected Gitlow v. New York Facts: NY law criminalizes anarchy (speech which advocates overthrow of govt). Directed at speech, not action. SC says language urged people to action and should defer to legislature, so no tendency test at all. Holmes dissent: outcome test. No chance that this would cause substantial danger. Same as Abrams dissent. Whitney v. California Facts: W. is peaceful socialist, joins communist labor party but doesnt share violent views. State statute directed against view that violence is legit, not against acts. SC says falls w/in Gitlow so defer. State can regulate speech which tends to incite crime, disturb public peace, or endanger foundations of organized govt. Brandeis concurrence: Only satisfy clear and present danger if 3 things are satisfied: V. high probability of people acting on speech Harm must be very grave Must be harm not rebuttable in course of typical debate Fiske v. Kansas Facts: Criminal syndicalism statute applied to " who tried to recruit members to IWW. Language that class system should be abolished insufficient to establish advocacy of violence. De Jonge v. Oregon Facts: " charged under criminal syndicalism solely for attending Communist Party mtg. Was just speaking mind, no clear and present danger. Herndon v. Lowry Facts: " says at mtg that members should vote for black self-determination and organize around racial issues. Charged under attempt to incite insurrection. Narrowly struck down as vague. Dennis v. United States Facts: Smith Act-unlawful to advocate overthrowing of govt. Gitlow overruled Statutes examined for whether enter domain of protected speech and then ask if is clear and present danger. Adopts Hands analysis: whether gravity of harm discounted by improbability justifies invasion of free speech as necessary to avoid danger. Dilutes clear and present danger. Widely criticized case. 3 responses: As applied analysis Overbreadth doctrine Brandenburgh- modern SC establishes broad scope principle, seemingly protects everything and makes no distinctions. Reads in Whitney concurrence of clear and present danger. As applied analysis: If govt making content-based distinctions, is per se uncon, unless is clear and present danger. Effectively court rewrites statute to make it con, then decides if its con as applied. Problematic b/c judiciary reviewing factual record de novo. Yates v. United States- as applied case Facts: 14 convicted under Smith Act SC narrows statute and says can only be applied constitutionally to real action, not to mere incitement to belief. Convictions overturned. Scales v. United States Facts: " convicted under membership clause of Smith Act SC narrows statute to require specific intent and active membership. Brandenburg v. Ohio Facts: KKK leader convicted under criminal syndicalism statute after rally aired on news. Modern incitement test: state cant forbid speech unless its directed to inciting violence and is likely to produce violence. Is protected speech Court overrules Whitney- criminal syndicalism is per se uncon. Reads in Whitney concurrence. 2) Overbreadth and Vagueness Doctrine Vagueness Risk of chilling effect ib protected speech Draws on DP requirement of notice Overbreadth: Court figures out what reasonable scope of statute is and decides if any substantial applications of it go to protected speech w/out clear and present danger. Overbroad= sweep in protected and unprotected speech or association 3) Offensive Speech in Public Places Cantwell v. Connecticut- fighting words Facts: Jehovahs Witness proselytizing on street, but nothing offensive about it. Criminal breach of peace charge. SC overturns conviction b/c is protected speech b/c is religious speech. No clear and present danger, unconstitutional as applied Chaplinsky v. New Hampshire- fighting words Facts: Jevovahs Witness handing out literature and disturbance breaks out, is arrested and calls cop God damned racketeer Court says words likely to incite public to retaliate- falls in domain of fighting words Creates first of unprotected categories: fighting words doctrine. Rosenfeld v. NJ, Lewis v. New Orleans, Brown v. OK- fighting words Facts: Convictions for saying fu*k in public, use of offensive language. Statutes more directed at being offensive, rather than fighting words. Offense not ground for abridging free speech. Convictions overturned Cohen v California- fighting words Facts: " wears t-shirt in courthouse that says  Fu*k the draft. Breach of peace conviction As-applied analysis. Looks at what could be reached and narrows statute: can t be applied to what " did here. Protected Miniello v. Chicago- hostile audiences Facts: Speaker draws angry crowd and calls them snakes. Breach of peace conviction. Conviction overturned. The more offensive, the more protected. Don t need free speech for boring speech. Feiner v. New York- hostile audiences Facts: " addressed crowd and then refuses to obey police order Upheld b/c went from persuasion to incitement. Offense of audience seems to be measure of free speech Dissent: police had duty to protect his right to speak (law now). Edwards v. South Carolina- hostile audiences Facts: Black demonstrators demonstrated outside state capital. Breach of peace conviction. Overturned b/c no clear present danger, no violence, peaceful expression. As a result, Feiner discredited (not overruled) Cox v. Louisiana- hostile audiences Facts: Black demonstrators gather outside jail in protest, white people get upset Court says uncon as applied, overbroad, not enough facts, no clear and present danger. Kunz v. New York- hostile audiences Facts: NY permit system- before can demonstrate, need a permit. Uncon b/c impermissibly standardless discretion National Socialist Party v. Skokie- hate speech Facts: Nazi group to march in Skokie, where many Holocaust survivors live. Fighting words doctrine narrow, so use of swastika not enough. Brandenburg governs. SC denied stay after Court of Appeals affirmed unconstitutionality of ordinance. R.A.V. v. City of St. Paul Facts: Cross burning case. Conviction under bias-motivated crime ordinance SC strikes down statute b/c is content-based, targeted at specific viewpoint. Directly aimed at speech/expression. Is fighting words, which is unprotected, but still have to apply even-handedly and not even-handed here b/c targeted race, religion, and gender-minorities. Extending prohibition on content-based speech to unprotected speech. Uncon. Wisconsin v. Mitchell Facts: Blacks youths discuss beating up white person, find one, and beat him up. Statute here aimed at conduct unprotected by 1st Amend. So state permitted state to enhance punishment for crime motivated by victims race. Limits RAV to viewpoint-selective laws aimed expressly at otherwise unprotected words or symbols. RAV aimed at speech/expression; this aimed at conduct. Virginia v. Black Facts: VA statute prohibited burning cross w/ intent to intimidate others and burning itself prima facie evidence on intent. State can ban cross burning w/ intent to intimidate, but provision treating burning as evidence for intent renders it uncon. 1st Amend doesnt permit that shortcut. 4) Unprotected Speech: Libel and Privacy Group Libel Group libel statute= targets specific ethic or religious group and says it has certain terrible qualities and as result, that group is lowered in minds of community. Not protected speech Individual libel= Someone says false fact about you and as result, in your applicable reference group, youre loathed. Protected: (NYT v. Sullivan) Two types: Defamation=written false fact Slander= oral false fact Violation of privacy= public disclosure of highly private facts Privacy yields to free speech 4 forms where right to privacy is recognized: Misappropriation: use name/portrait/picture of someone in advertising w/out consent Defenses: newsworthiness, not focused on Public disclosure of private facts- newspaper publishes facts, so publicity of private facts, knowledge of which is highly offensive to reasonable person and not of legit concern Defenses: Public records and newsworthiness False light- intent or reckless publication which places person in false light, which is highly offensive to reasonable person Defense: truth (Time v. Hill) Intrusion- eavesdropping and electronic bugging Beauharnais v. Illinois Facts: IL crim group libel law prohibits publication of anything that portrays bad characteristic of any race, color, creed etc. Upheld. New York Times v. Sullivan Facts: Ad printed in NYT by Civil Rights advocate which claimed truckloads of armed cops in college campus and that MLK assaulted/arrested 7 times. AL statute: publication libelous per se if injures person s reputation " gets identity from sheriffs nation-wide. But his name not in ad and not about him. State law must yield to fed l law. Total uprooting of common law libel definition, which had been stable and robust. Standard: as for public official, damages prohibited unless statement made w/ actual malice. V. demanding. Protected Curtis Publishing v. Butts & Associate Press v. Walker NYT standard extended from public officials to public figures. Have media access to rebut false statements and waived privacy by thrusting. But narrowed to people who have voluntarily thrust themselves into public. Protected Rosenbloom v. Metromedia Facts: libel action by private person against radio station SC, for short time, applies NYT standard to private individuals. Gertz v. Robert Welch Facts: libel action by lawyer against publisher of magazine Court abandons Rosenbloom so NYT not applicable Standard for private individuals: States can define appropriate standard for liability. States cant allow recovery of presumed or punitive damages unless met NYT mens rea. Dun & Bradstreet v. Greenmoss Builders Facts: Private person versus private party SC allows common law (no requirement of actual malice necessary). But courts have tended to adopt Gertz rules as minimum Hustler v. Falwall- intentional infliction of emotional distress Facts: Parody of Jerry Falwell in Hustler Magazine. Applies NYT standard to intentional infliction of emotion distress courts. Protected Time v. Hill- privacy Facts: Hills held hostage, play written about it, Time article about play w/ photos in actual house. Suit brought against Time for connecting them to events. SC says speech protected b/c is newsworthy. NYT applicable. Collision w/ free speech and privacy must yield. Cox Broadcasting v. Cohn- privacy Facts: News broadcast that woman was rape victim. SC said no liability b/c info was accurate and released to public in official court records. 