Constitutional II Law OutlineColby Spring 2008

I. Introduction
a. From Con law I to Con Law II
i. Con law Iabout structure of got! federalism and sep of powers as a means of
protecting rig"ts
ii. Con law IIIndiidual liberties and rig"ts! s#epticism t"at structure of got is
enoug". Compromise wit" anti$federalists.
iii. %ow do we interpret t"e ague &o'(
). Originalismw"at did Const mean w"en it was enacted
2. *on$originalism&o' was written aguely intentionally in order to protect
fundamental alues. +"e meaning eoles wit" today so you may "ae
different results interpreting an old ,uestion today.
i. &arron . &altimore -)8../S"ows ways of interpreting Const. +a#ings case
against City of &alt for s"anging water rig"ts and rendering property wort"less.
+a#ings clause -0t" 1m/ does not apply to state2local gots!
). %istorical&o' created to limit federal powers
2. Structuralpact b2t 3S fed got and people4 state and local gots were not
priy. State powers pre$date &o'.
.. +e5tualismConst limits States6 power e5plicitly in places -e.g. art. ) 7 )/4
so won6t read ague language to pro"ibit state power.
8. %olding! &o' only limits Federal 9ower
0. SI:!
a. In ;ars"all6s only case -on &o'/4 "e ta#es power away from federal
Ctst"ey can enforce t"e Const against t"e States4 but not t"e &o'.
;ars"all frees states of duty to protect t"e &o' rig"ts.
b. 1t t"is time t"e fed got was small4 most law was state or local4
robbed &o' of muc" of its effect. 1llowed states to pro"ibit
adocating in faor of emancipation4 to allow slaery4 etc.
<. Opposing 1rguments!
a. +e5tualism)st 1m says Cong s"all ma#e no law4 so t"at clearly
applies only to fed got4 w"y limit t"e application of t"is proision in
lig"t of ague language. -+"is is a was"4 te5tualism could go eit"er
way/
b. *atural Lawt"ese are inalienable rig"ts4 and no got -fed or State/
can ta#e it away from citi=ens. &ut ;ars"all fears natural law4 and
it6s not as popular at time of t"is case4 00 yes after Const passed.
. %istory lesson
). )8<.>mancipation 9roclamation
a. frees slaes to fig"t for 3nion
2. 9ost$Ciil ?ar
a. +o reintegrate Sout"4 wit"out slaery4 9res. 1ndrew @ac#son
appointed friendly Sout"ern goernors. +"ey made t"e desired laws
in t"e Sout" and called Conentions -wit" loyal 3nion oters/ to
ratify t"e ).t" 1m
.. 'adical 'epublicans 'econstruction
)
a. Ciil 'ig"ts &ill of )8A<full citi=ens"ip and rig"ts. 9assed oer
@o"nson6s etoeit"er "e t"oug"t it was beyond federal power or "e
was racistled to "is impeac"ment.
b. Constitutionali=e t"e ciil 'ig"ts 1ct in t"e )8t" 1m. &ut must be
passed by Congress and ratified by .28 of states -w"ic" means at least
)22 of Sout"ern States. Sout"ern States -e5cept +*/ didn6t ratify.
+"en passed &lac# Codes to effectiely re$impose bondage on freed
slaes.
c. Cong passes 'econstruction 1ct of )80Adissoles t"e new
goernments in Sout"4 places t"em under military rule. +"ey can
only escape t"is by reBoining t"e 3nion4 and t"ey can only reBoin by
ratifying t"e new 1mendments. +"e new goernments were mostly
composed of carpetbaggers and freed slaes
b. 9riileges and Immunities
i. )8t" 1m4 7 )! C*o State s"all ma#e or enforce any law w"ic" s"all abridge t"e
priileges or immunities of citi=ens of t"e 3nited StatesD
ii. 1rt IE4 7 2! C+"e Citi=ens of eac" state s"all be entitled to all t"e 9FI of citi=ens in
t"e seeral states.D
iii. )8t" 1m4 7 )! C*or s"all any State deprie any person of life4 liberty4 or property w2o
due process of law.D
i. Slaug"ter %ouse Cases -)8A./
). La. Law e5cluding w"ite butc"ers from slaug"ter"ouse monopoly set up by
city goernment was Constitutional. &utc"ers c"allenged law under t"e 9FI
clause of t"e )8t" 1m.
2. ;aBority -;iller/! te5tual difference between 1rt. IE -CCiti=ens in t"e seeral
StatesD/ and )8t" -Cciti=ens of t"e 3nited StatesD/ to argue t"at 1rt. IE
protects 9FI of citi=ens of seeral states4 i.e.4 fundamental rig"ts of all
people4 but t"at )8t" only protects t"at narrow group of rig"ts people "ae by
irtue of being citi=ens of t"e 3.S. G not rig"ts by irtue of state citi=ens"ip4
and not fundamental4 natural$law rig"ts -e.g.4 property4 rig"t to trael freely4
protection abroad4 petition goernment for grieances4 "abeas G but rig"t to
wor# as butc"er is not one of t"em/.
.. federalismdrafters of )8t" 1m didn6t want to alter form of federal go6t4
but federal superision of all 9FI would c"ange eeryt"ing. ?ould rat"er
read t"is Cl to mean not"ing t"an to create a federal Co1 eery time a State
discriminates or abridges your rig"ts
8. Originalismt"is was meant to be about race discrimination against former
slaes4 not w"ite butc"ers.
0. Hissent -Field/! says pursuing a lawful profession is a natural rig"t. 9ressing
t"e natural law argument t"at lost in &arron. 1lso4 defines 9FI t"e same way
as in 1rt. IE 7 24 and use it6s interpretation4 since Conention of )8t" 1m was
silent.
<. Corfield . Coryell -)82./
a. In t"is prior case4 @ustice ?as"ington decided w"at 9FI meansit6s
an anti$discrimination proision so you can6t discrim against citi=ens
of ot"er states. %e adds somet"ing more9FIs are fundamental and
2
belong to all citi=ens in free gots. So before a state couldn6t
discriminate against ot"er citi=ens4 now it can6t discriminate among
citi=ens. -+"is is w"at Field wants in "is dissent in Slaug"ter %ouse
Cases/
A. Hissent -&radley/! c"allenges ;iller6s originalist argumentt"is was about
protecting natural rig"ts from state$intrusion. +"ey did want to c"ange t"e
meaning of t"e Const drasticallyI
8. 1pplication of Slaug"ter %ouse Cases
a. resulted in sufferingw"ole "istory of passing ).$)0t" 1ms and Ci
?ar was for not"ing.
b. >nded )8t" 1; 9FI litigation
. Saen= . 'oe -)JJJ/
). -Steens/! 'ig"t to trael "ad always been recogni=ed under Const4 finally S.
Ct says its source is t"e 9FI clause of t"e )8t" 1m.
2. Hoesn6t breat"e life into 9FI or undermine Slaug"ter %ouse cases4 Bust say
t"at rig"t to trael is one of t"ose few federally created rig"ts. Slaug"ter
%ouse still rules.
.. +"omas4 dissent! +"omas t"in#s t"ey s"ould oerrule Slaug"ter %ouse4 but
doesn6t say "ow broad 9FI rig"ts s"ould be4 and is t"e only ote now t"at
'e"n is dead.
c. Incorporation
i. 9al#o . C+
). -Cardo=o/)8t" 1m H9 clause protects t"ose rig"ts necessary for ordered
liberty.
2. In t"is case4 rig"t of double Beopardy is not among t"ose rig"ts -t"oug" in
dicta say t"at retrying t"e same case oer and oer mig"t iolateonly
protect against e5treme abuses/.
.. SI:! &o' is not incorporated against States.
ii. ?"at are t"e ordered liberty rig"ts(
). Cardo=ostates "ae positie law duties from t"e H9 Cl4 but K t"e &o'L
man include more or less. +"ere is a fi5ed set of rig"ts4 based on our
traditions.
2. &lac#H9 and &o' are coe5tensie
.. Fran#furter F %arlanH9 Cl is not coe5tensie wit" &o'4 but t"ey see a
muc" broader role for t"e H9 cl. 1nd t"ey feel less bound by "istory t"an
Cardo=o and &lac# because rig"ts can be growing and eoling
8. ;urp"yall t"e &o' are incorporated4 but t"ere are ot"ers also under H94
and t"ey can grow oer time
0. Brennanonly a small slier of &o' aren6t fundamental4 but ot"er rig"ts are
included in H9. 1lso4 if somet"ing is incorporated4 it is fully incorporated
t"ere is no sliding scale of egregiousness incorporated rig"ts
<. 1not"er possible iew -t"at academics but no Bustices "ae "eld/H9 only
includes procedural rig"ts4 so fed got must respect fundamental rig"ts4 and
states only respect your procedural rig"ts
A. +"omaswants to oerrule t"e Slaug"ter"ouse cases and stop incorporation
of H94 go bac# to 9FI Cl. &3+4 we "ae a body of law of H9 Burisprudence4
.
and Budges don6t want to start from scratc"4 w"en t"ey6d een e
unconstrained by precedent
iii. &enefits and drawbac#s of t"ese positions
). &urp"y2&rennangies a lot of discretion to Budges to create rig"ts t"at
don6t e5ist outside of t"eir own subBectie iewL actiist
2. &lac#"e t"oug"t t"at saying some rig"ts in &o' aren6t fundamental would
degrade t"e &o'4 but t"is is not true -e.g. w"y do we need 12 Burors/
i. %istory
). +"e point of t"e )8t" 1m was to apply t"e &o' against t"e states t"roug" t"e
9FI clausebut we can do t"e same t"ing t"roug" t"e H9 clause.
2. &3+4 at t"e time4 most states didn6t follow all &o' proceduresdid t"ey
really mean to inalidate t"eir own procedures w"en t"ey ratified t"e )8t"
1m4 wit"out een mentioning t"is( Fran#furter t"in#s no4 &lac# says yes.
. Federalismw"ose model poses biggest t"reat(
). ;urp"y creates many t"ings states can6t doL &lac# incorporates &o' totally
so puts States in a Const straig"t Bac#et according to Fran#furter.
i. 9resent Eiew
). &rennan6s Eiew won out
2. Ct moed from Cardo=o to &rennan in Huncan . L1 -)J<8/
.. *ow we "ae incorporated many of t"e &o' rig"ts4 and once t"ey are
incorporated t"ey loo# t"e same as applied to t"e states as to t"e federal
goernment.
II. Substantie Hue 9rocess
a. Intro
i. H9 Cl protects substantie rig"tsdid so een in t"e ;agna Carta
ii. +"ere was SH9 before incorporation. >.g. in Hredd Scott case4 Ct struc# down a law
t"at freed slaes t"at entered free territory b2c you can6t ta#e away property w2o H9
b. Loc"ner >ra
i. Loc"ner Case
). L was conicted and fined b2c as a ba#ery owner4 "e contracted wit" "is
ba#ers to wor# more "ours t"an t"e law allowed. Ct struc# law down4 under
t"e t"eory t"at t"e liberty of M is a SH9 rig"t t"at is not enumerated in t"e
&o'.
2. +"e state "as police power to protect "ealt" and safety4 so Ct must ensure t"at
t"e States are not using police power as a prete5t to abridge your rig"tsif it
is a fair and reasonable e5ercise of police power4 t"en it6s o#ay -sounds li#e
rational basis scrutiny/.
.. State interests!
a. labor lawbut ba#ers are adults w"o don6t need paternalistic state to
protect t"em from e6ors.
i. &3+4 not true4 intelligence does not mean you get a fair M
b. public safetybut to get w"olesome bread for t"e public4 it doesn6t
matter "ow many "ours t"ey wor#
i. &3+4 lied in ba#ery4 no brea#s4 really unclean
c. ?or#place safetybut not li#e mining.
8
i. &3+4 ba#ers got respiratory problems4 in fact is a lot li#e
mining4 e5cept t"at t"e danger is less obious so need more
protection.
8. Ct second guesses state legislature4 een w"ere t"ey "ae studies"ig" leel
of scrutiny.
ii. Loc"ner >ra
). Ct bloc#ed progressie moement by stri#ing down laws meant to protect
wor#ers!
a. ;uller . O'e5ample of e5ception4 but not reallylaw saying t"at
women6s "ours could be limited is only up"eld b2c women are stupid
and wea# and need protection
2. ?"at6s wrong wit" Loc"ner(
a. @udges substitute t"eir Budgment for t"e legislatures.
b. %olmesforgetting t"e democratic process
.. *ebbia . StateCt struc# down a law setting minimum mil# prices during
t"e Hepression.
a. %arlan6s dissentCt6s scrutiny is too "ig"L agrees t"at t"ere6s liberty
of M4 but it yields more to police power of states.
b. %arlan6s 9olicy! @udges don6t "ae t"e rig"t or ability to be t"is
actiist! can6t "old "earings li#e legislature and found facts are narrow
to only inole t"e parties to a dispute. 1nd it6s undemocratic. &3+4
w"at good is a fundamental interest in liberty -of M4 or anyt"ing/ if
leg can Bust ta#e it away(
c. %olme6s famous dissent! Court s"ould not be guided by laisse= faireI
1grees t"at fundamental rig"ts are protected wit" strict scrutiny. 1nd
doesn6t say t"at all fundamental rig"ts are listed in &o'4 but )
economic t"eory is not fundamental.
8. %ow could you critici=e Loc"ner
a. SH9 does not e5ist&3+4 t"is contradicts "istory and undermines
incorporation4 w"ic" is troubling
b. SH9 e5ists4 but limited to &o'
c. SH9 e5ists and e5tends beyond &o'4 but doesn6t go so far to include
t"ings beyond our traditions
d. yes4 fund. rig"t to M4 but we enforce t"e rig"t deferentially
iii. %istory of 9rogressie ;oement against t"e Court
). )J20sCt struc# down Commerce clause attempts to regulate t"e economy
as iolations of principle of federalism
2. Separation of 9owersCt uses *ondelegation to say t"at agencies "ae too
muc" power
.. FH'lots of popular support for *ew Heal4 as Ct was constitutionali=ing
laisse= faire
8. Sc"ec"ter 9oultry Case
0. FH'6s attempt to pac# t"e Court
i. ?est Coast %otel
). now states can set minimum wages
2. Loc"ner era is oer4 as 'oberts switc"ed sides.
0
. 3S . Caroline 9roducts Co
). 7 t"at interferes wit" economic t"eory is fine4 as long as it rests on some
rational basis
2. Rational Basis Review
c. ;odern >conomic 'egulation
i. ?illiamson . Lee Optical Co
). O#la"oma state law proides t"at nobody can ma#e or fit your lenses unless
t"ey are a licensed Hr and "ae your recent prescription -no LensCrafters/.
Ct up"olds t"is -stupid/ law4 een t"oug" it is a denial of liberty of M.
2. Cts says it6s reason is b2c you get more fre,uent tests to t"ey6ll catc" your
diseasesreally it6s b2c lobbying. &ut Ct doesn6t loo# for eidence to
support law4 or leg "istory. @ust as long as t"e law might "ae been rational
a. SI:! Ct "as neer iolated a law under t"is rational basis reiew
.. F* 8! Circumstances w"ere less deference!
a. iolations of &o' rig"ts -e.g. law w"ere you can6t spea# out against
got4 because t"en you don6t "ae democracy/
b. laws t"at limit ability to repeal undesirable legislation
c. laws against discrete and insular minorities
8. SI:! democracy is t"e means to ac"ieing liberty4 so w"ere democracy isn6t
leading to Bust laws4 t"e Ct steps in -e.g. &a#er . Carr4 w"ere Ct stepped in
b2c ppl couldn6t enact reapportionment.
ii. ;eyer . *ebras#aCt inalidates a law t"at says you can6t teac" foreign languages
to #ids in sc"ool. +"ere are non$economic fundamental rig"ts in t"e &o' t"at
include t"e rig"t to ac,uire #nowledge4 marry4 raise and educate your #ids
iii. 9ierce . Society of SistersCt inalidates a law t"at re,uires you to send your #ids
to public sc"oolyou "ae a fundamental rig"t to c"ose to "ome sc"ool or priately
educate your #ids.
i. SI:! 3nder Caroline 9roducts4 ;eyer and 9ierce are still good law b2c t"ey were
discriminatory against :ermans and Cat"olice
d. Contraception
i. :riswold
). Ct inalidates a law pro"ibiting t"e use or sale of contraception in faor of a
rig"t to priacy.
2. +"e purpose is no se5 outside of marriage -fornication and adultery/
reasoning t"at w2o condoms you won6t do t"at. &ut t"e law applies een to
married couples. C"allenge is as t"is law is applied to married couples.
.. Ct uses strict scrutiny! Does the State have a compelling interest, AND is the
law narrowly tailored to meet that interest.
8. 9riacy as a fundamental rig"t
a. F*8 of Caroline 9roductsSS if interferes wit" polit process4
discriminates against minorities4 or interferes wit" incorporated rig"ts
"ere4 priacy is a fundamental rig"t.
0. Douglas -for maBority/ says it comes from &o'!
a. .d 1mno soldiers ,uartered in your "ouseessence of priacy
b. 8t" 1mno SFS
c. 0t" 1mrig"t not to tal#Npriacy
<
<. +"ese rig"ts "ae penumbras t"at emanate from t"eir core to reac" ot"er
t"ings. +"e rig"t to be let alone may be a new annunciation4 but it emanates
from t"e &o'.
