Constitutional Law II Dienes

OUTLINE
SUBSTANTIVE LIMITS on GOVERNMENTAL POWER
I. Te !isto"i#al P"elu$e
A. Te O"i%inal Constitution
&. Few enumerated rights
a. Many of the Framers (federalists) argued no need
for specifications of basic rights because everything
not claimed by the national govt. was left to the
states.
i. To them, if you enumerated certain rights, it
could be viewed as a rejection of other
rights.
ii. Efforts to include a ill of !ights were
defeated at the "onstitutional "onvention.
B. Natu"al Ri%ts
&. #atural !ights today
a. The claim that there are e$tra%constitutional &natural
rights' limiting governmental power is generally
not accepted by the courts.
b. (n order to challenge govt. act (state or federal), you
must find some e$press or implied
constitutional)statutory)common law limitation
'. #atural !ights historically
a. "alder v. ull (p. *+,)- .emonstrates early opinion
that the legislature can/t ta0e away rights given by
natural law. (1udge "hase- &The purposes for which
men enter into society will determine the nature and
terms of the social compact.')
i. 2oints to the Declaration of Independence as
evidence of the social compact- we enter
into society and voluntarily give up some
rights and retain others.
C. E()"ess Ri%ts*Bill o+ Ri%ts
&. 3verview
a. First ,4 "onstitutional 5mendments
i. .esigned to protect the individual from
various infringements on freedom which
,
might emanate from the newly%formed fed
govt.
ii. "onstitution now has 67 amendments.
b. ill of !ights does #3T directly limit state action.
i. arron v. Mayor and "ity "ouncil of
altimore (89 ,+**: p. *+;)- ill of !ights
does not apply to the states, only against the
fed. (Bla#, lette" law)
D. Ci-il Wa" A.en$.ents
&. O-e"-iew
a. (nclude the most important limitations on state govt.
action.
'. &/
t
A.en$.ent 0&1234
a. 5bolishes slavery and involuntary servitude
b. 5pplies even to private action
c. <6 allows "ongress to enact leg. to enforce ,*
th

("ivil !ights 5ct of ,+==: in force today at <,>+,)
d. !ights have been narrowly construed: limited to
formal bondage and forced action. (e.g. doesn/t
prohibit racial discrimination)
/. &5
t
A.en$.ent 0&1214
a. Citizenship: <, establishes that persons
born)naturali?ed in the 89 are citi?ens.
i. !ejection of 9cott v. 9anford (.red 9cott)
(89 ,+@7: p. *+;) (holding that a #egro
slave was not a citi?en entitled to sue in
federal court)
b. Privileges and Immunities: <, also establishes that
no state shall deny the privileges and immunities of
89 citizens.
c. Due Process of Law: <, also provides that state
shall not deprive any person of life)liberty)property
w)o .2 of law)E2 of laws.
5. &3
t
A.en$.ent 0&1674
a. 2rohibits denial of the franchise because of
race)previous condition of servitude. (lac0 men
get right to vote.)
b. 5pplies to state and fed.
6
II. P"i-ile%es an$ I..unities
A. Te Slau%te"ouse Cases (89 ,+7*: p. *+=) (holding that
Aouisiana can give 6@ year monopoly to butcher w)o violating
2B( rights of other butchers)
&. I.)o"tan#e
a. 9ignifies the death of 2B(
b. 9" definitively holds that 2B( doesn/t ma0e the ill
of !ights applicable to the states
c. The sole function of 2B( is to protect the rights of
people in their capacity as federal citi?ens.
d. Aists the rights guaranteed to federal citi?ens under
2B(-
i. To petition "ongress
ii. To peaceably assemble
iii. To use the writ of habeas corpus
iv. To use the navigable waters of the 89
v. To interstate travel
vi. To claim the rights secured by ,*
th
),@
th

5mendments
vii. To vote in federal elections
'. Di++e"ent Views o+ P8I in Slau%te"ouse
a. Majority (Miller)
i. (f we ta0e a broader approach, we/ll allow
"ongress to have too great a power over the
states. "ongress and the court would
become censors of state legislation.
ii. "iting "orfrield v. "oryell- Fundamental
rights are attached to state citi?enship
(referring to 5rt. (C, <6).
b. Minority%Framers/ (ntent (Field) (.ienes li0es this
one)
i. ,;th 5mendment is wasted if it doesn/t
apply to the states, just a &vain and idle'
enactment.
ii. Dou/re primarily a citi?en of the 89,
secondarily a citi?en of your state.
iii. Framers (ntent- fundamental rights are
attached to 89 citi?enship.
c. Minority%(ncorporation (radley)
i. 2B( meant to incorporate the ill of !ights
and the "onstitution.
ii. 2B( was meant to be the vehicle by which
the ill of !ights were made applicable to
the state and by which natural rights were
federally enforced.
*
d. Minority%#atural !ights (9wayne)
i. 2B( "lause is an embodiment of natural
rights)fundamental principles of the social
compact.
B. Re#ent Re-i-al o+ P8I9
&. 9aen? v. !oe (89 ,>>>, *>+)- 7%6 holding that statute
violated 2B( when it mandated that new "5 residents only
get the benefits of the state where they came from.
a. 2ossible resurrection of 2B( E!T right to travel.
(.ienes B Tribe thin0 not so much)
;
DUE PROCESS
I. O-e"-iew o+ Due P"o#ess
A. 3
t
an$ &5
t
A.en$.ents
1. @th- Federal
2. ,;
th
- 9tates
B. Wat it Does
1. 2rotects citi?ens against deprivation of life, liberty and
property w)o .2)law.
II. In#o")o"ate$ Ri%ts
A. Total In#o")o"ation
1. The 9" has rejected the argument that the .2"
incorporates all of the ill of !ights and ma0es them
applicable against the states. (2al0o v. "onnecticut, (89
,>*7, p. *>+)
a.
2al0o v. "onnecticut- "ardo?o rejects the idea that
the entire o! is incorporated by the ,;
th

5mendment, but says some rights (&those values
which have been found implicit in the concept of
ordered liberty') are guaranteed by the ,;
th
.
b.
5damson v. "alifornia (89 ,>;7, p. ;44)- .2"
does not &draw all the rights of the federal ill of
!ights under its protection.' Folds state can bring
up fact that . is not ta0ing the stand. (This notion
is later overturned.) 2resents different ideas of
incorporation doctrine-
No incorporation (Fran0furter)- Fle$ible,
ad hoc .2 w) an independent potency.
1udge on a case%by%case basis whether .2
rights are being violated (power to
interpret .2 in hands of court, who must
decide w)in the accepted notions of
justice). (s the right so fundamental that it
violated the basic standards of rights that
are so accepted in 5nglo though that the
principles of fairness and justice demand
that the .2" is appliedG Hnatural rightsI
otal incorporation (lac0)- ,;
th
applies
the ill of !ights (and only the ill of
!ights) to the states. Favors objective
standard)prevention of policyma0ing by
courts.
otal incorporation ! (Murphy B
!utledge)- ,;
th
incorporates ill of !ights
@
In#o")o"ation
0A$a.son4
:"an,+u"te"; #o
incorp. .2 is
fle$ible, has indep.
potency. 2ower to
det. .2 rights is in
hands of court.
Bla#,; Total incorp.
o! and only o!.
#ice B objective.
Mu")<*Rutle$%e;
Total incorporationJ
Kives courts
dynamic fle$ibility.
Pal,o -. CT;
"ardo?o creates
=i.)li#it in te
#on#e)t o+
o"$e"e$ li>e"t<?
idea of when .2
protects a right.
and then some. This gives courts a
dynamic fle$ibility (which lac0 hates) to
create rights in accordance with changing
times.
B. Sele#ti-e In#o")o"ation @ 0Bla#, lette" law4
1. Te stan$a"$ to$a<
a.
The 9" has held that some, but not all, of the
provisions of the o! are incorporated by the .2
"lause and thus made applicable to the states.
b.
The guarantees of the .2" are not limited to rights
listed in the o!.
2. P"o-isions in#o")o"ate$
a.
.2 incorporates those provisions of the o! that
are &essential to the concept of ordered liberty' or
&fundamental in the 5merican concept of justice.'
3. P"o-isions not in#o")o"ate$
a.
Everything/s incorporated EL"E2T 6
nd
, *
rd
, @
th
, 7
th
,
+
th

III. P"o#e$u"al Due P"o#ess
A. 'ASte) :o".ula +o" wete" PDPBs >een -iolate$;
1. !as te"e >een a $e)"i-ation by the state o+ a life,
liberty o" property inte"est tat was presently enjoyed9
H.oesn/t matter if it/s categori?ed as a right or a
privilege.I H#egligent deprivation isn/t enough.I
a.
Life:
b.
Liberty: broad concept not limited to conditions of
confinement (e.g. imprisonment). (ncludes interests
such as marriage, raising a family, wor0ing in the
common occupations of the community.
c.
Property: must show some entitlement created by
the govt. in order to show a property interest. H"an/t
just be an application for benefits.I
"#amples of property-
Eelfare benefits (Koldberg v. Melly)
Eage garnishment (9niadach v.
Family Finance "orp.)
.e facto tenure position (2erry v.
9inderman)(this is more than a
subjective e$pectancy of entitlement
Does not include-
9ocial security disability (Mathews
v. Eldridge (hardship caused by
=
deprivation not as great as w) welfare
because not as li0ely to be based on
need, additional safeguards would
significantly burden the govt.))
3ne%year state employment M
(oard of !egents v. !oth (no
legitimate claim of entitlement))
Employment terminable at will
(ishop v. Eood)
2. Wat )"o#e$u"es a"e "eCui"e$ in o"$e" to ensu"e
fundamental fairness9 HFederal (not state) constitutional
Nuestion to be decided by the courts.I HMinimum
procedures demanded by the courts are notice and a
hearing ("leveland oard of Education v. Aoudermill)I
a.
"onsider * factors- (Mathews v. Eldridge, 89 ,>7=)
The severity of the harm to the litigant if
the reNuested procedures are not granted
(e.g. O income lost)
The ris0 of error if the procedures are not
afforded
The administrative difficulty and cost of
providing the added procedures
Hthe legal relevance of the fact in
controversy (9ee "onnecticut .ept.)9afety
v. .oe (no need for Megan/s law hearing))
b.
ut the * factors are not always reNuired-
.usenbery v. 89 (89 6446, 9upp. 6>)-
Folding that Mathews &is not an all%
embracing test for deciding .2 claims'
and using &a more straightforward test of
reasonableness under the circumstances'
in holding that a notice of forfeiture sent
by certified mail to the federal prison
where the claimant was incarcerated
satisfies procedural .2.