5) Unprotected Speech: Obscenity Roth v. U.S. Facts: " convicted of mailing obscene material. Obscene material= that which deals w/ sex in manner appealing to sexual interest which is unusual/unwholesome. Exception is art, literature, science. Standard: if average person applying community standards Convictions upheld. Obscenity not protected. Memoirs v. Massachusetts Period btw Roth and Miller 3 elements for state to control sexual materials: prurient interest in sex; offensive based on natl standard, no redeeming social value. Miller v. California Facts: " mailed obscene material, 5 were unsolicited Standard for what is unprotected obscene speech: (test today) Average person would find it appeals to prurient interest (Roth)- local not nat l Depicts offensive conduct specifically defined by applicable state law Lacks artistic, political, literary or scientific value Has to be vivid erotic depiction (have to see genitals coming to sexual climax) So nonprotection of obscenity sharply narrowed Paris Theatre v. Slaton Facts: theater shows adult movies. State can regulate obscene material in theater. States to determine if link btw porn and crime. New York v. Ferber Facts: child porn State can prohibit child porn, even if not obscene. Artistic value irrelevant. Not extend to virtual child porn (Ashcroft v. Free Speech Coalition) 6) Offensive Speech in Public Places: Nudity, Seven Bad Words Erznoznik v. Jacksonville Facts: Nudity on drive-in movie theatre Privacy interest on drivers doesnt justify censorship. Onus on public to look away Nudity not obscene. Schad v. Mount Ephraim Facts: Town banned live (nude) entertainment Total ban on nudity displays impermissible. Nudity alone doesnt remove from protected speech. Young v. American Mini-Theatres Facts: scatter zoning of adult theaters. State can use content to put them in different category than regular theaters. Powell concurrence: balances interest of state in having regulation and interest of people to have access to material. As long as theres access, this kind of reg is ok. Renton v. Playtime Theaters Facts: concentration zoning of adult theaters. Is a time place and manner reg, so defer to state. FCC v. Pacifica Foundation Facts: radio station aired George Carlin monologue w/ 7 dirty words. FCC wants to regulate this indecent (though not obscene) speech. FCC can regulate. Broadcast reaches people in homes, private sphere, sanctuary of private life. Obscenity not required to regulate. Brennan dissent: infantilizing discourse in USA- whatever offensive to children is offensive to adults. Can turn off radio. Rowan v. Post Office Facts: fedl statute allows person receiving sexual material to ask post office to require mailer to remove name from list. Statute con b/c no censorship; state simply allowing listener to say no. Denver Area Educational Consortium v. FCC Facts: Congress tries to regulate cable. Operator can prohibit sexual material- con Blocking required unless request- uncon Cable operator can bar public access- uncon. US v. Playboy Facts: Law required cable operators to scramble sexual material or confine to late night. Pacifica now in disfavor. SC moving in more speech protected direction. 1st time SC struck down law which regulated but didnt ban cable indecency. Cable different than broadcasting. Reno v. ACLU Facts: Statutes to protect kids from indecent material on internet. Total prohibition. Internet much closer to public forum. Statute abridges free speech. Uncon. In response to Reno Congress enacted COPA which prohibits anyone from knowingly making accessible to kids materials that are harmful. Cases: Govt didnt satisfy burden of proof. Is less restrictive alternative. 7) Unprotected Speech: Advertising Is protected, but not fully. Category of lower value speech, not core. Bigelow v. Virginia Facts: VA criminalized advertising NY abortion clinics SC held VA cant criminalize it Virginia Pharmacy Board c. Virginia Citizens Consumer Council Facts: VA law outlawed advertising prices of prescription drugs. Product legal and ad true. If have true ad for legal product/service, will raise free speech issues if state stops. Though not political or conscientious speech, is in public interest to access to info about products Concedes theres a level for professional self-regulation, but statute not based on legit professional self-regulation but rather protection from legit fair competition. Limited to legal and true ads. Central Hudson Gas v. Public Service Commission Facts: NY barred ads to stimulate demand for electricity. 4 questions Legal and true? How strong in govt interest? Does law advance govt interest? Narrowly tailored? Is law no more extensive than necessary to serve govt interest. Ad ban uncon. SUNY v. Fox Facts: university restricted operation of commercial enterprises on campus Central Hudson does not mean govt has to employ least restrictive alternative. Posadas de Puerto Rico Ass. v. Toursim Company Facts: Puerto Rican law prohibiting advertising of casinos to residents of Puerto Rico. Gambling viewed as harmful. Law upheld b/c/o passed Central Hudson test. Rubin v. Coors Brewing Co. Facts: Fedl law outlawed beer labels from showing alcohol content. Central Hudson applies to vice. Moved functionally to presumptive rule-if advertising is legal and true, prohibition is presumptively uncon (law today). 8) Symbolic Speech United States v. OBrien Facts: draft card burning, violated 2 crim statutes. OBrien Test: when statute is content-neutral W/in constitutional power of govt Furthers substantial state interest Directed at action, not speech; restriction on speech incidental Is speech suppressive Con as enacted and applied Street v. New York Facts: flag burning SC didnt reach flag burning issue. Law uncon as applied b/c were just words, didnt incite. Spence v. Washington Facts: " put peace sign on flag to protest Vietnam War. Court avoids looking at flag issue and said he s doing peaceful protest and that is protected. Texas v. Johnson Facts: public flag burning Nature of flag as symbol of nationhood/unity makes it such that desecration is necessarily a communicative act. Was state reg related to suppression of free speech? If yes, does interest justify conviction? If no, OBrien test Conviction not consistent w/ 1st Amend. Barnes v. Glen Theatres Facts: Nude dancing w/out coverage a misdemeanor Not total, not uncon. 9) Public Forum: Regulation of Time, Place and Manner Public forum: Open to public- parks, streets, etc. Purposes of forum not inconsistent w/ 1st Amend (values: political speech, truth, moral autonomy of conscience and dissent, privacy) Adequate alternative for a so can reg in neutral time place manner 2 kinds of cases which apply this: Public property (most cases) Some forms are public fora, others are not Private property (few cases) Mandatory public forum: State cannot cut it off, must leave it open. Evenhandedness- treat all speakers and speech equally in this domain. No content bias. Parks and streets Recently, CT has added state capitol grounds, public libraries, municipal theatres, and public property Discretionary public forum: State can cut them off Evenhandedness: jails, military bases, public schools, airports, public property Non-evenhandedness: city-owned bus, home mailbox, interschool mailbox Saia v. New York Facts: Prohibition on sound device w/out permission from police chief Struck down b/c/o slippery slope, where to draw line. Standardless. Cox v. New Hampshire Facts: Jehovahs Witnesses marched w/out license and convicted. Is neutral time place and manner reg. Easy to get permit, based on proper policing and limiting overlapping parades. Conviction upheld Martin v. Struthers Facts: prohibition on religious groups coming to door Struck down b/c easy for people to take steps not to be disturbed, objectionable for state to do it for you. State cant make judgments that are really private individuals judgments. Kovacs v. Cooper Facts: Ordinance bans loudspeakers making loud noises on vehicles. Wasnt full ban, only applied to loud and raucous volume. Upheld. City of Ladue v. Gilleo Facts: Ordinance banned putting sign in home window which opposed Gulf War. Struck down b/c something special about own home. Means of communication is unique and impt. Watchtower Bible v. Stratton Facts: ordinance requires permit for door-to-door proselytizing Inhibits too much speech b/c such canvassing is mandated by religion and permit price big burden. Uncon. Cox v. Louisiana Facts: peaceful march. Problem is discretion, not that theres not legit purpose. Concern that cops were acting in racially discriminatory way Heffron v. International Societyfor Krishna Consciousness Facts: State fair prohibited distribution of material except from rented booths. Fair is public forum, but Minnesota had imposed restraints. All groups were subject to rule, content-neutral. Evenhandedness. No exemption. 