A. *ote! t"is doesn6t iolate any indiidual amendment4 but t"e &o' as a w"ole.
8. Cf! ;yers and 9ierce stand for rig"ts t"at are penumbral to )st 1m
J. Goldberg, Concurrence! priacy is an SH9 rig"t protected by H9 clause
and t"e Jt" 1m.
a. +"e enumeration in t"is Const of certain rig"ts s"all not be construed
to deny or disparage ot"ers retained by t"e people.
b. 1lso relies on 9al#o for SH9refers to "istory as bolstering rig"t to
priacy"istory limits Budges
c. SI:! doesn6t want penumbras4 Bust ac#nowledge t"at t"ere are ot"er
unenumerated rig"tsJt" 1m isn6t source of t"e ot"er rig"ts4 but it6s
informs t"e interpretation of t"e H9 cl
)0. %arlan II4 Concuralso prefers t"e H9 clause and SH9
a. Hue process is based on a liing tradition. *atural rig"ts come from
:od or *ature4 so maybe t"ere are rig"ts we "aen6t recogni=ed yet.
)). &lac#4 dissent!
a. +"ere is no rig"t to priacy in t"e const4 so doesn6t e5ist. +"is is
Loc"ner all oer again
)2. Stuart4 dissent!
a. t"is is an uncommonly silly law4 but priacy isn6t in t"e Const4 so it6s
not protected
).. 9rob wit" Stuart and &lac#!
a. can6t answer t"e Jt" 1m. ;adison didn6t want to do a &o' b2c didn6t
want t"em to be seen as e5"austie.
)8. 9rob w2 SH9 and counter$maBoritarianism -or Budicial actiism/!
a. SH9 gies Budges a lot of discretion4 maybe creates goernment by
men4 rat"er t"an by law.
b. 1nyt"ing could be penumbral to t"e &o'. Houglas "ates SH9 b2c of
Loc"ner4 but is a liberal4 and t"at6s w"y "e wants penumbras4 but
maybe we can use "is approac" as a signpost as to w"at ot"er
fundamental rig"ts are.
)0. 9rob wit" :oldberg6s "istory limitation!
a. Hoesn6t e5plain w"y Loc"ner was wrong. Framers respected econ
rig"ts more t"an priacy4 and >nlig"tenment was all about property
rig"ts.
b. Limits fundamental rig"ts to t"ose t"at e5isted bac# in )8t" century.
c. 1lso4 "istory can lead to contradictory results4 and w"o #nows
w"et"er Framers wanted us to rely so "eaily upon it.
)<. 9rob wit" %arlan6s liing tradition!
a. t"e fact t"at t"is law is on t"e boo#s suggests t"at t"e rig"t to priacy
is not a core alue of t"e 1m ppl.
)A. Later e5tensions of :riswoldunconst for State to ban t"e sale of
contraceptionL e5tend rig"t to unmarried couples in >isenstadt . &aird -)JA2/
A
a. SI:! use Common Law met"odology to determine fundamental
rig"ts.
e. 1bortion
i. 'oe . ?ade
). Ct inalidates +O law pro"ibiting abortion e5cept to protect life of mot"er
iolates fundamental rig"t to priacy.
2. %eld! during t"e )st trimester4 t"e state cannot regulate abortion at all4 during
t"e second trimester4 t"e state can regulate abortion only in ways t"at "elp t"e
"ealt" of t"e mot"er4 and during t"e .d trimester t"e state can regulate
abortion to protect t"e fetus -may ban it/ but can6t ma#e an absolute ban if t"e
mot"er6s "ealt" is endangered.
.. +"is time maBority openly relies on SH9
8. Eiolation of 9riacy!
a. State is ta#ing a priate decision away from mot"er. +"e decision on
to w"et"er to "ae a c"ild is "uge4 so t"e state can6t ta#e t"at decision
away from you.
b. 9riacyNNP9ersonal 1utonomy interest
c. +"is is an C2L e5tension from :riswoldrig"t in your bodily
integrity
0. Strict Scrutiny 1nalysis
a. State Interest!
i. protecting potentiality of life
1. If t"e state6s interest in protecting t"e embryo is
compelling4 t"e state can only protect t"em t"roug" an
abortion ban4 so t"e law would stand.
2. Interest is not compelling until iability.
a. +"is benc"mar# is medically arbitrary4 b2c at .
mo t"e ris# of miscarriage stabili=es
b. ;ot"er6s life more important "ere b2c if s"e
dies4 so does t"e baby
c. CQuic#eningD is w"en state "istorically gets
inoled wit" fetuses
ii. protecting mot"er
1. not compelling until end of )st trimester4 because
before t"en4 abortion is safer t"an c"ildbirt".
iii. SI:! priacy and life are bot" compelling interests4 Ct can6t
Bust balance t"em. In setting out t"e trimester system4 Ct is
legislating rat"er t"an e5panding on C2L4 and seems afraid to
admit t"at life begins at iability
ii. 9lanned 9arent"ood . Casey
). %olding!
a. +"ere is still a fundamental SH9 rig"t to c"oose w"et"er to "ae an
abortion4 but it is not absolute or un,ualified.
b. States can pro"ibit abortion after iability.
i. Same as in 'oeinterest in 2d life
c. Can act to protect t"e "ealt" of t"e mot"er at any time
8
i. 3nli#e 'oedon6t "ae to wait for 2d trimester
d. Can act to protect t"e "ealt" of t"e fetus at any time. Interest in
potentiality of life is distinct from interest in person of fetus. &ut t"is
interest is limited by t"e 3ndue &urden +est
2. 3ndue &urden +est!
a. Ct as#s w"et"er t"e law places a substantial burden on women from
e5ercising "er liberty of c"oice to "ae an abortion
b. Ct openly adopts a balancing test b2c pitting 2 fundamental rig"ts
against eac" ot"er
c. *O+>! only . Bustices want t"e undue burden test -O6Connor4
Mennedy and Souter/4 but it6s t"e "olding b2c it was t"e narrowest t"at
maBority could agree on
.. 9enn Law in ,uestion!
a. ?aiting 9eriod and Informed Consent
i. ?oman must #now of t"e baby6s age and weig"t4 and t"e
nature of t"e procedure. +"en s"e must wait one day to come
bac#4 t"oug" t"ere is an e5ception for medical emergencies.
ii. +"is is a burden4 but not an undue burden
1. +"e more informed t"e decision t"e better.
2. +"e waiting period is to discourage abortion4 but
wit"in state6s interest in protecting potentiality of life
3. &3+ *O+>! in more rural states4 a waiting period may
be an undue burdent"is is a pragmatic in,uiry.
b. Spousal notification
i. Could be bypassed if you say your "usband will "urt you.
%usband doesn6t get to decide4 Bust rig"t to be informed.
ii. 3ndue burden
1. &attered woman syndrome doesn6t wor# t"is way
een if "e doesn6t get to decide4 if "e controls t"e
woman4 "e ma#es t"e c"oice. 1nd t"is law doesn6t
account for psyc"ological abuse.
iii. +"ere are more women w"o can6t get bac# into city for
abortion t"an w"o are only psyc"ologically abused4 but Ct is
trying to be moderate.
8. 'eliance on Stare Hecisis
a. Clarity
i. fundamental rig"ts s"ould be flip$flopping
b. 'eliance
i. *ot so muc" referring to women w"o were pregnant but
waiting to "ae an abortion. &ut refers to t"e rig"t as part of
our social fabric t"at allows women to ta#e on responsibilities
t"at t"ey ot"erwise would not if t"ey were unable to put off
"aing a c"ild
c. 'e"n6s dissent!
i. Stare decisis plays a minor role in Const interpL it6s more for
statutory interpretation
J
1. Cong can c"ange t"e statute if t"ey don6t li#e t"e Cts
interpretation4 but for t"e Const4 t"e S.Ct is final4 so
t"ey s"ould care more about getting it rig"t.
ii. 9lurality says t"at6s true4 but for really big cases you need
consistency. 'e"n says no4 in order to "ae legitimacy we
s"ould let democracy "andle big cases li#e abortion.
iii. >.:. Steward dissented in :riswald b2c "e didn6t li#e SH94 but
in 'oe "e concurred b2c SH9 was not t"e law
d. Originalism . *on$Originalism
i. originalists t"ing you can oerrule4 b2c t"e Const means w"at
it always meant. &ut non$originalists4 li#e Stewart4 t"oug"t
t"e law eoles4 t"ere are not absolute wrong or rig"t answers.
e. ?"en to oerrule!
i. ?rong under 'oe to oerrule 9lessy4 unless t"ere6s a basis to
distinguis" t"e two
ii. *o longer ?or#able(
1. 'oe and segregation were bot" still wor#able
iii. Factual basis for decision c"anged(
1. Factual basis for 9lessy was wrong -as was liaise faire
in Loc"ner/
iv. Law eoled(
1. legal principles in Loc"ner and 9lessy were no longer
releant4 but "ere4 SH9 is still t"e law
v. Societal Ealues C"anged(
1. &etween Loc"ner and ?est Coast %otel4 our country
became committed to got protection in t"e wor#ing
placeL between 9lessy and &rown we became more
enlig"tened
f. Hid Ct een follow 'oe!
i. C"anged t"e trimester system and abandoned strict scrutiny.
;ade clear t"at abortion is about bodily integrity and
protecting woman6s as opposed to Hr6s4 rig"tswasn6t clear
from 'oe. :ie greater respect to fetal rig"ts.
ii. Is t"is Bust C2L eolution(
iii. :on=ales . Car"art
). ct up"eld federal law t"at bans Cintact HF>D2partial birt" abortionst"is is a
2d trimester2pre$iability procedure.
2. 3ndue burden test -Casey applies/
.. Mennedy -0$8/no undue burden on rig"t to c"ose
8. Stenberg Case
a. w"en O6Connor was on Ct4 t"ey6d struc# down a similar *ebras#a
law. +ry to distinguis" b2.c t"at law was unclear as to w"ic"
procedure was bannedHrs could read it to ban all 2d trimester
abortions -including t"e Cstandard HF>D/.
b. 1nd t"e *eb law didn6t "ae a "ealt" e5ception. *eit"er does t"e
federal law4 but Congress made a finding t"at t"ere is neer a time
)0
w"en a woman6s "ealt" would re,uire t"is birt" rat"er t"an t"e
standard HF>.
i. &3+ actually doctors agree t"at it6s t"e ot"er way around
intact HF> is safer.
ii. Cong may ma#e a finding wit" split eidence4 but Ct "ere is
deferring in t"e face of contradictory eidence
iii. ?ould allow an Cas appliedD c"allenge4 but t"at6s impossible4
b2c t"e woman will "ae bled to deat" on t"e table.
c. SI:! 3ndue burden test is losing its teet"loo# more li#e rational
basis t"at intermediate scrutiny
0. State6s Interest in banning intact HFI!
a. not protecting potentiality of life
b. doesn6t protect mot"er6s "ealt" b2c no "ealt" e5ception. @ust
protecting "er from regretting getting t"is procedure. *o scrutiny
t"is is not about regret of an abortion
c. actual "omeCt relies on t"is being close to infanticide. &ut t"is is
pre$iability
<. SI:! undue burden test is gutted4 and tal# about pre$iability fetus as life.
f. Se5uality
i. Specific . :eneral 'ig"ts -Originalism . *on$Originalism/
). ;ic"ael %.w"et"er t"e fat"er of an adulterously conceied c"ild "as
parental rig"ts. -citing 9ierce case/.
2. Scalia specifically defines a proposed rig"teasier to say it doesn6t e5ist. %e
t"in#s t"at t"ere is a small slier of rig"ts t"at e5ist beyond t"e &o'4 but t"at
t"ey are fi5ed in tradition and don6t grow or eole oer time.
.. &rennan -Opposing iew/you e5tend it as far as precedent will allow. %e
says t"at t"ere is a rig"t of a parent to play a role in t"e life of "is c"ild -broad
definition of rig"t/
ii. Lawrence . +O -200./
). Ct inalidates an anti$sodomy lawMennedy says SH9 protects consensual
gay se5I Oerrule &owers . %ardwic# -)J8</
2. ?"y not Stare Hecisis( -3nder Casey framewor#/
a. Legal Landscape&owers didn6t fit in t"e legal landscape.
i. Hefined t"e ,uestion too narrowly -w"et"er t"ere is a
fundamental rig"t to "ae gay se5/. In &owers4 &lac#mun
defined it as t"e rig"t to be left alone. 3nder :riswald4 'oe4
et al4 it can be t"e rig"t to consensual4 p"ysical se5ual
relations"ips4 een if not to procreate -in line wit" intimate
personal c"oicese.g. marriage4 procreation4 contraception4
family decisions4 t"at are central to personal dignity and
autonomy/.
ii. &owers undermined by Caseywe "ae broader definition of
rig"ts4 Scalia6s met"od loses.
b. Factual 3nderpinningsRR
))
i. &owers put a lot of weig"t on "istory w"ic" turns out to be
wrongt"ere was no long "istory of criminali=ing gay se5
only bans on non$procreatie se5 by eeryone
ii. 3nderstanding of "omose5uality "as c"anged a lotnot Bust
for depraed and desperate men4 can be about loe.
iii. +"is time4 @ustices #new w"at se5ual orientation was4 so t"is
case was more li#e &rown or ?est Coast %otel t"an li#e
Casey.
c. 'eliance
i. no reliance as in 'oe -not li#e gay ppl stop "aing se5/
d. >oling Societal Ealues
i. c"anged wit" regard to "omose5uality4 despite &owers4
undermining its itality. >.g. laws "ae c"anged -states4
>C%'4 but not muc" else/
ii. Is t"ere a consensus -no/( S"ould t"ey "ae to wait for one4
or are t"ey ta#ing sides in t"e culture war(
.. ?"at standard of reiew
a. unclearCt neer says t"at t"e interest is compelling4 but does say
t"at t"e State "as no legitimate interest4 w"ic" suggests '&L on t"e
ot"er "and4 t"e analysis in fact suggests "eig"tened scrutiny
b. Hissent -Scalia/! If t"is isn6t SS4 t"en it6s not a fundamental rig"t.
%ow does t"is fail '& reiewis t"e maBority saying t"at t"e got
can6t legitimately impose morality
c. ;aBoritylaws singles out and targets gays4 w"ic" can neer be
legitimate. 1nd couldn6t ma#e law against all sodomy b2c would
inade realm of personal liberty4 following :riswold and >isenstadt.
8. Scalia4 dissenting!
a. t"is is an issue t"at diides nation4 li#e Casey4 but "ere we oerrule
precedentI 3ndemocratic4 and we can mandate and enforce morality
b. &3+! got regulates morality w"ere immorality "urts t"e community
-not Bust t"e CfamilyD boadly/4 i.e. murder4 t"eft4 bribery. ;aybe
Scalia is incorrect to as# w"ic" branc" of got may regulate morality4
begs t"e ,uestion w"et"er got can regulate all morality4 including
obBectie "armless immorality. ;aybe state needs anot"er interest to
ban t"ings li#e e.g. incest4 adultery4 bestiality4 prostitution4 polygamy
w"at about masturbation4 group se54 fornication(
0. Mey! t"ere is no "arm -se5 is consensual/4 participants are adults4 act is
priate4 and not a ,uestion of formal got recognition. Colby says t"ere6s no
"olding4 but t"at it6s best understood to stand for a fundamental rig"t to c"ose
w"et"er to engage in nonprocreational se5
g. 1ffirmatie 'ig"ts
i. HeS"aney . ?innebago -)J8J/no affirmatie duty on state to protect c"ild from
"arm
). H9 clause is a limit on got6al power4 t"e substantie rig"ts are negatie
rig"ts4 i.e. w"at t"e states cannot do. 1ffirmatie rig"ts4 i.e. an obligation for
)2
t"e state to proide some benefit4 don6t e5ist under t"e H9 Cl. Framers were
libertarian.
ii. SH9 eoles4 you could find some entitlements becoming rig"ts*ew Heal created
statutory affirmatie rig"ts4 and if Cong repealed t"em4 Ct could find an aff. rig"t4
e.g. turn public education into an implicit rig"t in t"e concept of ordered liberty.
?arren Ct moed in t"is direction4 but &urger Ct said t"ey "ad not implied t"at t"ere
are fundamental affirmatie H9 rig"ts4 and Ct "as stuc# to t"is eer since.
III. >,ual 9rotection
a. 'ational &asis
i. 'ailway >5press 1gency . *S -)J8J/
). *S law pro"ibited ads on t"e side of e"icles4 e5cept to adertise your own
business on t"e side of your own e"icle4 if it6s engaged in business. 'ailway
"ad rented space on t"e sides of truc#s4 and sues. 9ost$Loc"ner Ct dismisses
t"e SH9 argument -liberty of M/4 and main issue is >,ual 9rotection.
2. S.Ct. up"olds law using rational basis reiew!
a. 'ational &asis reiew! law is upheld as long as 1 there is a
legitimate state interest, and 2 the law is rationally related to that
interest -same standard used for economic regulation under
substantie H9/
b. %ere4 it is a legitimate interest for t"e state to be concerned wit" t"e
safety and flow of traffic
i. %ard for an interest not to meet t"is prongdiscrimination
isn6t legit4 but not muc" else.
c. 'ationally related. 'ailway says it6s illogical b2c your own ads are
Bust as distracting as someone w"o6d rented t"e space. Ct doesn6t
decide t"at it6s rational4 but Bust t"at t"e legislature could decide t"at it
was rational.
i. Ct doesn6t re,uire eidence or legislatie "istory to s"ow t"is
intent.
d. Leg passed t"is rule4 w"ile +imes 9la=a "ad "uge adsbut t"ere is no
obligation to pass a perfect law. C*o re,uirement of >9 t"at all eils
of t"e same genus be eradicated or none at all.D So!
i. law can be underinclusie w2o iolating >9 as long as t"e
ad ban in some way contributes to t"e solution4 it doesn6t
matter t"at you allow ot"er ads t"at contribute to t"e problem.
ii. Law can be oerinclusie w2o iolating >9 e.g. law against
motorcycles for noice purposes could coer motorcycles t"at
are as ,uiet as cars4 and it would be o#ay b2c t"e streets would
be ,uieter wit" t"e law t"an t"ey would be wit"out it4 despite
t"e fact t"at ,uiet motorcycles didn6t contribute to noise
iii. Laws t"at are oer$ and under conclusie are o#ayas long as
t"e law inc"es t"e got closer to its aim
.. @ac#son4 Concurrence
a. t"ere s"ould be deference to legislature in SH9 economic claims4 but
not in >9 b2c got can6t discriminate
).
b. gets rid of dumb laws b2c if t"ey apply to all t"ere6s more pressure on
legislature to c"ange it
c. *ote! Ct "as neer adopted @ac#son6s iew b2c of fear of returning to
Loc"nerism and increasing administratie e5penses of legislatures.
b. Facial 'ace Hiscrimination
i. 9urpose of >9 Cl!