B. Re#ent Cases Dealin% w* P"o#e$u"al DP
1. Aos 5ngeles v. .avid- *4 day lag%time before hearing is
o0 under 2.2. (*
rd
factor of ME P administrative
difficulty of changing the practice would cost too much)
2. "onnecticut .ept. 2ublic 9afety v. .oe- Megan/s laws
don/t violate .2.. #o hearing reNuired to determine if
offender is dangerous before putting him on the list
because the list only indicates whether the offender was
previously dangerous. $ hearing is re%uired for fairness
7
only if the particular fact in controversy has legal
relevance.
IV. Su>stanti-e Due P"o#ess
A. E#ono.i# Su>stanti-e Due P"o#ess 0NonA:un$a.ental
Ri%ts4
1. Rise o+ E#ono.i# SDP (2ath to Aochner)
a.
"ourts continually using judicial review under 9.2
(@
th
and ,;
th
) to stri0e down federal and state social
and economic laws as arbitrary and unreasonable
interferences with the freedom to contract protected
by the 9.2 guarantees of liberty and property.
Aochner v. #D, (89 ,>4@, p. ;,@)
(2ec0ham)- .emonstration of economic
9.2/s heyday. 9tri0es down #D law that
limits employment to =4 hours)wee0 as an
unconstitutional prohibition on ma0ing a
contract, which is a liberty interest
(according to 5llgeyer v. Aouisiana). #o
public safety interest- the health of the
ba0ers is not materially disadvantaged by
long wor0ing hours. (&(t is a Nuestion of
which two powers or rights should prevail-
the power to legislate or the right of the
individual to liberty of person and freedom
of contract. The mere assertion that the
subject relates, though but in a remote
degree, to the public health, does not
necessarily render the enactment valid.)
.issent (Folmes)- "ourts need to
defer to the leg. as long as no
fundamental right is violated. 3nly
if a reasonable person would
conclude that the law violated
traditional fundamental principles
should the court be used to stri0e
down leg.
.issent (Farlan)- "ourts should
defer to leg. in absence of clear
constitutional violation.
&ui 'uris (individuals don/t need the
protection of the state: they can
bargain for themselves) v. sui
generis (individuals (e.g. women and
+
!ol.es*!a"lan- courts
should defer to leg in
absence of violation of
cons)fundamental rights.
children) are wards of the state, need
its protection).
ut see Munn v. (llinois- upholds state
statute limiting the rates charged by grain
warehouses as a police power ability of the
state to regulate private property affected
w) the public interest. 9ee also Muller v.
3regon (89 ,>4+, p. ;66) (upholding
ma$imum hour law for women: sui
generis)
2. De#line o+ E#ono.i# SDP (#ebbia and progeny)
a.
(n the ,>*4s, in the face of rising adverse public
reaction to judicial invalidation of the #ew .eal,
the doctrine of economic substantive due process
began to ebb in importance and the doctrine
followed a process of steady decline and erosion.
#ebbia v. #ew Dor0 (89 ,>*;, p. ;66)-
9" upholds state leg. setting mil0 prices
against a .2 challenge. Questions
concerning the wisdom of the law are for
the leg, not the courts. 9tandard of
judicial deference to leg. urden of
proving that the law has no rational basis
is on the challenger. &The guaranty of due
process, as has often been held, 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.'
9" spo0e of the mil0 industry as
being &affected w) the public
interest,' but it meant only that the
law was a reasonable e$ercise of the
police power.
Eest "oast Fotel v. 2arrish (89 ,>*7, p.
;6=)(Fughes)- sustains a minimum wage
law for women, rejects the &freedom to
contract' theory of Aochner. &The liberty
safeguarded is liberty in a social
organi?ation, which reNuires the protection
of law against the evils which menace the
health, safely, morals and welfare of the
people.'
>
!ol.es*!a"lanBs i$ea;
price control
unconstitutional only if
arbitrary)discriminatory)
demonstrably irrelevant to
the policy the leg. is free to
adopt.
Ferguson v. 90rupa (89 ,>=*, p. ;67)
(lac0)- holding constitutional a Mansas
law ma0ing in unlawful for anyone to
engage in the business of debt%adjustingR
spelled &the last rigts for the economic
philosophy of Aochner. &The doctrine that
prevailed in AochnerRhas long since been
discarded.'
3. Mo$e"n E#ono.i# SDP 0NONA:un$a.ental Ri%ts4
a.
1udicial deference to leg.
9ocial and economic regulatory leg. that
does not interfere with fundamental rights
will not >e #losel< s#"utiniDe$ by federal
courts.
(f there is an< "ational >asis that the leg.
.i%t a-e a$ for concluding that the
leg would further permissible leg.
objectives, it will be sustained.
5s long as the law isn/t arbitrary or
irrational.
.eference is almost insurmountable- no
economic leg. has been held
unconstitutional by the 9", using this
rationality test, since the #ew .eal.
E$amples-
8nited 9tates v. "arolene 2roducts
(89 ,>*+, ;6+)- The e$istence of the
facts supporting leg. judgment is to
be presumed.
E$ceptions%.eferential 9tandard #3T
applied with-
Fundamental rights (see below)
2unitive damages (9ee 9tate Farm v.
"ampbell (9" 644*, 9upp. ;,)
(9tri0ing down state court/s award of
punitive damages on the groups that
.2" of the ,;
th
&prohibits the
imposition of grossly e$cessive or
arbitrary punishments on a
tortfeasor.')
(nstances when leg. negatively
impacts the political process itself of
affects &discrete and insular
,4
NonA:un$. Ri%ts
resumption of rationality
test! Ehen e$amining a
statute under .2", if there
is no basis (e.g. fund.
rights) for invo0ing a
stricter standard of review,
"t. will adopt rationality
test-
,) 5scertain any
conceivable objective
of the law ("ourt
won/t probe for true
purpose, anything will
suffice: "ourt won/t
Nuestion leg. fact%
finding.)
6) (dentify the means
used by the state to
accomplish the
objective
*) E$amine the
rationality of the
means for achieving
the objecting by
reviewing the relevant
facts. (!emember
courts are highly
deferential here.)
minorities.' (9tone footnote in
"arolene)
B. :un$a.ental Ri%ts Due P"o#ess 0O-e"-iew4
1. Wat is a :un$a.ental Ri%t9
a.
(ncludes some parts of the o!-
9ome enumerated rights
Free speech
Free 2ress
Free assembly
Free belief)association
!eligious freedom
3ther non%enumerated rights
2. Stan$a"$ o+ Re-iew
a.
3ften%%9trict 9crutiny- is the law narrowly tailored
to further an overriding govt. interestG
b.
9ometimesS"ontinuum 5pproach (Mid%level)-
!eflects the principal &the certain interests reNuire
particularly careful scrutiny of the state needs
asserted to justify their abridgement.' (2oe v.
8llman (89 ,>=,, Farlan dissenting)
C. :un$a.ental Ri%ts DP A))lie$ 0To)i#s4
1. Cont"a#e)tion an$ A>o"tion
a.
"arital pri#a$y (Kriswold and progeny)
#o e$press privacy right in constitution, but the
9" has held that constitutional right of privacy
limits govt. power to regulate se$ual activities
involving marriage and family life.
i. Kriswold v. "onnecticut (89 ,>=@, p. ;;4)
(.ouglas)- 2rivacy right can be implied from the
penumbras (?ones) of ,
st
, *
rd
, ;
th
, @
th
, >
th

5mendments. 9tate criminal statute prohibiting
use of contraceptives even by married
couples)aiding abetting such use is
unconstitutional violation of privacy)marital
relationship.
Stan$a"$ o+ Re-iew; Majority
rejects the traditional rational basis
standard of review but is unclear on
the appropriate standard. "onn. law
is held to &sweep unnecessarily
broadly' on the privacy right.
,,
:un$a.ental
Ri%ts;
,) "arefully describe
protected interest-
(homose$ual sodomy v.
right to privacy)
6) .etermine whether
interest gets special
protection.
!a"lan #aseA><A
#ase >asis in Poe;
"ertain interests
reNuire
particularly
careful scrutiny,
are decided on a
continuum.
Sele#ti-e in#o")o"ationJ- Ai0e
Murphy B !utledge/s total
incorporationJ idea from 5damson
Honly not totalRI
a.
lac0 from 5damson would
hate cause it/s subjective.
C"iti#is.s o+ Dou%lasBs )enu.>"a
i$ea; .oesn/t create boundaries for
privacy. .anger)diluting o! by
creating broad rights that have no
meaning.

,6
DE:INITIONS O: PRIVACE IN GRISWOLD
Dou%las; 2rivacy right can be implied from the penumbras of ,
st
)*
rd
);
th
)@
th
B >
th
.
.ouglas/s opinion not used much subseNuently.
Gol$>e"%*Wa""en*B"ennan; (ndependent privacy right. 2rivacy right emanates
from the traditions B collective consciences of the people (as do all fundamental
rights). 8ses precedent)analogy to show that the Framers intended specific
rights)liberties beyond o!, as evidenced by >
th
which shows not all rights are
enumerated.
(dea of selective incorporationJ- some fundamental rights aren/t
enumerated.
Quotes 3lmstead- &The right to be left alone P the most comprehensive of
rights and the right most valued by civili?ed men.
2rivacy is a fundamental right, so use strict scrutiny (not rational
relationship)- there must be a compelling govt. interest that is narrowly
tailored and there must be no less ornerous alternatives. (5pplication- "T
law fails this test.)
!a"lan; 2rivacy is implicit in the concept of ordered liberty. (natural law). alances
burden on liberty w) govt. interest on a case by case basis.
#3 independent privacy right. This is A(E!TD.
This is Fran0furter/s idea in 5damson.
5lso based on Farlan/s dissent in 2oe (see above), tal0ing about continuum
approach to 9o! w) fundamental rights.
o "ontinuum as seen in Kriswold- &Aiberty is a rational continuum
which, broadly spea0ing, includes a freedom from all substantial
arbitrary impositions.' (2articularly careful, not strict, scrutiny.)
9een today in Aawrence (according to .ienes)
Wite; 2rivacy found in liberty right (li0e Farlan). ut he applies strict scrutiny.
Means Pends test- statute must be &reasonably necessary for the effectuation of a
legitimate and substantial state interest.'
Bla#,*Stewa"t; 9trict interpretation P o! doesn/t/ say anything about privacy.
2rivacy right doesn/t/ come from >
th
, it wasn/t intended to be used to give
rights, was just guarantee that fed wouldn/t try ta0e power from the states.
"an/t have something as subjective as Koldberg collective conscience test:
it/s unwor0able.
Eisenstadt v. aird (89 ,>76, p. ;@@)- 9tatute
prohibiting distribution of contraceptives to
umarried persons violated eNual protection.
iii. "arey v. 2opulation 9ervices (nt/l (89 ,>77, p.