1st Amend doesnt guarantee right to communicate views at all times and place or in any manner. Upheld. Metromedia v. San Diego Facts: Partial ban on billboards Struck down as content-based b/c provided numerous exceptions, but Ct indicated willingness to defer to govts aesthetic interests. City Council v. Taxpayers for Vincent Facts: Total ban on signs on utility poles Neutral time place and manner reg. Not content-based. Adequate fora exist for political debate. Clark v. Community for Creative Non-Violence Facts: fedl reg prohibits camping in natl parks. Applied to protest group that wanted to protest against condition of homeless by setting up camp and sleeping over Mandatory public forum Under both OBrien and time place manner. Con. Ward v. Rock Against Racism Facts: park tried to regulate sound level by requiring concert to use city equipment and technicians Mandatory public forum Ward test: reg of time, place or manner of protected speech must be narrowly tailored to serve govts legit content-neutral interest but neednt be least restrictive alternative. Narrow tailoring satisfied if reg promotes substantial govt interest. Upheld b/c/ privacy interest of park neighbors. Frisby v. Schultz Facts: flat ban on focused picketing of particular residence. Can march down streets (Skokie) but cant stop in front of persons house. Privacy interest and elements of intimidation, captive audience Upheld Madsen v. Womens Health Center Facts: Court injunction limited activities of pro-life demonstrators at abortion clinics Hehtened scrutiny to time place and manner. Trying to balance privacy w/ free speech. Buffer zone: upheld at entrance but no where else. Safety and privacy Noise levels: upheld. Functional decision Ban on observable images: overturned b/c is at heart of expression Ban on approaching woman w/in 300: overturned. Schenk v. Pro-Choice Network Facts: Court injunction limited activities of pro-life demonstrators at abortion clinics Floating buffer zone: uncon b/c excessive, burden too much speech Fixed buffer zone at entrance and driveways: upheld. Safety. Hill v. Colorado Facts: statue made it unlawful to approach a person w/ 8 outside abortion clinic. Upheld b/c can still communicate from 8 away. United States v. Grace Facts: statute banned display at SC grounds Sidewalks before SC are public forum. Doctrine unique to SC; other cases where demonstrators allowed to be kept away from courthouses. Brown v. Louisiana Facts: breach of peace charge for stand-in in public library. Beginning to move to category of discretionary public forum SC says library is public forum b/c open to public and purposes consistent w/ 1st Amend. Breach of peace charge uncon as applied. Adderly v. Florida Facts: Marchers approach jail to protest jailing of civil rights protestors Jail not public forum. Not open to public, not consistent w/ principles of 1st Amend, alternatives exist. Grayned v. Rockford Facts: Statute restricts noise by schools Public schools not public fora. SC says not uncon. Even-handed. Kids need to learn, speech could disprupt. Lehman v. Shaker Hieghts Facts: city banned political advertising on city-owned buses. City engaged in commerce, can pick and choose. Southeastern Promotions v. Conrad Facts: Municipal board managing city theaters refused to allow Hair to be aired. City theatres are public fora Uncon Greer v. Spock Facts: 2 regs on military bases. Military bases are not public fora International Society for Krishna Consciousness v. Lee Facts: ban on solicitation of $ and dissemination of literature in public airport terminal SC says airport not public forum but uphed only ban on solicitation of $ and struck down ban on sale/distribution of literature. So sort of is a public forum. 10) Rights of Access to the Forum Worry that robust debate isnt happening leads to access obligation regs- minority voices which wouldnt usually get forum are allowed forum Amalgamated Food Employees v. Logan Valley Plaza- private property Facts: peaceful picketers at private mall picketing about mall practices charged w/ trespass Mall is public forum b/c now plays role of town center in suburban America: open to public, not in offense to free speech, almost no alternate forum in the suburbs Lloyd Corp. v. Tanner- private property Facts: ban on distribution of handbills applied to those handing out at mall for anti-war. Distinguishes Logan Valley- there picketing malls operations. Here, anti-war unrelated to forum. Hudgens v. NLRB Announced that Lloyd had overruled Logan Valley Malls not public forum. Miami Herald v. Tornillo Facts: FLA right to reply law granted candidates right to equal space to reply to criticism by newspaper. 1st Amend applies to state interference. Chilling effect b/c newspapers wont cover controversial issue b/c/o worry will trigger access obligations. Uncon b/c forces newspaper to publish undesired speech and limits public debate. Hurley v. Irish-American Gay, Lesbian Group of Boston Facts: Privately organized St. Pats parade forced to include homosexual marching group Unanimously struck down b/c state cant require private group to allow this speech. Parades form of expression, law had effect of requiring parade to alter content of parade. Red Lion v. FCC Facts: FCC fairness doctrine required stations to provide free reply time if subjected to personal attack on air Upheld access rights b/c is scarce medium. If were newspaper, Tornillo would make uncon CBS v. DNC Facts: CBS refused to air DNC and anti-war ads. CBS policy con. No access obligations b/c/o editorial discretion, journalistic freedom. Turner v. FCC Facts: FCC required cable to carry signals of local broadcast stations (must-allow provisions) Standard of review was intermediate (OBrien, Rock Against Racism) Upheld b/c content-neutral Reno v. ACLU No analogy btw internet and broadcast medium b/c internet not invasive and not limited/scarce. Access to forum not applicable to internet 11) Government and the Media: Of Censorship and Gag Orders (Prior Restraints) Most suspicious of state when exercising licensing authority, heavy presumption against constitutionality Freedman v. Maryland Facts: " convicted of failure to submit film for licensing. Licensing scheme had slow review. Procedure uncon b/c/o review delay. State can t adopt whatever procedure for dealing w/ obscenity. Burden of proof that film is unprotected expression on censor, not producer, b/c/o danger that will be less responsive than court to free expression interests Near v. Minnesota Facts: state law allowed abatement as public nuisance of defamatory newspaper. Essence of censorship b/c object of law not punishment but suppression. Exceptions where might entertain prior restraint: (Super duper clear and present dangers): Troop movements Obscenity- dead b/c/o later constitutional developments Incitement to overthrow- dead b/c/osubversive advocacy cases Walker v. Birmingham Facts: marchers for civil rights parade denied permit and marched instead of challenging in court and imprisoned. Imprisonment con even though underlying statute uncon b/c want to insist he go to court to protest statute, want people to trust courts New York Times v. United States Facts: NYT wants to publish Pentagon Papers which revealed info about how US entered war. Govt tried to stop. Black/Douglas: no prior restraint. Absolutist, this is worst possible thing. Douglas/Black: Espionage Act inapplicable. Saw papers in camera and dont bears on troops Brennan: affirmed Near troop movements exception, but this doesnt involve that worry Govt fails burden of showing justification for enforcement of prior restraint. United States v. Progressive Inc. Facts: magazine compiles info on how to create nuclear bomb, using only public information. Fedl govt to fed court to get an injunction b/c satisfies Near (involves nuclear information) and Atomic Energy Act of 1954 (communication of this info may be stopped) SC allows injunction. Nebraska Press v. Stuart Facts: state court order prohibited publication of facts of crime to ensure fair trial. Prior restraint impermissible. Have other remedies/alternatives. Prior restraint robust category of unconstitutionality 12) Campaign Financing: Is Money Speech? Buckley v. Valeo Facts: Challenge to Fedl Election Campaign Act of 1971 in wake of Watergate $1,000 cap on personal donations- con (connection to corruption/quid pro quo) $1,000 cap on independent expenditures- uncon (grosser intrusion on free speech, cant corrupt yourself) Limits on candidate personal expenditures- uncon Limits on aggregate campaign expenditures- uncon Public financing of campaigns provisions- con Political equality- uncon (equal bargaining power not compelling state purpose) Decision enormously controversial. PACs- allows people to collect unlimited $ b/c not candidates yet. Result of case is that they play big role. Austin v. Michigan Chamber of Commerce Expenditure limits apply to corporations Citizens Against Rent Control v. Berkeley Facts: Ordinance imposed $250 limit of contributions to committees formed to support/oppose ballot measures. Invalidated. Buckley not extended to ballot measures. McConnell v. Federal Election Commission Facts: statute closes up soft money loophole. Post-Buckley, went to PACs and parties. SC applies Buckley to soft money in light of new way people donate $. 