). about treating people of different races e,ually -Slaug"ter %ouse Cases/
ii. Strauder . ?est Eirginia -)880/
). stri#e down law t"at only w"ite ppl can sere on Bury. >9 pro"ibits race
discrimination. Ot"er discrimination is o#ay4 but race discriminationless
deference
iii. Morematsu . 3S -)J88/
). FH' put @apanese$1mericans in detention centers. Morematsu is conicted
of being present in an area "e was e5cluded from under t"e law.
2. %eld! S. Ct up"old t"e law
a. *ote! t"is is a rare e5ample of a law t"at imposes a race$based
disadantage but suries strict scrutiny
.. !a"ority -&lac#/! all legal restrictions that discriminate facially on the
basis of race are subject to strict scrutiny. +"e law may sometimes be
justified if there is a ressing ublic necessity -i.e. compelling interest/4
and if t"ey can surie SS -i.e. narrowly$tailored re,uirement/. +"ey can
never be justified if the urose !as racial antagonism.
8. *ote! 1LL of t"e aboe is still good law4 but application to t"ose facts would
"ae a different result today.
0. Said purpose was to win ??II and t"at t"e S.Ct can6t second$guess t"e
military and commander$in$c"ief as to w"et"er t"is was narrowly enoug"
tailored.
<. !urphy, Dissent! fails strict scrutiny. Questions t"e got6s stated ends
-doesn6t beliee @ap$1ms would support @ap inasion/L and ,uestions means
oer$ and under$inclusie. Hetains innocent @apanese4 and doesn6t apply to
:erman$ or Italian$1mericans.
A. #ac$son, Dissent! Ct s"ouldn6t decide t"is case w"ile war is going on. It will
up"old t"e law under pressures of war and create bad precedent t"at will be
relied on. 'ealistically4 S.Ct can6t do anyt"ing about detention b2c it6s
already "appened4 but sanctioning it will allow future presidents to rely on it4
and t"ere will be blood on our "ands.
i. *O+>! many people t"in# facially racial law li#e Morematsu4 or ma#ing 1rab$1ms
go t"roug" e5tra screening in airports is antit"etical to t"e notions of indiiduality
and e,uality under t"e Constitution4 so s"ould be per se inalid. ?"y do we "ae
strict scrutiny(
). +"ere is affirmatie action4 but if you limited it to w"en t"ere6s "arm4 you can
only imagine it being alid if t"ere6s a irus t"at only affects 1f. 1ms/
c. 'acial Segregation
i. %istory
). In )8<0s4 blac#s could ote but Confederate supporters could not. 3sed
lync"ings and t"e MMM to intimidate blac#s outside of t"e law. In )8<24 a
)8
general amnesty bill gies former$Confeds t"e rig"t to ote again. 9resident
%ays wants to return control to local gots4 i.e. Fed got abdicated any
protectie role it "ad. 'acist legislatures are free to pass @im Crow laws4
w"ic" lead to segregation of sc"ools -etc/4 poll ta5es and literacy tests so no
blac#s could ote4 etc.
ii. 9lessy . Ferguson
). up"olds constitutionality of racially segregated rail cars4 under t"e 'ational
&asis test
2. Say t"ere6s not"ing unreasonable about racial segregation -unli#e if
segregation were on eye$color/4 use ot"er racist segregation to Bustify
.. 1pplies e,ually to blac# and w"ite peopleif e,ual4 >9 Cl not triggered
8. +"is was not e,ualpowerful people in t"e w"ite car. Ct says Const
proides for political4 not social4 e,uality. &ut t"is is legally perpetuating t"e
social ine,uality.
0. Ct says blac# ppl c"ose to infer a badge of inferiority4 but eeryone #nows
t"at t"is was racist.&ad Formalism
<. %arlan &, Dissent
a. +"e Constitution neit"er #nows nor tolerates racial distinctions
b. &ut4 "e says w"ite race will remain dominant if it remains true to its
great racial "eritage"e6s still racist.
iii. :ains . Canada
). only ) public sc"ool in ;issouri4 only w"ites allowed. State would "elp
blac# students get into sc"ools in nearby States.
2. Ct stri#es it down,uestion is not w"at opportunities are proided in ot"er
states4 but w"et"er t"ere are e,ual opportunities in this State.
i. Sweat . 9ainter
). 3of+ Law was all w"ite by law4 but t"ey created a second all blac# law
sc"ool. &ut t"e sc"ool was not e,ualsmaller4 library was inferior4 less
reputable faculty4 alumnae networ# is smaller.
2. Ct rules t"at 3of+ must admit ,ualified blac# students
. &rown . &d of >ducation
). Ct unanimously stri#es doesn segregation in "ig" sc"ool and primary
education
2. 1ccepts4 arguendo4 t"at sc"ool6s facilities are e,ual. &ut does not oerrule
9lessydistinguis"es it on t"e ground t"at education is different! particularly
"armful to segregate #ids as t"ey are deeloping and impressionable.
a. segregated sc"ool are in"erently une,ual! sending #ids to a different
sc"ool ma#es t"em feel une,ual.
b. F* ))rely on psyc"ology studies -now discredited/
c. +"e Ct is not trying to constitutionali=ed Bust w"at t"ey t"in# is rig"t4
t"ey t"in# segregation is unconst4 but don6t want to tell "alf t"e
country t"ey are morally eilI
.. *ote! t"is was in Loc"ner6s aftermat"4 before :riswoldt"e )st important
case since )J.A w"en S.Ct. says its going to protect rig"ts een if it means
stri#ing down a popular4 democratically elected law on a controersial issue
8. Strict Scrutiny t"is time
)0
a. Caroline products F*8political process rationale. *11C9 couldn6t
lobby racist state legislatures4 or get non$racists into office b2c laws
disenfranc"ise blac#s. 1nd4 discrete and insular minority rationale
maBority loes segregationtyranny of maBority
0. Interpretie +ools!
a. te5tif anyt"ing cuts t"e ot"er way -i.e. if e,ual4 separate is o#/
b. precedent9lessy4 so cuts ot"er way4 esp since in dicta says of course
sc"ools may be segregated.
c. "istoryt"ey say its inconclusie4 but t"at6s untue. )8t" 1m was
meant to Const6i=e t"e Ciil 'ig"ts 1ct4 w"ic" intended to allow
segregated sc"ools. Ct says it was anac"ronistic b2c no education of
blac#s in Sout"4 and all proate4 but t"ere were segregated sc"ools in
*ort". +"e drafters t"oug"t about it and reBected it.
d. *on$originalism>9 of law is a broad concept t"at eoles.
i. we "ae a new understanding of factsnow we understand
t"at segregation causes psyc" effects and stigmati=es people4
especially in public education
ii. Law c"angingsince 9lessy4 :aines and Sweat case "ae
recogni=ed t"at intangible factors ma#e institutions une,ual.
i. &olling . S"arpe
). consolidated wit" &rown
2. HC is not a state4 so )8t" 1m doesn6t apply to it.
.. Ct relies on H9 Cl in 0t" 1m to rule t"at t"ere may be no segregated sc"ools
in HC.
8. >9 under law is one of t"ose rig"ts t"at need not be e5plicitly listed
0. 'eerse incorporation
<. 9roblem -for originalists/ is t"at 0t" 1m predates )8t" 1m by N)00 yrs4 and
framers didn6t t"in# it meant no segregated sc"ools4 or een t"at it protected
blac#s from racism.
d. Interracial ;arriage
i. Loing . E1 -)J<A/
). couple got married in HC4 t"en returned to E1. 1rrested under anti$
miscegenation laws -;r. Loing is w"ite4 ;rs. is blac#/
2. Ct -?arren/ stri#es down law under >9 Cl.
.. E1 said t"at it applied e,ually -bot" punis"ed/4 and s"ould be sustained under
'& -purpose is to maintain racial purity4 not segregation4 as in &rown/
8. Ct says no discriminatory effect4 but t"at t"ere is a discriminatory purpose!
only applies w"ere w"ite ppl are inoled.
0. "trict "crutiny and dicta t"at t"ere6d be SS een if no discrim 9F>
<. *on$Originalistno uncertainty about t"e fact t"at interracial marriage was
no allowed in past4 and Ct doesn6t care.
e. 'acially Hiscriminatory 9urpose and >ffect
i. No Discriminatory 'urpose or ())ect!
ii. @o"nson E. C1
)<
). segregate prisoners by race initially in prison. +"e purpose is to protect ppl
from racial gangst"ere is no racist purpose or effect. S.Ct. doesn6t buy t"at
blac# prisoners are more embarrassed by segregation t"an ot"er inmates.
2. Ct remanded to Strict Scrutiny analysis -t"oug" neer applied4 since C1 gae
up on t"is program/
iii. Facially Neutral!
i. Sic# ?o . %op#ins -)88</
). City re,uires permits to laundry business in wooden buildings. +"en all but )
non$C"inese person got a permit4 and no C"inese got permits.
2. Hiscriminatory 9urpose and >ffectStrict Scrutiny
.. 9urpose can be inferred by "ow a law is enforced4 een if passed by a CgoodD
legislature. Ct finds discriminatory purpose from statistics. Hoesn6t een
consider t"at t"ere may be a coincidence. TUracism.
. :omillion . Lig"tfoot
). City re$draws its limits to get rid of all blac# people. Leg. purpose of law is
racial discrimination so Ct stri#es it down wit" SS reiew.
i. S"ow Hiscriminatory 9urpose!
). enforcement statistics
2. legislatie intent
a. most cases are not as clear as :omillion t"at people are oting for
somet"ing b2c t"ey are racist4 and "ow do you measure collectie
intent
b. SI:! Sou only "ae to s"ow t"at it was a contributing )actor4 t"en t"e
burden s"ifts to t"e goernment to s"ow t"at law would "ae passed
een wit"out bad racist purpose
.. conte5t of law
a. ?"en and "ow was law passed -e.g. :randfat"er clause casedidn6t
"ae to ta#e a ery stringent literacy test if your fat"er oted in )8<<
in O#la"oma4 and only w"ites could ote t"en/
ii. Facially Neutral, Discriminatory 'urpose, no Discriminatory ())ect
iii. 9almer . +"ompson
). ;S closed all public swimming pools w"en could no longer segregate t"em.
Clear racist purpose4 but "urts bot"4 so no discrim effect.
2. ;aBority says it is easy to misinterpret leg intent4 so if no discriminatory
effect, Ct !ill use #B revie!39%>LH
.. +"ere was a discriminatory effect b2c w"ite #ids "ae priate pools. &ut t"at
discrim effect is too indirect.
8. Ct could "ae said t"at t"e discriminatory effect was stigmati=ation. +"is
was bad legal formalism.
0. F* 8 of Caroline 9roducts! t"e maBority could reopen pools4 but t"eir racism
is bigger t"an t"eir loe of swimming in public pools
<. *ote! if Ct struc# t"is down4 it would "ae been li#e saying t"ere6s a SH9
rig"t to public swimming pools
i5. Facially Neutral, No Discriminatory 'urpose, but Discriminatory ())ect
5. ?as"ington . Hais
)A
). 1ll people need to ta#e an entrance e5am to Boin t"e police. +"e purpose is to
get t"e best applicant4 not to discriminate4 but t"e effect is t"at 1frican
1merican applicants fail t"e test at a "ig"er proportion
a. Hisparate Impact
2. 'ational &asis 'eiew
a. legislature may "ae #nown t"is would "appen4 but still4 no purpose.
Hifferent from Sic# ?o b2c stats are no so e5treme
b. Ct says t"at w"ite people w"o fail are Bust as discriminated against as
blac# ppl w"o fail4 and blac# people do pass.
.. 9olicy! allows subtle racism4 and inaction in t"e face of disparate impacts4 but
ot"erwise t"ere6d be too many laws getting oerturned
5i. Facially Neutral, No Discriminatory 'urpose or ())ect
). 'ailway >5press Case'ational &asis
f. 1ffirmatie 1ction
i. *rutter v+ Bollinger -law sc"ool/ . *rat, v+ Bollinger -undergrad/ -200./
). ;ic"igan Law sc"ool can use affirmatie action4 but ;ic"igan undergrad
cannot use affirmatie action
ii. 'econciling t"e two!
). Strict scrutiny applies since it is facially not race neutral.
2. %>LH! :ot interest in diersity is compelling4 but in t"e undergrad
program it is not narrowly tailored.
.. 3ndergrad 9olicyyou get V20 pts for being a minority4 and you add up a
score t"at determines your admissiont"at6s a lotI
8. Law sc"ool policymore "olistic4 many basis of diersity considered -e.g.
race4 trael4 geograp"ical diersity4 special at"letic2musical s#ill/4 and loo# at
oerall personindiiduali=ed
0. Compare wit" 3 of +e5as6s program4 w"ere t"ey allowed anyone in t"e top
)0W of t"e class to be automatically admitted. +"is creates diersity from t"e
sc"ools t"at are mostly blac#2latino.
a. +"is program would word as well4 but for a program to be narrowly
tailored4 t"e Ct does not need to find t"at eery ot"er option "as been
e5"austed.
b. +"e got must s"ow a good fait" consideration of ot"er options and a
decision t"at t"ey wouldn6t wor# as well.
c. %ere4 said t"at t"e 3of+ program wouldn6t wor# b2c t"e law sc"ool
admits a small number of students4 and t"ere6s less diersity in
;ic"igan4 so een if t"ey used &er#eley6s program -use
socioeconomic diersity/4 in ;ic"igan t"ey6d only get poor w"ite
#ids4 t"ey want ot"er diersity as well.
<. *arrowly tailored means t"at t"e affirmatie action can only last as long as is
necessary. 9er"aps in 20 yrs we may not need race based admissions. -*ote4
t"is was 20 yrs after Ba$$e/
A. +"is is not really strict scrutiny!
a. +"e only case up"olding a facially non$neutral law is -orematsu4 and
it seems t"at t"e Ct is simply deferring to t"e goernments assertion
)8
t"at diersity is compelling. &ut under SS4 t"e Ct4 rat"er t"an t"e
got4 gets to say w"at interests are compelling.
b. +"e Cts decision t"at t"is is narrowly tailored re,uired no formal fact$
findings t"at t"e facially neutral programs would not wor#. If t"is
hurt minorities it would be insufficient.
8. *insberg, Dissent .in *rat,! w"en we are "elping minorities t"ere s"ould be
a lower leel of scrutiny t"an SS.
iii. /annons o) &nterp on a))irmative action0
i. +e5t of t"e )8t" 1m!
). C*o State s"all deny to any personXD
2. +e5t suggests t"at t"ere s"ould be t"e same standard of scrutiny to "elp or
"inder minorities4 and t"at affirmatie action would not be o#ay.
. Original ;eaning2%istory
). Hid t"e drafters of t"e )8t" 1m t"in# t"at t"ey were banning all
discrimination4 or only "armful discrimination(
2. In )8<<4 t"e .Jt" Cong -same one t"at passed t"e )8t" 1m/ passed a statute
giing money to poor blac# women and c"ildren4 and in )8<A t"ey gae
money to poor place people in HC. >ac" year4 for years4 after t"e Ciil ?ar4
eteran benefits were gien to blac#s only -only blac# soldiers4 and not Bust
recently freed slaes/. 1nd t"ese measures passed oer t"e complaint t"at
t"ere were race based legislation.
.. 3nder Originalism4 affirmatie action is o#ay.
i. 9olitical 9rocess +"eory
). maBority could protect t"emseles from affirmatie action if t"ey wanted
2. &3+4 w"ere t"ere is a minority maBority t"is mig"t not "old up.
ii. 9recedent
). ?as Brown decided b2c t"e Const is color blind or because segregation "urt
minorities( ?e don6t #now.
iii. LogicIs diersity really compelling(
). >ducational &enefitse5posure to dierse ppl4 ideas4 etc ma#e you better
educated4 w"ic" ma#es you wor# better wit" different people. >en t"e
business community buys t"is.
2. :lobal Competition2>conomic :rowt"diersity creates a more fle5ible
wor#force4 w"ic" "elps t"e 3S economy in t"e global economy
.. Hecreased wor#force tension;ilitary officers must be dierse in order to
relate to enlisted men -80W of w"om are minorities/4 to relate to t"e people
t"ey are con,uering -don6t want racial tensions li#e in Eietnam/. +"is
translates to ciilian Bobs too
8. :ot leaders"ipleaders come from elite sc"ools b2c ppl respect pedigree.
?e want to "ae good4 dierse leaders"ip.
0. 1cademic debate and e5c"ange of ideast"oug" t"at suggests we s"ould
admit more >angelicals4 etc.
<. Hiersity in Community Leaders"ip -t"is category was added by Colby/
it6s good to interact wit" people w"o aren6t all your same race at wor#4 so you
need to "ae minorities in top Bobs and w"ites in low paying Bobs too.
i5. 1homas2s Dissent -in :rutter/!