;@@) (rennan)- "onstitutionally protected right of
privacy e$tends to an individual/s liberty to ma0e
choices regarding contraception.'
>. %bortion 0Roe an$ )"o%en<4;
y the time !oe is decided, 6, states still prohibit abortion.
i. Roe -. Wa$e (89 ,>7*, p. ;@7)(lac0mun)
(7%6)- "ourt
e$tends the fundamental right of privacy to protect a
woman/s decision to terminate a pregnancy. Folds that
right of privacy has its source in ,;
th
5m/s guarantee of
personal liberty. (9ome lower courts had used the >
th
.)
Maternal health is never sufficiently compelling to
justify the proscription of abortion at any phase. The
potentiality of life is compelling enough to allow the state
to regulate, even proscribe abortion after the *
rd
trimester.
o De+inition o+ li+e; Te$tual argument that fetus has no
right to life because everywhere the founders refer to a
person, they refer to someone who/s already been born.
There/s no objective definition of life, so TL can/t just
adopt a particular one and deny the rights of the woman.
(9cience can/t decide, so neither will we.) ut the state
does have an interest in protecting the potentiality of
life, which begins at the point of viability.
o T"i.este" i$ea; Ehen a fundamental right is burdened,
the law must be necessary to a compelling state
interest. (n determining whether this standard is met,
"ourt applies trimester test, where state/s compelling
interest 0ic0s in after the *
rd
trimester. .ifferent rule for
each trimester (.ienes thin0s was totally unnecessary,
opened the decision up to criticism it didn/t have to
have)-
,*
B"ennanBs $i#ta in
Eisensta$t;
(f the right to privacy
means anything, it/s
the right of the indiv,
married or single, to
be free from
unwarranted govt.
intrusion into matters
so fund. affecting a
person as the decision
whether or not to bear
a child.
P"i-a#< in Roe;
Bla#,.un (M);
!ight of privacy
comes from .2
liberty.
(Farlan)Ehite from
Kriswold) Aiberty is
broad enough to
encompass a
woman/s decision
whether or not to
terminate her
pregnancy.
2rivacy doesn/t
go so far as to
allow absolute
right to do what
you want w)
your body.
Fundamental
right, so gets
strict scrutiny.
Dou%las (")- !ight
to privacy found in
liberty. Aiberty is
really broad-
freedom to wal0,
stroll or loaf.
"ontinued ne$t pR
(irst- 5 state .a< not >anF o" e-en #losel<
"e%ulate abortions. The decision to have an
abortion and the manner in which it is to be
carried out are to be left to the woman and her
physician.
&econd: 5 state .a< )"ote#t its inte"est in
.ate"nal ealt by regulating the abortion
procedure in ways that are &reasonably related'
to her health. 9uch regulation might include, for
instance, a reNuirement that the operation ta0e
place in a hospital, rather than a clinic.
#o protection of fetus- the 9tate may
protect only the mother/s health, not the
fetus, at this point. 9o no flat ban on 6
nd

trimester abortions is permitted.
hird: The fetus becomes viable (capable of
&meaningful life outside the mother/s womb.')
Therefore, the state as a #o.)ellin% inte"est
in )"ote#tin% te +etus. (t may
regulate)proscribe abortion.
Fowever, abortion .ust >e )e".itte$
where it is ne#essa"< to )"ese"-e te
li+e o" ealt o+ te .ote".
Roe
)a'ority )inority
lac0mun Ehite
urger (leaves) !ehnNuist
.ouglas (leaves)
rennan
9tewart (leaves)
Marshall
2owell
We>ste"
)a'ority )inority
!ehnNuist lac0mun
Ehite rennan (leaves)
Mennedy (new) Marshall (leaves)
3/"onnor (new) 9tevens (new)
9calia (new)
Case<
)a'ority )inority
3/"onnor !ehnNuist
Mennedy 9calia
9outer (new) Ehite
lac0mun (new) Thomas (new)
,;
P"i-a#< in Roe; 0#ontinue$4
Stewa"t (")- !ethin0s dissent
in Kriswold. #ow finds
substantive right to privacy
under liberty right.
Kriswold right to
contraception is now
understood as a substantive
.2 right. 9o is !oe.
Ta0es on Farlan approach%
particularly careful (not
strict) scrutiny, significant
interest, not fundamental
right. #eed to ma0e care%
by%case basis of what
liberty)privacy is (Farlan/s
continuum approach).
(ssue of choice is just as
important as those prior
cases (education, etc) that
departed from rat/l review.
5voids using trimester idea
Wite (.)- #o right to privacy
E!T abortion. 8nli0e w)
contraception (he concurred in
Kriswold), this is ta0ing liberty
too far. There/s a fetus at sta0e.
#o such right in cons)should be
left to public)leg. to decide.
RenCuist (.)- !ight to
privacy doesn/t include
abortion.
(t/s not a fundamental right
(fundamental rights are
rooted in the
traditions)collective
consciences of the people),
so it gets only rat/l basis.
8T .2 liberty does
encompass more than ill
of !ights (total
incorporation J)
(f it was to be totally
proscribed, would fail !!
review.
5 total proscription (no
life)health e$ception)
would violated .2 liberty.
Trimester system T judicial
leg.
9tevens
ii. We>ste" -. Re)"o$u#ti-e !ealt Se"-i#es (89 ,>+>, p. ;7*)(path
to "asey)- (!ehnNuist) 9" upholds a M3 statute imposing
significant restrictions abortion. ReGe#ts RoeBs t"i.este"
+"a.ewo",; &the rigid !oe framewor0 is hardly consistent with the
notion of a "onstitution case in general terms, as ours is, and usually
spea0ing in general principles, as ours does.'
iii. Planne$ Pa"entoo$ o+ Souteaste"n Penns<la-ia -. Case< (89
,>>6, p. ;7;)(1oint opinion, read from the benchS3/"onnor,
Mennedy B 9outer)-
&oldin'! 9" modifies !oe, upholds all but spousal notification
reNuirement in restrictive 25 law. "ase has * primary
holdings-
o !ecognition of the right of a woman to have an abortion
before viability with un$ue inte"+e"en#e from the state.
o 5ffirmation of the state/s power to restrict abortion after
fetal viability, e$ception when an abortion is ne#essa"< to
a mother/s life or health.
o !ecognition of the principle &that the 9tate has legitimate
interests from the outset of the pregnancy in protecting the
health of the woman and the life of the fetus that may
become a child.'
Trimester approach undervalues state/s interest in
fetal life.
(onstitutional )asis*+tandard of ,e#ie-! (n doing so, "ourt
removed right to choose an abortion from the fundamental
rights branch of 9" jurisprudence to the personal liberties
section of the ,;
th
5mendment (simply but not mentioning the
wor0s &fundamental right' or &right to privacy).
o Thus, they changed the standard of review for state
regulation of an abortion from strict scrutiny to an undue
burden test.
+tandard .elineated! The state can regulate abortion (which is
not a fundamental right) as long as it doesn/t impose an un$ue
>u"$en on a woman/s right to an abortion. (5n undue burden
is an unconstitutional burden).
o*ndue +urden: &shorthand for the conclusion that a state
regulation has the )u")ose o" e++e#t of placing a
,@
Li>e"t<*A>o"tBn in
Case<
OBConno"*Henne$<*
Soute"; 8ndue burden
analysis. 5bortion not
privacy)no 99.
Bla#,.un; 5bortion
is a fundamental
right)apply 99.
5dhere to !oe in its
entirety. 8 too
malleable. 9tic0 to
trimester.
Ste-ens; alancerS
loo0 at the competing
interests (e.g. for
specific provisions of
25 bill). Eomen/s
interest in bodily
integrity always
trumps. (There is an
interest in fetus, but
never outweighs.)
RenCuist; #o
fundamental right to
an abortion. 5bortion
not in concept of
ordered
liberty)historical
tradition. 8 too
malleable)no basis in
con law.
S#alia; #o
fundamental right)no
liberty interest in
abortion. 5merican
tradition permits
proscription of
abortion. Aeave up to
leg. cause it/s a value
judgment. 8 too
malleable)unprincipled
no basis.
Wite;
To.as;
substantial obstacle in the path of a woman see0ing an
abortion of a non%viable fetus.' (p. ;+@) ut a statute is
permissible is its purpose)effect is to encourage
childbearing, as opposed to prohibiting abortion.
2urpose- a state regulation can discourage abortion,
but only if it has another legitimate purpose. 3nce
you 0now it does, chec0 for the effect of an undue
burden.
Effect- even if something has a benign purpose, it
may fail test if effects are burdensome.
o &ubstantial obstacles imposed in the first trimester are
undue burdens. The state/s interest at this point can never
override the choice of the woman.
9calia- This standard is hopelessly unwor0able:
supports laws that protect fetal life as long as they/re
not too successful.
Important ,easonin'!
o ,e'ecting the rimester Idea- +alancing +etween ,eason
. (airness: reason and fairness dictates that we use
viability as a standard.
!eason- Mind of a balancing test: viability is the
time when the state/s interest overwhelms the
interest in the independence of the mother.
Fairness- (f a woman hasn/t had an abortion by
the viability point, she/s waived her right to do
so.
"ourt e$plicitly rejects trimester system of !oe- &Ee
reject the trimester framewor0, which we do not
consider to be part of the essential holding of !oe.' (p.
;+;).
Trimester system misconceives the woman/s
interest- it/s not to be free from interference
altogether, just from e$cessive
interference)undue (rather than incidental)
burden.
Trimester system undervalues the state/s interest
in protecting potential life. !ejects idea that
state doesn/t have a compelling interest under *
months: state has substantial interest in potential
life throughout the pregnancy.
lac0mun- The factual premises of the trimester
framewor0 have not been undermined, and the
!oe framewor0 is far more administratable, and
,=
far less manipulable, than the &undue burden'
standard adopted by the joint opinion.
oPrecedent . $nalogy to Notions of Protected Liberty
H#3TE that it/s &protected' and not &fundamental,' which
is a code word for &strict scrutiny'I- 1ustices outline their
notions of su>stanti-e $ue )"o#ess li>e"t< (selective
incorporation J is the standard used here)(p. ;77).