13) First Amendment and Disclosure NAACP v. Alabama Facts: AL required NAACP to disclose info about members. Freedom of association case. Privacy connects to it. People dont always express themselves alone. Stronger voice in group. Uncon. Shelton v, Tucker Facts: AK required disclosure of school teachers membership in organizations Legit state purpose to ensure teachers are focusing on teaching and not other things. But are alternatives (# of orgs, hours spent, etc.) so could be applied overbroadly Uncon. But as applied analysis involved too much judicial review de novo. Gibson v. Florida Legislative Investigation Comm. Facts: NAACP ordered to bring membership records to hearings but refused. Overbreadth case. Statute struck down. NAACP exercising core speech. Buckley v. Valea Facts: Compulsory disclosure of political contributors. Upheld b/c way of policing contribution limits. NAACP v. Button Facts: VA prohibited solicitation of legal business and applied to NAACP litigation activities. SC holds legal solicitation to be protected expression so uncon. RELIGIOUS AUTONOMY 1) Free Exercise Clause Coercion or economic detriment and key to expression of religious belief, is uncon. Implies conduct or action, more than belief or expression Everson v. Board of Ed Facts: NJ statute reimbursed parents for transportation costs to parochial schools State may pay to bus kids to parochial schools Vietnam cases (below) Draft laws provided for conscientious objector exemption SC considered statutory definition of religion. Compelling secular state interest for men to serve in war. Mandatory exemption would incentivize conversion. Statutory exemptions instead United States v. Seeger Facts: " said had faith in ethical creed w/out belief in God. Entitled to exemption. Test is whether belief is sincere and meaningful and occupies place in life parallel to belief in God. Discretionary exemption Welsh v. United States Facts: " crossed out word  religious on application. Exemption applies. Gillette v. United States Facts: " claimed that was duty as Catholic to discrim btw just and unjust wars and refuse latter No exemption b/c is rejection of this, not all, wars. Otherwise would encourage people to invent interest or to convert. Church of Lukumi Babalu Aye v. City of Hialeah Facts: religion does animal sacrifice as religious ritual. City outlaws animal slaughter in religious domain. Legit state purpose but law too broad and not least restrictive alternative. Motivated by hostility to religion which is per se uncon Locke v. Davey Facts: state program gives scholarships but not for degree in devotional theology. B/c/o federalism, fact that not prohibited by fedl law doesnt mean it violated free exercise clause. States can experiment, consistent w/ robust states. Reynolds v. United States Facts: fedl bigamy law applied to Mormon claiming polygamy is religious duty. Neutral laws which adversely affect religion Religion not supreme to the law; law affects practices not beliefs/opinions. Upheld Braunfeld v. Brown Facts: PA Sunday closing laws- requires everyone to rest on Sundays Freedom to act not totally free from legislative restrictions. Law valid, despite indirect burden on religion, b/c purpose is secular and no alternative. Wisconsin v. Yoder Facts: WI criminalizes not sending children to school, Amish object to high school education Compulsory education is compelling state interest Strict scrutiny. Amish way of life re education is deep religious conviction so compulsory school at odds w/ fundamental religious belief. Violation of free exercise clause. Employment Division v. Smith Facts: state prohibited use of peyote which Indians use as part of religion. Denied unemployment benefits as result. Reynolds controls Upheld. Religion doesnt excuse one from valid law. No exemptions. 2) Anti-Establishment Clause Prohibits creation of official church and requirement of oaths of fidelity to faith Test (Lemon): to withstands establishment clause attack Has a secular purpose Primary effect is not to aid or inhibit religion Doesnt create excessive entanglement of govt w/ religion McCollum v. Board of Education Facts: allowed students to attend sectarian class held in public school during school hours. Struck down b/c public school bldg used and aided religion Zorach v. Clauson Facts: NYC program to release students during day to go to religious centers for religious class Release time off-site ok b/c not on-site, not entangling, not coercive and reasonable accommodation of state to parents interest in imparting religion to kids. Upheld Engle v. Vitale Facts: Non-denominational prayer in public school First school prayer case Struck down b/c was religious activity. Prayer used God. Abington School District v. Schempp Facts: Reading of psalms and Lords Prayer at start of school day Struck down Wallace v. Jaffree Facts: moment of silence at start of school day Struck down b/c record shows was all about prayer. Not objection to moment of silence on its own. Record shows was essentiality religious-favored prayer Lee v. Weisman Facts: prayer at middle school graduation. Extends above rules to middle school b/c same kind of peer pressure worries Uncon Santa Fe Independent School District c. Doe Facts: Student body voted to solemnize football game Struck down b/c on govt property so fact that student-initiated doesnt matter. Seems like school board supports this, that state is behind stigmatizing of non-majorioatarian religious perspectives Good News Club v. Milford Central School Facts: Private evangelical club used school facility for afterschool extracurricular program Upheld. State must allow them all to operate, b/c club open to other groups. No coercion. Stone v. Graham Facts: KY required posting of 10 Commandments in public school Uncon b/c no secular legislative purpose, plainly religious Epperson v. Arkansas Facts: AK anti-evolution law Struck down b/c essentially establishing sectarian reading, not neutral. Edwards v. Aguillard Facts: State required that if evolution taught, creation science must also be taught. Struck down b/c religious purpose b/c giving preference to one particular religion. McGowan v. Maryland Facts: Sunday closing laws Upheld b/c no longer primary religious purpose- day of rest, rest w/out commerce- secular purposes Lynch v. Donnelly Facts: City erected X-mas display in park (Santa, reindeer, teddy bear, clown, etc.) Not uncon b/c legit secular purpose (depicts origin of natl holiday), benefit to religion is indirect and remote. Allegheny County v. ACLU Facts: Nativity scene in courthouse Uncon b/c unlike Lynch, not surrounded by Santa etc. But if had menorah w/ it, would be con. McCreary County v. ACLU Facts: 10 Commandments in courthouse Violation b/c dominantly sectarian purpose. Courthouse where we uphold secular laws. . Van Orden v. Perry Facts: TX Capital grounds have 10 Commandments monument, next to many other monuments. No violation b/c is such a mix of messages. Not like McCreary. Everson v. Board of Education Facts: NJ statute allowed money to go to transport students to parochial schools Religion clauses incorporated into states Secular purpose: want educated citizenry. Parochial schools educate well. But $ going to parents, not school. Con. Otherwise, would be like telling church it cant receive benefit of firefighters/police. Mueller v. Allen Facts: State provides tax deduction for education expenses. In practice, only applies to private (sectarian) school costs b/c tuition reaches minimum. Deduction taken by parents, state not giving $ directly to school. Secular purpose is making education more affordable/convenient, neither aids nor inhibits, no entanglement. Upheld. Agostini v. Felton Facts: To comply w/ Aguilar (struck down programs where public school teachers offered supplementary classes math/reading in parochial schools), program had to take place in public facilities, which cost $100m. Overrules Aguilar. Just doing remedial education, not religious teaching. No real entanglement. Zelman v. Simmons-Harris Facts: State program gives state $ to parents to choose where they want to send child to public or private school of choice. Response to education crises. No violation b/c is true private choice and neutral to religion, no reference to religion. DUE PROCESS Guarantees of individual liberty Limited guarantees: habeas corpus, prohibition of ex post factor laws and bills of attainder laws Art. 3: other guarantees- treason narrowly defined, jury trial in criminal cases Art. 1, 10: Constraints on state power- K clause (Blaisdell), prohibition of bills of attainder and ex post facto laws Art. 4, 2: Privileges and immunities- basic human rights states cant discriminate w/ respect to residents and non-residents Art. 4, 4: Every state must have republican govt Bill of Rights (1791): first 10 amendments Recon amendments: 13th: prohibits slavery and involuntary servitude 14th: due process, no deprivation of life liberty or property, equal protection, cant abridge privileges and immunities 15th: rights not abridged on basis of race, color, or previous condition of servitude and to be enforce by Congress. Barron v. Mayor of Baltimore Facts: " sues City for ruining use of his wharf under 5th Amend (taking w/out just compensation) 1833 Marshall says Bill of Rights doesn t apply to states Slaughter-House Cases Facts: State gave monopoly of slaughter houses and butchers challenged under 13th & 14th First interpretation of recon amendments 13th not applicable b/c not slavery. 