Table of Contents

CONSTITUTIONAL BASICS...................................................................1
THE RATIONAL BASIS TEST..................................................................1
THE STRICT SCRUTINY TEST................................................................2
THE INTERMEDIATE SCRUTINY TEST......................................................4
DUE PROCESS & INCORPORATION........................................................5
EQUAL PROTECTION........................................................................13
FREEDOM OF SPEECH......................................................................20
FREEDOM OF RELIGION....................................................................30

CONSTITUTIONAL BASICS
A. THE APPLICATION OF THE BILL OF RIGHTS TO THE STATES
a. Bill of rights was historically just for feds states could
violate
b. Reconstruction amendments changed that
i. 14th Amendment placed Limitation on STATE
government
ii. 1: US citizenship privileges & immunities due
process (life, liberty, property) equal protection to
all in jurisdiction.
B. SC has identified certain fundamental rights that no state can
take away without violating 14th amendment
C. SC has incorporated and made applicable to states almost all of
bill of rights along with a few extras.
D. Rights NOT incorporated:
a. 3rd amendment quartering soldiers
b. 6th amendment grand jury
c. 7th amendment civil jury trial
d. 8th amendment prohibition of excessive fines
THE RATIONAL BASIS TEST
a) Forvirtuallyalllaws/regulationsandgovernmentactionsunlessotherwise
specified.
i. AgeclassificationsMass.Bd.ofRetirementmakecopsretireat
50
ii. DisabilityclassificationsCityofCleburnedisablednow
protectedbyADA
iii. WealthclassificationsSanAntonioSchoolDistrictv.Rodriguez
povertyisNOTasuspectclassification(also,nofundamental
righttoeducation)

b)

c)

d)

e)
f)

iv. SexualorientationRomerv.EvansWindsoranimusnot
legitimatepurpose
Rationallyrelatedmeanstoalegitimategovernmentpurpose(end)
i. Courtextremelydeferentialtothegovernment
ii. Endsmustbelegitimate,andthemeansmustberationallyrelated
iii. Tolerantofsignificantoverinclusiveness
Legitimateendsvirtuallyanygoalnotprohibitedbyconstitution
i. AnimustowardtraditionallydisfavoredgroupisNEVERa
legitimateendRomerv.Evans
ii. IrrationalfearandprejudiceisNOTalegitimateendCityof
Cleburne
Rationallyrelatedmeansalegislaturecouldhaverationallycomeup
withthisasawaytoaccomplishend.
i. RailwayExpresscitycanproperlydistinguishbetweengeneral
advertisementandadssoldbytruckownerssobanokay
ii. Beazeracitycanbanalldrugusers,eventhoseintreatment,
fromworkinginthetransitauthoritynotirrational
Rationalbasiswithbitemorerigorousreviewfoundincasesof
traditionallydisfavoredpopulation(butnotsuspectclass)
Burdenofproofonthechallenger.

THE STRICT SCRUTINY TEST

g) ForclassificationsbasedonSuspectClassRace,NationalOrigin,
Alienage,Religion.
h) CompellingGovernmentPurposeandNecessary/NarrowlyTailored
Means.
i) BOPonthegovernment.
j) Provingtheexistenceofsuspectclassification
i. OnthefaceofthelawKorematsu
ii. ORthelawhasdiscriminatoryimpactANDpurposeYickWo
k) Strictscrutinyforracial/nationaloriginclassifications
i. ClassificationswhichdisadvantageracialminoritiesKorematsu
ii. ClassificationswhichdisadvantagewhitesANDminorities
Loving(purposewhitesupremacynotcompellingoreven
legitimate)Palmorev.Sidoti(Courtcannotgiveeffecttoprivate
biaseswithoutviolatingEPC.Privatebiasmaybeoutsidethe
reachofthelaw,butthelawcannot,directlyorindirectly,give
themeffectwhitewomanmarriedtoblackmanwasfitmother
socouldnthaveherchildremoved)ButseePlessy(separatebut
equal)Brownv.Board(overturnsPlessySeparatebutequal
facilitiesareinherentlyunequal)Johnsonv.CA(prison
segregationgetsstrictscrutinyfailsbecauseothermeanscould
accomplishsafetygoal)

iii. FaciallyNeutralLawsWithDiscriminatoryImpactor
DiscriminatoryAdministrationWashingtonv.Davis(blacks
disproportionatelyfailpolicetestdiscriminatoryimpactnot
enoughwithoutdiscriminatorypurposenoclassificationso
rationalbasisreview)McCleskyv.Kemp(criminalstatute
discriminatoryimpactbutnotconscious,deliberatebiasupheld
Baldusstudycasenoclassificationsorationalbasisreview)
PersonnelAdministratorv.Feeney(hiringpreferenceforvetshas
impactonhiringofwomenawarenessofthislikelyimpactdoes
notshowdiscriminatorypurposenoclassificationsorational
basisreview)
1. Evidentiarytoolstodiscoverdiscriminatoryintent:
1. Historicalbackground
2. Departuresfromnormalprocedure
3. Departuresfromnormalsubstance
4. Specificsequenceofevents
5. Legislationoradministrativehistory
6. Discriminationneednotbesolepurpose;mustbea
motivatingfactor(VillageofArlingtonv.Metro
HousingDevelopment)
iv. Racialclassificationsbenefittingminoritiesstrictscrutinyto
evaluateANYclassificationthatburdensoneracemorethan
another(remedialandinvidiousdiscriminationalike)Richmond
v.Crozan30%ofcitycontractsmustgotominorityowned
businessesGeneralsocietaldiscriminationisnothelda
compellinggovernmentinterestspecificpastdiscriminationby
theentityrequired.
v. EducationAffirmativeActionenhancingdiversityinthe
classroomisacompellinggovernmentinterestineducation.
Grutter(UMLawmayconsiderraceamongothersoftvariables)
Gratz(UMundergradmaynotadd20pointstoeachminority
studentsscoretoomuchlikequotaorsetaside)Fisherv.UT
Austin(govtmustshowtherearentbettermethodstoachieve
diversitytakingtop10%fromeachhighschooldoesntdoit).
l) Strictscrutinyforalienageclassifications
i. GeneralruleforlegalnoncitizensstrictscrutinyGrahamv.
Richardsonnotokaytowithholdwelfarebenefitfromlegal
aliensbyimposingresidencydurationrequirement
ii. Congressionallyapproveddiscriminationrationalbasisforacts
ofCongressandPresidentbecausetheyarechargedwith
diplomacy,internationalrelationsandimmigrationtheycanlimit
alienrightsinwaysstatescannot.Matthewv.Diazcongresscan
imposeminimumresidencyrequirementforfederalMedicare

iii. Alienageclassificationsrelatedtoselfgovernmentanddemocratic
process=rationalbasisreview.Alienscantvote.d)
UndocumentedaliensandEPPlylerv.Doeillegalaliensare
breakinglawsonotentitledtoprotectionbutcannotwithhold
freepubliceducationfromtheirkidsDifferentscrutinytestfor
illegalaliensPlylertest:
1. Substantialstategoal
2. Rationallyrelatedmeans
3. Kindofrationalbasisplus
THE INTERMEDIATE SCRUTINY TEST
m) ForGenderClassificationsandDiscriminationagainstNonMarital
Children.
n) Test:EndImportantGovtObjective;MeansSubstantially
RelatedtothatEnd.
o) BOPonthegovernment.
p) GENDERCLASSIFICATIONS
i. LevelofscrutinyFrontiero(AirForcedependentcasestrict
scrutinynolongerthestandard)Craigv.Boren(3.2beerfor
women1821andnothingformenestablishedintermediate
scrutiny)VMIcase(exceedinglypersuasivejustification=
intermediatescrutiny)
ii. ProvingexistenceofGenderClassificationlawsthatclassify
intotwogroupsarenotclassifiedbasedongenderwhenoneofthe
sexescanbelongtobothgroupsPersonnelAdministratorv.
Feeney(hiringpreferenceforvetshasimpactonhiringofwomen
awarenessofthislikelyimpactdoesnotshowdiscriminatory
purposenoclassificationsorationalbasisreview)Geduldig
(pregnancydiscrimination)
iii. GenderClassificationsBenefittingWomen
1. Genderclassificationsthatbenefitwomenanddisadvantage
menareconstitutionalwhenbasedonlegitimatebio
differencesandnotonstereotype
2. AsaremedyokayCalifano(SSArulefavorswomento
compensateforpastdiscriminationandlackofopportunity)
3. BasedonrolestereotypesnotokayUSv.Va.
(generalizationsaboutwomennotwantingadversarial
educationstyleatVMI)Miss.WomensUniv.(keep
nursingschoolallwomendoesntremedydiscrimination
becausewomenarethebulkofnurses)
4. BasedonBiologicalDistinctionsGeduldig(pregnancy
discriminationisnotgenderdiscriminationbecause
men/womeninnonpregnantgroup)MichaelM.
(criminalizationofsexwithteengirlbutnotteenboyheld

alegitimatebiodifferencebecauseimpactofsexdifferent
ongirls)Nguyenv.INS(okaytohavedifferentburdento
proveparenthoodbymotherandfatherkindofobvious
whothemomis)