2recedent has always upheld the following as protected
liberty-
Di%nit< an$ autono.<- 2recedent establishes that &the
most intimate and personal choices a person may ma0e
in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the
(ourteenth $mendment./ (p. ;7=)
5t the heart of liberty is the right to define
one/s own concept of e$istence, of meaning,
of the universe, and of the mystery of human
life.' (p. ;7=)
Bo$il< inte%"it<- pregnancy subjects a woman to pain
that only she must bear. 9uffering is too personal for
9tate to insist, without more, upon its own vision of the
woman/s role. (p. ;7=)
Gen$e" eCualit<- 5 woman must be free to shape her
own destiny. (p. ;77)
Cont"a#e)tion- 2recedent (Kriswold (married access to
contraceptives), Eisenstadt (E2 right to contraceptives)
B "arey (non%married access to contraceptives),
establish right to use contraception.
oCommitment to &tare Decisis: #eed more than error alone
to overturn !oe ("asey "ourt upholds !oe predominantly
on stare decisis grounds, suggest decision might have been
different if not for e$istence of !oe)-
Unwo",a>le stan$a"$9 &5lthough !oe has
engendered opposition, it has in no sense proven
Uunwor0able./'
Does "elian#e #all +o" u)ol$in%9 Maybe. 2eople have
organi?ed their intimate lives 0nowing they have
abortion as an option. (unusual)
!ehnNuist has a big problem with this- its not
reliance on !oe that/s creating gender eNuality.
,7
Can%es in $o#t"ine9 &#o evolution of legal principle
has left !oe/s doctrinal footings wea0er than they were
in ,>7*.' (p. ;7+)
:a#tual #an%es9 &The divergences from the factual
premises of ,>7* Hthe fact that viability can now come
earlierI have no bearing on the validity of !oe/s central
holding, that viability mar0s the earliest point at which
the 9tate/s interest in fetal life is constitutionally
adeNuate to justify a leg. ban on non%therapeutic
abortions.' (p. ;7>)
Nee$ +o" Institutional Inte%"it<; 3verturning !oe is
so serious that it would threaten the "ourt/s legitimacy.
This happens in 6 0inds of situs-
E$cessive overruling- when it appears that
the "ourt is more li0e a leg. body that 0eeps
changing
Eatershed decisions- rown v. oard and
!oe are two e$amples: intensively divisive
cases.
!ehnNuist and 9calia go after this as an
impossible standards to determine P how
can you tell when something fits into
this categoryG (t/s adherence to poor
precedent that threatens a court/s
legitimacy, not its manner of dealing
with watershed opinions.
+tandard %pplied to % +tatute!
o )edical Info- 8pheld: no
undue burden. 9tatute says a doctor must inform the
woman of health ris0s of abortion)childbirth B probable
gestational age of child. (nformation in Nuestion is
truthful)serves state/s interest in protecting maternal health
and the protection of life w)o imposing an undue burden.
lac0mun dissents.
o $nti0$bortion Info: 8pheld: no undue burden. 9tatute
reNuires information to be disseminated to the woman. The
purpose of the law and its practical effect is to inform the
decision of the woman, so some practical effect is served
here.
lac0mun)9tevens dissent- this is too limiting on a
woman/s autonomy P the 9tate can choose to provide
this 0ind of info, but can/t reNuire a woman to read it
right as she/s ma0ing her decision. These interferes
,+
with a woman/s decisional autonomy)unnecessary
paternalism.
o 120hour 3aiting Period: 8pheld: not an undue burden.
&(n theory, at least,' decisions will be more informed and
deliberate if they follow a period of reflection.
The fact that some women (e.g. poor)rural) might find
this to be a substantial obstacle)undue burden does
not justify stri0ing down the law.
oParental Consent: upheld: no undue burden as long as
there/s a judicial bypass procedure.
o ,ecord 4eeping5,eporting: upheld: no undue burden.
(e$cept records on spousal notification)
o &pousal Notification: 9truc0 down: undue burden. 8nli0e
w) waiting period, this presents an undue burden to a
substantial number of women.
#3TE- This could be the court changing
reNuirements for facial invalidity from every
aspect)application to substantial aspects)applications
(.o"e li,e &
st
A.en$.ent su>stantial o-e">"ea$t
$o#t"ine). "urrently being fought in lower courts.)
Even if there/s a legitimate interest in reNuiring
consent, still imposes an undue burden. This isn/t
li0e parental notification P women have decisional
autonomy.
!ehnNuist- under the rational basis theory ( want to
use, this survives P state has an interest in protecting
the husband/s rights and the sanctity of marriage.
.issents! (#3TE- none of these are disagreeing w) everything)
o !ehnNuist- 5s abortion isn/t a fundamental right, it just
deserves rationality review.
Aiberty rights are only fundamental when they/re
implicit in the concept of ordered liberty, and abortion
isn/t. !oe is wrongly decided.
8sing strictly 6%tiered system: fundamental right gets
strict scrutiny, everything else gets rational basis.
5bortion decision is sui generis (protecting people
who are wards of the state)can/t protect themselves),
and therefore not analogous to other 0inds of
protected liberty.
,>
o9calia- 5bortion is not a constitutionally%protected liberty
right. Fe/s apply the rational basis test and uphold the 25
statute in its entirety.
2rotected liberty right- Must loo0 at relevant
traditions protecting)denying protection to the right
asserted. (p. @4*)
olac0mun- 5bortion is a fundamental privacy right,
trimester approach is the right one.
iv. Sten>e"% -. Ca"a"t (89 6444, p. @4=) (reyer) (@%;) (partial
birth abortion)- 5ffirms "asey undue burden test as a majority
opinion Hbefore it was just the * in the joint opinionI, uses it to
stri0e down #E ban on partial birth abortion. #E violates
constitution in two ways-
,) /ails to "a0e &ealth E1$eption! "asey reNuired health
e$ception for whenever abortion was necessary to life)health
of mother. .BL may be the safest procedure for some
mothers, but law gives doctors no ability to use it when it is.
6) Imposes Undue )urden! #E ban imposes burden on women
see0ing safest possible abortion)abortion doctors trying to
treat their patients. #E statute is overbroad.
64
Pa"tial Bi"t A>o"tion (@%;)
B"e<e"*Soute"; "omplete ban fails to ma0e health e$ception)is too broad and
thus unduly burdensome on doctors)women.
Gins>u"%*Ste-ens; The state has no interest in reNuiring a doctor to perform
anything other than the procedure he reasonably believes is in the woman/s
best interest.
OBConno"- (f #E had limited law to only .BL (collapsing s0ull after
delivered) and had allowed .BE (dismembering before delivered) and had
provided health e$ception, law might have stood.
Henne$<; #o entitlement to the safest procedure, just to a safe one. .ecision
contradicts "asey/s assurance that the 9tate/s interest in protecting potential
life is more than marginal.
RenCuist*To.as; "asey should be read to allow the state to regulate
practice of medicine to ensure it/s in the state/s interest.
S#alia; "onstitution doesn/t ever prevent leg. that will prevent the 0illing of
human child. To allow a health e$ception is to give live birth abortion free
reign.
#. Ma"ital an$ :a.il< Ri%ts
I Marriage and family rights involve intimate, personal relationships. They are,
therefore (in many cases) fundamental rights guaranteed by the .2 liberty clause.
9imilarly, the "ourt has accepted that a parent has a fundamental right in the care,
custody and control of children. 5 more stringent standard of review is
appropriate when these rights are burdened.
&. Ma""ia%e
a. Lo-in% -. Vi"%inia; (89 ,>=7, p. @4>, @>4) (This is E2, but has a little
.2, too P more on this case later in outline under E2)- ,e$o'ni2ed the
fundamental . liberty ri'ht to marry (as well as E2 violation that
results when interracial marriage is banned). !easoned that &the
freedom to marry has long been recogni?ed as one of the vital personal
rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the Ubasic civil rights of man/ fundamental to our
e$istence and survival.' Marriage is so vital a right that it can/t be
abridged by statutes designed to accomplish invidious racial
discrimination. C5 ban on interracial marriages (miscegenation)
struc0 down.
'. :a.il<*Cil$"en
a. Me<e" -. NE (89 ,>6*, p. @4>)- .2 liberty encompasses family life.
9tate statute prohibiting instruction in certain foreign languages in
private schools &materially interferes with the power of parents to
control the eduction of their own.'
b.
Villa%e o+ Belle Te""e -. Bo"aas (89 ,>7;, p. @,;)(.ouglas)-
"ommune members aren/t related by blood, aren/t a family (therefore
can/t live in &single%family' dwelling together).
.issent (Marshall)- The choice of household companions involved
deeply personal considerations, intimate relationships w)in home.
.2 privacy right to determine who family members are.
c. MLB -. SLJ (89 ,>>=, p. +@7)- The upbringing of children is a
constitutionally%protected associational right that/s deserving of a high
standard of protection. "an/t charge a fee in order to appeal termination
of parental rights.
d. T"o(el -. G"an-ille (89 6444, p. @,@)(#o majority
opinion)(3/"onnor)- E5 law allowing grandparents to petition for
visitation is facially unconstitutional. 2arents have a fundamental right
to ma0e decisions concerning case)custody of their children.
6,
e. Moo"e -. East Cle-elan$ (89 ,>>7, p. @4>) (2owell)- Krandma
convicted under "leveland ordinance that prohibits her from living in
her home w) her son and his son, plus another grandson from her son
who died. "t. overturns law on facial challenge, invalidates her
conviction under .2 liberty protection of family rights.
+tandard of ,e#ie-! Aaws limiting personal choice
in the matters of marriage and family life are subject to
&particularly careful scrutiny' (mid%level standard of review in
fundamental rights .2, see 32 ,,). (This is Farlan in 2oe v.
8llman, 32 ,,).
o&tandard of ,eview $pplied: The ordinance fails the standard
of review because it has only a marginal relation)isn/t #T
enough to achieve valid govt.interests in preventing
overcrowding, minimi?ing traffic and par0ing congestion, and
avoiding e$cessive financial burdens on the school system.
,easonin'! Marriage)family rights have long been protected by
.2 liberty. Families are the method by which we pass out values
onto the ne$t generation.
o "ourt does not invo0e the right to privacy here (as they did in
!oe), but instead adopted a .2 liberty approach to protecting
&family rights.'
o Familial rights aren/t just limited to the nuclear family. &The
tradition of uncles, aunts, cousins and especially grandparents
sharing a household along with parents and children has roots
eNually venerable and eNually deserving of constitutional
protection.' (p. @,,)
(on$urren$e!
o &tevens- This is a property ta0ing that has no substantial
relation to police power. 9tatute also cuts into the
fundamental right to chose w) whom one will reside,
normally associated w) ownership.
.issents!
o &tewart5,ehn%uist: The &interest an appellant may have in
sharing a single 0itchen and a suite of contiguous rooms w)
her relatives simply does not rise to Hthe level of something
that is implicit in the concept of ordered libertyI.
o +urger: Krandma should/ve used administrative remedy
provided by the city.
o 3hite- #o fundamental right is implicated. "ourt should
66
e$ercise restraints in e$tending precedents)only those which
are &implicit in the concept of ordered liberty' should fall un
under .2 liberty.
f. Mi#ael !. 8 Vi#to"ia D -. Ge"al$ D. (89 ,>+>, p. @,7) (9calia, @%;)
(9calia, !ehnNuist, 3/"onnor, Mennedy)- 5 "5 state statute establishing a
conclusive presumption that a child born to a married woman cohabitating
with her husband is a child of the marriage $oes not -iolate su>stanti-e DP
rights of the natural father (neighbor) or the child (daughter of
supermodel)neighbor). 5dulterous father has no parental rights.