14th equal protection not applicable b/c meant to deal w/ race hatred. SC worried will be perpetual censor of all state laws to ensure consistency w/ conceptions of human rights. Law sustained. Saenz v. Roe Facts: CA limited welfare benefits of newly arrived residents. Congressional statute allowed this. Right of interstate mobility protected under CC and equal protection (has to rest on this so Congress cant override) Edwards v. California Facts: CA anti-Okie law. Struck down under CC Shapiro v. Thompson Facts: Law denied welfare benefits to new state residents Struck down b/c uncon burden on interstate movement. Extended to voting (Dunn), medical care(Maricopa), but not divorce. Incorporation Bill of Rights incorporated into 14th Amendment and so incorporated against states? Palko v. CT Facts: Man tried 2X in state ct for 1 crime, claims violates 5th Amend double jeopardy clause. Test for when bill of rights is or is not incorporated against states: Could system of justice be just w/out that right? Some parts of Bill of Rights not fundamental: trial by jury, indictment, compulsory self-incrimination Fundamental rights: free speech, trial, counsel in criminal cases. Could not have just system that lacked these rights Theory of selective incorporation: Pick and choose depending on abstract sense of justice. But subjective and malleable. Adamson v. CA Facts: " claimed violation of 14th Amend b/c prosecution allowed to comment on failure to take stand at murder trial. SC found no grounds under Palko to make self-incrimination privilege applicable to states. Black dissent argued for total incorporation of Bill of Rights- selective reading of history and too mechanical. Duncan v. LA Facts: " convicted of simple battery but denied trial by jury, which state only guaranteed for capital punishment/hard labor cases. Test: given Anglo-American historical conception of justice, is this right essential? Distrust of state power. Trial by jury is huge constraint on state power. Trial by jury is fundamental right incorporated to states Result of case: States bound to search and seizure, double jeopardy, compelled self-incrimination, right to counsel in criminal cases, confrontation of witnesses, compulsory process, speedy and public trial, jury trial, ban on cruel and unusual punishment. Not incorporated: grand jury indictment and excessive bail Williams v. Florida Facts: " says should ve gotten 12 person jury instead of 6 person and unanimity Working w/in context of Duncan that requires jury guarantee. Don t need 12 people in unanimity. States have flexibility in #s (connotative approach). Function of jury to impose citizens btw state and ", don t need 12 people to do that. If denotative approach: would ve been 12. SUBSTANTIVE DUE PROCESS AND EMERGING RIGHTS TO PERSONAL AUTONOMY OR PERSONHOOD 1) Rise and Fall of Substantive Economic Due Process Lochner symbolizes rise of substantive due process as protection of economic and property rights. Use of it now is discredited but used as haven for fundamental, rather than economic, rights Harm principle (Mills in On Liberty). 2 basic rights that must be protected: free speech and constitutional privacy Lochner v. New York Facts: NY limited # of hours a baker could work per day. Statute compromises right to work. No compelling state purpose (but what about harm to baker and consumer?). Struck down. Paradigm of abuse of judicial decision-making. Lochnerizing= judicial intervention into economic legislation. Purposes of Con read out w/ no discussion. Matter more properly for democratic branches of govt b/c turn on fact-finding and improperly making them into judicial matters. Coppage v. Kansas Facts: " convicted of conditioning employment on not being member of labor union. Law violates DP b/c have right to make contracts United States v. Carolene Products Co. Facts: Fed l prohibition on interstate shipment of filled milk. Lochner discredited. Legislation affecting ordinary commerce deemed con unless based on irrational basis. Famous footnote 4 (J. Stone). Distinguishes cases where greater judicial scrutiny might be appropriate. Must enforce bill of rights and intervene in restrictions on political process. Williamson v. Lee Optical Co. Facts: State law effectively preventing opticians (as opposed to optometrists) from fitting old glasses into new frames or supplying lens w/out a prescription Summarizes withdrawal from Lochner No record but SC came up w/ state purpose of there being hidden eye conditions and impt for eye glass wearers to have eyes regularly examined. No fundamental right involved, no suspect class involved= no SC role. Almost total deference Con. 2) Right of Personal Autonomy: Of Contraception, Abortion, Consensual Adult Sexuality, Death, Drugs, and Beyond Meyer v. Nebraska Facts: Teacher taught German to students and is prosecuted under state statute Liberty interest in education: teacher to teach, student to learn, parent to direct how child is taught Conviction reversed Pierce v. Society of Sisters Facts: state law required parents to send child to public schools Parents have liberty interest in directing how child will learn and in what school. Statute interfered w/ liberty. Struck down Skinner v. Oklahoma Facts: compulsory sterilization if convicted of 3 crimes involving moral turpitude Law invalidated b/c marriage and procreation are basic liberty. Griswold v. Connecticut Facts: CT law says is illegal to disseminate birth control info. Marital associations protected by Con along w/ right to educate children, associational liberty. Compelling state purpose: prevent pre- and extra-marital sex, prevent non-procreational sex People have right to hear info in privacy of own home Now commonly called right of intimate association (protections beyond marriage) Roe v. Wade Facts: TX makes abortion illegal unless to save life of mother. 2 arguments: status of fetus (when is person worthy of protection by law?) and mother versus fetus Basic human right: privacy. Development of Griswold line- right of intimate association Compelling state purposes: health and life of mother, potential life of unborn child Creates trimester system- different interests justify different level of prohibition at each stage. 1st- no regulation at all 2nd- some regulation 3rd- can prohibit altogether Planned Parenthood v. Danforth Facts: spousal consent case Abortion is womans right, right doesnt adhere in husband so spousal consent struck down Bellotti v. Baird Facts: parental consent case Only permitted if theres procedure whereby she can go to court to get consent Maher v. Roe Facts: Ct reg granted Medicaid benefit for childbirth but denied for medically unnecessary abortion Scheme does not interfere w/ fundamental right recognized in Roe. Upheld reg under deferential rationality review. Harris v. Macrae Facts: Hyde Amendment barred payment for medically necessary abortions. Freedom of choice doesnt mean constitutional entitlement to funding Upheld Planned Parenthood v. Casey Facts: Challenge to Roe Reaffirmed central principle of Roe trimester system Talked about having overruled Lochner and Plessy but Roe not been left behind by developing jurisprudence, right to privacy still very much good law. Women rely on right to abortion, part of basic conception of being free woman. Gives more weight to potential life than Roe. States interest in health of woman present though entire pregnancy. More favorable to state regs during first 2 trimesters than Roe. 24 hour wait period allowed. Akron I overruled (dont believe will result in people not getting abortion but serves state interest of encouraging reflection) Husband consent no good- Danforth remains good law. Parental consent w/ bypass procedure reaffirmed Right to Marriage Zablocki v. Redhail- to burden anyones right to marriage raises con problems Turner v. Safley- applies in prison context Moore v. East Cleveland- family means extended fam, not just nuclear. Bowers v. Hardwick Facts: GA law criminalizes sexual acts involving mouth/anus of another Compelling state purpose: end non-procreational sex, upsets gender roles, health risks Upheld. Right not fundamental- no connection btw family/marriage/procreation and homosexuality. Lawrence v. Texas Facts: TX law criminalizes 2 people of same sex to doing certain sexual conduct. Targeted gays. Compelling state purpose: end non-procreational sex, upsets gender roles, health risks Difference here from Bowers is that law is targeted. Bowers overruled. Homosexual activity is protected. Goodridge v. Dept. of Public Health Facts: MA same-sex marriage ban Massachusetts court ruled marriage right must now be available to gays Enormous public hostility- number of states passed constitutional amendments forbidding it Right to die cases: Two kinds of voluntary death cases: Passive- dont keep me on respirator. Regarded as morally acceptable. Living wills Active- killing. Terminally ill person given something to facilitate death. Cruzan v. Mississippi Dept. of Health Facts: Parents of person in vegetative state sought to discontinue tubal feeding. No living will. First right to die case Incompetent person not able to make informed and voluntary choice. State may seek to safeguard decision btw life and death by imposing heightened evidentiary requirement. Washington v. Glucksberg Facts: statute criminalizes causing or aiding someone to attempt suicide. Assisted suicide case. Statute doesnt violate 14th Amend b/c/o state interests. EQUAL PROTECTION Background Abolitionism Modern- Lincoln. Wanted to end slavery, emancipate and colonize them abroad Didnt know how whites could live w/ blacks after what theyve done to them. Radicals- Garrison. Small minority argues that must end slavery and address racism. Deny fundamental rights- fail to extend to them rights rest of us have Suspect classification analysis- fedl power to protect people from dehumanization by states 1) Standards of Review: the Weak or Rational Basis Test Tussman & tenBroek (p.645-46) M= mischief, purpose to which law is directed T= classification that includes and excludes certain things. Part of EP analysis that you ascribe to law its M and T and then ask: what is connection btw M and T? 1) all Ms are all Ts: perfect rationality, constitutional 2) no Ms are Ts: perfectly irrational, unconstitutional 3) all Ts are Ms but some Ms are not Ts: under-inclusive, rational to some extent 4) all Ms are Ts, but some Ts are not Ms: over-inclusive law, rational to some extent 5) some Ts are Ms, some Ts are not Ms: over- and under-inclusive SC doesnt tolerate any degree of over- and under-inclusiveness when in strict test governed by whether there is fundamental right or suspect class. Hypo: voting rights. State says have to be resident for more than 6 months to vote. T is 6 months M is knowledgability for purposes of educated vote Struck down b/c abridging fundamental right (voting) and over-and under-inclusive b/c many people resident less than 6 months quite knowledgeable and some there over 6 months have no knowledge. Hypo: During WWII, subject Japanese people to curfew requirements/put in camps. Use of suspect classification. T= being Japanese