DUE PROCESS & INCORPORATION

All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
Prior to 1925, the Bill of Rights was held only to apply to the federal
government. Under the incorporation doctrine, most provisions of the
Bill of Rights now also apply to the state and local governments. Even
years after the ratification of the Fourteenth Amendment, the Supreme
Court in United States v. Cruikshank (1876) still held that the First and
Second Amendment did not apply to state governments. Rep. John
Bingham, the principal framer of the Fourteenth Amendment,
advocated that the Fourteenth applied the first eight Amendments of
the Bill of Rights to the States.[2] The U.S. Supreme Court
subsequently declined to interpret it that way, despite the dissenting
argument in the 1947 case of Adamson v. California by Supreme Court
Justice Hugo Black
Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)
The Court established a precedent that the United States Bill
of Rights could not be applied to state governments.
FACTS: John Barron owned a profitable wharf in the Baltimore harbor,
sued the mayor of Baltimore for damages, claiming that the city had
diverted the flow of streams near his wharf making the water too
shallow for most vessels.
RULING: The Supreme Court decided that the Bill of Rights,
specifically the Fifth Amendment's guarantee that government takings

of private property for public use require just compensation, are

restrictions on the federal government alone. Writing for a unanimous
court, Chief Justice John Marshall held that the first ten "amendments
contain no expression indicating an intention to apply them to the
State governments. This court cannot so apply them."
Dred Scott v. Sandford, 60 U.S. 393 (1857)
The Court held that "a negro, whose ancestors were imported
into [the U.S.], and sold as slaves", whether enslaved or free,
could not be an American citizen and therefore had no
standing to sue in federal court, and that the federal
government had no power to regulate slavery in the federal
territories acquired after the creation of the United States.
FACTS: Dred Scott, an enslaved man of "the negro African race" who
had been taken by his owners to free states and territories, attempted
to sue for his freedom. In a 72 decision written by Chief Justice Roger
B. Taney, the court denied Scott's request. The decision was only the
second time that the Supreme Court had ruled an Act of Congress to
be unconstitutional
The Slaughter-House Cases, 83 U.S. 36 (1873)
The first United States Supreme Court interpretation of the
recently enacted Fourteenth Amendment to the Constitution. It
was a pivotal case in early civil rights law, reading the
Fourteenth Amendment as protecting the "privileges or
immunities" conferred by virtue of Federal, United States
citizenship, to all individuals of all states within it; but not to
protect the various privileges or immunities incident to
citizenship of a state. However, Federal rights of citizenship
were at that time few (such as the right to travel between
states and to use navigable rivers); the 14th Amendment did
not protect the far broader range of rights covered by state
citizenship. In effect, the 14th Amendment was interpreted to
convey limited protection pertinent to a small minority of
rights.
FACTS: The legislature chartered a private corporation to run a "Grand
Slaughterhouse" at the southern part of the city opposite of the
Mississippi River. In addition, the statute granted "sole and exclusive
privilege of conducting and carrying on the livestock landing and
slaughterhouse business within the limits and privilege granted by the
act, and that all such animals shall be landed at the stock landings and
slaughtered at the slaughterhouses of the company, and nowhere else.

Over four hundred members of the Butchers' Benevolent Association

joined together to sue to stop Crescent City's takeover of the
slaughterhouse industry.
RULING: In a 54 decision issued on April 14, 1873, by Justice Samuel
Freeman Miller, the Court held to a narrow interpretation of the
amendment and ruled that it did not restrict the police powers of the
state. The Court held that the Fourteenth Amendment's Privileges or
Immunities clause affected only rights of United States citizenship and
not state citizenship. Therefore, the butchers' Fourteenth Amendment
rights had not been violated. At the time, the Court viewed due process
in a procedural light rather than substantively. The Court further held
that the amendment was primarily intended to protect former slaves
and so could not be broadly applied.
Palko v. Connecticut, 302 U.S. 319 (1937)
A United States Supreme Court case concerning the
incorporation of the Fifth Amendment protection against
double jeopardy. The Court eventually reversed course and
overruled Palko by incorporating the protection against double
jeopardy with its ruling in Benton v. Maryland (1969).
RULING: Justice Benjamin Cardozo held that the Due Process Clause
protected only those rights that were "of the very essence of a scheme
of ordered liberty" and that the court should therefore gradually
incorporate the Bill of Rights onto the States as justiciable violations
arose, based on whether the infringed right met that test.
Applying this subjective case-by-case approach (known as selective
incorporation), the Court upheld Palko's conviction on the basis that
the Double Jeopardy appeal was not "essential to a fundamental
scheme of ordered liberty."
Duncan v. Louisiana, 391 U.S. 145 (1968)
A United States Supreme Court decision that incorporated the
Sixth Amendment right to a jury trial and applied it to the
states.
RULING: Justice White noted that the right to a jury trial for criminal
offenses is a deeply enshrined value in both the British and American
legal traditions. Thus, right to a jury trial in criminal cases is within the
14th Amendment, and therefore is applicable to the states.

The question for the court was whether an offense subject to two years
imprisonment is a serious offense. The majority noted that at the
time of ratification, crimes punishable by more than six months
imprisonment were typically subject to jury trial. Furthermore, both
federal law and forty-nine states recognized that a crime carrying a
sentence of over one year necessitated a jury trial. The Court found
that the Louisiana law was out of sync with both the historical and
current standards of the justice system and was therefore ruled
unconstitutional.
Senz v. Roe, 526 U.S. 489 (1999)
FACTS: In 1992, the state of California enacted a statute limiting the
maximum welfare benefits available to newly arrived residents. In
1997 the two plaintiffs in this case sued in the same court as the prior
litigants, this time challenging both the California statute and the
PRWORA's durational residency provision.
RULING: Justice Stevens, writing for the majority, found that although
the "right to travel" was not explicitly mentioned in the Constitution,
the concept was "firmly embedded in our jurisprudence." The main
focus of his opinion was the application of the Fourteenth Amendment.
For the proposition that this amendment protected a citizen's right to
resettle in other states, Stevens cited the majority opinion in the
Slaughterhouse Cases:
It has always been common ground that this Clause protects the third
component of the right to travel. Writing for the majority in the
Slaughter-House Cases, Justice Miller explained that one of the
privileges conferred by this Clause "is that a citizen of the United
States can, of his own volition, become a citizen of any State of the
Union by a bona fide residence therein, with the same rights as other
citizens of that State."
District of Columbia v. Heller, 554 U.S. 570 (2008)
A landmark case in which the Supreme Court of the United
States held in a 5-4 decision that the Second Amendment to
the United States Constitution applies to federal enclaves and
protects an individual's right to possess a firearm for
traditionally lawful purposes, such as self-defense within the
home. The decision did not address the question of whether
the Second Amendment extends beyond federal enclaves to
the states, which was addressed later by McDonald v. Chicago
(2010). It was the first Supreme Court case to decide whether

the Second Amendment protects an individual right to keep

and bear arms for self-defense.
McDonald v. Chicago, 561 U.S. 742 (2010)
A landmark decision of the Supreme Court of the United States
that determined whether the Second Amendment applies to
the individual states. The Court held that the right of an
individual to "keep and bear arms" protected by the Second
Amendment is incorporated by the Due Process Clause of the
Fourteenth Amendment and applies to the states. The decision
cleared up the uncertainty left in the wake of District of
Columbia v. Heller as to the scope of gun rights in regard to
the states.

Lochner v. New York, 198 U.S. 45 (1905)

A landmark United States Supreme Court case that held that
the "liberty of contract" was implicit in the Due Process Clause
of the Fourteenth Amendment.
RULING: The question whether this act is valid as a labor law, pure
and simple, may be dismissed in a few words. There is no reasonable
ground for interfering with the liberty of person or the right of free
contract by determining the hours of labor in the occupation of a baker.
There is no contention that bakers as a class are not equal in
intelligence and capacity to men in other trades or manual
occupations, or that they are able to assert their rights and care for
themselves without the protecting arm of the State, interfering with
their independence of judgment and of action. They are in no sense
wards of the State. Viewed in the light of a purely labor law, with no
reference whatever to the question of health, we think that a law like
the one before us involves neither the safety, the morals, nor the
welfare of the public, and that the interest of the public is not in the
slightest degree affected by such an act. The law must be upheld, if at
all, as a law pertaining to the health of the individual engaged in the
occupation of a baker. It does not affect any other portion of the public
than those who are engaged in that occupation. Clean and wholesome
bread does not depend upon whether the baker works but ten hours
per day or only sixty hours a week. The limitation of the hours of labor
does not come within the police power on that ground.
A law that affects freedom of contract is unconstitutional if it is not
reasonably related to a legitimate purpose of protecting public health.
Before an act can be held to be valid which interferes with the general
right of an individual to contract in relation to his own labor, the act
must have a direct relation to the health and welfare of the employee,
as a means to an end, and the end itself must be appropriate and
legitimate.
Nebbia v. New York, 291 U.S. 502 (1934)
A case in which the Supreme Court of the United States
determined that the state of New York could regulate (set
and/or otherwise control) the price of milk for dairy farmers,
dealers, and retailers.
RULING: He next noted that although use of property and making of
contracts are typically private matters and thus remain free of
government interference, neither property rights nor contract rights
are absolute, adding that occasional regulation of these by the state is

requisite for proper government function, especially in instances where

such regulation is used to promote general welfare. Neither the Fifth
nor the Fourteenth Amendments prohibit governmental regulation for
the public welfare; instead, they only direct the process by which such
regulation occurs. As the Court has held in the past, such due process
demands only that the law shall not be unreasonable, arbitrary, or
capricious, and that the means selected shall have a real and
substantial relation to the object sought to be attained.
United States v. Carolene Products Company, 304 U.S. 144 (1938)
The case is best known for its famous "Footnote Four", in which the
Court established the system of heightened scrutiny for laws targeting
"discrete and insular minorities", compared with the lower scrutiny
applied in this case for economic regulations.
There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a
specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be
embraced within the Fourteenth. . . .
It is unnecessary to consider now whether legislation which restricts
those political processes which can ordinarily be expected to bring
about repeal of undesirable legislation, is to be subjected to more
exacting judicial scrutiny under the general prohibitions of the
Fourteenth Amendment than are most other types of legislation. .
Nor need we inquire whether similar considerations enter into the
review of statutes directed at particular religious . . . or national . . . or
racial minorities . . . : whether prejudice against discrete and insular
minorities may be a special condition, which tends seriously to curtail
the operation of those political processes ordinarily to be relied upon to
protect minorities, and which may call for a correspondingly more
searching judicial inquiry. . . . [Italics added]
Footnote Four introduced explicitly to Supreme Court jurisprudence the
idea of levels of judicial scrutiny. In keeping with the New Deal
Revolution, Footnote Four established the rational basis test for
economic legislation, an extremely low standard of judicial review. The
"rational basis test" mandates that legislation (whether enacted by
Congress or state legislatures) which deals with economic regulation
must be rationally related to a legitimate state interest.
Therefore, Footnote Four outlines a higher level of judicial scrutiny for
legislation that met certain conditions:

On its face violates a provision of the Constitution (facial

challenge).
Attempts to distort or rig the political process.
Discriminates against minorities, particularly those who lack
sufficient numbers or power to seek redress through the political
process.
This higher level of scrutiny, now called "strict scrutiny", was first
applied in Justice Black's opinion in Korematsu v. U.S. (1944).