+ubstanti#e . (laim! To have a liberty interest protected by the
"onstitution, the interest must be not onl< +un$a.entalF >ut also
t"a$itionall< )"ote#te$ (citing Moore).
oraditionally protected: Marital relationship, state interest in
6*
DP P"ote#tion o+ :a.il<
Dou%las; The choice of household companions is a deeply personal decision)involves intimate
relationships. .etermining who to live (e.g. members of your commune) w) is a .2 privacy right. (elle
Terre)
Powell*B"ennan*Ma"sall*Bla#,.un; Family rights (even non%nuclear) get Farlan/s 2oe idea of
particularly careful scrutiny. Family life has always been an important right (precedent and analogy).
(Moore) (see rennan)Marshall)lac0mun in Michael F, below)
Ma"sall; Members of a commune aren/t a family)not blood%related (elle Terre)
Ste-ens; (Moore was ta0ings) (Moore)
Stewa"t*RenCuist; #o fundamental right to live w) family: not implicit in the concept of ordered
liberty (2al0o ("ardo?o) 32 @). #o entitlement to 2"9. (Moore)
Wite; Must loo0 at precise interest involved: it/s not liberty, it/s living w) more than one grandchild.
This is not implicit in the concept of ordered liberty. Fesitant to use substantive .2 to create any new
rights: traditions test gives too much discretion. Level of analysis: #eed to loo0 at precise issue involved
(living w) grand0ids) other than more general (idea of family) (Moore)
Wite*B"ennan; case precedent)state interests (e.g. in avoiding illegitimacy) establish that
natural fathers have .2 liberty interest in parenthood. (This is the same 0ind of traditions
analysis 9calia is using, just at a more general level.) (Michael F)
Bu"%e"; (Moore should/ve used administrative remedy) (Moore)
S#alia*RenCuist*OBConno"*Henne$<; .2 liberty interest in family rights e$ists only if interest is both
+un$a.ental and t"a$itionall< )"ote#te$. (Michael F)
S#alia*RenCuist; Le#el of analysis (see Ehite in Moore) P #eed to loo0 at the most specific
level of analysis available (he/s an adulterous father, not a family) (Michael F)
Ste-ens; 9ome natural fathers might have a constitutionally%protected right to parenthood. (Michael F)
B"ennan*Ma"sall*Bla#,.un; #atural fathers have a liberty interest in parenthood. #otions of liberty
change over time. 9ubstantive F2 is e$pansive, e$panding and dynamic. (Michael F)
protecting family unit is traditionally protected. !ights of adulterous
father are not.
oth the adulterous father and the married father have an interest,
so it/s up to the leg. to determine which trumps. Ehen the
adulterous family comes into conflict w) the married one, society
typically values married one.
o )ost &pecific Level of $nalysis (F# =, p. @64) (9calia)!ehnNuist
only)- &Ee refer to the most specific level at which a relevant
tradition protecting, or denying protection to, the asserted right can be
identified. ecause general traditions provide such imprecise
guidance, they permit judges to dictate, rather than discern, the
society/s views.' (This is 9calia loo0ing for bright line rules)greater
objectivity.)
rennan- This approach is e$cessively narrow: constitution is a
living document. (f you loo0 at everything at its most specific
level (which we haven/t done in the past), done of them would
have come out the way they did. "ourt can/t define liberty this
narrowly, must instead loo0 at the values of a changing society.
o Concurrence:
9tevens- !ecogni?es the possibility that natural fathers li0e
Michael F. might have a constitutionally%protected relationship.
ut .efers to trial court/s judgment that, in this case, Michael F.
didn/t sufficiently demonstrate the e$istence of a such a
relationship.
o Dissents:
rennan)Marshall)lac0mun-
9ummary of votes-
@ justices agree that fathers li0e Michael F. might have a
constitutionally protected interest in relationship w)
child.
@ justices aggress that conclusive presumption that
terminates parental rights w)o a hearing is a procedural
.2 flaw.
; justices agree that Michael F. has a protected interest
in his relationship with his daughter.
3nly 6 justices agree w) the &tradition' method
of analy?ing .2 rights.
!ejection of 9calia/s &tradition' analysis-
.etermining what &tradition' is too subjective.
9tandard is unwor0able: how do you determine when a
tradition has become obsoleteG
6;
!ejection of &specific level' analysis- #otions of liberty
change over time. 9ubstantive F2 is e$pansive, e$panding
and dynamic.
Most rights, when loo0ed at specifically, don/t seem to
deserve protection.
Ehite)rennan-
2recedent % Michael has a liberty interest in relationship w)
Cictoria
unwed father has interest if he has demonstrated
commitment to his paternity through personal, financial,
custodial responsibilities (Ehite/s reading of precedent)
9tate interests in protecting this right
illegitimacy stigma % antiNuated when paternity can be
conclusively determined, n)a where father wants to assert
fatherhood not deny it
preservation of marital unit P it/s asserting the claim that
destroys the unit, not whether or not you can succeed
ro$edural . (laim! Michael F. got a blood test that indicated a >+
percent probability of his paternity, he had a parental relationship with the
child, and had brought a filiation proceeding to establish paternity and a
right to visitation. Fe sought to challenge the conclusive presumption
established by the statute, but "ourt rejected b)c would be moot (state
entitled to conclude that he has no parental rights).
6@
$. !o.ose(ualit< an$ Li>e"t<
Bowe"s
U)ol$ GA anti all so$o.< law St"i,e $own law
Ehite lac0mun
!ehnNuist rennan
9calia Marshall
3/"onnor 9tevens
2owell (concurrence)
Law"en#e
U)ol$ TK anti %a< so$o.< law St"i,e $own law
9caliaV Mennedy
!ehnNuistV Kinsburg
Thomas 9tevensV
reyer
9outer
3/"onnor (concurrence)
6=
!o.ose(ual So$o.<
Wite*RenCuist*S#alia*OBConno"; #o fundamental liberty right to gay sodomy (6%tiered
analysis to determine if fundamental right : not implicit in the concept of ordered liberty or
deeply rooted in history and tradition, thus gets rational basis review). (owers)
S#alia*RenCuist*To.as; #o fundamental liberty right to gay sodomy (6%tiered
analysis to determine if fundamental right : not implicit in the concept of ordered
liberty or deeply rooted in history and tradition, thus gets rational basis review).
2rotecting majoritarian se$ual morality is a legitimate state interest. Aeg can ma0e
judgments based on moral offensiveness. (Aawrence)
OBConno"; #o F! to gay sodomy, but laws affecting only gay sodomy fail E2.
5pply &more searching form' of !! review when laws e$hibit a desire to harm a
politically unpopular group. (Aawrence)
Powell; #o fundamental right to gay sodomy. Maybe +
th
5m (cruel B unusual). HAater says
this is the worst decision he ever made.I (owers)
Bla#,.un*B"ennan*Ma"sall*Ste-ens; Fundamental rights (F!) aren/t grounded in
history: can/t be ruled from the grave. .2 right to )"i-a#< protects gay sodomy)is F!. 6
0inds of protected privacy- ,) personal autonomy, 6) spatial rights in the home. (owers) ((s
F! for sureG)
Ste-ens*B"ennan*Ma"sall; .2 li>e"t< protects gay sodomy. "ouples have
liberty to do what they want in their own home. Moral offensiveness not enough
for denying someone liberty. E2 says can/t treat gays)straights differently.
(owers) ((s F! for sureG)
Henne$<*Gins>u"%*Ste-ens*B"e<e"*Soute"; .2 Li>e"t< right to engage in gay
sodomy (though not F!). &"areful analysis' standard of review. road viewS
gay sodomy is intimate se$ual conduct with another person. To determine F!,
loo0 at evolving traditions, not history B tradition)implicit in ordered liberty.
Moral offensiveness not enough to deny someone liberty. (Aawrence)
,. Bowe"s -. !a"$wi#, (89 ,>+=, p. @67) (Ehite) (;),, ;)- K5 statute
prohibits all persons from engaging in sodomy (whether same se$ or not).
"ourt rejects effort to e$tend the privacy right of contraceptives)abortion to
9e$ual privacy)all matters of personal autonomy generally. 9tatute upheld
as applied (challenged by gay man)sodomy in his own house).
,easonin'!
oNo fundamental DP liberty right to homose#ual sodomy: there
should be great resistance to e$tending the reach of substantive .2.
(Ehite says the same thing in Moore.) Two%tiered analysis-
fundamental rightG #o. 9o apply rational basis.
Fundamental rights must be-
,) (mplicit in the concept of ordered liberty 3!
#ot implicit P long tradition of criminali?ing sodomy in
the 89.
6) .eeply rooted in history and tradition
#ot deeply rooted %% no precedent for giving privacy
right to such conduct- precedents are about family, child
rearing, procreation, not about se$.
9tandard of !eview P !ational basis (since this isn/t a
fundamental right).
(on$urren$e! (2owell Hlater recants, says this is the worst decision he
ever madeI) There is no fundamental right to homose$ual sodomy
(though there could be an +
th
5mendment cruel B unusual argument
because statute imposes up to 64 years in jail for a single act of
sodomy, but Fardwic0 didn/t raise it).
.issents!
o+lac6mun5+rennan5)arshall5&tevens: .2 right to )"i-a#< protects
homose$ual sodomy.
!ejects idea of fundamental rights being grounded in history- we
can/t be ruled from the grave: the fact that something was
traditionally forbidden by society can/t be enough to proscribe it
now.
6 0inds of privacy are protected-
,) 2ersonal autonomy- 2ast "ourt decisions have
preserved the right to autonomy)privacy in personal
decisions. (!oe, Moore, 2ierce, Myer) Majority is
ignoring 2owell/s warning in Moore against closing our
eyes to rights associated w) family.
6) 9patial rights in the home- privacy grounded not only in
,
st
5m (9tanley v. K5), but also in ;
th
5m.
67
o&tevens5+rennan5)arshall: .2 li>e"t< protects homose$ual sodomy.
Two arguments- ,) Ehen individual couples (married or unmarried P
Eisenstadt) are in the privacy of their home, the way they act is up to
them, not the 9tate, to decide. 6) Moral offensiveness is not a basis
for denying someone liberty. 8nder E2, protections can/t only apply
to straights: law can/t treat gays differently.