American M= to stop sabotage Struck down b/c over- and under-inclusive. Most loyal Japanese-Americans and not suggested intern German- and Italian-Americans. Difference is race, which is suspect classification. Railway Express Agency v. New York Facts: reg restricts advertising on vehicles unless for self-advertising. M= prevent distraction by motorists Reg is over- and under-inclusive but passes muster b/c falls in economic and social domain Jackson concurrence: he prefers EP to DP b/c not invalidating substantive state ends, just saying to pursue ends fairly. US Railroad Retirement Board v. Fritz Facts: statute restructures railroad retirement system to phase out windfall benefits and line drawn challenged. Congress has rational basis for statute which is that are scarce resources and Congress can apportion according to more recent your employment to railroad is. 2) The Strict Test: Race as Paradigm Case of Suspect Classification Purposeful DiscriminationExpressImplied/ de jure(1) Forbidden criteriaEqual ProtectionStatute/Title VII(2) Invidious(1) Disproportionate impact (2) No non-racist purpose(1) Disproportionate impactRace is Suspect 1) Immutable fact 2) Salient, obvious 3) Irrational prejudice 4) Irrelevant to any legitimate purpose 5) Powerless Strauder v. West Virginia Facts: state law limited juries to white people First suspect classification case Under- and over-inclusive Discrim is brand on blacks, assertion of inferiority and stimulant to prejudice Uncon. Korematsu v. United States Facts: WWII curfew and internment of Japanese-Americans. Restriction is suspect but upheld under strict scrutiny b/c/o pressing public necessity. Loving v. Virginia Facts: anti-miscegenation case- cant marry or have sex across racial lines. No state interest Uncon. Palmore v. Sidoti Facts: loss of custody rights b/c/o marriage to person of another race Struck down b/c state cant use invidious racial classification. State interest doesnt rise to level to allow state to destroy custody rights. Yick Wo v. Hopkins Facts: ordinance requires laundries to be only in brick buildings, otherwise must have special permit. Effect was that no Chinese approved for permits No non-racist purpose to justify disproportionate impact on racial minority Implied purposeful discrimination. Violation of EP Gomillion v. Lightfoot Facts: District lines redrawn in city and most blacks removed from district. No coherent theory of voting rights to justify this Implied purposeful discrimination, violation of EP Griffen v. County School Board Facts: city responds to Brown by closing public schools and granting public funds to white children to attend private school Perpetuating disproportionate impact of sub-standard education on blacks and no non-racist purpose. Uncon. Palmer v. Thompson Facts: city closes public swimming pool after ordered to desegregated Upheld b/c disproportionate impact on whites as well as blacks. Fails Yick Wo and Gomillion in that way Washington v. Davis Facts: test requirement to become police officer and more blacks than whites failed. Upheld. Minimum level of literacy not regarded as racist. View of lower court that if Title VII, instead of equal protection, was used, wouldve been struck down b/c immediate trigger of statutory violation is disproportionate effect Arlington Heights v. Metropolitan Housing Corp. Facts: City refused to rezone property from single family to multiple Might have disproportionate effect but no racist purpose. Absent Title VII, not east to get benefit of implied purposeful discrimination doctrine. Upheld Rogers v. Lodge Facts: voter dilution. No blacks elected in at-large election system History shows clear disprop effect on minorities. Invidious purpose. Uncon. Hunter v. Underwood Facts: state disenfranchised those convicted of moral turpitude crime but blacks disprop impacted. Struck down b/c unapologetic racism 3) Racial Segregation History Never contemplated integrating blacks into American community. View (Jeff, Lincoln) was that black would colonize. In wake of Civil War, when blacks fought, Americans realized that must integrate. Radical polarization btw north and south, fomented by Johnsons racism. Response was EP clause of 14th Amend. 1877 Hayes-Tilden compromise: N withdrew troops from S. Racism led to Plessy. Plessy v. Ferguson Facts: State law required separate but equal railroad accommodations for blacks and whites. Opinion has 3 things: Originalism Appealing to precedents Latent racism Law upheld Brown v. Board of Education Facts: Kids seek admission to public school on nonsegregated basis. Avoids originalist history: no universal education during Founders time. WW2: blacks fought and was against racist power. Other NAACP cases: Gaines v. Canada- State has duty to provide law education for that state Sweatt v. Painter- Separate law school not equal McLaurin v. Oklahoma- experience of being compulsorily separated in classroom demeaning and separate cannot be equal. Separate but equal is itself the reflection of irrational race hatred. Aims: desire for better education for black kids; if racism culturally constructed, then break at primary and secondary education level by making kids go to school together Theorists: Ely: disagreed w/ Bolling v. Sharpe (extends Brown from states to fedl govt) Wechsler: neutral principle theory fits Brown but not per curiam extensions to all state facilities. Given cultural history of racism, have to use racial classifications to ameliorate and reject history (supports affirmative action) Separate not equal. Desegregation ordered. Brown II Facts: manner in which relief is granted is questioned Lower fedl courts to enforce principle of Brown with all deliberate speed 3 periods: After Brown II: massive resistance throughout American south, political racism Cooper v. Aaron- reaffirms principle of Brown. Fedl troops to enforce court order. Civil Rights Movement- MLK. Passive movement met w/ violence. 2 pieces of fedl legislation: Civil Rights Act; Voting Rights Act of 1965. Court no longer alone; now have Congress Green v. County School Board, Swann v. Charlotte: de jure segregation (express use of classification to segregate or history leads to racially disproportionate impact on minorities and no non-racist justification for it). Green v. County School Board Facts: School districts thought freedom of choice plan complied w/ Brown. Inadequate compliance b/c could draw districts which are consistent w/ idea of neighborhood school and integration would be achieved. Swann v. Charlotte-Mecklenburg Board of Education Facts: geographic zoning not enough so city did busing Can bus kids to achieve integration Keyes v. School District Facts: 1st decision on school deseg in northern/western state Brown moving north. Begins to apply implied purposeful discrimination analysis: patterns were all white/all black schools. Lines can be drawn in different way and failure to do so has disproportionate impact on blacks and no non-racist reason to justify. Milliken v. Bradley Facts: Detroit w/ center where blacks live and suburbs where whites live, so segregated schools SC says cant bus b/c what we tolerate w/in district we dont tolerate btw districts. Has to be finding of de jure segregation in white district as well, not simply in black district. SC in 1990s Successful desegregation in south, less successful in north Missouri v. Jenkins: State court cant order taxes to fund deseg b/c is democratic matter. Oklahoma v. Dowell: SC refused to enter challenge that local school board was resegregating. Freeman v. Pitts: Partial withdrawal of judicial supervision allowed US v. Fordice: Colleges and universities have same obligations as primary and secondary schools. Hunter v. Erickson: SC strikes down charter amendment requiring fair housing law be approved by voters b/c using race and referendum dont override Con. 4) Affirmative action Theorists: Ely/Dworkin- fair representation view. If through rep process white majority imposes on itself burden of affirmative action, that is not unfair rep. Bickel- use of immutable characteristic. If accept principle of Brown, has to do w/ whether is product of irrational race prejudice. Brown is, affirmative action is not. Regents of Univ. of California v. Bakke Facts: medical school used strict quota for admission- reserved 16 seats for minorities. Powell: Racial distinctions of any sort inherently suspect. Rejects Ely and Dworkin. Are nation of minorities. no justiciable way of picking and choosing among minorities. Strict test 4 possible purposes for quota plan: Proportional representation. Problem: preferring members of one group strictly on basis of race Social discrimination. Problem: no finding of a history of de jure segregation Health care delivery- want more minority doctors b/c more likely to serve minority community. Problem: reluctant to force minorities to serve minorities Diverse student body. Powell accepts. Promotes robust exchange of ideas. Legit state purpose. But remedy needs to be narrowly tailored to solution and 16 seats not narrowly tailored. Admissions scheme is prohibited. Solution: Harvard College. No set-asides. Consider each applicant individually and judge against set of criteria (test scores, work experience, ethnicity, geography, economic class, special talents etc.). Brennan dissent and concurrence: adopts intermediate level scrutiny. Test is whether theres important purpose being substantially pursued. Would allow set-asides. Grutter v. Bollinger Facts: Michigan Law School looks at individual characteristics, w/ goal of diversity Test is Bakke: classifications con only if narrowly tailored to further compelling govt interest Diversity is compelling interest Gratz v. Bollinger Facts: Michigan undergrad does point system and gives minorities automatic 20 points. Uncon b/c not narrowly tailored, process not individualized. Wygant v. Jackson Board of Education Facts: affirmative action in lay-offs results in senior whites laid off instead of junior minorities Strict scrutiny Uncon b/c taking away something someone already had. Interests heightened. Fullilove v. Klutznick Facts: Govt doing set-asides- 10% of funds for public works must be given to minorities Con b/c Congress presented adequate record to back it up. Blatant evidence of de jure racism, Richmond v. Crosen Facts: City doing 30% minority set-aside. Not Fullilove b/c not natl govt doing this. Not extended to local municipality. No adequate basis for past discrim. Findings not dependable in same way as Congress. Adamarand Constructors v. Pena Facts: Subcontractor w/ low bid not awarded K b/c/o preference for minorities. Court announces strict scrutiny for all affirmative action cases. Growing judicial skepticism Shaw v. Reno I Facts: State awarded addl congressional seat. Drew district line along highway, looks like snake. SC says no traditional redistricting motivation besides race, but not purely aesthetics. EP overrides Voting Rights Act- cant be applied in conflict w/ EP Uncon b/c motivated by racial classification Miller v. Johnson Facts: state created 3 black-majority districts and whites filed suit. Districting uncon under Shaw. Shape of district not prerequisite or element of proof but is persuasive circumstantial evidence. 