Williamson v. Lee Optical Co., 348 U.S. 483 (1955)

A case in which the Supreme Court of the United States held that state
laws regulating business will only be subject to rational basis review,
and that the Court need not contemplate all possible reasons for
legislation.
RULING: Using rational basis review, the Court found that the
Oklahoma State Legislature had a legitimate interest in requiring a
prescription from a licensed optometrist or ophthalmologist. Although
opticians were qualified to refit lenses without prescriptions, the Court
reasoned that requiring prescriptions in every case would encourage
more frequent eye examinations, which may enable early detection of
more serious eye conditions. Consequently, where a legitimate
governmental interest lies--as reasoned by the Court--the law can
survive a Due Process challenge.
The Court further held that there was no Equal Protection violation
because legislatures were permitted to deal with problems "one step at
a time, addressing itself to the phase of the problem which seems most
acute to the legislative mind." Thus, that opticians were so impacted
while sellers of ready-to-wear glasses were exempted may have been a
signal that the sellers did not represent a portion of the problem that
loomed large in the legislature's mind.
Justice Douglas, writing for the Court, articulated the standard for
determining whether the law survives a Due Process challenge, stating
"...the law need not be in every respect logically consistent with its
aims to be constitutional. It is enough that there is an evil at hand for
correction, and that it might be thought that the particular legislative
measure was a rational way to correct it."

Griswold v. Connecticut, 381 U.S. 479 (1965)

The Supreme Court of the United States ruled that the
Constitution protected a right to privacy. The case involved a
Connecticut "Comstock law" that prohibited any person from
using "any drug, medicinal article or instrument for the
purpose of preventing conception."
RULING: Justice William O. Douglas recognized that for the majority,
the right to privacy, even when not explicitly included in the Bill of
Rights, was to be found in the "penumbras" and "emanations" of other
constitutional protections, such as the self-incrimination clause of the
Fifth Amendment. The right to privacy is seen as a right to "protect[ion]
from governmental intrusion." Justice Arthur Goldberg wrote a
concurring opinion in which he used the Ninth Amendment in support
of the Supreme Court's ruling. Justice Arthur Goldberg and Justice John
Marshall Harlan II wrote concurring opinions in which they argued that
privacy is protected by the due process clause of the Fourteenth
Amendment. Justice Byron White also wrote a concurring opinion based
on the due process clause.
Justices Hugo Black and Potter Stewart filed dissenting opinions. Justice
Black argued that the right to privacy is nowhere to be found in the
Constitution. Furthermore, he criticized the interpretations of the Ninth
and Fourteenth Amendments of his fellow justices. Justice Stewart

called the Connecticut statute "an uncommonly silly law" but argued
that it was nevertheless constitutional.
Roe v. Wade, 410 U.S. 113 (1973)
The Court ruled 72 that a right to privacy under the Due
Process Clause of the 14th Amendment extended to a woman's
decision to have an abortion, but that this right must be
balanced against the state's two legitimate interests in
regulating abortions: protecting women's health and
protecting the potentiality of human life. Arguing that these
state interests became stronger over the course of a
pregnancy, the Court resolved this balancing test by tying
state regulation of abortion to the third trimester of
pregnancy.
Southeastern Pennsylvania v. Casey (1992)
The Court rejected Roe's trimester framework while affirming
its central holding that a woman has a right to abortion until
fetal viability. The Roe decision defined "viable" as "potentially
able to live outside the mother's womb, albeit with artificial
aid." Justices in Casey acknowledged that viability may occur
at 23 or 24 weeks, or sometimes even earlier
Gonzales v. Carhart, 550 U.S. 124 (2007)
A United States Supreme Court case that upheld the PartialBirth Abortion Ban Act of 2003. The Supreme Court's decision
upheld Congress's ban and held that it did not impose an
undue burden on the due process right of women to obtain an
abortion
Loving v. Virginia, 388 U.S. 1 (1967)
A landmark civil rights decision of the United States Supreme
Court that invalidated laws prohibiting interracial marriage.
RULING: The court ruled that Virginia's anti-miscegenation statute
violated both the Due Process Clause and the Equal Protection Clause
of the Fourteenth Amendment.
Chief Justice Earl Warren's opinion for the unanimous court held that:
Marriage is one of the "basic civil rights of man," fundamental to our
very existence and survival.... To deny this fundamental freedom on so
unsupportable a basis as the racial classifications embodied in these

statutes, classifications so directly subversive of the principle of

equality at the heart of the Fourteenth Amendment, is surely to
deprive all the State's citizens of liberty without due process of law.
The Fourteenth Amendment requires that the freedom of choice to
marry not be restricted by invidious racial discrimination. Under our
Constitution, the freedom to marry, or not marry, a person of another
race resides with the individual and cannot be infringed by the State.
The court concluded that anti-miscegenation laws were racist and had
been enacted to perpetuate white supremacy: There is patently no
legitimate overriding purpose independent of invidious racial
discrimination which justifies this classification.
Zablocki v. Redhail, 434 U.S. 374 (1978)
The Court concurred with the District Court's reading of
marriage being a fundamental right, relying on Loving v.
Virginia (1967) and Griswold v. Connecticut (1965). Marshall,
however, diverged from the District Court's analysis by
refusing to apply strict scrutiny. Instead, he determined if
Wisconsin's law was "supported by sufficiently important state
interests and is closely tailored to effectuate only those
interests" Marshall's standard is similar to strict scrutiny as his
"closely tailored" is similar to the strict scrutiny standard of
requiring a statute to be narrowly tailored to the interest, but
it requires only an "important state interest", which is akin to
intermediate scrutiny.
Kelo v. City of New London, 545 U.S. 469 (2005)
In a 54 decision, the Court held that the general benefits a
community enjoyed from economic growth qualified private
redevelopment plans as a permissible "public use" under the
Takings Clause of the Fifth Amendment.
Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934)
Adecision of the United States Supreme Court holding that
Minnesota's suspension of creditors' remedies was not in
violation of the United States Constitution.
RULING: The Supreme Court upheld the statute, reasoning that the
emergency conditions created by the Great Depression "may justify the
exercise of [the State's] continuing and dominant protective power
notwithstanding interference with contracts." Blaisdell was the first

time the court extended the emergency exception to purely economic

emergencies.

EQUAL PROTECTION
A. EP clause is a fundamental guarantee that, without some
sufficient reason, similarly situated people deserve to be treated
alike.
B. Analysis 3 questions
a. What is the classification? Age, gender, religion, race,
economics?
b. What is the appropriate level of scrutiny?
i. Discrete insular minority hardest look Carolene
Products
c. Does governments action meet the level of scrutiny?
i. Ends what is govt trying to accomplish Means
how does it accomplish those ends
Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949)
RULING: A New York City traffic regulation forbids the operation of any
advertising vehicle on the streets, except vehicles which have upon
them business notices or advertisements of the products of the owner.
The Court held that if the classification was related to the purpose for
which it was made, then it did not contain the kind of discrimination
against which the Equal Protection Clause afforded protection.
Therefore, the court affirmed the lower court's judgment.
United States Railroad Retirement Board v. Fritz (1980)
FACTS: The retirement fund for railroad employees originally provided
a windfall for those who were eligible for social security and railroad
benefits. But, in 1974, Congress determined that the system would be
bankrupt by 1981 if it continued to pay the windfall. Therefore,
legislation was enacted to reduce the costs and make the program
financially viable.
RULING: Congress could properly determine that those who had
acquired entitlement to the retirement benefits while still employed in
the railroad industry had a greater equitable claim to those benefits
than those who became eligible only once they qualified for social
security benefits. The current connection test is not arbitrary and has
been used before.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
The Court declared state laws establishing separate public
schools for black and white students to be unconstitutional.
The decision overturned the Plessy v. Ferguson decision of

1896, which allowed state-sponsored segregation, insofar as it

applied to public education.
RULING: "Segregation of white and colored children in public schools
has a detrimental effect upon the colored children. The impact is
greater when it has the sanction of the law, for the policy of separating
the races is usually interpreted as denoting the inferiority of the negro
group. A sense of inferiority affects the motivation of a child to learn.
Segregation with the sanction of law, therefore, has a tendency to
[retard] the educational and mental development of negro children and
to deprive them of some of the benefits they would receive in a racially
integrated school system."
We conclude that, in the field of public education, the doctrine of
"separate but equal" has no place. Separate educational facilities are
inherently unequal. Therefore, we hold that the plaintiffs and others
similarly situated for whom the actions have been brought are, by
reason of the segregation complained of, deprived of the equal
protection of the laws guaranteed by the Fourteenth Amendment.
Loving v. Virginia, 388 U.S. 1 (1967)
RULING: The court ruled that Virginia's anti-miscegenation statute
violated both the Due Process Clause and the Equal Protection Clause
of the Fourteenth Amendment.
Marriage is one of the "basic civil rights of man," fundamental to our
very existence and survival.... To deny this fundamental freedom on so
unsupportable a basis as the racial classifications embodied in these
statutes, classifications so directly subversive of the principle of
equality at the heart of the Fourteenth Amendment, is surely to
deprive all the State's citizens of liberty without due process of law.
The Fourteenth Amendment requires that the freedom of choice to
marry not be restricted by invidious racial discrimination. Under our
Constitution, the freedom to marry, or not marry, a person of another
race resides with the individual and cannot be infringed by the State.
There is patently no legitimate overriding purpose independent of
invidious racial discrimination that justifies this classification.
Korematsu v. United States, 323 U.S. 214 (1944)
The Court upheld the constitutionality of Executive Order 9066,
which ordered Japanese Americans into internment camps
during World War II regardless of citizenship.

In a 63 decision, the Court sided with the government, ruling

that the exclusion order was constitutional. However, the
Court's opinion remains significant both for being the first
instance of the Supreme Court applying the strict scrutiny
standard to racial discrimination by the government and for
being one of only a handful of cases in which the Court held
that the government met that standard.
Washington v. Davis, 426 U.S. 229 (1976)
Established that laws that have a racially discriminatory effect,
but that were not adopted to advance a racially discriminatory
purpose, are not invalid under the United States Constitution.
FACTS: Two black men applied for positions in the DC police
department and sued after being turned down. They claimed that the
Department used racially discriminatory hiring procedures, including its
use of a test of verbal skills (Test 21) that was failed disproportionately
by African Americans. The plaintiffs sued the Department, alleging that
the test constituted impermissible employment discrimination under
both Title VII of the Civil Rights Act of 1964 and the United States
Constitution. Since the respondents were filing the action in
Washington, DC, which is a federal territory and not a state, the
constitutional provision the plaintiffs sued under was the Due Process
Clause of the Fifth Amendment instead of the Equal Protection Clause
of the Fourteenth Amendment; the Equal Protection Clause directly
applies only to the states, but the Supreme Court ruled in Bolling v.
Sharpe that the Due Process Clause of the Fifth Amendment, which
applies to the federal government, contains an equal protection
component.
HOLDING: The legal rule created in Washington is that under the
constitution's equal protection jurisprudence, "a law or other official
act, without regard to whether it reflects a racially discriminatory
purpose, [is not] unconstitutional solely because it has a racially
disproportionate impact." Thus, in addition to proving a discriminatory
effect, a plaintiff must prove discriminatory motive on the state actor's
part to receive redress under the constitution. The court noted that
"disproportionate impact is not irrelevant, but it is not the sole
touchstone of an invidious racial discrimination forbidden by the
Constitution"
In Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256
(1979), decided only 3 years after Washington, the Court stated
explicitly in its holding that legislation obnoxious to the Equal
Protection Clause is that which is passed "because of, not merely in

spite of, its adverse effects upon an identifiable group." In Mobile v.