)J
). +"is is discriminating against w"ites and 1sians.
a. +"is discrimination is "ard to understand on an indiidual basis
eac" indiidual w"ite applicant w"ic" "ig" scores is still competing
wit" many ot"ers. 1ll attempts at diersity "ae t"is effect
admitting a pianist from Iowa ta#es someone else6s spot
2. Stigma
a. 9eople t"in# t"at people of color only were admitted b2c of t"eir race.
.. >ntitlement
a. t"is will lead young minority people to feel entitled to aff. action
policies4 and not wor# as "ard because of t"em.
8. 'acial +ension
a. ?"ite 1merica resents affirmatie action and t"ose w"o benefit from
it at t"eir e5pense. +"isracial tension in society.
0. Hecreased Success
a. 9eople w"o are admitted b2c of aff. action will "ae lower :91s and
ran#ings. &eing at t"e bottom of t"eir class will "ae a psyc"ological
effect t"at will cause t"em to succeed less.
<. *O+>! maBority does not "ae to reply4 because t"ey are not saying t"is is a
good policy4 Bust t"at it6s compelling.
5. ?"at ot"er possible interests could ;ic"igan "ae argued were sered by t"is
program( In Ba$$e4 t"e state argued and &rennan and ;ars"all -dissent/ agreed t"at
remedying t"e affects of past discrimination was a compelling interest. *obody
mentions it4 but t"is is really t"e motiation "ere too.
5i. Is e,uality about e,uat treatment4 or e,ual status among races. &lac# families are <5
poorer4 "ae .5 "ig"er infant mortality4 "ae e5pected lifespan )22 as long and are
less li#ely to be born in a neig"bor"ood wit" competent sc"ools. If 3ashington v+
Davis "ad been decided t"e ot"er way4 t"e got may "ae "ad an obligation to
remedy t"is situation. *ow affirmatie action raises t"e ,uestion w"et"er it is
constitutionally permissible to try to close t"at gap. Ct doesn6t gie credence to t"is
argument4 but as long as states p"rase t"eir interest as in diersity t"ey may.
g. 00 Sears of Sc"ool Hesegregation
i. >entually t"e Ct e5tended Brown to oerrule 'lessy and to apply to pulic
accommodations generally.
ii. Brown &&
). +"e Ct in &rown didn6t say w"at t"e remedy was4 rat"er t"ey as#ed for a
briefing on w"at t"e briefing s"ould be.
2. Ct did not order desegregation by any particular date. Only t"at t"e Y must
ma#e a real effort wit" Cdeliberate speedD to start integration.
.. Sout" too# t"is as an initation to drag its feet. +"ere was massie resistance.
8. &y )J<. segregation is alie and well. In )J<8 Congress passes t"e Ciil
'ig"ts 1ct4 and goernment wit""eld funding to segregated sc"ools. Only
t"en did c"ange begin4 but Ct #new t"at t"ey couldn6t order immediate
c"ange b2c of resistance.
iii. Cts were ordering integration t"roug" bussing4 but t"en people complained about
e5pense and distance. Sout"ern sc"ools want to be free from integration order.
20
Once order was lifting4 de facto segregation caused by "ousing patterns too# oer
again.
i. Some people4 li#e @ustice +"omas4 t"in#s de fact segregation is not bad since t"ere6s
no stigma wit" it.
. 'arents &nvolved in /ommunity Schools v+ Seattle School District -200A/
). Cities of Lousiille and Seattle tac#le de fact segregation by bussing #ids
around city to try to ac"iee integration and ma#e t"e racial ma#eup of
sc"ools appro5imate t"e racial ma#eup of t"e city oerall.
2. Ct stri#es down t"ese plans -Roberts 'lurality/
.. 'emedying past discrimination is *O+ a legitimate state interest b2c t"ere
was neer de Bure seg in Seattle4 and t"e segregation in Louisille "ad already
been remedied as t"ey were released from "eir Ct order.
8. 1c"ieing diersity in t"e classroom
a. 'oberts says :rutter is not controlling by distinguis"ing b2t "ig"er
and primary2secondary education. ;ostly4 t"e sc"ool district did not
put t"e same effort into s"owing t"at t"is is a compelling interest.
b. +"is is not narrowly tailored b2c t"e sc"ool is only measuring
diersity by race.
c. 1grees t"at diersity is a compelling interest4 but t"ere is no s"owing
t"at t"e benefit deried is increased w"en t"e city busses #ids so t"at a
sc"ool t"at would normally be )0W blac# becomes )AW blac#.
0. Ct not oerruling bussing decisions b2c t"ose were addressed at remedying de
Bure discrimination -&ut in *ort" t"ey did bussing to ac"iee diersity and in
dicta Ct applauded it/
<. Breyer, Dissent
a. :rutter controls. 1 dierse learning enironment is all t"e more
critical for younger students b2c by t"e time t"ey go to college4 most
of t"eir feelings about race are set.
A. Stevens, Dissent!
a. t"is is inconsistent wit" precedent t"at ordered integration and
bussing. +"e Ct is res"aping precedent and reBecting dicta. *ow t"e
H9 Cl is turned on its "ead to #eep races apart.
8. 1homas, /oncur!
a. Constitution is color$blind.
b. SI:! +"e big ,uestion is w"et"er t"e >9 Cl allows race conscious
legislation to "elp incrase diersity.
c. O6Connor was t"e 0t" ote to allow affirmatie action4 and s"e was
replaced by 1lito4 w"o t"in#s affirmatie action is unconstitutional
and t"at t"e color$blind iew "as won(
J. -ennedy, /oncurring and Dissenting4
a. Hisagrees t"at local goernments must accept de facto segregation4
but agrees t"at t"is law is not narrowly tailored4 b2c it doesn6t wor#
li#e t"e 3$;ic" law program4 but rat"er4 more li#e t"e 3$;ic"
undergrad4 w"ere race is t"e only factor. 1lso4 t"ey could "ae used
race neutral remedies4 li#e redrawing t"e sc"ool districts
". Se5 Hiscrimination
2)
i. &ac#ground
). Bradwell -)8A./)8t" 1m doesn6t protect women so t"ey may be e5cluded
from t"e legal profession. 'ational basis scrutiny.
2. Frontery v+ Richardson -)JA8/
a. ?omen in t"e army must proe t"eir "usbands are dependant on t"em
to get more money and bigger liing ,uarters4 w"ere t"ere is a
presumption t"at t"e wies of men in t"e army are dependant.
b. +"is was reiewed under 'ational basis reiew.
c. >en t"oug" t"is assumption was rational4 t"e Ct struc# it down.
+"ey are less deferential t"an t"ey say8 @ustices -led by &rennan/
wanted strict scrutiny4 but t"ey compromised.
ii. Craig . &oren -)JA</
). )8$year$old women can drin# Cnear beerD and men can6t drin# until t"ey are
2).
2. :ender classifications are reiewed under Intermediate "crutiny!
a. t"e law must sere an imortant govt objective4 and
b. t"e law must be substantially related to ac"ieement of t"ose
obBecties
.. 3sed discrimination against men to get intermediate scrutiny t"at will usually
be used to "elp women4 een t"oug" "e wanted SS.
8. &rennan would compromise "is ideals to get a good result -unli#e Scalia/
0. &rennan says IS was applied in preious cases w"ere t"ey said t"ey were
applying '&"e6s being ague to get t"e otes
<. *otet"e reason t"at "e couldn6t get 0 otes is t"at se5ual discrimination is
not t"e same4 e.g. t"ere6s no stigma is using a separate ladies room4 but
maybe we are concerned wit" paternalism.
iii. 3nited States . Eirginia
). *o women were admitted to E;I. +"e Court stri#es down -A$)/ t"e
e5clusion of women -:insberg/
2. Ct says it is applying IS4 but also demands Ce5ceedingly persuasie
BustificationDintermediate scrutiny plus
.. State interest!
a. Hierse way to learn.
i. but t"is is not e5ceedingly persuasie b2c t"ey don6t proide
t"is opportunity to women by proiding an all women6s sc"ool
b. 1dersatie ;et"od of instruction would "ae to c"ange to
accommodate women
i. +"ere is constant mental and p"ysical stress4 no priacy4 t"ey
tear you down and build you up.
ii. 1dersatie met"od may be important4 but admitting women
won6t necessarily cause its end.
8. State says it will open a similar sc"ool for women.
a. State says t"at women learn better in a nurturing enironment. So
t"ere will be no rat$line4 and a cooperatie enironment. State says
t"at t"ere are psyc"ological studies to bac# t"em up and t"eir policies
s"ould be able to reflect t"at.
22
b. &ut t"ese stereotypes are not tolerated under law4 and t"is does not
proide a remedy for w"om t"ose studies are not true. 9lus4 new
sc"ool is not as prestigious.
0. Scalia, Dissent4
a. +"is is for t"e political process to decide.
b. Ct is applying a "ig"er leel of scrutiny t"at t"e precedent4 and een
so it s"ould meet t"e stated test!
i. >ducation and t"e adersatie met"od are important4 and since
t"ere is only a small number of women w"o want to enroll it
does not Bustify admitting t"em. ?ould cost t"e state a lot of
money because t"ey would "ae to build separate facilities4
etc4 and t"ey can6t do t"at4 so t"ey6ll "ae to abandon t"e
adersatie met"od.
ii. +"e Ct is c"anging t"e test!
iii. !ichael !.a California criminal law punis"es t"e male4 but
not t"e female for statutory rape. +"e state stated t"at t"is is
b2c t"e fear of pregnancy already proides t"e girl wit" an
incentie to abstain4 but really t"is was to protect feminine
c"astity -paternalism/. Ct up"eld t"e law.
1. In contrast4 :insberg does not ta#e t"e E1 leg on t"eir
word4 w"en t"ere6s more reason to. +"ey say t"is is
for diersity4 and it probably was since it was created
before women went to sc"ool.
iv. Roscoe v+ *oldbergCt ruled t"at it was o#ay to e5clude
women from combat.
1. +"is conflicts wit" t"is opinion b2c some women could
"andle combat and t"rie in it4 Bust as wit" t"e
adersatie met"od.
c. So really4 t"is is a "ig"er leel of scrutiny t"an IS.
i. ?"at about uniersity at"letics!
). t"e Bustification for "aing separate women6s and men6s teams is t"at t"ere
are biological difference.
2. +"e men6s team is more prestigious4 s"ould women be allowed to try out for
t"em4 een if t"ere is a women6s team(
.. ?"at if t"ere is only men6s football4 and only women6s field "oc#eymust
opposite se5es be allowed to try out(
8. ?"at if t"ere was one team4 open to all se5es( +"is would iolate federal
statute4 but would it be constitutional(
. ?"en passed4 no one t"oug"t t"e >9 Cl protected against gender discrimination as
well as racial discrimination. Ct said t"at t"e mores of society "ad eoled4 but since
t"e country "ad Bust oted down t"e >,ual 'ig"ts 1mendment it is unli#ely t"at our
alues "ad really c"anged.
i. %ow do we determine w"at classifications among people are allowed under t"e H9
Cl(
). +e5t
a. Cno personDunclear
2.
2. Originalism
a. t"en racism is o#ay
.. %istory
a. t"en se5 and legitimacy discrimination is o#ay
8. 1he three that the /t loo$s at4
0. $olitical %oice of t"e group in t"e legislature
a. t"is is t"e most important b2c it spea#s to w"et"er you can protect
yourself in t"e political process.
b. &ut4 eeryone is a part of some minority -e.g. opticians/ and t"e
minority loses eery ote4 so t"e #ey is w"et"er t"ey are
discriminated against or marginali=ed.
c. ;ust be a discrete and insular group
i. discrete"ard to Boin t"e maBority
ii. insulardetac"ed4 isolated4 etc -synonymous/
iii. So4 e.g. women are a maBority4 but "ae a "istory of being
unable to protect t"eir rig"ts in t"e political process
<. Immutable characteristics of t"e group
a. So wealt" doesn6t count. 1nd t"oug" you can6t c"ange your age4
eeryone will be old eentually4 so no reason to discriminate against
t"em.
A. &istory of Discrimination
a. more imbedded preBudice w"en it6s old discrimination. +"is gets at
w"et"er t"e law was t"e result of preBudice.
i. Hisability Hiscrimination
i. /leyborne v+ /leyborne 5iving /enter
). Law was enacted t"at would preent a "ome for t"e mentally "andicapped
from being built
2. Hoes t"is fit t"e aboe factors!
a. +"is is an immutable c"aracteristic
b. +"is group is sometimes discreteoften enoug" you can notice it
isiblyand insulart"ey lie apart4 despite liing in a non$
"andicapped family4 because t"ey need different facilities.
c. +"ey are unable to protect t"emseles in t"e political process b2c t"ey
can6t ote4 etc. &ut Ct sas t"at ot"ers protect t"em4 as eidence by t"e
passage of laws for t"em
d. +"ere is a "istory of discrimination4 e.g. eugenics moement
.. ?as t"is law passed b2c of discrimination(
a. In abstract4 classifying "andicapped separately is not li#ely Bustified
by animus4 since t"ey "ae different needs.
8. +"is law fails #ational Basis "crutiny!
a. State interests are t"at nearby property owners don6t li#e it4 but
people6s discrimination is not a legitimate state interest.
b. t"e are is by a Bunior "ig" sc"ool4 students will taunt people
i. &ut t"ere are .0 integrated "andicapped students in t"e sc"ool
t"is is an irrational distinction.
28
c. Land w"ere "ome would be built is on a flood plane4 and retarded
people will "ae difficulty getting away
i. but t"ey would allow a nursing "ome or "ospital. +"is is a
legitimate interest4 but not rationally related.
d. Legal liability for t"e city b2c t"ey6d be responsible for w"at disabled
people would do t"ere
i. &ut t"ey would allow a fraternity to be built t"ereirrational
distinction
e. Si=e of t"e "ome would be out of c"aracter wit" t"e neig"bor"ood
i. +"is is legitimate4 but t"ey would "ae allowed an apartment
building or "ospital to be built t"ere4 so irrational
0. +"is law is under$inclusieI &ut in '' >5press4 t"e Ct said t"at it didn6t
matter is a law is under$inclusieCt applied #'(I)*'+ B'"I"
"C#,(I*- $+,".
<. !arshall, Dissent!((
a. +"is s"ould be intermediate scrutiny4 b2c if t"is group s"ould fall out
of faor t"ey6d be unable to protect t"emseles
B. Se5ual Orientation Hiscrimination
i. Romer v+ (vans
). +"is is a constitutional c"allenge to an amendment to t"e Colorado
Constitution. Cities "ad granted laws t"at pro"ibited discrimination against
gays and lesbians4 and t"e amendment repealed t"ose laws and precluded any
agent of t"e goernment to pass a law or issue an order banning
discrimination against gays or lesbians.
2. %>LH! Ct stri#es it down <$. -Mennedy/ as a iolation of >9
.. So'! purportedly '&4 but actually rational basis lus
8. +"e law pro"ibits gays in t"e future from een see#ing protection in t"e
courts or legislature4 and t"ey alone are being denied t"at rig"tt"is is
discrimination.
0. Mennedy confounds traditional doctrinal structure of >9 and leels of
scrutiny. +"is is unli#e any ot"er >9 case. +"e law doesn6t impose a
particular burden on gays4 but instead identifies t"em by a single trait
-"omose5uality/ and denies t"em protection across t"e board4 so t"e law and
t"e political process aren6t open to t"em
a. +"is is not a loser in t"e political process as#ing t"e Ct for "elp4 but
t"e door is closed to gays all toget"er>9 iolation alone.
b. een under t"e typical scrutiny in,uiry t"e law fails!
i. COs interests are in protecting t"e freedom of association of
people w"o are opposed to "omose5uality and consering
resources to fig"t ot"er discrimination.
ii. Ct does not say if t"ese are legit interests -)st may be4 second
it legit/4 but stri#es it down as not rationally related to t"ese
interests
iii. Law is oerbroad
iv. +"is does not sound li#e '&t"ey don6t care about oer$ or
under$inclusieness as long as it adances t"e interest4 but
20
"ere t"e law seems to be t"e result of animus. 1nd t"is is also
unli#e '&4 w"ere t"ey don6t second$guess t"e proffered
reason for t"e law4 e.g. 5ee 6ptical
<. Scalia, Dissent! ;aBority mista#ing a culture war for animus. Law is an
"onest effort to protect traditional se5ual mores against a politically powerful
minority. +o say it6s passed out of spite is to ta#e sides in t"e culture war.
+"e political process4 rat"er t"an t"e Court4 ends culture wars.
a. &ut if t"is is true4 Brown and 5oving were wrongly decided4 and if t"e
Ct can6t ta#e sides in t"e culture wars t"en it abdicates its duty
ii. S"ould se5ual orientation be a suspect class4 subBect to "eig"tened scrutiny(
). Romer duc#s t"e ,uestion. Consider t"e factors!
2. discrete and insular minority(maybe not in t"e F* 8 sense4 as gays are
born into eery family and lie among us4 so t"ey aren6t insular. 1nd aren6t
discrete -isually different/ because t"ey can c"ose4 to some e5tent4 if society
sees t"em as gay.
.. $olitical rocess( 9robably can6t protect t"emseles. +"e fact t"at t"ey
"ae difficulty reealing t"at t"ey6re gay suggests t"at t"ey won6t "ae
success protecting t"emseles politically. Hiscrimination is an incentie not
to come out4 and w"ile not openly gay t"ey can6t protect t"eir rig"ts.
8. &istory of Discrimination( O" yes.