5) Gender as Suspect Classification 3 lines of cases where gender classification struck down: Women burdened more than men- Reid, Frontiero, Stanton Implied stigma cases- Craig, Hogan, Oar Working men versus working women- Caldwell Goesaert v. Cleary Facts: law prohibited women from getting bartenders license unless wife or daughter of bar owner No fundamental right, some rational basis, defer to Congress. Upheld. Reed v. Reed Facts: Preference of man over woman for administration of estates Women burdened more than men (also Frontiero and Stanton) SC strikes down, though claiming to be using rational basis standard (can find rational basis for anything!). Is arbitrary. Frontiero v. Richardson Facts: law gave automatic dependency benefits to wives of men in military, but not to husbands of women in military. Plurality: race and gender are equally suspect (but not enough votes) Immutable fact, salient- Yes Irrational prejudice- Yes Slavery analogy Women have been deprived rights traditionally afforded men Irrelevant legit purpose- No Growing skepticism about traditional cultural weight accorded sex differences. No relevance Powerlessness- No Permitted to vote since 1920 and majority of population. Ely: leading critic of gender cases b/c women are majority. Struck down under rational basis analysis. Craig v. Boren Facts: law prohibits sale of beer to males under 21 and females under 18. Intermediate level scrutiny announced. 2 prong test: Important objective Substantially related means. Uncon. Gender-neutral law would serve purpose as well if not better: Mississippi University for Women v. Hogan Facts: Nursing school excluded men. Doesnt meet Craig standards b/c man has conright to be nurse and idea of single-sex college is problematic. Reinforces stereotype that nursing is womans work. In 1982, women dont need enclave. Uncon. United States v. Virgnia Facts: VMI single-sex admissions challenged. Court of Appeals accepted plan to open female VMI. Exceedingly persuasive justification standard- higher than intermediate scrutiny/Craig Possible justification: Adversative approach- would have to be modified Single-sex contributes to diversity Remedy of female VMI doesnt resolve con violation. Geduldig v. Aiello Facts: State exclusion of pregnancy from disability insurance Con b/c not all women get pregnant. Deferential standard. (Congress reversed it by statute) Michael M. v. Superior Court Facts: CA law punished male but not the female participant in statutory rape. Consequences of sex on women (pregnancy) Pregnancy is natural deterrent for girl. Statute is deterrent for boy. Girl will only tattle if not subject to punishment Con. Case illustrates what SC has to do to uphold statute which involves gender distinction. Rostker v. Goldberg Facts: draft registration for males and not females and challenge to constitutionality. SC usually defers to Congress for issues involving military. Concedes that is gender-based but everyone agrees women can be excluded from combat roles so can exclude them from draft. Dissent: difference btw draft and registration. Not ruling on constitutionality of conscription. Caban v. Mohammed Facts: NY law gives mother, but not father, of illegit kid right to block childs adoption by withholding consent. Struck down Parham v. Hughes Facts: GA law denied father, but not mother, right to sue for nonmarital childs wrongful death. Upheld. Only father can make illegit kid legit. Distinguishes btw fathers who have legitimated kids and those who havent, not fathers as a class. Nguyen v. INS Facts: Law treated kids born out-of-wedlock to 1 citizen-parent and 1 non-citizen different depending on whether it was mother or father who was citizen. Mother citizen: automatically citizen. Father citizen: 3 conditions required. Upheld b/c/o deference to Congress for citizenship issues Personnel Administrator of Mass v. Feeney Facts: MA law gave preference to veterans for state civil service jobs Test for race will apply to gender: Yick-Wo and Gomillion Express discrim- highly suspect. No Implied discrim- non-invidious justification is giving veterans jobs. Upheld. Kahn v. Shevin Facts: state law gave property tax exemption for widows but not widowers. Upheld b/c designed to remedy past discrim against women. Orr v. Orr Facts: AL courts permitted to require husbands automatically pay wives alimony and no comparable rule for wives paying husbands Struck down. Legit objectives but means not substantially related. Shows that men can challenge laws, too. Califano v. Webster Facts: Social Security allowed female wage earner to exclude 3 more lower-earning years than male. Resulted in slightly higher monthly wage and old-age benefit. Upheld b/c sole purpose was to correct past discrim in wages. Schlesinger v. Ballard Facts: Servicewoman didnt risk discharge w/out promotion as early as men. Upheld. Deferential rationality standard. Military imposes on self to remedy present discrim. 6) New Suspect Classifications: Alienage, Illegitimacy, Mental Retardation, Sexual Preference, Poverty Graham v. Richardson- alienage Facts: State denied welfare benefits to aliens. Strict scrutiny Struck down b/c discreet and insular minority and pay taxes. Pay into burdens of citizenship, so why cant they get some rights. Fedl preemption reading: if govt hasnt denied benefits to aliens, then state cant In re Griffiths- alienage Facts: CT excluded aliens from practice of law Extended Graham to law pratice. Struck down. Sugarman v. Dougall- alienage Facts: NY restricted aliens from competitive classified civil service Graham strict scrutiny. State has no substantial interest. Positions in permanent civil service opened up to aliens unless position is govt function. Foley v. Connelie- alienage Facts: NY excluded aliens from state trooper jobs SC invokes Dougall exception. Better to have citizens more drenched in American values. Upheld. Ambach v. Norwick- alienage Facts: State restricts aliens from public school teachers SC invokes Dougall exception. Upheld. Non-marital children cases Involves exclusion from wills and intestacy Fraud problems SC strikes down cutoffs but illegitimacy not a suspect class. Cleburne v. Cleburne Living Center, Inc.- mental retardation Facts: TX town was denying permits for operation of group homes for mentally retarded. Mental retardation not suspect class. Immutable- yes Salient- yes Irrational to treat them differently? Not always. Irrelevance- not wildly Powerless- No. Unlike some groups which everyone loves to hate, theres a lot of fedl legislation which is generous to mentally retarded. Mass. Board of Retirement v. Murgia- age Age is not a suspect class Poverty and wealth as suspect class Wealth- argument for suspect classification made by Frank Michelman Poverty- only suspect in terms of voting rights, but not independently Poor dont vote in large numbers, but Ely would say that have right to vote. Romer v. Evans- sexual orientation Facts: CO con amendment adopted in referendum which prohibits legislative, executive or judicial action designed to protect homosexuals. Before, was possible for state to bar discrim. Bowers still good law: right to privacy not owed to gays Doesnt discrim but places gays on same footing as everyone else, but clear objective to repeal laws which ban discrim and effect is that gays will have current privileges taken away. Sexual orientation analogy to race/gender: Immutability- not obvious Salience: not obvious b/c have a lot of closeted gays Irrational prejudice: Yes Irrelevance to legit state purpose: No, b/c/o Bowers Powerlessness: Not obvious b/c small minority but arguably group has power disproportionate to numbers. Uncon. Lacks rational relationship to legit state interest. 