Bolden, the Court cited Washington in holding that the Fifteenth
Amendment prohibited racially discriminatory voting laws only if they
were adopted with a racially discriminatory purpose. This principle was
affirmed again in McClesky v. Kemp, 481 U.S. 279 (1987), which held
that criminal statutes are invalid under the Equal Protection Clause
only if they were adopted with a discriminatory purpose.
In 1991, Congress amended Title VII of the Civil Rights Act of 1964 and
codified the "disparate impact" test established in Griggs v. Duke
Power Co. and its progeny, which allows employees to sue their
employers (including governmental entities) for racial discrimination
irrespective of discriminatory purpose.
Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
The Court upheld affirmative action, allowing race to be one of
several factors in college admission policy. However, the court
ruled that specific racial quotas, such as the 16 out of 100
seats set aside for minority students by the University of
California, Davis School of Medicine, were impermissible. The
Court traced the history of the jurisprudence under the Equal
Protection Clause, and concluded that it protected all, not
merely African Americans or only minorities. Only if it served a
compelling interest could the government treat members of
different races differently.

Grutter v. Bollinger, 539 U.S. 306 (2003)

The Court upheld the affirmative action admissions policy of
the University of Michigan Law School. Justice Sandra Day
O'Connor, writing for the majority in a 5-4 decision and joined
by Justices Stevens, Souter, Ginsburg, and Breyer, ruled that
the University of Michigan Law School had a compelling
interest in promoting class diversity.
Gratz v. Bollinger, 539 U.S. 244 (2003)
The Court ruled the University of Michigan's point system's
"predetermined point allocations" that awarded 20 points to
underrepresented minorities "ensures that the diversity
contributions of applicants cannot be individually assessed"
and was therefore unconstitutional.

Adarand Constructors, Inc. v. Pea, 515 U.S. 200 (1995)

The Court held that racial classifications, imposed by the
federal government, must be analyzed under a standard of
"strict scrutiny," the most stringent level of review which
requires that racial classifications be narrowly tailored to
further compelling governmental interests. Adarand held the
federal government to the same standards as the state and
local governments through a process of "reverse
incorporation," in which the Fifth Amendment's Due Process
Clause was held to bind the federal government to the same
standards as state and local governments are bound under the
14th Amendment.
Shaw v. Reno, 509 U.S. 630 (1993)
The court ruled in a 5-4 decision that redistricting based on
race must be held to a standard of strict scrutiny under the
equal protection clause. On the other hand, bodies doing
redistricting must be conscious of race to the extent that they
must ensure compliance with the Voting Rights Act of 1965.
RULING: The Court found that if a redistricting map is "so bizarre on
its face that it is 'unexplainable on grounds other than race'," that a
claim for relief under the Fourteenth Amendment to the United States
Constitution is available to plaintiffs. Such redistricting will be held
unconstitutional if it is found to be intended to segregate voters by
race and this segregation cannot be justified under a standard of strict
scrutiny. Actions subject to this standard must satisfy three conditions:
a compelling government interest, narrowly tailored to achieve that
goal, and the least restrictive means for achieving that interest.
Craig v. Boren, 429 U.S. 190 (1976)
The first case in which a majority of the United States Supreme
Court determined that statutory or administrative sex
classifications were subject to intermediate scrutiny under
Fourteenth Amendment's the Equal Protection Clause.
FACTS: Oklahoma passed a statute prohibiting the sale of 3.2% beer
to males under the age of 21 but allowed females over the age of 18 to
purchase it. The statute was challenged as Fourteenth Amendment
Equal Protection violation

RULING: The Court held that the gender classifications made by the
Oklahoma statute were unconstitutional because the statistics relied
on by the state were insufficient to show a substantial relationship
between the statute and the benefits intended to stem from it.
The court instituted a standard, dubbed "intermediate scrutiny",
whereby the state must prove the existence of specific important
governmental objectives, and the law must be substantially related to
the achievement of those objectives.
United States v. Virginia, 518 U.S. 515 (1996)
VMI failed to show "exceedingly persuasive justification" for its
sex-based admissions policy, it violated the Fourteenth
Amendment's Equal Protection Clause.
Romer v. Evans, 517 U.S. 620 (1996)
The Court majority held that the Colorado constitutional
amendment targeting homosexuals based upon animosity
lacked a rational relation to any legitimate governmental
purpose
RULING: The Court concluded that the amendment imposed a special
disability upon homosexuals by forbidding them to seek safeguards
"without constraint". Instead of applying "strict scrutiny" to
Amendment 2 (as the Colorado Supreme Court had done), Kennedy
wrote that it did not even meet the much lower requirement of having
a rational relationship to a legitimate government purpose.
The amendment seems inexplicable by anything but animus toward
the class that it affects; it lacks a rational relationship to legitimate
state interests. It is at once too narrow and too broad. It identifies
persons by a single trait and then denies them protection across the
board. The resulting disqualification of a class of persons from the right
to seek specific protection from the law is unprecedented in our
jurisprudence.
Lawrence v. Texas, 539 U.S. 558 (2003)
The Court struck down the sodomy law in Texas, making samesex sexual activity legal in every U.S. state and territory. The
Court, with a five-justice majority, overturned its previous
ruling on the same issue in the 1986 case Bowers v. Hardwick,
where it upheld a challenged Georgia statute and did not find a
constitutional protection of sexual privacy.

RULING: The Court held that homosexuals had a protected liberty

interest to engage in private, sexual activity; that homosexuals' moral
and sexual choices were entitled to constitutional protection; and that
moral disapproval did not provide a legitimate justification for Texas's
law criminalizing sodomy. The majority decision also held that the
intimate, adult consensual conduct at issue here was part of the liberty
protected by the substantive component of the Fourteenth
Amendment's due process protections. Holding that "the Texas statute
furthers no legitimate state interest which can justify its intrusion into
the personal and private life of the individual"
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)
Applying rational basis review the U.S. Supreme Court struck
down the ordinance as applied to CLC. The Court declined to
rule that the intellectually disabled were a quasi-suspect or
suspect class.
RULING: Unlike most cases (Williamson v. Lee Optical) where the
Court uses rational basis review, the Court did not accept the City's
claimed interest. Some commentators have referred to this
investigation into to the actual reasons for passing the law as "rational
basis with bite."
The Court declined to grant the intellectually disabled status as a
suspect or quasi-suspect class because they are a "large and
diversified group" amply protected by state and federal legislatures.
Therefore, any legislation that distinguishes between the intellectually
disabled and others must be rationally related to a legitimate
government interest in order to withstand equal protection review.
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)
The U.S. Supreme Court found that Virginia's poll tax was
unconstitutional under the equal protection clause of the 14th
Amendment. The Twenty-fourth Amendment to the United
States Constitution (1964) prohibited poll taxes in federal
elections; five states continued to require poll taxes for voters
in state elections. By this ruling, the Supreme Court banned
the use of poll taxes in state elections.
Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969)
The Court struck down a NY statute requiring that to be
eligible to vote in certain school district elections, an

individual must either own or rent taxable real property within

the school district, be the spouse of a property owner or lessor,
or be the parent or guardian of a child attending a public
school in the district. By a 5-to-3 vote, the court held that
these voting requirements violated the Equal Protection Clause
of the Fourteenth Amendment to the United States
Constitution.
RULING: Under then-recent Equal Protection Clause case law, alleged
infringements of the right to vote must survive careful judicial scrutiny,
because "any unjustified discrimination in determining who may
participate in political affairs or in the selection of public officials
undermines the legitimacy of representative government." Therefore,
to be upheld, a statute restricting the right to vote must survive "strict
scrutiny" by being necessary to serve a "compelling state interest"; the
mere "rationality" of the statute is not sufficient.
Reynolds v. Sims, 377 U.S. 533 (1964)
Ruled that state legislature districts had to be roughly equal in
population. The eight justices who struck down the law on the
grounds of an equal protection violation based their decision
on the principle of "one person, one vote".
Davis v. Bandemer, 478 U.S. 109 (1986)
A case in which the United States Supreme Court held that
claims of partisan gerrymandering were justiciable, but failed
to agree on a clear standard for the judicial review of the class
of claims of a political nature to which such cases belong.
M.L.B. v. S.L.J., 519 U.S. 102 (1996)
The petitioner, M.L.B., argued that the Mississippi Chancery
Courts could not terminate her parental rights on the basis
that she was unable to pay appellate court fees.
RULING: A 6-3 opinion decided that "just as a state may not block an
indigent petty offender's access to an appeal afforded others, so
Mississippi may not deny M.L.B., because of her poverty, appellate
review of the sufficiency of the evidence on which the trial court found
her unfit to remain a parent." The court stated that the 14th
Amendments due process guarantee could not be halted by a lack of
funds in a case where the termination of parental rights was at risk.

San Antonio Independent School District v. Rodriguez, 411 U.S. 1

(1973)
The suit argued the Texas method of school financing violated
the equal protection clause of the 14th Amendment. The
lawsuit alleged that education was a fundamental right and
that wealth-based discrimination in the provision of education
created in the poor, a constitutionally suspect class, who were
to be protected from the discrimination. Powell led the 5-4
majority in deciding that the right to be educated (either as a
school-age child, or an uneducated adult), was neither
explicitly or implicitly, textually found anywhere in the U.S.
Constitution. It was therefore, not anywhere protected by the
Constitution.