0. Immutability. S>S4 t"oug" it may be more li#e recognition.
iii. :ay ;arriage
). 1rguments in faor!
a. D$! 5oving "eld t"at t"ere was a fundamental rig"t to marry w"o you
wantcould be applied to gay marriage by combining it wit"
5awrence.
b. /$ -more li#ely/! 9ossible state interests in opposing it!
i. forbid illegal se5(not under 5awrence
ii. presere traditional morals(not under Romer. ;orals are
not a legitimate basis for discrimination against a suspect class
iii. "ate2disli#e of gaysno
iv. presere traditional families and marriage as a procreatie
institutionpresering traditional families is not compelling
under 5oving4 if t"e So' is '&V4 would t"e law be rationally
related4 plus4 to t"at interest4 and if IS4 would t"e law be
substantially related to t"at interest(
1. underinclusiew"at about "eterose5uals w"o don6t
want2can6t "ae #ids(
2. oerinclusiew"at about gays w"o adopt or get
fertili=ed.
c. Romert"e rationale was discrimination. If it doesn6t see
discrimination in gay marriage bans it probably will allow under '&V
or IS. See O6Connor6s concurrence of >9 grounds in Lawrence.
d. *O+>! it may ta#e time4 e.g. Loing didn6t come until )2 yrs after
&rown. Ct gies public time to c"ange.
2<
"trict "crutiny Intermediate "crutiny #ational Basis
'ace Se5 1ge
1lienage Legitimacy ?ealt"
*ational Origin ;oustac"e
I%. Freedom of >5pression
a. :enerally
i. )st 1m! CCongress s"all ma#e no law abridging t"e freedom of speec"4 or of t"e
press.D
ii. CFreedom of Speec"D includes narrower t"an Cspeec"De5cludes perBury4 attempted
bribery4 blac#mail4 etc. &ut we don6t #now w"y bribery isn6t protected4 S.Ct Bust
says it isn6twe #now t"e Const isn6t stupid.
iii. If t"e 9res. issued an e5ecutie order to arrest protestors!
). (e0tualistsplain language would allow it4 b2c it6s not Cong and not a law.
&ut no one t"in#s t"is. So t"e meaning of t"e )st 1m goes beyond t"e plain
te5t.
2. )riginalistCabridgeD suggests a "istorical baselinewe can6t cut bac# on
freedoms of )A8J4 w"en t"ey "ad a ery limited ides of freedom of
speec"it only forbade prior restraint on speec"4 but got could still arrest
you for w"at you said after. &ut no one beliees t"is so Originalism isn6t
"elpful eit"er.
.. Case +a!t"is is w"at we use
b. Incitement
i. Huring ?orld ?ar I
). >spionage 1ct of )J)Acriminali=ed any attempt to cause insubordination
among armed forces or to "urt t"e draft. ;any people were conicted under
t"is law in ??I.
2. Shan$ v+ 7S -)J)J/
a. +"e aut"or of a 2$page pamp"let -produced by t"e Socialist 9arty4
arguing t"at t"e draft is unconst under )st4 Jt" and ).t" 1ms/ is
arrested.
b. %>LH -%olmes/! indictment up"eldCong may abridge political
speec" w"ile we are at war.
c. +>S+! clear and resent danger.
i. danger must be clear -a real t"reat/ and present -t"oug" "ere
it6s unclear "ow imminent t"is t"reat is/
d. 1nalogi=e t"is to yelling fire in crowded t"eater.
i. &ut fire is a factual statement4 t"ese are opinions.
e. SI:! t"e real standard *atural (endency #ationale1 is t"at got can
pro"ibit speec" t"at "as a natural tendency to cause ot"ers to do
wrongful acts or to bring about "armful conduct.
f. Companion cases! Frohwer$ and Debbs -)J)J/
i. Ct up"eld t"ose conictions4 under w"at loo#ed li#e t"e
natural tendency test. >.g. Hebbs was a pacifist4 w"ic" "ad a
tendency to "urt t"e war effort.
.. ?"at6s wrong wit" t"e natural tendency test(
2A
a. +"ere are benefits from dissent4 e.g. ;artin Lut"er Ming. ?e need
dissent to "ae a functioning democratic political process4 unli#e got
bans on "armful conduct.
8. Abrhms v+ 7S -)J)J/ GC%>CM
a. t"is c"allenge comes from anot"er 7 of t"e >spionage 1ct t"at
pro"ibits people from urging people to interfere wit" war production.
+"e defendants "ere were 'ussian immigrants t"at were worried t"at
t"e 3S was preparing to crus" t"e 'ussian 'eolution. +"e circulated
pamp"lets t"at t"e wor#ers s"ould stop producing in solidarity.
b. %>LH! conictions up"eld under clear and present danger test.
c. +"ere are two ways to be prosecuted for your speec"!
i. CF9H
ii. intend your speec" to create a CF9H
d. Dissent4 %olmes -former aut"or of CF9H/4 wit" &randeis
i. +"ere is no CF9H "ere4 t"ere is Bust ) man wit" a silly leaflet4
and "e wasn6t trying to interfere wit" t"e war4 b2c "is intent
was to presere t"e 'ussian 'eolution. 1ny interference
wit" war -een if "e coninced people/ would be indirect and
undesiredt"at is not enoug" to proe t"at "is intent was to
cause CF9H under t"e statute.
ii. &ut 1bra"ms was no less danger t"an S"an#4 %olmes "as
c"anged "is iew now t"oug"
0. ;asses 9ublis"ing Co. . 9atten -S.H.*.S.4 )J)A/
a. Learned %and6s test
b. 9eople were prosecuted for publis"ing anti$war political cartoons.
c. +>S+! if t"e speec" does not e5plicitly urge unlawful conduct4 it6s
protected een if t"ere is a CF9H4 or if t"ere is intent to cause "arm.
d. Criticism of %and6s +est!
i. Oerinclusiepunis"es people een w"en t"ere6s no danger.
ii. Focus on t"e te5t alone4 and not t"e conte5t4 etc.4 you ris#
errors of interpretation.
iii. If t"e focus is on e5plicit urging4 t"en dangers speec" may be
allowed if it is communicated t"roug" win#s and nudges
e. %olmes . %and
i. Clarity
1. %and6s test is cleare5plicit urgings is t"e #ey.
2. %olmes6 test is less concrete4 w"ic" "as a c"illing
effect on speec"4 as people are less sure of w"at t"ey
may say
ii. Logic
1. %olmes6 test only protects speec" t"at isn6t conincing4
but silences effectie4 conincing speec". So you only
"ae freedom of speec" for positions or at times w"en
it doesn6t matter.
2. %and discounts t"e alue in speec" t"at calls for
e5plicit wrongful conduct4 li#e ;LM6s.
28
<. ;ar#et 9lace of Ideas
a. %olmes introduced t"is in "is Abrams dieesnt.
b. Free speec" is necessary to t"e ,uest for truc"4 w"ic" can only emerge
if we let eeryone spea# -related by distinct from t"e political process
argument/
c. 9roblems!
d. ;ar#ets failt"e more money you "ae t"e louder oice you "ae.
So t"e Cmar#etD is monopoli=ed by goernment and big business
e. +rut" gets muddledin a mar#et place4 w"at we li#e is alued4 but
we don6t always li#e t"e trut". 9eople don6t c"ange t"eir mind t"ru
Cenlig"tened debate4D t"ey Bust well at eac" ot"er and cling to w"at
t"ey want to beliee.
f. +"ere is no uniersal trut"political speec" is about opinions and
ideas4 not trut"s.
ii. 'ed Scare
). *itlow v+ N8 -)J20/ and 3hitney v+ /A -)J2A/
a. *ote! In t"is case4 t"e Ct assumes t"at t"e )st 1m "as been
incorporated against t"e States4 because t"ese are c"allenges to State
9rosecution.
b. %>LH! bot" conictions are up"eld as t"e maBority defers to t"e
legislature to pro"ibit speec". %olmes and &randeis again dissent in
faor of t"e CF9H test.
c. :itlowprinted a communist publication
d. ?"itneywas a member of an organi=ation t"at adocated c"ange
t"roug" iolent means4 t"oug" s"e was a moderate in t"e party and
trying to ac"iee a more moderate platform.
e. !a"ority
f. CF9H test does not apply because t"e iolation occurs under a statute
directed at speec"4 not conduct.
g. >spionage 1ct t"ey say was against conduct4 i.e. interfering wit"
drafts4 etc.
". If conduct is "armful4 t"en speec" t"at leads to t"at "arm is measured
under t"e CF9H standard. &ut if Congress wants to pro"ibit t"e
speec"4 t"en t"e law is already iolated.
i. +"is is badt"e more constitutionally offensie t"e law4 t"e
less scrutiny.
i. +"is speec" could lig"t a spar# t"at mig"t smolder into fireno
present danger.
B. %olmes, Dissent .*itlow
i. CF9H test s"ould apply regardless of w"et"er t"ere is a
statute.
ii. t"ere was a real c"ance t"at t"e communists would win4 but
%olmes says t"is pamp"let created no immediate t"reat
1. ;aBority answered t"at if you wait for immediacy4 it6s
already too late4 but %olmes t"in#s t"e mar#et place of
ideas will preent bad t"ings from "appening.
2J
iii. SI:! in 1brams4 %olmes put teet" t"e teet" in t"e Zpresent6
element of t"e CF9H test
#. /oncurrnce, Brandeis .3hitney
i. -concurring b2c issue of Freedom of Speec" wasn6t presered
for appeal4 b2c ?"itney6s atty died at trial/
ii. +"ere are . re,uirements!
1. Imminent
2. Serious
a. sig! later t"ey will decide t"at sit$ins are not
serious -t"oug" unlawful/
3. *o deference to t"e legislature
iii. +"e reason for freedom of speec" is t"e political process
rationale. +"e greatest menace to freedom is an inert people.
Freedom of Speec" is an end and a means.
iii. 9ost$??II! ;cCart"yism
). &ac#ground
a. people were afraid of Soiet agents in our goernment. Sen.
;cCart"y uses t"e %ouse Committee. +"ere is t"e %ollywood
blac#lists4 and t"e only way to get off it is to name names.
2. Dennis v+ 7S -)J0)/
a. Ct up"olds coniction of communist leader for iolating t"e Smit"
1ct.
b. Einson4 for maBority!
i. 1grees wit" dissent from :itlow and ?itney t"at CF9H is t"e
test4 rat"er t"an deference to Smit" 1ct4 but does not apply t"e
test
ii. +>S+! ?"en ["arm\ 5 [li#eli"ood\ P "arm from inasion of
free speec"4 t"en t"e speec" may be restricted.
iii. SI:! adopted a modified ersion of %and6s balancing formula
c. Hissent4 %olmes and &randeis
i. +o silence speec"4 it must always be serious and it must
always be imminent
d. Houglas4 Hissent
i. mar#et place of ideas
e. Fran#furter4 Concurrence
i. 1grees t"at t"ere is a balance4 but t"ere s"ould be more
deference to Congress. Congress s"ould be doing t"e
balancing. -%e loses t"is debate to %olmes and &randeis/
i. +oday
). Brandenburg v+ 6hio
a. Mlan does a marc"4 burns a cross4 ma#es a speec". Leader conicted
under a law pro"ibits adocacy of use of force and lawlessness.
b. %>LH -per curium/! Coniction oerturned.
c. +est!
i. speec" e0licitly directed to inciting la!less actionL
ii. danger is imminentL 1*H
.0
iii. speec" is li2ely to roduce that action.
d. *otet"is test does not come from precedent! ?"itney did not
"erself adocat lawlessness. Ct says ?"itney was oerruled by
Hennis4 and so CF9H is t"e standard4 but it was not applied li#e t"is.
'at"er4 t"is is ta#ing t"e most speec"$protectie parts of all t"e tests4
ignoring t"e rest4 and going furt"er t"an t"e dissenters.
e. 9recedent&randenburg6s test!
Sc"enc# %olmes2&randeis %and!;asses Hennis2Sates &randenburg
Hirected * * S S S
Imminent * S * * S
Li#ely * Sort of * * S
Serious * S * S ( -implied/
f. &randenburg oerprotects speec" to compensate for Budges6 tendency
to oer$estimate danger4 but you could still t"row @efferson in Bail for
t"e Hecl of Indep under it.
2. C*uremburg FileD Case -Jt" cir/
a. website t"at targets and promotes t"e murder of abortion doctors may
be forced to be ta#en down under t"e law on t"reats.
b. Hissenterst"is is incitement4 not a t"reat4 and it fails t"e
&randenburg testI
c. Fig"ting ?ords and 9rofanity
i. /haplins$y v+ N% -)J82/
). @e"oa"6s ?itness arrested for calling cop fascist4 rac#eteer
2. %>LH! :ot can restrict words t"at are li#ely to cause t"e listener to retaliate
and disturb t"e peacesuc" words are outsidet"e scope of t"e protection of
t"e )st 1m.
.. Suc" words are of little or no social alue4 and are clearly outweig"ed by t"e
social interest in order and morality -t"e costs of t"is speec"/
8. +"is is a balancing testspeec" t"at does not contribute to t"e mar#etplace
of ideas is not protected
.)
0. 9roblems wit" t"is approac" is t"at S. Ct. ma#es it seem li#e we are animals
w"o can6t turn t"e ot"er c"ee#.
<. *ote! C"aplins#y is still lawt"ere is still a fig"ting$words category of
unprotected speec"4 but S.Ct "as neer sustained anot"er coniction on t"e
basis of fig"ting words since C"aplins#y.
ii. /ohen v+ /A -)JA)/
). Y arrested for disturbing t"e peace by wearing a Bac#ed in an L.1. court"ouse
t"at says CFuc# t"e HraftD under t"e Fig"ting ?ords rationale.
2. %>LH! Ct reersed t"e conictiont"ese are not fig"ting words.
.. -)/ State interest in preenting disorder!
8. Only personal insults can be fig"ting words4 and t"e Bac#et was directed at
public4 not at anyone indiidually. +o "old ot"erwise would let angry people
w"o get upset about controersial topics control speec". 'at"er4 a message
coneyed to t"e public is an idea4 w"ic" must be permitted in t"e
mar#etplace. In contrast4 an insult is not an idea and "as little alue.
a. alue of an idea P state interest in preenting disorder P alue of an
insult
0. -2/ State interest in protecting people w"o would be offended
<. Ct. reBects C"aplins#y dicta and says t"at profanity is protected speec"
A. +"ere is a distinction between speec" t"at intrudes into t"e priacy of t"e
"ome -w"ere goernment can protect people from speec"/ and obBectionable
speec" outside t"e "ome -w"ere it cannot/
8. &eing offended outside your "ome is t"e price you pay for free speec". It
may turn t"e public s,uare oer to offensie spea#ers4 but we let t"e timid
and easily offended set t"e rules for us4 t"ey must turn away.
Speec"
Free speec"
Fig"ting words4
libelR4 obscenity
.2
J. Ct will not pro"ibit t"is specific met"od!
a. %ard to distinguis" between t"is and ot"er potentially offensie
words! COne man6s ulgarity is anot"er6s lyric.D
b. Language "as a dual function! it e5presses ideas and emotions.
Constitution protects bot"banning a word infringes a spea#er6s
rig"t to coney its emotie meaning. &anning profanity would "urt
t"e mar#et place of ideas.
)0. +"e state could pro"ibit wearing a Bac#et li#e t"is in a court"ouse if t"ey "ad
a narrowly drawn statute. &ut t"e law "ere made it illegal to do so anyw"ere.
'eerse b2c t"e law is oerbroad4 een t"oug" "e could "ae been prosecuted
under a narrowly drawn law.
a. +"e reason for t"is is t"at ot"erwise4 t"e goernment could write
broad laws and prosecute w"omeer t"ey wanted. +"is would create
a c"illing effect on speec".
)). Government can rohibit seech in some settings, as long as it allo!s it
in other settings, and doesn3t discriminate on the basis of
content4vie!oint. 'nd, restrictions on time, lace, manner must be
reasonable.
d. Libel
i. New 8or$ 1imes v+ Sullivan
). Sullian was a police commissioner in ;ontgomery4 1labama4 w"o sued t"e
*S +imes and indiiduals w"o ran an ad in t"e *S +imes b2c it implied t"at
"e was inoled in misdeeds against ;LM. +"ere were factual errors.
9rofanity
/ohen
..
2. %>LH! -&rennan/ Ct reersed finding of libel. 5 has the burden of
sho!ing by clear and convincing evidence that the ublic official had
actual malice, i.e. 2no!ledge or a rec2less disregard for the truth.
.. 3nder C2L4 t"is was defamatory libel per se4 so t"e &o9 would be on t"e Y to
proe trut"4 and t"ere would be automatic damages. 3nder /haplins$y suc"
libel is unprotected under t"e )st 1m.
8. +"e )st 1m needs Cbreat"ing roomD!
a. +o deter negligent speec" deters too muc". In t"e fast news cycle4
mista#es will be made.
b. Sometimes you can6t be sure4 or you can6t proe it b2c you relied on
confidential sources -e.g. ?atergate/
0. >lements!
a. 'ctual 6alice
i. $nowledge or rec$less disregard )or the truth
b. $ublic )fficial
i. speec" relates to t"eir o))icial conduct
ii. 9ublic official!
1. substantially responsible for control of got affairs4
1*H
2. ublic has an interest in "ow t"ey perform t"eir Bob
a. 2d prong more importantt"at way cops are
included een t"oug" most people w"o are Bust
got e6ees are not
c. Burden of $roof
i. ] must s"ow actual malice and falsity by clear and
convincing eidence.
<. 1pplication
a. +"is speec" was not Cof or concerningD t"e ]. 1n official cannot sue
eery time someone critici=es t"e goernment. +"at would c"ill our
criticism of goernment
b. +"ere6s no malice. 1t most negligence.
A. Concurrences4 :oldberg4 Clac# and Houglas -separately/
a. +"ere s"ould be an absolute rig"t to critici=e and lie about public
officials.
b. &ecause you "ae t"e rig"t to litigate all t"e way t"roug" t"is test4
got officials can still create a c"illing affect by suing critics.
8. 9olicy -Hoes Sullian go too far(/
a. *ow public officials can6t get a Budicial order clearing t"eir name.