6. Law"en#e -. Te(as (89 644*, 9upp. p. @4) (Mennedy @),P*)- TL statute
prohibits same%se$ sodomy.
Reasonin%;
o Liberty ri'ht to en'a'e in homose1ual sodomy: Ciews
homose$ual sodomy in broad category of right of free adults to
engage in private conduct. H"f 9calia F# = in MooreI
#ot specifically recogni?ing right of privacy, just fitting it
under liberty.
#ot recogni?ing homose$ual sodomy as a fundamental right.
o +tandard of re#ie- 3 4$areful analysis5;
5bandoning tiered analysis here. Aoo0ing at standards on a
case%by%case basis.
This is something in between strict scrutiny and rational
review.
9calia- They/re applying rational basis but coming out
w) the wrong result. (.oesn/t want to depart from tiered
review.)
o O#errulin' )o-ers #. &ard-i$0!
+owers had wrong issue: Aoo0ing at the issue as
homose$ual sodomy%related only demonstrated &the "ourt/s
own failure to appreciate the e$tent of liberty at sta0e.' (t/s
not just the right to commit homose$ual sodomy, it/s the
liberty of persons to #e"tain inti.ate se(ual #on$u#t wit
anote" )e"sonF wete" o" not tat "elationsi) is
entitle$ to +o".al "e#o%nition >< te law. This is a
protected &autonomy of the self.'
+owers7s historical analysis was wrong:
.eeply rooted in history- proscription of homose$ual
conduct is not deeply rooted in history. 1ust general
proscriptions against all 0inds of sodomy, generally
directed at sodomy w) children, etc. 5nti%gay laws
didn/t even emerge until the ,>74s.
#eed to focus on evolving traditions, not historical
rights. &3ur laws and traditions in the past half%century
are of the most relevance here.' H0noc0s out the need for
historical analysisI
o 3ther 0inds of law have demonstrated recent
6+
tradition of protecting gay rights. (5A(, int/l law,
state practices)
o 2ost%owers decisions have recogni?ed the 0ind of
liberty in play here. ("asey (focus on decisional
autonomy): !omer (can/t ground a law in
animosity))
&tare decisis is not a bar li6e it is in Casey.
8nli0e in !oe, there have been factual changes since
owers was handed down. 9tate practices have changed.
89 and abroad moving away from criminali?ing gay
sodomy.
#o reliance would ma0e the change detrimental (the
concern of stare decisis is not as great when the state is
see0ing to e$pand a liberty interest (cf. !oe.)
o )orality is not a sufficient interest to uphold this type of law. 9ee
Aoving v. C5.
o This law is not struc0 down under E2 grounds.
Mennedy goes out of his way to stress why this isn/t decided
on E2 grounds- &(f protected conduct is made criminal and
the law which does some remains une$amined for its
substantive validity, its stigma might remain even if it were
not enforceable as drawn for E2 reasons.'
They want to ma0e it clear that all sodomy laws (gay and
straight) are unconstitutional under this decision.
Con#u""en#e (3/"onnor)-
o Eould uphold owers K5 law (state can ban sodomy
generally).
o ut Aawrence TL law fails under E2 grounds because it
e$hibits a desire to harm a politically unpopular group. (n
cases li0e this, the court applies a more searching form of
rational basis review to stri0e down leg. under the E2".
Ai0e majority, she/s abandoning tiered review.
o Eould not recogni?e a fundamental right to engage in
homose$ual conduct because it would force the state to
invalidate many other forms of state leg. (eg same%se$
marriage) under a strict scrutiny standard of review.
Dissent (9calia)!ehnNuist)Thomas)-
o &tare decisis: owers was correct when it was decided, and it/s
correct now. "ourt changed standards they relied on in "asey
to manipulate this case.
o 8omose#ual sodomy is not a fundamental right5deserves
nothing more than rational basis review:
6>
#ot a fundamental right inherent in the concept of
ordered liberty.
Emerging acceptance of homose$ual conduct isn/t
enough, this still isn/t a deeply%rooted right.
This statute meet !! review (protecting majoritarian
se$ual morality is a legitimate state interest).
o Leg. can ma6e 'udgments based on morality: if you reject the
notion that judgments based on morality aren/t a legitimate
interest, floodgates will open and cause &a massive disruption
of the current social order.'
o )a'ority is subscribing to the homose#ual agenda.
.ienes- 9calia/s probably ta0ing it too far here P leg. can
just find another way to justify its laws besides morality.
*4
e. !ealt an$ Li+e
A. Te Ri%t to Die*Re+use T"eat.ent
&. Assiste$ Sui#i$e; #o fundamental right to assisted suicide: no
constitutional right to die.
a. Wasin%ton -. Glu#,s>e"%; (89 ,>>7) (8nanimous (;)@ "s),
!ehnNuist)9calia)Thomas)Mennedy)-
There is no constitutional right to commit suicide, nor any right
to assisted suicide. 9uch interests are not &deeply rooted in this
nation/s history and tradition' and are not &implicit in the
concept of ordered liberty' such that &neither liberty not justice
would e$ist if they were sacrificed.'
8ses fundamental rights analysis- is this a fundamental rightG
o #3. (fails traditions)ordered test)
o Ma0e sure you carefully loo0 at the interest protected
(F# =, Michael F). #ot all intimate, personal decisions
are protected. (ut see "asey)
9ince not F!, gets ! review.
o 9tate has a legitimate interest in supporting life.
o (f a state didn/t allow palliative care (care to ease pain,
even if it hastens death), statute might be struc0 down.
(on$urren$es!
o &outer- &5britrary B purposeless restraints' test (based
on Farlan/s 2oe v. 8llman dissent (32 ,,). Fere state
interest is compelling because of danger of slippery slope
w) euthanasia)facts on abuse are unclear, so leg. should
ma0e the call.
o 97Connor5:insburg- #o need to address F! because law
allows palliative care even if it hastens death. (9eems to
ac0nowledge right to die if in great suffering.)
o +reyer- .efines right more broadly than !ehnNuist
(something li0e &right to die w) dignity). 9evere physical
pain)the right to end it is a 0ey aspect of the right, but
such facts aren/t presented here.
o &tevens- alancing test P focus on the importance of the
claimed interest, the severity of the burden and the
strength of the state interest. 9ince there/s no right to
suicide)assisted suicide, the law isn/t facially invalid, but
might not survive an as applied challenge.
*,
'. Re+usal o+ T"eat.ent; 5 person possesses a sig. liberty interest in
avoiding unwanted medical treatment. ut the state/s regulatory
interest may justify the burden on the protected liberty interest.
a. C"uDan -. Di"e#to"F Mo De)t. o+ !ealt (89 ,>>4, p. @;=)(@%
;, !ehnNuist); The right to die is an individual right, so the
state can reNuire clear and convincing evidence of a person/s
willingness to stop receiving life support. (Eoman in coma
can/t give such consent and the 9tate need not accept the
substituted judgment of close family members.)
/. Ri%t to T"eat.ent; (n some limited cases, where the 9tate e$ercises
custody over an individual, the .2" imposes a duty on govt. to assume
some responsibility for that person/s care and well%being.
a. DeSane< -. Winne>a%o Count< De)t. o+ So#ial Se"-i#es
(89 ,>+>, p. @;,) (!ehnNuist (=%*G))- The state/s failure to
protect a child from physical abuse by his father does not
deprive the child of any due process liberty right. Te"e is no
a++i".ati-e "i%t to %o-t. ai$, even though the welfare
department has investigated reports of child abuse and, after
reports of continuing abuses, has ta0en various steps, short of
removing the child, to try to protect him. #o constitutional duty
has been violated.
#3TE- (.ienes) This decision demonstrates that the govt.
has no duty to ma0e a right effective, it only has a duty not
to interfere significantly with a constitutional right.
o TE9T- govt.must have 0nowledge of harm J
&something more' Hpossibly denial of the ability of
the victim to help herselfI.
,easonin'!
The state is not constitutionally reNuired to protect one
citi?en from another, even where such aid may be
necessary to secure life, liberty or property interests of
which the govt. itself may not deprive the individual.
Test- 9pecial relationship between victim)stateG
o .id state play part in creation of danger to boyG
(#o)
o .id state ta0e the boy into custody (and thus
deprive him of the ability to protect himself)G (#o)
o .id state ma0e boy more vulnerable to dangerG
(#o)
*6
.issents!
o +rennan5)arshall5+lac6mun: 9tate undertoo0 duty,
then ignored it. The govt is responsible for
attempting to provide aid and then not following
through. (Fe assumes that govt. cuts off private aid
once it underta0es duty, thus ma0ing victim more
vulnerable.)
o +lac6mun: ,;
th
amendment should be read
sympathetically.
#. Eoun%>e"% -. Ro.eo (89 ,>+6, p. @;,) (2owell)- .2 liberty
protects the right of involuntarily committed mentally retarded
persons to &minimally adeNuate or reasonable training to
ensure safety and freedom from undue restraint.' Ehen this
right is burdened, the courts must underta0e a >alan#in% of the
liberty interests against the relevant state interests. The
judgments of the medical profession are presumptively valid
and violation can only be based on a showing of =su>stantial
$e)a"tu"e +"o. a##e)te$ )"o+essional Gu$%.ent.?
Ehile individual doesn/t have a .2 right to receive
treatment, when the state institutionali?es someone who
is thereafter wholly dependent on the state, the person has
a liberty interest which will have to be balanced against
relevant state interests.
Fere, .2 liberty interest reNuires the state to provide
minimally adeNuate or reasonable training to ensure
,) safety and
6) freedom from undue restraint
$. Sa#"a.ento -. Lewis (89 ,>>+, p. @;;) (9outer, unanimous)-
5 police officer does not deprive a suspect of any liberty right
by causing his death through indifference to human life in a
high%speed chase. The allegations, though serious, do not rise
to the level of a constitutional violation.
&(n such circumstances, only a )u")ose to cause harm
unrelated to the legitimate object of arrest will satisfy the
element of a">it"a"< #on$u#t so#,in% to te #ons#ien#e,
necessary for a due process violation.'
**
ELUAL PROTECTION
I. Te Meanin% o+ ECual P"ote#tion
A. O-e"-iew ASH;
,. asis of the classification P is it suspectG
6. Ehat is lost P is a fundamental right burdenedG
B. We"e te Ri%t Co.es +"o.;
,. ,;
th
5mendment- States can/t deprive citi?ens of E2 rights.
#o state shall deny to any person within its jurisdiction the eNual
protection of the laws.
6. @
th
5mendment- :e$e"al %o-t. (B .") can/t deprive citi?ens of E2
rights.
*. 8se of E2 as a substantive limitation on the laws themselves too0 off
during the Earren court.