FREEDOM OF SPEECH
Schenck v. United States, 249 U.S. 47 (1919)
The case concerned enforcement of the Espionage Act of 1917.
A unanimous Supreme Court concluded that defendants who
distributed leaflets to draft-age men, urging resistance to
induction, could be convicted of an attempt to obstruct the
draft, a criminal offense In this opinion, Holmes said that
expressions that in the circumstances were intended to result
in a crime, and posed a "clear and present danger" of
succeeding, could be punished.
The most stringent protection of free speech would not protect a man
in falsely shouting fire in a theatre and causing a panic. [...] The
question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
Congress has a right to prevent.
Abrams v. United States, 250 U.S. 616 (1919)
The Court upheld an Amendment to the Espionage Act of 1917,
which made it a criminal offense to urge curtailment of

production of the materials necessary to the war against

Germany with intent to hinder the progress of the war.
FACTS: Abrams was arrested after throwing flyers out of a 4th floor
window. The flyers were a protest against the Wilson administration for
interfering with the Russian Revolution in support of the Russian
government. The leaflets denounced the sending of American troops to
Russia and denounced the war and US efforts to impede the Russian
Revolution. It advocated the cessation of the production of weapons to
be used against Soviet Russia.
HOLDING: The majority asserted that the leaflets demonstrated an
intent to hinder production of war material, and could not be
characterized as simple expressions of political opinion.
"This is not an attempt to bring about a change of administration by
candid discussion, for no matter what may have incited the outbreak
on the part of the defendant anarchists, the manifest purpose of such a
publication was to create an attempt to defeat the war plans of the
government of the United States, by bringing upon the country the
paralysis of a general strike, thereby arresting the production of all
munitions and other things essential to the conduct of the war."
Congress' determination that all such propaganda posed a danger to
the war effort was sufficient to meet the standard set in Schenck v.
United States for prosecution of attempted crimes, when the attempt
was made through speech or writing. Holmes' argument, in dissent,
that criminal prosecution required a showing of the specific intent to
bring about the particular harm at which the statute was aimed, was
rejected.
Persecution for the expression of opinions seems to me perfectly
logical. If you have no doubt of your premises or your power and want
a certain result with all your heart you naturally express your wishes in
law and sweep away all opposition...But when men have realized that
time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideas. . . .
The best test of truth is the power of the thought to get itself accepted
in the competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out
Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917)
In cases such as Abrams v US and Gitlow v NY, the Court
struggled to draw the line between politically unpopular

speech and actual threats to national security. Masses

Publishing Co. v. Patten greatly influenced the Supreme
Courts eventual adoption in Brandenburg v. Ohio of the
"incitement test" for advocacy of illegal activity.
FACTS: At issue in Masses Publishing Co. v. Patten was the federal
Espionage Act of 1917, which prohibited citizens from counseling or
advising violation of the law. The Court found that the New York
postmaster's refusal to allow circulation of the antiwar journal The
Masses under the statute violated the First Amendment.
HOLDING: To assimilate agitation, legitimate as such, with direct
incitement to violent resistance, is to disregard the tolerance of all
methods of political agitation which in normal times is a safeguard of
free government.
Judge Hand affirmed that if a citizen stops short of urging upon others
that it is their duty or their interest to resist the law, then he or she is
protected by the First Amendment. One may, for example, admire
resistors of the draft, but may not, under the incitement test,
counsel or advise someone to violate the law at a specific time and
place.
Gitlow v. New York, 268 U.S. 652 (1925)
The Court ruled that the 14th Amendment had extended the
reach of certain limitations on federal government authority
set forth in the First Amendmentspecifically the provisions
protecting freedom of speech and freedom of the pressto the
governments of the individual states.
HOLDING: The Court stated that "For present purposes we may and
do assume that" the rights of freedom of speech and freedom of the
press were "among the fundamental personal rights and 'liberties'
protected by the due process clause of the Fourteenth Amendment
from impairment by the states". The Court upheld Gitlow's conviction
on the basis that the government may suppress or punish speech that
directly advocates the unlawful overthrow of the government and it
upheld the constitutionality of the state statute at issue, which made it
a crime to advocate the duty, need, or appropriateness of
overthrowing government by force or violence.
It held that a "State may punish utterances endangering the
foundations of government and threatening its overthrow by unlawful
means" because such speech clearly "present[s] a sufficient danger to
the public peace and to the security of the State." According to

Sanford, a "single revolutionary spark may kindle a fire that,

smoldering for a time, may burst into a sweeping and destructive
conflagration." He said the Manifesto contained "the language of direct
incitement" and was not "the expression of philosophical abstraction."
Whitney v. California, 274 U.S. 357 (1927)
The question before the court was whether the 1919 Criminal
Syndicalism Act of California violated the Fourteenth
Amendments due process and equal protection clauses.
The Court, by a 9-0 vote, held that it did not and upheld
Whitney's conviction for communist speech. The Court invoked
the Holmes test of "clear and present danger" but went
further. The Court held that the state in exercise of its police
power has the power to punish those who abuse their rights to
freedom of speech "by utterances inimical to the public
welfare, tending to incite crime, disturb the public peace, or
endanger the foundations of organized government and
threaten its overthrow." In other words, if words have a "bad
tendency" they can be punished.
Dennis v. United States, 341 U.S. 494 (1951)
In affirming the conviction, a plurality of the Court adopted
Judge Learned Hand's formulation of the clear and probable
danger test, an adaptation of the clear and present danger
test: In each case [courts] must ask whether the gravity of the
"evil", discounted by its improbability, justifies such invasion
of free speech as necessary to avoid the danger.
Brandenburg v. Ohio, 395 U.S. 444 (1969)
The Court held that the government cannot punish
inflammatory speech unless that speech is directed to inciting,
and is likely to incite, imminent lawless action. Whitney v.
California was explicitly overruled, and doubt was cast on
Schenck v. United States, Abrams v. United States, Gitlow v.
New York (1925), and Dennis v. United States. There are three
elements of this test: intent, imminence, and likelihood. The
Brandenburg test remains the standard used for evaluating
attempts to punish inflammatory speech, and it has not been
seriously challenged since it was laid down in 1969. Very few
cases have actually reached the Court during the past decades
that would test the outer limits of Brandenburg, so the test
remains largely unqualified.

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

The Court articulated the fighting words doctrine, a limitation
of the First Amendment's guarantee of freedom of speech.
HOLDING: The Court, in a unanimous decision, upheld the arrest and
advanced a two-tier theory of the First Amendment. Certain welldefined and narrowly limited categories of speech fall outside the
bounds of constitutional protection. Thus, the lewd and obscene, the
profane, the slanderous, and (in this case) insulting or fighting
words neither contributed to the expression of ideas nor possessed any
social value in the search for truth.
There are certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which have never been thought to
raise any constitutional problem. These include the lewd and obscene,
the profane, the libelous, and the insulting or "fighting" words those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order
and morality.
Cantwell v. Connecticut, 310 U.S. 296 (1940)
The Court incorporated through the Due Process Clause of the
Fourteenth Amendment, the First Amendment's protection of
religious free exercise. Justice Owen Roberts wrote in a
unanimous opinion that "to condition the solicitation of aid for
the perpetuation of religious views or systems upon a license,
the grant of which rests in the exercise of a determination by
state authority as to what is a religious cause, is to lay a
forbidden burden upon the exercise of liberty protected by the
Constitution."
Feiner v. New York, 340 US 315 (1951)
Focusing on the "rise up in arms and fight for their rights" part
of Feiner's speech, the Court found that Feiner's First
Amendment rights were not violated because his arrest came
when the police thought that a riot might occur; the police
attempted to suppress Feiner's message not based on its
content but on the reaction of the crowd. The Court reaffirmed
that a speaker cannot be arrested for the content of his speech

and that the police must not be used as an instrument to

silence unpopular views but must be used to silence a speaker
who is trying to incite a riot.
Cohen v. California, 403 U.S. 15 (1971)
The Court overturned a man's conviction for the crime of
disturbing the peace for wearing a jacket in the public
corridors of a courthouse that displayed the phrase, "Fuck the
Draft". The Court emphasized that this case concerned
"speech", and not "conduct", as was at issue in United States
v. O'Brien. The Court stated that any attempt by California to
abridge the content of Cohen's speech would be no doubt
unconstitutional except in a few instances, like, for example, if
California was regulating the time, place, or manner of Cohen's
speech independent from the content of the speech.
HOLDING: Harlan expressed the concern of the Court that section 415
was vague and did not put citizens on notice as to what behavior was
unlawful. Indeed, the words "offensive conduct" alone cannot "be said
sufficiently to inform the ordinary person that distinctions between
certain locations are thereby created."
Additionally, the mere use of an untoward four-letter word did not place
the speech into a category of speech that has traditionally been
subject to greater regulations by the government. Similarly, Harlan and
the Court refused to categorize the speech at issue as a "fighting word"
under Chaplinsky v. New Hampshire, because no "individual actually or
likely to be present could reasonably have regarded the words on
appellant's jacket as a direct personal insult." Finally, the Court was
unwilling to give credence to the idea that the government could
suppress the type of speech at issue here in order to protect the public
at large.
Harlan stated that California could not excise, as "offensive conduct",
one particular scurrilous epithet from the public discourse, either upon
the theory...that its use is inherently likely to cause violent reaction or
upon a more general assertion that the States, acting as guardians of
public morality, may properly remove this offensive word from the
public vocabulary."
Specifically, Harlan, citing Justice Brandeis' opinion in Whitney v.
California, emphasized that the First Amendment operates to protect
the inviolability of the marketplace of ideas imagined by the Founding
Fathers. Allowing California to suppress the speech at issue in this case
would be destructive to that marketplace.

Thus, Harlans arguments can be constructed in three major points:

First, states (California) cannot censor their citizens in order to make a
civil society. Second, knowing where to draw the line between
harmless heightened emotion and vulgarity can be difficult. Third,
people bring passion to politics and vulgarity is simply a side effect of a
free exchange of ideasno matter how radical they may be.
Beauharnais v. Illinois, 343 U.S. 250 (1952)
The Court upheld an Illinois law making it illegal to publish or
exhibit any writing or picture portraying the "depravity,
criminality, unchastity, or lack of virtue of a class of citizens of
any race, color, creed or religion". In his opinion Justice
Frankfurter argued that the speech conducted by the
defendant breached libel, which is reasoned to be outside the
protection of the First and Fourteenth Amendments.
National Socialist Party of America v. Village of Skokie, 432 U.S. 43
(1977)
The Court ordered Illinois to hold a hearing on their ruling
against the National Socialist Party of America, emphasizing
that "if a State seeks to impose a restraint on First
Amendment rights, it must provide strict procedural
safeguards, including immediate appellate review... Absent
such review, the State must instead allow a stay. The order of
the Illinois Supreme Court constituted a denial of that right."
The outcome was that the Illinois Supreme Court ruled that the
use of the swastika is a symbolic form of free speech entitled
to First Amendment protections and determined that the
swastika itself did not constitute "fighting words."
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
FACTS: Several teenagers allegedly burned a crudely fashioned cross
on a black family's lawn. The police charged one of the teens under a
local bias-motivated criminal ordinance which prohibits the display of a
symbol which "arouses anger, alarm or resentment in others on the
basis of race, color, creed, religion or gender."
HOLDING: The justices held the ordinance invalid on its face because
"it prohibits otherwise permitted speech solely on the basis of the
subjects the speech addresses." The First Amendment prevents
government from punishing speech and expressive conduct because it
disapproves of the ideas expressed.