+"is may undermine public confidence in officials.
b. Hoes allowing lies degrade our discoursepreents good people
from running for office.
c. Is ?atergate better t"an t"e Swiftboats was bad.
J. *on$Originalism
a. Libel laws were old. *o one eer t"oug"t t"ey were protected under
t"e )st 1m until )J<8. &ut ?arren Ct loes indiidual rig"ts and was
.8
not afraid to adopt new reasoning. 1lso4 libel laws were being used to
cripple t"e Ciil 'ig"ts ;oement.
ii. 1pplication of Sullian
iii. /urtis 'ubl+ v+ Butts
). applied Sullian to public figures if t"ey t"rust t"emseles into t"e limelig"t
to influence t"e public.
2. +"e oluntariness prong goes to fairness4 but regardless of w"et"er t"e
person wanted to be a public figure4 limiting criticism of t"em will
nonet"eless cause a c"illing effect.
.. +"ey "ae easy access to t"e media to clear t"eir name -but if t"ey still want
priacy4 Ct is forcing t"em to go public/
i. *ert,
). If t"e ] is a priate indiidual4 but t"is is a matter of public concern!
a. t"e &o9 is on t"e ] to proe negligence -fault/ in order for t"e Y to be
liable
b. +"ere are only actual damages wit" s"owing of negligence. For
punitie damages ] must proe malice.
. Dunn 9 Bradstreet v+ *reenmoss Builders -)J8)/
). For a priate matter and a priate person4 t"ere is no )st 1m issue.
2. Hissent -8/! t"e Budges are deciding w"at is a matter of public concern4 w"ic"
is anat"ema to t"e )st 1m.
i. *on$defamation )st 1m +orts!
). Ct applies *S +imes . Sullian standard mostly4 to re,uire a #nowing and
malicious false statement of fact
2. %ustler v+ FalwellIntentional Infliction of >motional Histress
a. 1 Bo#e about Falwell losing "is irginity wit" "is mot"er in an
out"ouse was clearly a Bo#e4 so it6s not a false statement of fact.
e. Obscenity
i. Roth v+ 7S -)J0A/
). %>LH! se5ually e5plicit speec" is outside t"e protection of t"e )st 1m
2. Obscenity! w"et"er an aerage person4 applying contemporary community
standards4 would t"in# t"e dominant t"eme of t"e material4 ta#en as a w"ole4
appeals to prurient interests.
.. +"is is not a liberal standard4 but it liberali=ed t"e old standard4 w"ic" was
any wor# relating to nudity.
ii. 9lace of Obscenity in t"e )st am!
). Originalismobscenity laws are old
2. Functionalismuniersally banned
.. 9recedentC"aplins#y dicta says t"is speec" is utterly w2o social importance
-small alue^large cost/
iii. Social Ealue!
). Social alue refers to contribution to mar#etplace of ideas4 not w"et"er
people li#e it.
2. &3+! t"ere is a contribution to t"e mar#etplace of ideas -e.g. Eonnegut wrote
to 9layboy4 etc/
.0
.. >en if t"ere is no social alue4 "ow do you distinguis" from ot"er wort"less
speec" -e.g. OM maga=ine4 modern art4 MFed4 etc/
8. 9rotects indiidualism2t"e essence of freedom is reading w"at you want
w2o a censor.
0. &3+ Ct says t"is is not speec"4 it6s Bust p"ysical stimulation. &3+ lots of
t"ings are Bust stimulation4 1*H it6s only p"ysical stimulation b2c t"e way
our brain interprets it.
<. +"is is a balanceMfed doesn6t "ae t"e "ig" costs t"at obscenity does
i. Social Costs
). lustful t"oug"ts -'ot"/
a. but t"is is a state interest in t"oug"t control
2. preent people from being offended
a. &3+4 after Co"en4 offending people is not a legitimate reason to
curtail freedom of e5pression. 1nd obscenity laws apply een w"en
t"ere is no possibility of offense -i.e. apply to priate t"eaters/
.. 9rotect C"ildren
a. Idea is t"at t"e only way to preent #ids from getting t"eir "ands on it
is to ban it altoget"er. &ut t"is brings t"e leel of discourse down to
t"e leel of 0$yr$olds. 1nd we don6t ban ot"er t"ings t"at are bad for
#ids4 but t"at t"ey get t"eir "ands on -cigarettes4 ' rated moies/
8. 9rotect ;orality
a. &ut again4 t"is is under$inclusie. 1 serious sociology paper t"at
argued against marriage would be e,ually offensie to morality4 t"e
only difference is t"at t"e effect on t"e perceier is different.
b. 1lso4 Ct allows people to ma#e a message in a more isceral way
c. If protecting morality is important enoug" to limit speec"4 w"y "ae
we stopped at obscenity.
d. Ct "as generally found t"at morality is an insufficient Bustification for
restricting freedom4 e.g. :riswald4 Lawrence4 and speec" is as
fundamental rig"t as t"ere is.
. Hegradation of ?omen in 9orn
). 'aris Adult 1heater
a. obscenity was a criminali=ed on t"e Bustification t"at
i. it caused crime
ii. t"at it "armed women.
1. but no empirical data to support4 in fact t"ere6s in
inerse relations"ip between access to porn and rape
b. %>LH -&urger/! up"old coniction under 'ational &asis reiew -een
t"oug" t"is is free speec"/
2. American Boo$sellers Ass2n v+ %udnut -At" Cir/
a. Statute defines porn only as t"at porn t"at is derogatory towards
women4 and bans its sale4 and allows a tort action for women w"o can
proe t"at t"e man w"o did so was affected by t"e porn.
b. %>LH! ->asterbroo#/ +"is law is oerturned
c. +"is bans only ) iewpoint of women6s se5ual role4 and t"e
goernment cannot endorse ) iewpointt"oug"t control.
.<
d. >asterbroo# agrees wit" t"e argument t"at t"is is also about crime
preention4 and t"at porn can sociali=e male dominance. &3+4 it fails
t"e Brandenburg test b2c it6s not e5plicitly directed at causing serious
imminent "arm. +"is law could only be up"eld under t"e Zbad
tendency6 test of Sc"nec#4 w"ic" is oerruled.
e. S. Ct. affirmed w2o opinion.
f. Counter arguments!
i. +"is porn is an e5ample of mar#et failureyou can6t respond
to subconscious messages wit" an intelligent argument
1. &3+4 t"ere are competing sub$conscious argument4
t"ere is a lot of unanswerable speec"4 and t"is w"ole
argument is predicate upon t"e notion t"at t"ere is a
trut" t"at is not getting out4 w"ic" re,uires t"e got to
say w"at t"e trut" is.
ii. ?"en rape occurs4 t"e "arm is great
iii. +"is is a narrow caseit was against porn4 not obscenity4 but
it suggests t"at t"e Cpreention of crimeD rationale is
insufficient
.. *ote! regulation of obscenity is w"olly content based. &ut we don6t ma#e
subsets for "ate speec" or "orror moies4 but we do for "ardcore porn.
8. @ustices &lac# and Houglas -Hissenters in 'ot"4 ) in ;iller/
a. &lac# says Cno lawD means no lawwe can6t draw t"e line at
obscenity. %e distinguis"es t"reats4 bribery4 and CFireID by saying
t"ose are conduct4 but t"at doesn6t really "old water.
0. L1?! obscenity is not protected by )st am4 so case turns on w"at is obscene
i. Stanley v+ *A
). goernment may not prosecute a person for possessing porn wit"in t"e "ome.
2. If t"e )st 1m means anyt"ing4 it means t"at states cannot tell you w"at to
watc"4 and to "old ot"erwise is t"oug"t control.
.. SI:! you can6t buy it4 but if you6e got it4 you can watc" it in your "ome.
ii. !iller v+ /A -)JA./
). +>S+!
a. -)/ 1erage person4 by local standards4 would beliee it appeals to
rurient interests4
b. -2/ t"e wor# depicts or describes t"ings t"at are offensive4 1*H
c. -./ wor#4 ta#en as a w"ole4 lac2s serious value.
2. 9rongs ) F 2 are Budged by local standards -of w"ere t"e porn is4 not w"ere it
was produced/4 prong . is Budged obBectiely
.. 9rongs 2 and . were added to Roth4 so now4 e.g. 9layboy and 1bercrombie
are protected.
8. Internal inconsistency of t"e testto be prurient it must turn you on4 to be
offensie it must turn you off.
0. 9roblem wit" local standards
a. morality aries t"roug"out our country4 so a person in C1 "as more
rig"ts t"an a person in O"io.
.A
b. Impracticable in t"e time of internet porneit"er t"e endor is
subBect to liability in eery Burisdiction under a different standard4 or
eeryone is subBected to immortali=ing porn in t"eir community
iii. +oday
). &us" prosecutes obscenity
2. Stanley v+ *At"ere is no protection in t"e fact t"at "e was downloading it.
So it6s not Bust about Cpossession.D
f. C"ild 9ornograp"y
i. :enerally
). t"is is not a subset of obscenityt"ere re some t"ings t"at are not obscene4
especially as narrowed by !iller4 but we still don6t want
2. +"is is t"e first area in a long time t"at Ct e5pands C"aplins#y
ii. 7S v+ Ferber
iii. :ot interest in limiting c"ild porn!
). protect c"ildren
a. not Bust t"e initial iolation4 but "aing a permanent record of t"eir
e5ploitation ma#es t"is a repeated "arm eery time it6s watc"ed
b. can only preent its production by pro"ibiting its distribution
2. mar#et place of ideas
a. ery little alue
.. *ote! morality and protecting women are not t"e Bustification "ere4 b2c in
obscenity4 women are consenting adults. %ere t"e #ids don6t "ae t"e
capacity to consent.
i. Ashcro)t v+ Free Speech /oalition
). if no real c"ildren used4 t"e speec" cannot be banned under c"ild porn laws
b2c t"e causation is too remoe
2. may lead to pedop"iles abusing #ids4 but t"at6s too attenuated and fails
Brandenburg.
. +"e lig"ter side of C"ild 9orn
). 1merican beauty4 Lolita4 %ound Hog4 etc are drien by t"ese laws. ;oms
wit" p"otos of t"eir baby in t"e bat"tub are being prosecuted4 etc.
g. Content &ased 'estriction
i. Symbolic Speec"
). 7nited States v+ 62Brien -)J<8/
a. %>LH! 3p"old coniction for burning "is draft card in iolation of a
statute t"at pro"ibits #nowingly destroying or mutilating a draft card.
b. +"e law was targeted at conduct4 but O6&rien was protesting.
c. ?"en go6t can abridge >O9'>SSIE> CO*H3C+!
i. ?it"in t"e Const power of t"e got
ii. Furt"ers an important or substantial got interest
iii. :ot interest is unrelated to t"e suppression of free
e5pressionL 1*H
iv. if t"e incidental restriction on alleged )st 1m rig"ts is no
greater t"an is essential to t"e furt"erance of t"at interest
d. Sounds li#e intermediate to SS4 but in application it was rela5ed IS
e. 1pplication
.8
i. interstUadministration of t"e draft. t"is is important
ii. ;eans need t"ose draft cards
f. &3+! t"is is not at all necessary to "ae a well$functioning draft. +"e
legislatie "istory ma#es it clear t"at t"is was to silence protests. &ut
S. Ct. says it won6t stri#e down a facially alid law b2c it "as an
improper purpose b2c it6s "ard to infer intent. +"is is true but t"e Ct
does it in >9 Cl Burisprudence b2c you can6t trust legislatures.
g. SI:! prong ) is irreleant4 and now to get to O6&rien you need to find
t"at t"e got interest is unrelated to t"e suppression of free ideas4 and
t"en priogs 2 and 8intermediate scrutiny. +"is is a good test4 but its
application in O6&rien stin#s.
2. Flag &urning
a. 1e:as v+ #ohnson -)J8J/
i. +e5as law pro"ibited flag desecration
ii. %>LH! law struc# down
iii. +"is is e5pressie conduct!
1. -)/ Conduct underta#en w2 intent to coney a
particular messageL 1*H
2. -2/ li#ely t"at t"ose w"o saw t"e conduct would
understand its message
iv. State interest!
1. 9reenting breac"es of t"e peace
a. :o6t worried about iolence caused by t"e
content of t"e actt"is is about suppressing
speec".
b. If worried about breac"es of peace4 t"ere6s
eit"er Brandenburg for incitement or #ohnson
for fig"ting words4 and t"is is not personali=ed
so it6s not fig"ting words.
2. 9resering t"e flag as a symbol of national unity
a. +"e flag stands for a message4 and t"e
goernment cannot endorse t"e iewpoint in
faor of national unity and suppress t"e anti$
got iewpoint.
v. Since t"e interest relates to suppressing speec"4 O6&rien6s test
-IS/ does not apply4 apply strict scrutiny
vi. Strict Scrutiny!
1. got allows burning of flag in respectful way4 Bust not
in protest. >it"er way sends a message4 and go6t
sponsoring "onoring t"e flag only
2. State says t"ere are ot"er ways to protest. &3+4 under
/ohen4 a person "as a rig"t to use offensie emotie
speec"4 een w"ere t"ere are ot"er aailable means
3. Fails SS.
vii. Stevens, Dissent!
.J
1. :ot can pro"ibit some modes of e5pression4 e.g. can6t
graffiti t"e ?"ite %ouse. &3+4 t"e reason for t"is is
t"at it ta#es go6t resourses to clean it up
viii. Rehn, Dissent!
1. Concedes t"at t"is is law is unconst under )st 1m
Burisprudence4 but says t"e flag is special and t"ey
s"ould care out a new C"aplins#y e5ception. &3+4
flag burning is all about e5pressing ideas4 and
C"aplins#y is about low alue speec".
2. If t"e flag is really so uni,ue4 t"en maBority6s position
gains support4 b2c burning it is t"e only way to coney
t"at message
i0. @udicial 1ctiism(
1. most states "ad t"is ban4 but Ct is to protect against
popular laws
2. +"is is consistent wit" t"e te5t of t"e Const -unless you
argue t"is is only conduct/
3. non$originalist4 but original understanding was too
narrow to be wor#able
7. consistent wit" precedent
b. 7S v+ &$eman
i. fed got tried to write a ban t"at e5pressed t"e interest as
being in t"e p"ysical integrity of t"e flag4 but t"e Ct reBects
t"at distinctiongot "as no interest in t"isI
ii. %ate Speec"
). Beauharnais v+ &ll -)J02/:roup Libel +"eory
a. %>LH! affirm a law t"at criminali=es speec" t"at libels a w"ole
group of people4 under t"e /haplins$y framewor#
b. Blac$, Dissent! t"is is abdicating to t"e legislature and giing t"em
t"e rig"t to censor unpopular ideas
c. *O+>! t"is "as neer been oerruled4 but Sullivan "as made it
suspect now t"at libel is protected by t"e )st 1m
2. RA; v+ /ity o) St+ 'aul -)JJ2/
a. Ct stri#es down t"e law under w"ic" #ids were conicted for burning
a cross on a blac# family6s lawn. @udgment -J$0/4 reasoning -0$8/
b. Scalia, ma"ority!
c. +"is could be preented by trespass4 fire permit law4 etc.
d. *ote! t"is statute limits speec" as speec"4 not speec"4 so O6&rien not
triggered
e. Content$based or neutral!
i. content based b2c it only coers speec" t"at offends based on
certain c"aracteristics -race4 religion4 etc/ but not ot"ers
-se5ual orientation4 union members"ip/
ii. ;* S. Ct says t"e law only coers fig"ting words4 Scalia
ta#es t"em at t"eir word.
80
iii. Scalia says t"at een t"oug" const doesn6t protect fig"ting
words4 it revents against content8based discrimination
!ithin e0cluded categories
iv. So law must regulate all fig"ting words4 or none at all!
1. you can draw content based lines if t"e reason for
drawing it is t"e reason it6s not protected4 e.g. banning
only t"e most obscene obscenity4 or only t"reats
against public officials
v. +"is law discriminates based on t"e iew$point t"at racism is
badBust because t"e idea is popular doesn6t allow got to
endorse.
vi. Content based restrictions may be o#ay if t"ey pass SS.
f. SS
i. protecting minorities in t"eir "ome is a compelling interest4
but t"e law is not narrowly tailored
ii. *ot narrow enoug" by not banning more
g. 3hite, /oncur!
i. +"is law is unconstitutional b2c t"ese aren6t fig"ting words.
ii. Fig"ting words must be a personali=ed insult4 so e.g. a
swasti#a tattoo is not fig"ting words.
iii. Statute is oerbroad
iv. +"is opinion is supported by precedent4 unli#e Scalia6s
v. Scalia6s model suc#s!
1. +"e content of fig"ting words is by definition
wort"less4 so it is totally unprotected by t"e )st
2. Scalia goes against C"aplinsy in using )st 1m to
protect fig"ting words4 and you s"ouldn6t go against
precedent w"en t"ere6s no need
.. L1?
a. %ate speec" can probably not be suppressed as group lible.
b. It can be suppressed as fig"ting words4 but t"e statute must be
narrower t"an in '1E4 and it can be suppressed w"en it is a t"reat4 E1
. &lac#.
c. ;ost "ate speec" cannot be regulated.
d. ?"at about speec" codes at public uniersities( +"e interest in
diersity is compelling4 so may pass SS4 t"oug" it "asn6t yet.
%. 9ree /0ercise
%I. 'eligious Hiscrimination
a+ /hurch o) the 5u$umi Babalu Aye v+ /ity o) %ialeah .1<<=
i. Santeria1fro$Cuban religion inoling animal sacrifice. 9ractitioners open a
c"urc" in a ;iami suburb. Immediately before it opens4 t"e city criminali=es animal
sacrifice. 1nimal slaug"ter is only allowed in a slaug"ter"ouse.
ii. +"e ordinance bans Critualistic sacrificeD but Ct says t"is is not facially
discriminatory against Santeria b2c t"e words aren6t specifically religious
). Facially neutral
iii. Hiscriminatory 9urpose will also be cause for SS!