7) Strict Test: Fundamental Rights and Beyond (Minimal Welfare Rights) Fundamental rights: Speech Conscience Privacy Inference of other fundamental rights Voting rights (most robust) Access to civil and criminal law Movement Total denial of right to vote (poll tax, property requirement, residency requirement, enrollment requirement for primary): struck down State imposes weighting of votes One person, one vote- Reynolds, Baker v. Carr Gerrymandering Racial Political Voting power dilution Proportional representation Harper v. Virginia State Board of Elections Facts: $1.50 poll tax. Voting rights are basic right b/c underlie most other rights. Equality in voting rights instrumental to democratically secure other rights. Any deviation must be justified by compelling secular purpose. Uncon. Harlan dissent: Originalist argument- at founding, were universal property requirements for voting and that was British view as well. To own property meant you were free of corruption. Kramer v. Union Free School District Facts: Property qualification to voting is school district election Addressing democratic objection to judicial review. Outside area of basic rights, judiciary shouldnt act b/c issues can be resolved democratically. Uncon. Not precise enough. Baker v. Carr SC announces that issues of one person/one vote are justiciable. Before, only heard cases involving guarantee of republican form of govt clause. Standard not announced. Comes later in Reynolds. Reynolds v. Sims Facts: Challenge to malapportionment of AL legislature Population counts. Seats to be apportioned on population basis. Congressional districting- SC is quite strict (Kirkpatrick v. Preisler) State districting- SC not as strict (Abate v. Mundt) SC allows super-majorities (Gordon v. Lance) Davis v. Bandemer Facts: districting results in dilution of Democratic voting strength Standard cant be proportional representation b/c will be some minority not represented. Vote dilution justiciable but threshold is showing of discrim Threshold showing not made here. Districting upheld. Vieth v. Jubelirer Facts: Challenge that PA districting unfairly advantaged Republicans SC came close to saying political gerrymandering claims are nonjusticiable political questions Access to courts cases Very rarely does poverty matter constitutionally but does in access to courts. Griffin v. Illinois: state must provide trial transcript to indigent defendant appealing conviction Douglas v. California: state must provide counsel for 1st appeal. Ross v. Moffat: SC refused to extend Douglas to discretionary appeals. San Antonio School District v. Rodriquez Facts: TX schools districts funded through property taxes. One property rich and other property poor. Results in poorer having to tax at much higher level to get adequate funding. Struggle in case is equal opportunity versus minimum Suspect classification analysis- hopeless. Cant show express or implied discrimination Education is not fundamental. But minimal education opportunity is constitutionally required. Upheld under reasonable basis standard. Marshall dissent: (regarded as brilliant). Calls for intermediate level scrutiny. Plyer v. Doe Facts: denial of public education to illegal aliens Struck down b/c is total deprivation STATE ACTION AND THE ENFORCEMENT OF CIVIL RIGHTS Congressional enforcement CC: Can enforce any commerce w/ necessary and proper connection to natl economy Lopez and Morrison outside but very controversial so not stable precedents V. little judicial enforcement Recon amendments: 13th/14th/15th- Remedial theory and substantive theory 1) State Action 14th Amend: No state shall make laws which abridge. Civil Rights Cases Facts: Civil Rights Act of 1875: anyone who goes to hotel/restaurant cannot be not served on account of race Racism not effectuated by private parties so outside scope of 14th Amend. CC: decision says not deciding con of ths under CC- so 1960s Congress used CC 13th Amend argument: SC says this has nothing to do w/ slavery. Contemporary court has allowed legis to draw life from 13th.  #57;fgo # 3 ? 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Alabama- public function Facts: Jehovahs Witness protested dominant religious orthodoxy in company town Even though private property, company town acting like a state. Streets/parks owned by state Public function test Extended to shopping centers for a while and then withdrew from that Evans v. Newton- public function Facts: Senator set up park in will that can only be used by whites. Sets up a trust to run it. Looks like a park, everyone thinks its a parkit is a public park Principle of anti-discrim extended. Nixon v. Herndon- public function Facts: TX excludes black voters from primaries Per se uncon. Smith v. Allwright- public function Facts: White primary established by state convention not state. Uncon. Performing state function. Terry v. Adams- public function Facts: Private democratic club did pre-primary elections and excluded blacks. Takes the place of the primary, so uncon. Shelley v. Kraemer Facts: racially restrictive covenant Race-based zoning in unconstitutional (Buchanan v. Warley). Covenant has same effect. Force of restrictive covenant is like the power of the state saying no the sale. State action in that there was judicial enforcement of covenant. Uncon. Evans v. Abney Facts: After private park not able to be operated for white only, state court deemed senators intent impossible to fulfill and reverted parkland to heirs. Not state discrim b/c solely effort to effectuate terms of will Pennsylvania v. Board of Directors of Trust Facts: Girard College- only whites but City of Philly is trustee Board which operates college is agency of state, so is discrim. Uncon. 2) Beyond State Action: Congressional Enforcement 5 of 14th Amend Congress shall have power to enforce, by appropriate legislation To what extent can Congress sanction private interferences w/ con rights? United States v. Guest Facts: 6 "s charged w/ killing black reserve officer. Charged under fed l conspiracy statute. No requirement of state action but SC finds enough connection btw private parties and state for there to be state action. Nexus. Indictment sustained. Jones v. Mayer Facts: feds statute prohibits racial discrim in sale or leasing of housing. No requirement of state action. Statute is valid exercise of Congressional power to enforce 13th Amend. Power to identify badges and incidents of slavery and adopt legislation to end them. 13th Amend reawakened. Con. Sullivan v. Little Hunting Park Facts: Owner assigned membership to residents association to black and board refused it. Not a bona fide social club, associational liberty trumped by command for racial equality.Club interfering w/ right to lease, no longer simply social club Gender cases: Roberts, Rotary, NY Club Association- all of which said clubs must be opened to women Analogy here: really not intimate groupings, not intimate life at all. Runyon v. McCrary Facts: statute prohibits private school from denying admission to blacks. Anti-discrim versus some right of privacy Legislation should be interpreted as requirement to integrate private schools and must admit people of color under 13th Amend. Draws distinction btw sectarian and non-sectarian, not extended to sectarian/religious schools b/c religious liberty issue there. Lassiter v. Northampton County Election Board Facts: state literacy tests to vote Literacy linked to intelligent use of ballot. Neutral as to race/religion. Upheld 3) Enforcement of Civil Rights and Reconstruction Amendments South Carolina v. Katzenbach Facts: Voting Rights Act scheme to determine if literacy test a problem If threat to fundamental rights, Congress can use fedl power to prevent discrim. Legit response to problem Upheld Katzenbach v. Morgan Facts: Voting Rights Act extended vote to Puerto Ricans but NY requires English proficiency to vote Con to expand vote, not uncon to have language burden. Oregon v. Mitchell Facts: Fedl govt tries to lower voting age from 21 to 18 for both state and natl elections Fedl lowering upheld. State lowering struck down b/c going to state power. Rome v. United States Facts: GA made changes to elections that diluted black votes. Attorney General wouldnt approve. Long history of racism, not unreasonable for Congress to look at this. Can prohibit changes which merely have discrim impact. City of Boerne v. Flores Facts: Denial of church permit challenged under Religious Freedom Restoration Act. Uncon b/c substantive not remedial legislation. Not proportional or congruent to the evil presented. Remedial legislation-okay. Substantive legislation- not okay. US v. Morrison Facts: Fedl civil remedy against private parties for gender-related rape Under CC, held uncon b/c no buying and selling. 5 14th Amend argument: persistent bias in state justice system, universities werent telling students not to do this. SC says that Congressional power under 5 subject to requirement that it apply to state action. Cites Civil Rights cases- shocking given how almost every aspect has been overruled. Drawing distinction btw race and gender. Narrow reading of state action in gender area Kimel v. Florida Board of Regents Facts: Congress allowed state employees to sue states for damages for violation of Age Discrim Act. Uncon b/c age not suspect class so legislation cannot be regarded as remedial. Before can get case going, SC must have rendered class suspect. Board of Trustees of University of Alabama v. Garret Facts: Congress tried to abrogate sovereign immunity for state-employer violations of Disabilities Act. Cleburne- mentally retarded not suspect class, so legislation cannot be valid under remedial theory Uncon. Nessee v. Lane Facts: C*9JKR$56@GHs!8g"rfg^aº³ hkhkhkhkH*hkhX3hR3,5hXP8hR3,5 h"5h"h%hR3,5 hX"5 hX"hR3, hR3,5hX"hR3,Dhg^.Ek!&F & Fgdk & F gdkgdR3, & FgdR3, & FgdX"-.DEJ,\ X HKk  !&EF/Al/nOͽݽݽݽ鵱ݱݱݩݱ h}"5hK{hK{5hmGhR3,H*hq.hmGhR3,5hhDhDH*hDhAhR3,5hkhShR3,hX3hR3,5 hR3,5 hK{5hK{hK{hk5=F;Bln Pm")>J & F gdUgdUgdK{ & F gdq.gdR3, & F gdR3, & F gd & F gdR3,OPlm)=>&Hu|~.06AJiUVH~"#12h߲ߪhpfhR5hR55hzhR3,5 hR55hR5hg$hR3,H*hg$hR3,5hAhR3,5h]h hR3,5 hR3,5 hUhUhUhK{hU5 hU5hR3,>`})6c <gdpfgdR5 & F gdR5 & F gd] & F gdR3,gdR3,hjkm  EK}~ŻhU0JmHnHuh h0Jjh0JUh&jh&U hRhR3,hpfhpf5UhpfhzhR3,5 hR3,5 hpf5hR5hR3,.ongress forbid disabled to be exluded from services etc of public entity. Paraplegic objected to lack of elevator in county courthouse Is permissible exercise of Congress as applied to case involving access to state courts. Nevada Dept. of Human Resources v. Hibbs Facts: Congress pass Family Medical Leave Act. Upheld. Legit finding of gender discrim and gender is suspect.     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