C. 5 Stan$a"$s o+ Re-iew
,. ,ationality review- use this when there/s no reason to give heightened
scrutiny (e.g. no F!)no suspect classification).
Feavy presumption of constitutionality (burden on challenging
party to prove law fails !! review).
(f any state of facts can be conceived that would sustain the law,
the e$istence of that state of facts will be presumed.
6. &trict scrutiny- classification must necessary to a compelling govt.
interest: there can be no less burdensome alternative.
Mic0s in with suspect classification (race)ethnicity)national
origin)sometimes alienage (status of being an alien)) 3!
significant burden on a fundamental right.
urden is on govt. to demonstrate that the classification is
necessary to achieve a compelling state interest and that there is no
less%burdensome alternative for achieving the govt. objective.
#o longer presumption of constitutionality.
*. Intermediate review- classification must be substantially related to an
important govt. interest.
Mic0s in with Nuasi%suspect classification (gender)illegitimacy)

;. ,ationality with teeth- rational review, but with actual scrutiny (not
total judicial acceptance).
Mic0s in when there/s a suspicion of illicit motives, but not suspect
enough to create another classification (homose$uality)mental
retardation).
*;
"ourt/s analysis more closely appro$imates true ad hoc balancing
to determine the reasonableness of the law.
D. !ow to B"in% an EP Suit
,. Define the class (e.g. gay)straight or man)woman)
6. Determine what standard of review you7re going to get.
*. Define ob'ective you7re see6ing (will determine the classification you
want to ma0e).
;. Define relationship (over or under%inclusive)- te .e"e +a#t tat
so.etin% is o-e"*un$e" $oesnBt .a,e it un#onstitutional. 8p to
court to determine how tight a fit they/re willing to ta0e (depends on
standard of review).
8nder- you/re arguing that others should be effected by the statute
but aren/t.
3ver- this law includes people who should not be subject to the
law (e.g. 1apanese interment).
II. T"a$itional ECual P"ote#tion
A. T"a$itional EP uses De+e"ential RR.
3nly one law is held unconstitutional under traditional !!. (Morey v.
.oud (money orders, p. @+;). ut this decision is overturned. (#ew
3rleans v. .u0es) (French Quarter, p. @+;) (holding that court is not
reNuired to fi$ problem He.g. overcrowding in FQI all at once, so it can be
discriminatory as long as there is a rational basis for doing so.)
&. Railwa< E()"ess A%en#< -. NE (89 ,>;>, p. @+4) (.ouglas)- "t
upholds #D" ordinance that prohibits renting space on one/s vehicle
for advertising, but allows one to advertise one/s own business on
one/s vehicle.
E$treme judicial deference- there could conceivably be a state
interest.
&(t is no reNuirement of E2 that all evils of the same genus be
eradicated or none at all.'
(on$urren$e (1ac0son)- E2 is a better way of doing constitutional
analysis because it doesn/t disable the govt. entirely: doesn/t get at
the substance of the law, just says draw a statute w) a better fit.
'. Unite$ States Rail"oa$ Reti"e.ent Boa"$ -. :"itD (89 ,>+4, p.
@+7) (!ehnNuist)- !! !etirement 5ct of ,>7;, which gives benefits to
some wor0ers but not to others, is upheld.
*@
Ea"l< #on#e)ts o+
EP w* RR;
Dou%las; e$treme
judicial deference.
.on/t need to
eradicate all evils of
same genus.
Ja#,son; E2 is
better way of con
analysis)just says
redraw w) better fit.
"ongress could rationally have believe that those still employment
by the !! when they became eligible for benefits had a greater
eNuitable claim that those who were no longer there when they
became eligible.
.issent (rennan)- #eed to loo0 at actual purpose)some reason that
the leg. actually had when they made the law if E2 is going to serve
its purpose.
/. :itD%e"al$ -. Ra#in% Asso#iation- (89 6446, 9upp. p. 7@) (reyer,
unanimous)- "ourt upholds (5 statute that ta$es racetrac0s higher than
riverboats. This classification has a plausible purpose.
5. :CC -. Bea# Co..uni#ations (89 ,>>*, p. @++) (Thomas,
unanimous)- "ourt upholds F"" provision: those attac0ing the statute
must negate every conceivable reason to support it. (Con#ei-a>le set
o+ +a#ts test)
*=
Mo"e Mo$e"n
Con#e)t o+ RR
RenCuist 0.aG4;
e$treme judicial
deference. (!ailroad)
Thomas- &any
conceivable set of
facts. (F"")
B"ennan; #eed to
loo0 at actual purpose.
(!ailroad)
9tevens- &any
conceivable set of
facts' test is no test
at all. (F"")
B"e<e"; #eed to
balance: if there/s a
plausible purpose that
the leg. may have
considered and it/s not
arbitrary)irrational,
law can stand.
(Fit?gerald)
III. Sus)e#t Classi+i#ations 0Ra#e4
A. O-e"-iew
As,;
(acial challenge: is law facially discriminatoryG (if yes, 99)
$s applied challenge: if law facially neutral, but resulting in disparate
impact between racesG ((f yes, show discriminatory purpose to get 99)
Even if one factor was race, govt. can show that it would/ve
made the same law even if race wasn/t a factor.
Bla#, Lette" Law; "ongress may prohibit laws with discriminatory
impa$t, but the constitutional reNuirement is that something have
discriminatory intent.
Kovt. must act be$ause of the racial effect, not in spite of it.
Wat Classi+i#ations soul$ >e Sus)e#t9
Aoo0 at history)intent (how long has action based on class been
prohibitedG)
6 ideas-
Fiss- whenever a particular group
in our society is perpetually subordinated, that/s a justification for
scrutiny of classifications.
Ely- judicial intervention is
justified under E2 when necessary to assure that political processes
aren/t unduly constricted because of prejudice.
B. Dis#"i.ination t"ou% Le%islation an$ its A$.inist"ation
&. Lo-in% -. Vi"%inia (89 ,>=7, p. @>4) (Earren)- 5 state interracial
marriage statute, discriminatory on its face, violates E2.
2urposeful racial classifications are subject to strict scrutiny- &at
the very least, the E2" demands that racial classifications,
especially suspect in criminal statutes, must be subject to &the most
rigid scrutiny.'
o Must loo0 at actual purpose of the law. ((n this case, it was
racial discrimination, which is not a permissible state
purpose.)
'. St"au$e" -. West Vi"%inia- (89 ,++4, p. @>6)- "t. stri0es down law
that prohibits blac0s from sitting on jury. Kovt. racial discrimination is
an E2 violation.
/. Pal.o"e -. Si$oti- (89 ,>+;, p. @>6)- EP a))lies to Gu$i#ial a#tionF
tooF not just leg. action. "t. overturns judicial decision that granted
custody of child to white father when white mom married blac0 man.
(nterest in child/s welfare is legit, but still not a permissible state
purpose to give weight to those biases.
*7
5. Ei#, Wo -. !o),ins (89 ,++=, p. @>=) (Matthews)- .iscriminatory
impact)EP -iolation >< uneCual a$.inist"ation. "ourt stri0es down
facially neutral statute reNuiring permits to operate laundry unless in
stone)bric0 building Hno "hinese who applied granted)all white
applications grantedI.
9tatistical disparity alone is not enough, but here there is evidence
that the law is &administered by public authorities with an evil eye
and an uneNual hand.'
3. Ho"e.atsu -. Unite$ States (89 ,>;;, p. @>*)(lac0)- "ourt upholds
a wartime conviction for violation of wartime interment of 1apanese
decendents: law survives strict scrutiny. All le%al "est"i#tions wi#
#u"tail te #i-il "i%ts o+ a sin%le "a#ial %"ou) a"e i..e$iatel<
sus)e#tF >ut tat is not to sa< tat all su# "est"i#tions a"e
un#onstitutional. "ourt applied strict scrutiny and held that pressing
public necessity was a compelling government interest that overrode
eNual protection claim. (mportant to note that "ourt found no racial
antagonism to be present.
C. Dis#"i.inato"< Pu")ose an$ I.)a#t 0:a#iall< Neut"al4
(urrent Test for statutes that ha#e a disparate impa$t*purpose!
,. (f plaintiff shows disparate impact, then burden shifts to state to show
that law should survive.
6. (f state succeeds, then law is held to be constitutional
% 9tate can show lac0 of discriminatory purpose (neutral e$planation
for the law)
% 9tate can satisfy strict scrutiny (if there/s discriminatory purpose,
it/s necessary to achieve a compelling govt. interest)
% 9tate can show that it would/ve done the same things even if race
wasn/t a factor (F# 6,, 5rlington Feights)
(this test needs to be clarified P does it apply to discriminatory purpose,
tooG)
&. Wasin%ton -. Da-is (89 ,>7=, p. @>7)(Ehite)- The fact that blac0s
are four times as li0ely as whites to fail a police Nualifying test does not
establish an eNual protection violation. Dis#"i.inato"< i.)a#tF
stan$in% aloneF $oes not t"i%%e" st"i#t #onstitutional "e-iew. 9uch a
rule would have far%reaching effects, raising serious Nuestions
concerning the constitutional validity of a whole range of laws.
Ra#iall< $is#"i.inato"< )u")ose .ust >e sown to Gusti+< st"i#t
s#"utin< un$e" te EPC.
Fowever, racially discriminatory purpose doesn/t have to be
e$press. &#ecessarily, an invidious discriminatory purpose may
often be inferred from the totality of the relevant facts, including
*+
the fact, if it is true, that the law bears more heavily on one race
than another.'
(on$urren$e (9tevens)- it will be very difficult for plaintiffs to
prove a discriminatory purpose. 9uggests that the line between
discriminatory purpose and discriminatory impact is not nearly as
bright, and perhaps not Nuite as critical, as the majority states.
Wen $is)"o)o"tionate i.)a#t is $"a.ati#F it "eall< $oes not
.atte" wete" te stan$a"$ is )"ase$ in te".s o+ )u")ose o"
e++e#t.
'. Pe"sonnel A$.inist"ato" -. :eene< (89 ,>7>, p. 76>) (9tewart)-
"ourt upheld Massachusetts law giving preferences in civil service
hiring to veterans. >+O of veterans are male, but "ourt held that
foreseeability that law will disadvantage women was not enough to
establish discriminatory purpose.
9tatistical impact may provide useful evidence of discriminatory
intent, but absent a star0 pattern of impact, une$plainable on other
grounds, &impact alone is not determinative and the "ourt must
loo0 to other evidence.'
Distin#tion $"awn >etween laws ena#te$ >e#ause te< will
>ene+it a #e"tain se( an$ laws ena#te$ $es)ite o+ te +a#t tat
te< will >ene+it a #e"tain se(. Cou"t sa<in% tat intent is not
satis+ie$ >< awa"eness o+ #onseCuen#es. (Must be )u")ose to
discriminate: ,nowle$%e is not enough.)