8)
). Legislatie "istory! record from town meeting s"ows "ostility towards
Santeria
2. t"e e5ceptions and language! w"en loo#ed at as a w"ole4 t"e discriminatory
purpose is cleart"ere could be no ot"er purpose t"at would e5plain t"e law
i. 3nder SS4 t"e law is not narrowly tailored!
). City says t"at preenting animal cruelty is t"e purpose4 but t"en it6s oer$ and
under$inclusie. +"ere is no flat ban4 and t"ere are e5ceptions to allow
slaug"ter for food4 e5ceptions to allow slaug"ter to be consistent wit" e.g.
Mos"er practices4 it allows "unting and pest control.
2. So! obBect was suppression based on )/ animosity4 2/ terms targeting Santeria4
./ law gerrymandered to proscribe religious #illing4 but not secular4 8/
suppresses more t"an necessary to ac"iee legitimate goals
. Conclusion! strict scrutiny alies in facially discriminatory cases, and can also
aly in facially neutral cases : if facially neutral, loo2 at the la!3s object to
decide if it3s really neutral or not.
%II. *eutral Laws
a. Sherbert v+ ;erner -)J<./
i. S"erbert was a At" Hay 1dentist w"o was fied for not wor#ing on Saturdays. S"e
couldn6t find anot"er Bob w2o iolating t"at4 applied for unemployment4 but Sout"
Carolina refused "er benefits b2c t"ey said s"e could "ae found a Bob if s"e6d
wanted to. S"erbert c"allenges t"e SC law t"at denies benefit if you turn down
employment as applied to "er.
ii. +"e law is facially neutral and "as no discriminatory purpose4 but it "as a
discriminatory effect against At" Hay 1dentists4 so strict scrutiny.
iii. State interest! protecting its coffers from fraud4 but it is not narrowly tailoredot"er
regulations would preent fraud w"ile not infringing against )st 1m rig"ts
-S.Carolina "as burden to proe/
i. S"erbert set a SS standard for decades
b. 3isconsin v+ 8oder -)JA2/
i. Soder refused to send "is )0$yr old daug"ter to sc"ool4 in accordance wit" ?isconsin
law4 because it was contrary to "is 1mis" religion
ii. %>LH! t"e law is inalid as applied. Strict Scrutiny applies to facially neutral laws
t"at "ae t"e effect of discrimination.
%III. Facially *eutral wit" Hiscriminatory >ffect! ;odern 1nalysis
a. (mployment Division Dept o) %uman Resources v+ Smith -)JJ0/
i. O' law pro"ibits use of peyote. Smit" is fied "en "is boss finds out t"at "e uses it
for religious purposes outside wor#. %e files for unemployment and it turned down
because law doesn6t allow benefits for someone w"o loses "is Bob for misconduct.
Smit" sues.
ii. %>LH! law is alid. O' may pro"ibit religious$use of peyote wit"in its general
criminal pro"ibition of t"e drug4 and is not compelled to grant Smit" unemployment
benefits after iolating t"at law.
iii. Leel of Scrutiny! *ot SS4 ery deferentialCt splits 0$8 of leel of scrutiny! .
dissenters and O6Connor said SS -split on Budgment was <$./
i. ;aBority -Scalia/:eneral rule is t"at t"e Free >5ercise clause and SS don6t apply
to neutral laws.
82
. 9recedent cases4 wit" laws t"at weren6t discriminatory on t"eir face of in t"eir
purpose were minor e:ceptions.
). 8oderfundamental rig"t to educate your c"ildren"ybrid issue
2. SherbertBust an unemployment case4 w"ere t"ere6s a re,uirement for case$
by$case assessment to determine if t"e Ct$created e5ception applies.
a. &3+ t"e prosecutor could loo# at indiiduals and determine if t"ey
are using peyote recreationally or per t"eir religion. Const s"ould
protect your rig"ts een w"en it6s inconenient.
b. ma#e more sense to use SS w"en t"e actiity is criminali=ed and t"e
penalty more seere
i. So t"ere are two e5ceptions to t"e rule!
). hybrid claim! w"ere t"e Free >5ercise claim is tied up in a H9 claim -Soder/
a. &3+ Scalia doesn6t way w"et"er t"e ot"er4 non$Free >5ercise claim
need be successful or merely plausible
i. If t"e ot"er claim must be successful4 it controls and t"is isn6t
a Free >5ercise claim at all
ii. If t"e ot"er claim need be merely plausible4 t"en it means t"at
two near iolations of t"e Const) iolation. +"at6s stupid.
2. Conte0t! -S"erbert/ ?"en t"e conte5t of t"e case lends itself to
indiiduali=ed goernment assessment of t"e reasons for t"e releant
conduct. &ut Smith is different b2c its6 pure criminal law.
ii. SI:! there is no constitutional re;uirement for religious e0cetions to generally
alicable neutral la!s : neutral la!s are not 9ree /0ercise cases
iii. R*ote! t"ese e0cetions are essentially emty G neer been used since t"is case was
decided
i5. Smith -and t"e oerruling of Sherbert/ in conte5t!
). Inconsistent wit" recedent
a. S"erbert
2. Inconsistent wit" te0t of t"e )st 1m.
a. Cong s"all ma#e no lawXpro"ibiting t"e free e5erciseXD *O+ Cno
discriminatory lawD
.. *ot consistent wit" history.
a. Scalia ignores "istory "ere4 and it cuts bot" ways. &ut O6Connor says
in "er dissent in /ity o) Boerne t"at Framers intended t"ere to be
religious e5ceptions
8. *ot consistent wit" olitical rocess rationale.
a. Scalia says t"at we don6t need "eig"tened scrutiny b2c t"e process will
ta#e care of religious minorities4 and t"is is t"e type of minorities t"e
Ct must protect. Indeed after t"is case4 O' amended its law to grant
an e5ception for religious use4 and Congress passed 'eligious
Freedom 'estoration 1ct to restore strict scrutiny standard used in
S"erbert.
b. &3+ 9* 7 lists religious minorities as among t"ose discrete and
insular minorities desering protection. ?"en maBority stops caring
about religious minorities4 or t"ere is a more t"reatening minority4 t"e
political process can6t be trusted to protect t"em alone.
8.
c. Compare wit" >94 t"is seems parallel to 3ashington v+ Davis.
i. &ut s"ouldn6t t"ere be a differenceyour race does not
compel you to obsere certain practices4 w"ereas one6s
religion does. +"ere is greater opportunity to discriminate by
targeting religious practices4 or to unintentionally curtail a
persons rig"t to free e5ercise.
0. 'ole of Budiciary
a. SS in t"is case would create anarc"y. Fle5ibility would gie Budges
power to legislate. @udge ordered e5ceptions to laws would ma#e it
impossible for got to do its Bob.
b. &3+4 got could still win under strict
c. 9re$Smit" Ct "ad been applying Stric Scrutiny ;I*3S!
i. 7S v+ 5eeSou can6t say you6re e5empt from ta5es b2c your
religion
ii. Bob #ones v+ 7S9riate uniersity banned interracial dating
on religious grounds4 I'S denied t"em of t"eir ta5 e5empt
status4 and Ct up"eld t"at determination.
d. &ut now t"e got wins all t"e time4 no matter "ow unimportant t"eir
interest it.
e.
b. /ity o) Boerne v+ Flores -)JJA/ G
i. "eld t"at Congress didn3t have authority to ass #9#' -law applying S"erbert
rat"er t"an Smit" to claims of religious e5emption from generally applicable state
laws/e5ceeded t"e 7 0 aut"ority in )8t" 1m.
ii. O6Connor4 Hissent! "istory "as always been to ma#e religious e5emptions for
generally applicable laws.
I<. /stablishment Clause
a. It6s unclear w"at t"is meansall @ustices agree it pro"ibits more t"an Bust creating a national
religion4 e.g. a ta5 on all to support a preferred c"urc" would iolate. +"ere are t"ree types
of casesprayer in sc"ool4 goernment use of religious symbols in t"e public sp"ere4 and
t"e funding of religion
<. Sc"ool 9rayer
a. >arly Cases
i. !c/ollum v+ Bd o) (ducation -)J88/Struc# down practice of bring in religious
instructors to teac" in public sc"ools.
ii. >orach v+ /lauson -)J02/3p"old a law t"at sends #ids off$campus to get religious
instruction.
iii. ;cCollum . _orac"! ?"at6s t"e difference(
). Force
a. *o students were forced to ta#e instruction in eit"er casebot" were
permissie.
2. Coercion
a. Ct in _orac" said t"at coercion would ma#e t"is unconst4 but t"at
t"ere was no coercie force ma#ing t"e #ids go to t"e religious
instruction.
88
i. &3+ t"e #ids6 option is to sit for an "our by t"emseles. +"ey
want to go wit" t"eir friends on t"e fun trip.
.. 3se of Sc"ool Facilities2'esources
a. In ;cCollum t"e program occurred in public sc"ools4 used sc"ool
resources4 w"ereas in _orac"4 t"e c"urc" bore all t"e costs.
b. &ut you are still paying t"e teac"ers to sit t"ere and not teac" for t"at
"our. On t"e ot"er "and4 sc"ools word wit" outside instruction all t"e
time4 e.g. music4 art4 sports.
8. *eutrality
a. *eutrality between religion and non$religion4 and amongst religions is
t"e deciding principle of >C cases.
b. +"is is t"e reasoning be"ind _orac"4 een t"oug" t"ere seems to be an
endorsement "ere4 and it doesn6t e5plain ;cCollum "ere.
c. SI:! Ct "ad a c"ange of "eart.
0. :o6t engagement in 'eligion
<. >ndorsement
b. Later Cases
i. 5ee v+ 3eisman -)JJ2/
). 9ublic middle sc"ool graduation included a s"ort4 non$denominational prayer.
2. %>LH! Ct stri#es t"is down 0$8 by Mennedy.
.. &ac#ground!
a. In t"e )J<0s4 t"e Ct "ad struc# down teac"er led prayer een w"ere
t"e students could abstain under t"e t"eory t"at it was a goernment
employee.
8. %ere4 it6s not a go6t led prayer4 t"e leader was a rabbi. &ut it was at a sc"ool
sponsored eent.
0. Force! students are not forced to go4 but forced to c"oose between going to
t"eir graduation -w"ic" is a big life moment/ and not "aing to pray.
a. SI:! it6s not a oluntary c"oice if t"e student it forced to gie up a
waters"ed moment in t"eir life. +o distinguis" t"is from force is Bust
formalism.
ii. Santa Fe &ndependent School District v+ Doe -2000/
). %eld! Sc"ool can6t play a prayer oer t"e 9.1. at a football game.
2. Coercion! some #ids actually "ae to be t"ere4 e.g. band4 c"eerleaders4 etc.
1*H t"is is a big wee#ly social eent for #ids.
iii. It is no remedy t"at t"e students do not "ae to pray4 and could simply stnd ,uietly
w2o praying.
). *o one can tell t"e difference between someone being respectful and
someone paying. So you are coerced into giing t"e appearance of praying.
2. 1nd you can6t force students to sit ,uietly during t"e prayer b2c t"ere is
e5treme social pressure.
.. Mennedy cites psyc"ology studies and common sense to support t"is. Scalia
"ates t"is b2c Budges aren6t psyc" e5perts. &ut t"is is consistent wit" F* ))
in Brown
i. Scalia4 dissenting!
80
). t"in#s t"at prayer brings eeryone toget"er4 but t"is assumes t"at eeryone
beliees in ) :od. +"is is subtle$maBoritarianism. 'eally4 forcing ot"ers to
participate ma#es t"e feeling of ot"er$ness more acute.
. Mids4 not t"e goernment4 are coercing and causing t"e "arm.
). but got is facilitating t"e coercion by initing t"e spea#er to graduation
i. SI:! Govt holding an event, creating a situation in !hich eer ressure is
intense. +"e problem is not peer pressure outside of sc"ool. Coercion facilitated
by the government violates the /stablishment Clause.
ii. /oncurrence -&lac#mun4 Steens4 O6Connor4 Souter/
). Coercion is sufficient. +"ere is also got /*D)#"/6/*( of religion "ere4
w"ic" is sufficient ground to pro"ibit t"e act.
2. >en t"oug" t"ere is a priate rabbi wit" a plain non$denominational
message4 it6s still an endorsement of religion and monot"eism. &y initing
t"e rabbi4 t"at6s endorsement and abandonment of neutrality.
.. Scalia counters t"is by saying t"at got "as endorsed relition form t"e
beginning. &ut Souter responds!
i.
8. +e5tual 1rgument!
a. Free >5ercise Cl already bans coercion4 so t"e establis"ment clause
must mean somet"ing more
b. Scalia counters t"at we "ae a "istory of got endorsement of prayer.
Souter responds!
i. )/ ;adison4 @efferson t"oug"t all of t"at stuff was
unconstitutional and didn6t go along wit" it4 plus4 Framers
were politicians and understood t"at you could get political
mileage from iolating t"e ConstL
ii. 2/ w"y be originalists about >C4 een if we accept it didn6t
forbid endorsement G we6re not originalists about t"e rest of
t"e FirstL
iii. ./ t"e t"ings Scalia tal#s about -e.g. +"an#sgiing Hay prayer/
are different G ignored4 unobtrusie4 bac#ground noise t"at
don6t really "ae t"e effect of endorsing religion4 w"ereas
prayer at a graduation is noticed4 imposed on a captie
audience of influential #ids.
c. Sc"ool Curriculum
i. Sc"ools cannot forbid t"e teac"ing of eolution. +"e only reason for suc" a law is to
preent learning t"at is considered inconsistent wit" a literal reading of t"e &ible.
+"is faors religion oer non$religion.
ii. (dwards v+ Aguillard -)J8A/
). State cannot re,uire e,ual time to eolution and Ccreation scienceDfacially
iolates t"e >stablis"ment Clause.
2. 9rogram fails t"e 5emon +est!
a. if t"ere6s a goernment urose to promote religion4
b. t"e effect is to faor religion4 O'
c. if t"ere6s e0cessive entanglement between t"e goernment and
religion -eit"er t"e c"urc" interfering wit" t"e business of goernment
8<
or t"e got interfering wit" t"e c"urc"6s business/4 t"e it6s
unconstitutional.
.. *ote on t"e Lemon +est! still t"e law4 but often critici=ed and sometimes
ignored -e.g. Lee . ?eisman/ but tends to control in lower cts.
8. %ere4 t"e law fails on prong )! t"e purpose is to create doubt in t"e minds of
#ids about eolution so as to promote t"e biblical account.
0. Scalia4 Hissent -Boined by 'e"n/!
a. let6s get rid of t"e Lemon test4 particularly prong )4 because we
s"ouldn6t be loo#ing at legislatie "istory
<I. 'eligious Symbolism
a. !arsh v+ /hambers -)J8./
i. %>LH! up"old practice of *>6s legislature of starting eac" session wit" a prayer4 led
by a c"aplain paid wit" state funds. +"ere is an e5ception to t"e Lemon test for
practices wit" a long "istorical pedigree t"at t"e framers accepted.
ii. Originalism supplanted Lemon testgrandfat"ering e5ception to t"e test.
iii. &rennan4 Hissent!
). t"is fails all t"ree prongs of t"e Lemon test -purpose4 effect and
entanglement/ and also fails t"e endorsement test by suggesting t"at t"e
legislature beliees in :od and as#s for "is "elp.
b. 5ynch v+ Donnelly -)J88/
i. City sets up a "oliday display t"at is mostly secular but also includes a cr`c"e.
ii. %>LH -&urger/! no establis"ment clause iolations
iii. 1pply t"e Lemon test -w"ile saying "e doesn6t necessarily agree wit" it/
). +"e purpose of putting a cr`c"e in t"e downtown s"opping center is a secular
celebration of t"e "oliday -li#e a "istory lesson/
2. >ffect is not to adance religion. +"e fact t"at c"urc"es put out cr`c"es does
not mean t"at it6s t"e only reason or effect of displaying a cr`c"e. t"is is li#e
"aing a religious painting in a museum -&ut4 people understand t"at
museums display paintings as art4 ppl don6t t"in# of cr`c"es as art or "istory/
i. O6Connor4 Concurrence -0t" ote/!
). prongs ) F 2 of t"e Lemon +est s"ould be restated as t"e /ndorsement (est1
s"ould e5amine t"e message t"e goernment intended to communicate and
t"e message t"at was actually coneyedL if a reasonable person would iew
t"e message as endorsing -or disapproing/ religion4 it6s endorsement and
iolates >C -!hereas Lemon test just as2s !hether la! in fact actually
has the urose or effect of endorsing or disaroving religion=
)3Connor doesn3t care !hether it actually does or not, but !hether a
reasonable erson !ould get that imression/
2. retains e5cessie entanglement G so her test is 1> endorsement or 2>
entanglement
.. O6Connor bases t"is upon C"ristmas being a secular "oliday.
a. &ut got "ere is endorsing not Bust t"e national "oliday aspect4 but t"e
baby @esus.
8. ?"o is t"e reasonable obserer(
8A
a. +"ere is a problem t"at t"e maBority of 1mericans are C"ristian4 so
w"o is our Creasonable personDt"e reasonable person is t"e aerage
-i.e. maBority/ person4 and t"is clause is to protect t"e minority.
. note! we don6t grandfat"er C"ristmas in b2c was a religious "oliday at founding4 and
didn6t become a national "oliday until )JA0.
c. CIn :od ?e +rustD on our money and C3nder :odD in our pledge
i. Jt" Cir struc# it down Cunder :odD in t"e pledge4 S. Ct oerruled on standing
grounds before reac"ing t"e merits.
ii. On t"e merits4 it couldn6t be granfat"ered in b2c only from t"e ;cCart"y$era -)J00s/.