The Court's clarification stated that this meant that certain areas of
speech "can, consistently with the First Amendment, be regulated
because of their constitutionally proscribable content (obscenity,
defamation, etc.) not that they are categories of speech entirely
invisible to the Constitution, so that they may be made the vehicles for
content discrimination." Thus, as one of the first of a number of
illustrations that Justice Scalia would use throughout the opinion, the
government may "proscribe libel, but it may not make the further
content discrimination of proscribing only libel critical of the
government."
The Court recognized that while a particular utterance of speech can
be proscribed on the basis of one feature, the Constitution may prohibit
proscribing it on the basis of another feature. Thus, while burning a flag
in violation of an ordinance against outdoor fires could be punishable,
burning a flag in violation of an ordinance against dishonoring the flag
is not. In addition, other reasonable "time, place, or manner"
restrictions were upheld, but only if they were "justified without
reference to the content of the regulated speech."
Although the phrase in the ordinance, "arouses anger, alarm or
resentment in others," has been limited by the Minnesota Supreme
Court's construction to reach only those symbols or displays that
amount to "fighting words," the remaining, unmodified terms make
clear that the ordinance applies only to "fighting words" that insult, or
provoke violence, "on the basis of race, color, creed, religion or
gender." Displays containing abusive invective, no matter how vicious
or severe, are permissible unless they are addressed to one of the
specified disfavored topics. Those who wish to use "fighting words" in
connection with other ideas to express hostility, for example, on the
basis of political affiliation, union membership, or homosexuality are
not covered. The First Amendment does not permit St. Paul to impose
special prohibitions on those speakers who express views on
disfavored subjectsLet there be no mistake about our belief that
burning a cross in someone's front yard is reprehensible. But St. Paul
has sufficient means at its disposal to prevent such behavior without
adding the First Amendment to the fire.
Virginia v. Black, 538 U.S. 343 (2003)
The Court struck down that statute to the extent that it
considered cross burning as prima facie evidence of intent to
intimidate. Such a provision, the Court argued, blurs the
distinction between proscribable "threats of intimidation" and
the Ku Klux Klan's protected "messages of shared ideology."

However, cross-burning can be a criminal offense if the intent

to intimidate is proven.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Established the actual malice standard, which has to be met
before press reports about public officials can be considered to
be defamation and libel. "The First Amendment protects the
publication of all statements, even false ones, about the
conduct of public officials except when statements are made
with actual malice (with knowledge that they are false or in
reckless disregard of their truth or falsity)."
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
The Court held that, so long as they do not impose liability
without fault, states are free to establish their own standards
of liability for defamatory statements made about private
individuals. However, the Court also ruled that if the state
standard is lower than actual malice, the standard applying to
public figures, then only actual damages may be awarded.
The consequence is that strict liability for defamation is
unconstitutional in the United States; the plaintiff must be able
to show that the defendant acted negligently or with an even
higher level of mens rea. In many other common law countries,
strict liability for defamation is still the rule.
HOLDING: Justice Powell argued that the application of the New York
Times v. Sullivan standard in this case was inappropriate because Gertz
was neither a public official nor a public figure. In the context of the
opinion, Powell advanced many lines of reasoning to establish that
ordinary citizens should be allowed more protection from libelous
statements than individuals in the public eye. First, the recklessness
standard applies only to defamation of public figures or public officials.
Second, even for private individuals, states may not impose strict
liability on news media. And third, any standard of fault less then
recklessness limits private persons to actual injury.
Bartnicki v. Vopper, 532 U.S. 514 (2001)
The Court relieved a media defendant of liability for
broadcasting a taped conversation of a labor official talking to
other union people about a teachers' strike. At trial, the
parties stipulated that the taped conversation had been
illegally recorded in violation of the Electronic Communications

Privacy Act. The Court held the radio station not liable because
the radio station itself did nothing illegal to obtain the tape.
The case stands for the rule that media defendants are not
liable even if a third party violated the law.
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
The First Amendment's free-speech guarantee prohibits
awarding damages to public figures to compensate for
emotional distress intentionally inflicted upon them. The Court
held that the First Amendment gives speakers immunity from
sanction with respect to their speech concerning public figures
unless their speech is both false and made with "actual
malice", i.e., with knowledge of its falsehood or with reckless
disregard for the truth of the statement. Although false
statements lack inherent value, the "breathing space" that
freedom of expression requires in order to flourish must
tolerate occasional false statements, lest there be an
intolerable chilling effect on speech that does have
constitutional value.
Snyder v. Phelps, 562 U.S. 443 (2011)
The Court held that speech on a public sidewalk, about a public
issue, cannot be liable for a tort of emotional distress, even if
the speech is found to be "outrageous" (Westboro Baptist).
United States v. Alvarez, 567 U.S. (2012)
The Court struck down the Stolen Valor Act, a federal law that
criminalized false statements about having a military medal.
"The Act by its plain terms, applies to a false statement made
at any time, in any place, to any person". Such breadth means
that the law is "sweep ing... [the] reach of the statute puts it
in conflict with the First Amendment... the statute would apply
with equal force to personal, whispered conversations within a
home."
Virginia Pharmacy Board v. Consumer Council, 425 U.S. 748 (1976)
The Court held that a state could not limit pharmacists right
to provide information about prescription drug prices. This was
an important case in determining the application of the First
Amendment to commercial speech.

FACTS: Virginia justified its enactment of the regulation on the

grounds of maintaining the professionalism of pharmacists, asserting
that aggressive price competition among pharmacists would make it
difficult for pharmacists to provide the proper professional services
HOLDING: Blackmun reasoned that this case concerned not only
commercial regulation, but the free flow of information. This case was
just as much about the consumers right to receive information as it
was about the pharmacists right to provide it, and that the right to
free speech is just as much about the listener as it is about the
speaker
Although regulation of the pharmacy profession was both necessary
and within the prerogative of the several States through their police
power, the statute promoted consumers ignorance, effectively keeping
them in the dark about prescription drug prices. Blackmun dismissed
this rationale as paternalistic, saying that if consumers had sufficient
access to information regarding drug pricing and availability, it would
only serve to aid them in their decisions about choosing a prescription
drug supplier.
Blackmun concluded his opinion by explaining that states still retained
the power to regulate some commercial speech, via content-neutral
time, place, and manner regulations. Likewise, states retain the power
to prohibit false or deceptive advertisements. However, he held that
the states could not suppress truthful information about a lawful
economic activity, simply out of fear of potential consequences.
Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980)
The Court that laid out a four-part test for determining when
restrictions on commercial speech violated the First
Amendment of the United States Constitution.
HOLDING: The court ruled that a regulation that completely bans an
electric utility from advertising to promote the use of electricity
violates the First and Fourteenth Amendments.
The court instituted a four-step analysis for commercial speech to the
Commission's arguments in support of its ban on promotional
advertising:

Is the expression protected by the First Amendment? For speech

to come within that provision, it must concern lawful activity and
not be misleading.
Is the asserted governmental interest substantial?

Does the regulation directly advance the governmental interest

asserted?
Is the regulation more extensive than is necessary to serve that
interest?

There must be a "reasonable fit" between the government's ends and

the means for achieving those ends.
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)
The Court held that a complete ban on the advertising of
alcohol prices was unconstitutional under the First
Amendment, and that the states power to regulate alcohol,
did not lessen other constitutional restraints of state power.
HOLDING: Bans that target truthful, non-misleading commercial
messages rarely protect consumers from such harms. Instead, such
bans often serve only to obscure an underlying governmental policy
that could be implemented without regulating speech. In this way,
these commercial speech bans not only hinder consumer choice, but
also impede debate over central issues of public policy.
United States v. O'Brien, 391 U.S. 367 (1968)
The Court ruled that a criminal prohibition against burning a
draft card did not violate the First Amendment's guarantee of
free speech. The Court considered the law justified by a
significant government interest unrelated to the suppression
of speech and was tailored towards that end.
HOLDING: The test articulated in O'Brien has been subsequently used
by the Court to analyze whether laws that have the effect of regulating
speech, though are ostensibly neutral towards the content of that
speech, violate the First Amendment. The regulation must 1) be within
the constitutional power of the government to enact, 2) further an
important or substantial government interest, 3) that interest must be
unrelated to the suppression of speech (or "content neutral", as later
cases have phrased it), and 4) prohibit no more speech than is
essential to further that interest.
First, the law was within the "broad and sweeping" constitutional
powers of Congress under Article I to "raise and support armies" by
"classify[ing] and conscript[ing] manpower for military service". Under
the second prong of the test, the issuance of draft cards was regarded
as a "legitimate and substantial administrative aid" in the functioning
of the draft system, as were laws that insured the "continuing

availability" of issued draft cards. The Court rejected OBriens

characterization of the draft cards as nothing more than a superfluous
notification of registration. Instead, the cards advanced "the smooth
and proper functioning of the system". Third, the registration and
raising of troops was unrelated to the suppression of speech. And
fourth, the Court saw "no alternative means" by which the government
could ensure that draft cards would continue to be available than a law
that prohibited their willful destruction.
Texas v. Johnson, 491 U.S. 397 (1989)
Invalidated prohibitions on desecrating the American flag
enforced in 48 of the 50 states.
HOLDING: The First Amendment specifically disallows the abridgment
of "speech," but the court reiterated its long recognition that its
protection does not end at the spoken or written word. This was an
uncontroversial conclusion in light of cases such as Stromberg v.
California (display of a red flag as speech) and Tinker v. Des Moines
Independent Community School District (wearing of a black armband
as speech).
The Court rejected "the view that an apparently limitless variety of
conduct can be labeled 'speech' whenever the person engaging in the
conduct intends thereby to express an idea," but acknowledged that
conduct may be "sufficiently imbued with elements of communication
to fall within the scope of the First and Fourteenth Amendments." In
deciding whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play, the
court asked whether "an intent to convey a particularized message
was present, and [whether] the likelihood was great that the message
would be understood by those who viewed it." The Court rejected
Texas's claim that flag burning is punishable on the basis that it "tends
to incite" breaches of the peace by citing the familiar test of
Brandenburg v. Ohio that the state may only punish speech that would
incite "imminent lawless action," finding that flag burning does not
always pose an imminent threat of lawless action.
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)
The Supreme Court ruled against the Humanitarian Law
Project, which sought to help political parties in Turkey and Sri
Lanka peacefully resolve conflicts. It concluded that Congress
had intended to prevent aid to such groups, even if for the
purpose of facilitating peace negotiations or United Nations
processes, because that assistance did fit the law's definition

of material aid as training, expert advice or assistance,

service, and personnel. The case represents the only time
in U.S. First Amendment jurisprudence that a restriction on
political speech has passed the Brandenburg v. Ohio test.
FREEDOM OF RELIGION
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)
The Court ordinance passed in Hialeah, Florida, forbidding the
"unnecessary" killing of "an animal in a public or private ritual
or ceremony not for the primary purpose of food
consumption", was unconstitutional. The law was enacted soon
after the city council of Hialeah learned that the Church of
Lukumi Babalu Aye, which practiced Santeria, a religion whose
rituals sometimes demand animal sacrifice, was planning on
locating there.
HOLDING: Adhering to Employment Division v. Smith, the lower courts
deemed the law to have a legitimate and rational government purpose
and therefore upheld the enactment. The Supreme Court, however,
held that the ordinances were neither neutral nor generally applicable:
rather, they applied exclusively to the church. Because the law was
targeted at Santeria, the Court held, it was not subject to an
undemanding rational basis test. Rather, the nature of the case was
held to mandate a standard of strict scrutiny: state action had to be
justified by a compelling governmental interest, and be narrowly
tailored to advance that interest. Because the ordinance suppressed
more religious conduct than was necessary to achieve its stated ends,
it was deemed unconstitutional, with Justice Anthony Kennedy stating
in the decision, religious beliefs need not be acceptable, logical,
consistent or comprehensible to others in order to merit First
Amendment protection.
Sherbert v. Verner, 374 U.S. 398 (1963)
The Court held that the Free Exercise Clause of the First
Amendment required that the government demonstrate both a
compelling interest and that the law in question be narrowly
tailored, before denying unemployment compensation to
someone who was fired because her job requirements
substantially conflicted with her religion.
HOLDING: "to condition the availability of benefits upon this
appellant's willingness to violate a cardinal principle of her religious
faith effectively penalizes the free exercise of her constitutional

liberties." Brennan dismissed the claim that his decision violated the
Establishment Clause by establishing the Seventh-day Adventist
religion. Finally, the majority opinion did not consider the Equal
Protection argument, since it had already ruled in Sherbert's favor on
First Amendment grounds.
The Court set out a three-prong test for courts to use in determining
whether the government has violated an individual's constitutionallyprotected right to the free exercise of religion.
1. Whether the government has burdened the individual's free
exercise of religion. If government confronts an individual with a
choice that pressures the individual to forego a religious practice,
whether by imposing a penalty or withholding a benefit, then the
government has burdened the individual's free exercise of
religion.
2. However, under this test not all burdens placed on religious
exercise are constitutionally prohibited. If the first prong is
passed, the government may still constitutionally impose the
burden on the individual's free exercise if the government can
show
It possesses some compelling state interest that
justifies the infringement (the compelling interest
prong); and
no alternative form of regulation can avoid the
infringement and still achieve the state's end (the
narrow tailoring prong).
Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)
The Court held that the state could deny unemployment
benefits to a person fired for violating a state prohibition on
the use of peyote, even though the use of the drug was part of
a religious ritual. Although states have the power to
accommodate otherwise illegal acts performed in pursuit of
religious beliefs, they are not required to do so.
HOLDING: But Oregon's ban on the possession of peyote is not a law
specifically aimed at a physical act engaged in for a religious reason.
Rather, it is a law that applies to everyone who might possess peyote,
for whatever reasona "neutral law of general applicability". Scalia
characterized the employees' argument as an attempt to use their
religious motivation to use peyote in order to place themselves beyond
the reach of Oregon's neutral, generally applicable ban on the
possession of peyote. The Court held that the First Amendment's
protection of the "free exercise" of religion does not allow a person to

use a religious motivation as a reason not to obey such generally

applicable laws. Citing the Reynolds v. United States (1878) decision:
"To permit this would be to make the professed doctrines of religious
belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself." Thus, the Court had held that
religious beliefs did not excuse people from complying with laws
forbidding polygamy, child labor laws, Sunday closing laws, laws
requiring citizens to register for Selective Service, and laws requiring
the payment of Social Security taxes.
Everson v. Board of Education, 330 U.S. 1 (1947)
The Court applied the Establishment Clause in the country's
Bill of Rights to State law. Prior to this decision the First
Amendment words, "Congress shall make no law respecting an
establishment of religion" imposed limits only on the federal
government, while many states continued to grant certain
religious denominations legislative or effective privileges.
FACTS: The case was brought by a New Jersey taxpayer against a tax
funded school district that provided reimbursement to parents of both
public and private schooled children taking the public transportation
system to school. The taxpayer contended that reimbursement given
for children attending private religious schools violated the
constitutional prohibition against state support of religion, and the
taking of taxpayers' money to do so violated the constitution's Due
Process Clause.
HOLDING: The Court, through Justice Hugo Black, ruled that the state
bill was constitutionally permissible because the reimbursements were
offered to all students regardless of religion and because the payments
were made to parents and not any religious institution.
"The establishment of religion' clause of the First Amendment means
at least this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all religions or
prefer one religion over another. Neither can force nor influence a
person to go to or to remain away from church against his will or force
him to profess a belief or disbelief in any religion. No person can be
punished for entertaining or professing religious beliefs or disbeliefs,
for church attendance or non-attendance. No tax in any amount, large
or small, can be levied to support any religious activities or
institutions, whatever they may be called, or whatever form they may
adopt to teach or practice religion. Neither a state nor the Federal
Government can, openly or secretly, participate in the affairs of any
religious organizations or groups and vice versa. In the words of

Jefferson, the clause against establishment of religion by law was

intended to erect 'a wall of separation between Church and State.'"
Mueller v. Allen, 463 U.S. 388 (1983)
The plaintiffs claimed a Minnesota statute allowing tax
deductions for public and private school expenses alike had
the effect of subsidizing religious instruction because parents
paying tuition to religious schools received a larger deduction
than parents of public school students who incur no tuition
expenses. In a 5-4 decision, the Court upheld the statute. The
majority affirmed that the benefit was religiously neutral
because the deduction applied to sectarian and nonsectarian
tuition equally and that the choice of religious or non-religious
instruction was made by individual parents, not the state.
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
A school voucher program, which offers parents the option to
send their children to a private school, is not in violation of the
Establishment Clause, where the vast majority of participating
private schools are affiliated to a religious group
HOLDING: The Court upheld the Cleveland school voucher program.
Additionally, government support for religion is deemed constitutional
as long as it occurs de facto and not de jure, or does not specify or
encourage religious schools. Maintaining the program's strictly secular
aims, Chief Justice Rehnquist refers to this program merely as
assistance for the poor, low performing children otherwise stuck in the
communities failing public school district. Moreover, the issue is than
whether the school voucher program directly encourages or inhibits
religion.
Lee v. Weisman, 505 U.S. 577 (1992)
The Court ruled that schools may not sponsor clerics to
conduct even non-denominational prayer. The Court followed a
broad interpretation of the Establishment Clause.
HOLDING: The school district's supervision and control of a high
school graduation ceremony places subtle and indirect public and peer
pressure on attending students to stand as a group or maintain
respectful silence during the invocation and benediction. A reasonable
dissenter of high school age could believe that standing or remaining
silent signified her own participation in, or approval of, the group
exercise, rather than her respect for it.

At a minimum, the Constitution guarantees that government may not

coerce anyone to support or participate in religion or its exercise, or
otherwise act in a way which "establishes a [state] religion or religious
faith, or tends to do so."
Lemon v. Kurtzman, 403 U.S. 602 (1971)
The act allowed the Superintendent to reimburse private
schools (mostly Catholic) for the salaries of teachers who
taught in these private schools, from public textbooks and with
public instructional materials. The decision also upheld a
decision of the First Circuit, which had struck down the Rhode
Island Salary Supplement Act providing state funds to
supplement salaries at private elementary schools by 15%.
HOLDING: The Court's decision in this case established the "Lemon
test" (named after the lead plaintiff Alton Lemon), which details the
requirements for legislation concerning religion. It is threefold:
1. The statute must have a secular legislative purpose. (also known
as the Purpose Prong)
2. The principal or primary effect of the statute must not advance
nor inhibit religious practice (also known as the Effect Prong)
3. The statute must not result in an "excessive government
entanglement" with religious affairs. (also known as the
Entanglement Prong)
Factors
Character and purpose of institution benefited.
Nature of aid the state provides.
Resulting relationship between government and religious
authority.
Edwards v. Aguillard, 482 U.S. 578 (1987)
The Court ruled that a Louisiana law requiring that creation
science be taught in public schools, along with evolution, was
unconstitutional because the law was specifically intended to
advance a particular religion. It also held that "teaching a
variety of scientific theories about the origins of humankind to
school children might be validly done with the clear secular
intent of enhancing the effectiveness of science instruction".