?ould a reasonable at"eist2C"ristian t"in# t"is is an endorsement(
iii. 'emember Souter6s argument in 5ee! suc" t"ings "ae no significant endorsement
value= no one notices them, so they don3t advance religion in any real way G
ceremonial deism t"at fades into t"e bac#ground
i. +"omas would reac" on t"e merits and says yes4 t"ere6s a relig message4 and under
our precedent it6s unconst4 but we s"ould oerrule)st 1m only against fed got.
d. Allegheny /ounty v+ A/57 -)J8J/
i. &eld! unaccompanied cr`c"e struc# down4 but up"olds menora" ne5t to C"ristmas
tree and CSalute to LibertyD sign
ii. #ationale! menora"4 in conte5t4 "as t"e purpose of celebrating diersityL cr`c"e4 by
itself4 only celebrates t"e religious aspect of C"ristmas4 so it6s not OM
iii. *ote! +"ere are five votes here for the endorsement test, t"oug" t"ey disagree on
its application
e. 1lleg"eny County . 1CL3 -)J8J/
i. &eld! unaccompanied cr`c"e struc# down4 but up"olds menora" ne5t to C"ristmas
tree and CSalute to LibertyD sign
ii. #ationale! menora"4 in conte5t4 "as t"e purpose of celebrating diersityL cr`c"e4 by
itself4 only celebrates t"e religious aspect of C"ristmas4 so it6s not OM
iii. *ote! +"ere are five votes here for the endorsement test, t"oug" t"ey disagree on
its application
f. !c/reary /ounty v+ A/57 o) -entuc$y -2000/
i. &eld! struc# down4 0$84 display of +en Commandments in county court"ouse
ii. 6ajority in McCreary -Souter/! Finally4 a CrealD endorsement test G no more song$
and$dance about religious purpose.
). )/ ?hat !ould an @objective observerA determine the urose to be after
ta2ing account of traditional e0ternal signs in the @te0t, legislative
history and imlementationA of the la!.
2. 2/ 'nd you can3t just ignore the conte0t in !hich the la! arose. *ot
saying t"at past actions foreer taint any effort to deal wit" t"is subBect
matter4 or t"at a sacred te5t can neer be integrated into a goernment display
on law or "istory. &ut urose needs to be ta2en seriously, and it must be
understood in light of conte0t! common sense s"ould preent an
implausible claim t"at t"e goernment6s purpose "as c"anged.
.. Scalia6s dissent w"ic" would let goernment approe t"e core beliefs of a
faored religion oer t"e tenets of ot"ers
8. Dissent in McCreary -Scalia/!
88
a. says it6s OM for t"e goernment to endorse religion4 because it6s not
sectarian G t"is is Bust a broad4 official endorsement of @udeo$
C"ristian monot"eism
b. goernment can6t faor one religion oer anot"er in terms of funding
or free e5ercise4 but t"e principle is more limited w"en it comes to
public ac#nowledgement of t"e Creator
c. "onoring t"e commandments is t"e same as "onoring :od4 because
bot" practices are recogni=ed across suc" a broad range of t"e
population t"at t"ey can6t be iewed as endorsement of a particular
religious iewpoint
d. t"ose w"o don6t beliee in monot"eistic religions are protected in
t"eir beliefs by Free >5ercise Clause and t"e rest of t"e >stablis"ment
Clause t"at doesn6t "ae to do wit" goernment ac#nowledgement of
t"e Creator
e. our tradition "as resoled conflict between religious minorities6 interst
in not feeling e5cluded and maBority6s interest in being able to gie
t"an#s to :od in faor of t"e maBority
f. Scalia isn6t playing along anymore4 eit"er. %e6s not saying -win#$
win#/ t"at t"ere is no religious message in t"e display
0. *ote! O6Connor4 w"o Boined Souter and "is toug"er CrealD endorsement test4
is now gone G is t"ere a fift" ote for it on t"e Court now4 or will Scalia6s
iew preail( -Mennedy didn6t Boin t"at part of Scalia6s dissent/
g. ;an 6rden v+ 'erry -2000/
i. &eld! up"olds4 0$84 display of +en Commandments on +O state capitol grounds
ii. $lurality in Van Orden -'e"n,uist/! doesn6t use t"e 5emon test and reBects t"e
endorsement test4 but says t"at t"ere6s a long "istory of ac#nowledging t"e role of
religion4 w"ic" ma#es t"e monument OM -grandfat"er test/
iii. offers a 5emon analysis anyway4 -since ot"er @ustices will use it and wants to s"ow
t"at it passes anyway/. Says t"ere was a secular purpose and secular effect -so no
endorsement4 eit"er/L t"is is no more t"an an ac#nowledgment of our religious
"eritage and t"e rule of law
i. Says t"at t"e purpose is to remind ppl of t"e religious roots of our law4 not to
promote relition.
. &ut t"is is not true t"e point of t"e Hecl of Indep is t"at t"e power of law comes
from t"e consent of t"e goerned4 not :od. 1*H t"e te5t displayed is t"e 9rotestant
te5t of t"e commandments4 not t"e Cat"olic or @ewis" or ;uslim ersions. +"e part
of t"e commandments t"at emp"asi=es t"at t"e power be"ind t"ese laws comes from
:OH4 not law4 is capitali=ed.
i. +"is is li#e trying to seculari=e t"e )0 Commandments in t"e court"ouse. &ut t"ey
must "ae a C"ristian meaning or people wouldn6t be up in arms to protect t"em or
to bring t"em down.
ii. Hissent4 &rennan and &lac#mun
). Ses4 let6s "ae an endorsement test4 but lets apply it in t"e realm of reality.
Seculari=ing t"e Commandments is insulting to non$belieers and C"ristians
b2c it triiali=es religious t"ings. +"is is a suspension of reality.
". Ean Orden and ;cCreary County"ow do we reconcile t"e two( -&reyer6s mess/
8J
i. to eig"t Bustices4 bot" monuments are t"e same G but @ustice &reyer sees t"em
differently4 and switc"es "is ote
ii. Breyer3s concurrence in Van Orden! "e doesn6t li#e t"e 5emon test4 but instead
loo#s at t"e time frame G +O monument "ad been put up 80 years ago and produced
no diisieness or complaints4 w"ereas t"e MS monuments "ad contributed to t"e
atmosp"ere of religious divisiveness
). &ut! een if +O monument wasn6t diisie at installation4 isn6t it diisie
now( Somebody filed a suit4 after all
iii. &reyer says t"ere is no test G t"e court must simply e5ercise sound Budgment. +"e
rule seems to be t"at old monuments may stand as long as w"en t"ey were erected
t"ere was not a religious purpose and t"at t"ere are enoug" secular monuments in t"e
icinity. -"is is t"e controlling opinion4 so it6s t"e law4 but no one agreed wit" "im4
t"e opinion is wea#4 and we "ae new @ustices now/
i. *ote! t"e parties go t"roug" a song$and$dance4 claiming t"ere6s a secular purpose4 to appeal
to O6Connor and "er endorsement test G but bot" sides #now t"ese t"ings "ae religious
meaning. 1nd w"y pretend ot"erwise( &rennan6s and &lac#mun6s dissent in 5ynch G an
endorsement test is OM4 but is needs to be realisticL it6s insulting to t"e religious to say t"at a
cr`c"e is no more religious t"an a reindeer4 t"at it only sends a secular message
B. +"e rub!
i. Souter got 0 otes for Ean Orden and t"e Lemon +est4 saying t"at t"e first 2 prongs
are really t"e endorsement test. 1nd t"en "e did a real endorsement test.
ii. @ustices are tired of pretending t"at religious content is secular!
). 'e"n admits t"at t"ere is religious content. Scalia says t"at yes it6s religious4
and yes t"e goernment can endorse t"e bible b2c we6e done it all along.
&rennan and &lac#mun in ;cCreary dissent4 Souter6s maBority.
iii. &reyer6s opinion in ;an 6rden probably controls on narrow issue of +en
Commandments monuments4 but Souter6s opinion in !c/reary probably controls on
broader t"eme of goernmental use of religious symbols generally
i. SIG: (1) endorsement (really)? (2) entanglement? (unless there are old
monuments of the 1 Commandments !n"ol"ed)
<II. Funding 'eligion
a. (verson v+ Board o) (ducation -)J8A/
i. &eld! up"olds4 0$84 program letting *@ gie money to parents for transportation of
#ids to sc"ools4 including religious sc"ools
ii. *eutrality is t"e #ey!
). t"ere is no preference between religion and non$religion. 9arents get t"e
money eit"er way.
iii. *ote! +"is is in conflict wit" t"e wall of separation between c"urc" and state4 and
wit" t"e statement t"at no ta5payer aa can support religious institutions. &lac# put
t"is r"etoric in t"e opinion t"oug".
i. &3+4 &lac# analogi=es t"is to public funding li#e firefig"ting4 etc. ?2o protection of
police and ot"er municipal serices4 people would be unable to practice t"eir
religion.
. SI:! t"ere is a tension between t"e establis"ment clause4 w"ic" says no ta5 aa
s"ould go to fund religion4 and t"e free e5ercise clause4 w"ic" says you can6t deny a
00
discriminate against belieers. &lac#4 for t"e maBority4 stri#es a balance at
*/,(#'+I(-.
b. *o funding distinction
i. +"e money is going to t"e parents4 not t"e c"urc"4 and t"e parents pay t"e pay t"e
bus company4 not t"e c"urc"4 so t"e got aa isn6t going directly to c"urc".
ii. &3+ t"is money us supporting religionit may be t"at t"is money is t"e difference
in cost t"at is needed for a parent to send t"eir c"ild to paroc"ial sc"ool.
iii. +"e distinction is t"at t"ere is an intervening rivate choice. ?"en you gie t"e
money to t"e parents4 t"ey ma#e in independent c"oice.
i. &ut t"is distinction ma#es Bustices uneasy4 so t"e precedent flip$flops after t"is case.
c. >ntanglement
i. 9roblem wit" funding religion is t"at you want to protect t"e got from being a
t"eocracy4 but you also want to protect religion from got influence. ?it" money
comes t"e power to ma#e demands
d. Ct S"ifts t"e Hoctrine
i. +"e prior rule was t"at t"e state could proide aa if it was not specifically for
religious indoctrination.
ii. &ut under 'e"n,uist t"e Cno fundingD principle s"ifts to neutrality.
iii. Conseratie maBority used ery non$originalist t"in#ing to reac" t"is point. >.g.
t"ey6e said t"at religion does not pose a t"reat anymore
i. >.g. !ueller v+ Allen -)J8./public uniersity must gie e,ual funds to a religious
group for t"eir newsletter4 een t"oug" it is for proselyti=ing.
<III. Sc"ool Eouc"ers
a. >elman v+ Simmons?%arris -2002/
i. &eld! up"eld4 0$84 O% sc"ool ouc"ers law t"at let participating families get money
to send t"eir #ids to participating sc"ools4 w"et"er public or priate
ii. 'e"n,uist -for maBority/ applies t"e Lemon test!
). -)/ +"e purpose was secularfailing sc"ool system
2. -./ +"ere is no entanglement b2c you But gie money to parents4 and t"ere6s
no oersig"t of t"e sc"ools t"at get t"e money.
.. 9rong 2t"e religious effect is o#ay b2c een t"oug" t"e money mostly went
to priate sc"ools
a. t"e money went to parents4 w"o made an independent c"oice
b. t"e program was neutral
iii. O6Connor4 Concur
). +"is passes t"e endorsement testa reasonable person doesn6t se an
endorsement of religion in t"is program.
i. Souter4 Hissent!
). +"is iolates t"e *O F3*HI*: principle. 1nd t"e money is directly
funding t"e tuition4 so ta5 aa is going toward proselyti=ing.
2. Inconsistent wit" precedentin (verson a maBority of t"e Ct adopted t"e no
funding rule.
.. +"ere is no independent c"oice. JAW of t"e ouc"er$students go to religious
sc"ools. +"is is because t"e ouc"er doesn6t coer all tuition4 so parents may
only be able to pay for t"e c"urc"$subsidi=ed education. 1nd t"ere aren6t
enoug" spots in secular priate sc"ools. 9arents don6t want to send t"eir #ids
0)
to religious sc"ools4 but "ae no c"oice two$t"irds of parents w"o sent
t"eir #ids to religious sc"ools c"ose sc"ools t"at taug"t a different religion
t"an w"at t"e family practiced
8. In effect4 it leaes only t"e #ids wit" t"e lease engaged parents be"ind4 w"ic"
ma#es t"e sc"ools worse4 and compels more people to want to get t"eir #ids
out of public sc"ools4 and no public sc"ools are accepting students under t"e
program4 so t"ere is no c"oice4 and no neutrality.
. SI:! neutrality is #ing in 'e"n6s Ct4 not separation.
b. Loc#e . Haey -2008/
i. ?as" state will gie sc"olars"ips to study anyt"ing e5cept deotional t"eology.
3nder ?as"6s state const4 no public money may be spent to fund religion. -?e
#now4 b2c _elman4 t"at t"is does not iolate t"e >stablis"ment clause4 but t"eir const
is different/can t"is facial discrimination be s,uared wit" t"e free e5ercise clause(
ii. %>LH! +"e law is subBect to SS under t"e Free >5ercise clause only if it carries
some ciil or criminal sanction. %ere4 religion is not being punis"ed or sanctioned4
t"ey are simply not receiing a goernment benefit.
iii. C+"ere is some play in t"e BointsDt"ere is a compelling interest in #eeping state
funding out of religion -fear t"at got may start controlling relig/ and in not
discrimination. 1 State "as a rig"t to prefer no funding oer neutrality.
i. Souter4 Concurrencemust always faor no funding.
. Scalia4 Hissentmust always faor neutrality.
02
Con Law II 1ttac# S"eet
). Leels of Scrutiny
a. Strict Scrutiny!
i. Hoes State "ae a comelling interestL 1*H
ii. t"e law is narro!ly tailored to meet t"at interest.
b. Intermediate Scrutiny -Craig . &oren/
i. t"e law must sere an imortant government objective4 1*H
ii. be substantially related to ac"ieement of t"at obBectie.
iii. ISV! ;ust "ae an e5ceedingly persuasie Bustification -3S . E1/
c. 'ational &asis Scrutiny!
i. Is t"ere a legitimate state interest4 1*H
ii. is t"e law rationally related to t"at interest
2. Strict Scrutiny -Caroline 9roducts4 F* 8/!
a. w"ere law in ,uestion is iolates one of t"e incorporated rig"ts in t"e &o'
i. Fundamental 'ig"ts -SH9/
b. w"ere law discriminates against discrete minorities4 or
i. "istory of discrimination
ii. present discrimination
iii. immutable
i. discrete2insular
c. w"ere law will interfere wit" democratic process
.. ?"en can you oerrule precedent on a diisie issue( -Casey4 Lawrence/
a. 'eliance -esp is a 74 rat"er t"an Const interp/
b. C"anged factual underpinnings
c. C"anged Legal Landscape
d. C"anged alues
8. 1bortion3ndue &urden +est -Casey/
a. Hoes t"e law places a substantial burden on women from e5ercising "er liberty of c"oice to
"ae an abortion(
0. )st 1m protected conduct -@o"nson/
a. >5pressie Conduct -Spence/
i. intent to communicate(
ii. li#ely t"at iewers will understand t"e message coneyed(
b. Hoes t"e regulation relate to t"e suppression of free e5pression(
i. If noIntermediate Scrutiny
). O6&rien testIntermediate Scrutiny
a. Is it wit"in t"e constitutional power of t"e goernment(
b. Hoes it furt"er an important or substantial goernmental interest(
-loo#s li#e intermediate scrutiny of t"e ends/
c. Is t"e goernmental interest unrelated to t"e suppression of free
e5pression( -alt"oug"4 t"is must be true to reac" t"is test under
@o"nson/
d. Is t"e incidental restriction on alleged )st 1m e5pression no greater
t"an essential to t"e furt"erance of t"e interest( -loo#s li#e strict
scrutiny of means/
0.
ii. If yesStrict Scrutiny
). Interest analysis under Cmost e5acting scrutinyD
<. Libel
a. False statement
i. cannot be opinion
b. 9ublic Official -Sullian/2Figure -&utts/
i. Official -of or relating to official conduct/
). substantial responsibility or control of got affairs(
2. public "as an interest in "ow t"ey perform t"eir Bob(
ii. 9erson -Curtis 9ubl. . &utts/
). t"rust t"emseles into t"e limelig"t to influence t"e public.
iii. 1ctual ;alice
). #nowledge or rec#less disregard for t"e trut"
i. &o9 on ] to proe malice and falsity by clear and conincing eidence.
c. 9riate 9erson
i. ;atter of 9ublic Concern
). ] must proe negligence to get actual damages.
2. ] must proe malice to get punitie damages
ii. ;atter of priate concern
). *o first 1m. issue.
$ublic Concern $rivate Concern
$ublic )fficial49igure Sullian2&utts ( -dicta in Sullian says )st
1m wouldn6t apply/
$rivate 9igure :erts Hunn F &radstreet
A. Obscenity
a. *ot protected by )st 1m
b. Obscenity!
i. prurient interestL
ii. offensieL and
iii. lac#s serious alue
8. %ate Speec"
a. Is t"ere a content$based distinction made wit"in t"e fig"ting words(
i. If soSS
ii. If notaffirm t"e law
b. 9robably can6t be suppressed as group libel
c. Some forms can be suppressed as fig"ting words4 and some as t"reats -;A v+ Blac$/
J. 'eligion
a. +ime
b. Lemmon
c. Coercion
08