HOLDING: The Court ruled that the Act constituted an unconstitutional

infringement on the Establishment Clause of the First Amendment,
based on the three-pronged Lemon test, which is:
1. The government's action must have a legitimate secular
purpose;
2. The government's action must not have the primary effect of
either advancing or inhibiting religion; and
3. The government's action must not result in an "excessive
entanglement" of the government and religion.
The Supreme Court held that the Act is facially invalid as violative
because it lacks a clear secular purpose (first test of the above Lemon
test), since (a) the Act does not further its stated secular purpose of
"protecting academic freedom." and (b) the Act impermissibly
endorses religion by advancing the religious belief that a supernatural
being created humankind.
Lynch v. Donnelly, 465 U.S. 668 (1984)
The Court held that the crche did not violate the
Establishment Clause based on the test created in Lemon v.
Kurtzman. They ruled that the crche is a passive
representation of religion and that there was "insufficient
evidence to establish that the inclusion of the crche is a
purposeful or surreptitious effort to express some kind of
subtle governmental advocacy of a particular religious" view.
They also stated that the Constitution "affirmatively mandates
accommodation, not merely tolerance of all religions, and
forbids hostility toward any."
HOLDING: According to the test, a government action is invalid if it
creates a perception in the mind of a reasonable observer that the
government is either endorsing or disapproving of religion. The proper
inquiry under the purpose prong of Lemon, I submit, is whether the
government intends to convey a message of endorsement or
disapproval of religion.
McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005)
HOLDING: The Court reiterated its previous holding that the
Commandments are "undeniably a sacred text in the Jewish and
Christian faiths" and that their display in public classrooms "violated
the First Amendment's bar against establishment of religion." Next, the
Court noted that the Lemon Test's "purpose prong" was rarely
dispositive. Nonetheless, it emphasized that that prong "serves an

important function." Indeed, anytime the government "acts with the

ostensible and predominant purpose of advancing religion," or "to
favor one religion over another," that advancement violates the
Establishment Clause.
Although the counties asked the Court to overrule the Lemon Test and,
necessarily, the inquiry into governmental purpose, the Court refused
to do so. The Court noted that, in several areas of the law, an inquiry
into the government's purpose is an important endeavor. The Court
also stated that it was confident in the inquiry into purpose, because
such inquiries had not yielded a finding of "a religious purpose
dominant every time a case is filed."
Van Orden v. Perry, 545 U.S. 677 (2005)
The plurality opinion stated that the monument was
constitutional, as it represented historical value and not purely
religious value. The primary content is the text of the Ten
Commandments. An eagle grasping the American flag, an eye
inside of a pyramid, and two small tablets with what appears
to be an ancient script are carved above the text of the Ten
Commandments.
Breyer concludes by stating he cannot agree with the plurality, nor
with Justice Scalia's dissent in McCreary County v. ACLU of Kentucky,
but while he does agree with Justice O'Connor's statement of principles
in McCreary, he disagrees with her evaluation of the evidence as it
bears on the applying those principles to Van Orden v. Perry.

Amendment I

Guarantee against establishment of religion

This provision has been incorporated against the states. See Everson v. Board of
Education, 330 U.S. 1 (1947).[16]
Guarantee of free exercise of religion
This provision has been incorporated against the states. See Cantwell v.
Connecticut, 310 U.S. 296 (1940).
Guarantee of freedom of speech
This provision has been incorporated against the states. See Gitlow v. New York,
268 U.S. 652 (1925)(dicta).
Guarantee of freedom of the press
This provision has been incorporated against the states. See Near v. Minnesota,
283 U.S. 697 (1931).
Guarantee of freedom of assembly
This provision has been incorporated against the states. See DeJonge v.
Oregon, 299 U.S. 353 (1937).
Guarantee of the Right to petition for redress of grievances
This provision has been incorporated against the states. See Edwards v. South
Carolina, 372 U.S. 229 (1963).[17][18]
Guarantee of freedom of expressive association
This right, though not in the words of the first amendment, was first mentioned in
the case NAACP v. Alabama, 357 U.S. 449 (1958)[19] and was at that time applied to

the states. See alsoRoberts v. United States Jaycees, 468 U.S. 609 (1984), where the
U.S. Supreme Could hold that "implicit in the right to engage in activities
protected by the First Amendment" is "a corresponding right to associate with
others in pursuit of a wide variety of political, social, economic, educational,
religious, and cultural ends."

Amendment II[edit]
Right to keep and bear arms
This right has been incorporated against the states. Described as a
fundamental and individual right that will necessarily be subject to strict scrutiny
by the courts, see McDonald v. City of Chicago (2010). Self Defense is described as
"the central component" of the Second Amendment in McDonald, supra., and
upheld District of Columbia v. Heller 554 U.S (2008) concluding the Fourteenth
Amendment incorporates the Second Amendment right, recognized in Heller, to
keep and bear arms for the purpose of self-defense. The 14th Amendment makes
the 2nd Amendment right to keep and bear arms fully applicable to the States,
see, McDonald vs. City of Chicago (2010). "The right to keep and bear arms must
be regarded as a substantive guarantee, not a prohibition that could be ignored
as long as the States legislated in an evenhanded manner," McDonald, supra..

Amendment III[edit]
Freedom from quartering of soldiers
This provision has been incorporated against the states within the jurisdiction
of the United States Court of Appeals for the Second Circuit, but has not been
incorporated against the states elsewhere.
In 1982, the Second Circuit applied the Third Amendment to the states in Engblom
v. Carey. This is a binding authority over Connecticut, New York, and Vermont, but is
only a persuasive authority over the remainder of the United States.
The Tenth Circuit has suggested that the right is incorporated because the Bill of
Rights explicitly codifies the "fee ownership system developed in English law"
through the Third, Fourth, and Fifth Amendments, and the Fourteenth
Amendment likewise forbids the states from depriving citizens of their property
without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1
(10th Cir. 1988).
The "problem" is that the third amendment, by and large, is the only one that is
almost never violated by the states and Federal government, almost nobody is
suing over the issue, so very few cases are being heard. The U.S. Supreme Court
has never had a third amendment case appealed to it.

Amendment IV[edit]
Unreasonable search and seizure
This right has been incorporated against the states by the Supreme Court's
decision in Mapp v. Ohio, 367 U.S. 643 (1961), although there is dicta in Wolf v.
Colorado, 338 U.S. 25 (1949), saying the "core" of the Fourth Amendment applied
to the States.
The remedy of exclusion of unlawfully seized evidence, the exclusionary rule, has
been incorporated against the states. See Mapp v. Ohio. In Mapp, the Court
overruled Wolf v. Colorado in which the Court had ruled that the exclusionary rule
did not apply to the states.
Warrant requirements

The various warrant requirements have been incorporated against the

states. See Aguilar v. Texas, 378 U.S. 108 (1964).
The standards for judging whether a search or seizure undertaken without a
warrant was "unreasonable" also have been incorporated against the
states. See Ker v. California, 374 U.S. 23(1963).

Amendment V[edit]
Right to indictment by a grand jury
This right has been held not to be incorporated against the
states. See Hurtado v. California, 110 U.S. 516 (1884).
Protection against double jeopardy
This right has been incorporated against the states. See Benton v. Maryland,
395 U.S. 784 (1969).
Constitutional privilege against self-incrimination
This right has been incorporated against the states.[20][21]
Self Incrimination in Court See Griffin v. California, 380 U.S. 609 (1965), Malloy v.
Hogan , 378 U.S. 1 (1964).
Miranda See Miranda v. Arizona, 348 U.S. 436 (1966).
A note about the Miranda warnings: The text of the Fifth Amendment does not
require that the police, before interrogating a suspect whom they have in
custody, give him or her the now-famousMiranda warnings. Nevertheless, the
Court has held that these warnings are a necessary prophylactic device, and thus
required by the Fifth Amendment by police who interrogate any criminal suspect
in custody, regardless of whether he or she is ultimately prosecuted in state or
federal court.
Protection against taking of private property without just compensation
This right has been incorporated against the states. See Chicago, Burlington &
Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).

Amendment VI[edit]
Right to a speedy trial
This right has been incorporated against the states. See Klopfer v. North
Carolina, 386 U.S. 213 (1967).
Right to a public trial
This right has been incorporated against the states. See In re Oliver,
333 U.S. 257 (1948).
Right to trial by impartial jury
This right has been incorporated against the states. See Duncan v. Louisiana,
391 U.S. 145 (1968), which guarantees the right to a jury trial in non-petty cases.
[22]
See also Parker v. Gladden, 385 U.S. 363 (1966), where the Supreme Court ruled
"that the statements of the bailiff to the jurors are controlled by the command of
the Sixth Amendment, made applicable to the States through the Due Process
Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy
the right to a * * * trial, by an impartial jury * * * [...].'" [22] However, the size of the
jury, as well as the requirement that it unanimously reach its verdict, vary
between federal and state courts. Even so, the Supreme Court has ruled that a
jury in a criminal case may have as few as six members. Williams v. Florida,

399 U.S. 78 (1970). If there are twelve, only nine jurors need agree on a verdict.
Furthermore, there is no right to a jury trial in juvenile delinquency proceedings
held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
Right to a jury selected from residents of the state and district where the crime
occurred
This right has not been incorporated against the states. See Caudill v. Scott,
857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir.
1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).
Right to notice of accusations
This right has been incorporated against the states. See In re Oliver,
333 U.S. 257 (1948). See also Rabe v. Washington, 405 U.S. 313 (1972).[22]
Right to confront adverse witnesses
This right has been incorporated against the states. See Pointer v. Texas,
380 U.S. 400 (1965).
Right to compulsory process (subpoenas) to obtain witness testimony
This right has been incorporated against the states. See Washington v. Texas,
388 U.S. 14 (1967).
Right to assistance of counsel
This right has been incorporated against the states. See Powell v.
Alabama 287 U.S. 45 (1932), for capital cases, see Gideon v. Wainwright,
372 U.S. 335 (1963) for all felony cases, andsee Argersinger v. Hamlin,
407 U.S. 25 (1972) for imprisonable misdemeanors.[22] In subsequent decisions,
the Court extended the right to counsel to any case in which a jail sentence is
imposed.

Amendment VII[edit]
Right to jury trial in civil cases
This right has not been incorporated against the states. See Minneapolis & St.
Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) and Pearson v. Yewdall,
95 U.S. 294 (1877)
Re-Examination Clause
This right has not been incorporated against the states. See Minneapolis & St.
Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)[23]

Amendment VIII[edit]
Protection against excessive bail
This right may have been incorporated against the states. In Schilb v. Kuebel,
404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our
system of law, and the Eighth Amendment's proscription of excessive bail has
been assumed to have application to the States through the Fourteenth
Amendment." In Murphy v. Hunt, 455 U.S. 478 (1982), the Court did not reach the
issue because the case was dismissed as moot. Bail was included in the list of
incorporated rights in McDonald footnote 12, citing Schilb.
Protection against excessive fines
This right has not been incorporated. See McDonald v. City of Chicago, footnote
13 (2010).

Protection against cruel and unusual punishments

This right has been incorporated against the states. See Robinson v. California,
370 U.S. 660 (1962). This holding has led the Court to suggest, in dicta, that the
excessive bail and excessive fines protections have also been
incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).

Reverse Incorporation

A similar legal doctrine to incorporation is that of reverse incorporation.

Whereas incorporation applies the Bill of Rights to the states through the Due
Process Clause of the Fourteenth Amendment, in reverse incorporation, the Equal
Protection Clause of the Fourteenth Amendment has been held to apply to the
federal government through the Due Process Clause located in the Fifth
Amendment.[24] For example, in Bolling v. Sharpe, 347 U.S. 497 (1954), which was a
companion case to Brown v. Board of Education, the schools of the District of
Columbia were desegregated even though Washington is federal. Likewise,
in Adarand Constructors, Inc. v. Pea 515 U.S. 200 (1995), an affirmative action
program by the federal government was subjected to strict scrutiny based on
equal protection.