/. Villa%e o+ A"lin%ton !ei%ts -. Met"o)olitan !ousin% De-elo).ent
Co") (9" ,>77, p. =4;) (2owell)- 5 ?oning ordinance Hsingle family,
no multi%family, presumably to cut out housing projectsI may not be
challenged as racially e$clusionary solely on the basis that it has a
racially disproportionate impact. Ra#ial $is#"i.ination nee$ not >e
te sole >asis +o" te lawF >ut it .ust >e a =.oti-atin% +a#to".'
Factors to consider in determining discriminatory intent)purpose-
Impact5effects of legislation-
The stronger the statistical disparity you/re able to
show, the more li0ely you are to be able to infer
purpose.
9ometimes statistics alone are enough (Dic0 Eo), but
generally they/re not (Feeney).
4nowledge5foreseeability
8istorical factors
e.g. is the property suddenly re?oned when it/s
purchased by a low%income developerG
&ubstantive and procedural conte#t
*>
.epartures from normal lawma0ing procedures are
ta0en into account (e.g. town that closed pool so it
wouldn/t have to desegregate)
Legislative or administrative history
Direct testimony of decision0ma6ers
.id lawma0ers discuss discriminatory purpose)intentG
P"oo+ o+ a $is#"i.inato"< )u")ose $oes not ne#essa"il< "eCui"e
in-ali$ationF as state as o))o"tunit< to )"o-e tat te sa.e
$e#ision woul$ a-e >een .a$e "e%a"$less o+ an intent to
$is#"i.inate 0see +ootnote '&4. Thus, had "ourt found
discriminatory purpose, burden would have shifted to the state.
o !unte" -. Un$e"woo$ (89 ,>+@, p. =47) (!ehnNuist,
unanimous)- "ourt a))lie$ )"in#i)le set +o"t in +ootnote
'& o+ Villa%e o+ A"lin%ton !ei%ts and invalidated portion
of the 5labama "onstitution that provided for
disenfranchisement of misdemeanants convicted of crimes
involving moral turpitude.
"ourt of 5ppeals found that the provision, even
though facially neutral, had an indisputably
discriminatory impactRas a result, it was necessary
to e$amine the purpose or intent behind the provision.
Fistorical records of the 5labama "onstitutional
"onvention indicated that race was the motivating
factor for the provision.
Cou"t +oun$ -iolation o+ eCual )"ote#tion >e#ause
Ala>a.a #oul$ not )"o-e tat it woul$ a-e
ena#te$ te )"o-ision in te a>sen#e o+ intent to
$is#"i.inate
5. P"o>le.s w* ReCui"in% Pu")ose (theories)-
a. Law"en#e- most racism is unconcious, strict scrutiny should be
used where gov actions are unconciously influenced by race
b. :la%%- reN of intent reflects a &white' way of seeing racism, as for
blac0s racial oppression e$ists independent of the specific
intentions or motivations of the perpetrators
c. St"auss; intent reNuirement means that race can play no part in
decisionma0ing by government
d. :"u%; if impact alone triggered E2 suspectness it would
fundamentally change the theory of racial eNuality (which has
sought to eliminate race as a gov decsion ma0ing factor), forcing
gov to become race%conscious when it acts: burdens on leg. and
judiciary would be insurmountable if disparate impact triggered
strict scrutiny (many laws hit the poor)blac0 harder than the
affluent)white)
;4
D. Dis#"i.ination in E$u#ation
&. O-e"-iewMSe%"e%ation in E$u#ation
a) De 'ure ;intentional< discrimination- intentional discrimination in
public schools is inherently uneNual and violates E2. (rown () This
principle has been summarily e$tended to public facilities generally
(e.g. beaches, golf course, par0s), w)o any showing of particulari?ed
harm resulting from the racial classification.
b) De facto segregation: segregation not intentionally created by govt.
action doesn/t violate E2.
c) Duty to desegregate: 5 de 'ure segregated school system has an
affirmative duty to desegregate and achieve a unitary school system.
'. O"i%inal Intent o+ &5
t
A.en$.ent;
Bo",; &the inescapable fact is that those who ratified the
amendment did not thin0 it outlawed segregated education of
segregation in any aspect of life.' (p. =,>) 9chools were segregated
when E2 was adopted.
Bi#,el; language of 5m was left fle$ible and open to
accommodate future growth and development
M#Connell; while consensus is that rown violates original intent,
school segregation was w)in !econstruction conception of what
violated ,;th 5mendment.
Hla".an; problem w) Mc"onnell/s originalism is that he fails to
show either that rown is consistent or that it was w)in possible
range of interpretations.
/. Te Pat to B"own -. Boa"$
a. Pless< -. :e"%uson (89 ,+>=, p. =,*)(authorG)- se)a"ate >ut eCual is
o,. statute mandating separate but eNual railway accommodations for
white and blac0s does not violate E2.
There/s a distinction between political)legal eNuality (9ee 9trauder
v. Cirginia (overturning blac0 man/s conviction because blac0s
weren/t allowed to sit on the jury) and social eNuality- :ou"teent
A.en$.ent .eant to #o..an$ le%al eCualit< not so#ial
eCualit<.
9tatute reflects customs and traditions of 5mericans: law cannot
eliminate prejudice.
9egregation doesn/t stamp colored race with a badge of inferiority.
;,
Dissent (Farlan)- &3ur "onstitution is color%blind, and neither
0nows nor tolerates classes among citi?ens. (n respect of civil
rights, all citi?ens are eNual before law.'
!eal purpose of law was to perpetuate inferiority of blac0s, as
such, it/s unconstitutional.
#3TE- separate but eNual school systems emerge as a result of
2lessy.
b. Missou"i e( "el. Gaines -. Cana$a (89 ,>*+, p. =,;) (Fughes)-
"ourt held unconstitutional a Missouri plan whereby the state provided
a law school for Ehites and financed legal education for #egroes in
other states.
!easoned that Missouri must give eNual protection of the
laws in its own jurisdiction.
Fere, 9tate denying citi?ens legal right to enjoy the
privilege to obtain an education within its borders (i.e. state
must give eNual protection within its own jurisdiction).
"ourt beginning to move towards desegregation in
education
5. B"own -. Boa"$ o+ E$u#ation 0I an$ II4
a. B"own -. Boa"$ o+ E$u#ation 0B"own I4 (89 ,>@;, p.
=,@)(Earren, unanimous)- "ourt held unconstitutional state
statutes mandating segregation of public schools. (M9, 9", C5,
.E)
9eparate but eNual educational facilities are ine"entl<
uneCual.
Pu")ose+ul =de 'ure> "a#ial $is#"i.ination -iolates EP.
.on/t loo0 at history, loo0 at the )"esent )la#e o+ e$u#ation
in ou" so#iet<.
"ourt doesn/t overrule 2lessy, but does attac0 its conclusion
that separation of the two races does not stamp the colored
race with a badge of inferiorityR "ourt used social science
to disprove this conclusion. 9eparate educational facilities
are inherently uneNual.
"ourt essentially legislating when "ongress was unable to do
so b)c of the influence by southern 9enators.
"ourt does not set forth a standard of review, but it was pretty
strict.
"ourt sets rehearing for argument re- appropriate remedy.
.ecision is unusual because-
,. (t was unanimous
;6
6. !emedy separated from substantive constitutional
decision
*. Cery short given its importance
b. E++e#ts o+ B"own I
9oon after rown (, race discrimination held unconstitutional
in a variety of public accommodations.
altimore v. .awson (beaches)
Folmes v. 5tlanta (municipal golf courses)
Kayle v. rowder (buses)
#ew 3rleans v. .etiege (par0s)
This ma0es little sense given rown (/s heavy focus on
education.
Effects also reached other educational systems.
olling v. 9harpe (,>@;) P "ourt held unconstitutional
segregation in ." public schools. "ourt used Fifth
5mendment/s .ue 2rocess (ENual 2rotection applies only
to the states) because segregation not reasonably related to
any proper governmental objective. Allowe$ +o" +utu"e
a))li#ation o+ eCual )"ote#tion "ulin%s to te +e$e"al
%o-e"n.ent
"ooper v. 5aron (89 ,>@+, p. =6@)(1usticeG)- "ourt held
that state as "es)onsi>ilit< to en+o"#e te Constitution
"e%a"$less o+ te #onseCuen#es. 5s a result, 5labama
governor could not claim that protecting public peace was
a valid justification for not desegregating schools.
Kreen v. Ment "ounty 9chool oard (89 ,>=+, p. =6@)
(rennan)- &freedom of choice' (open admissions) plans
for desegregation are unconstitutional as a remedy for de
'ure segregation.
9chool boards who operateHdI de 'ure segregated
have an a++i".ati-e $ut< to create a unified school
system. ((f your program now has a discriminatory
effect (see also "harlotte Mec0lenburg), you can be
reNuired to change it.
3nce de 'ure, .u# i%e" $ut< on the state than
in a &normal' system.
rennan wants to &eliminate discrimination root and
branch.'
;*
c. B"own -. Boa"$ o+ E$u#ation 0B"own II4 (89 ,>@@, p. =6,)-
(Earren)- "ourt remands cases to the federal district courts, so that
they can evaluate and enforce admission to public schools on
racially nondiscriminatory basisRmust happen with all deliberate
speed. Eell%received by opponents of desegregation but Title = of
"ivil !ights 5ct created funding for racially%integrated
schools...effectively ended segregation.
.esegregation here appears to be a group right: otherwise
could have just let the handful of plaintiffs into the schools
right away.
#3TE- rown represents the beginnings of the use of the
courts not to resolve disputes between two parties, but to
judicially%mandate reform of public judicial institutions.
d. Ale(an$e" -. !ol.es Count< Boa"$ o+ E$u#ation (89 ,>=>, p.
=6@) P "ourt denied reNuests to delay segregation of some
Mississippi public schools. All $eli>e"ate s)ee$ )e"io$ is
o-e"N$ese%"e%ation .ust o##u" i..e$iatel<.
e. Swann -. Ca"lotteAMe#,len>u"% Boa"$ o+ E$u#ation (89
,>7,, p. =6=) (urger)- (n remedying de 'ure segregation, E2 does
not reNuire racial balancing, but racial ratios may be used as
measures of desegregation. 5 federal court, in the e$ercise of its
broad eNuity powers, may order busing in order to achieve
desegregation.
The use of race%conscious remedies following a finding of a
constitutional violation (de 'ure segregation) is constitutionally
permissible.
3nce you/ve been found to have committed this segregation,
discriminatory effect is all that/s needed to reNuire you to
chance your program. (This remedy goes beyond what would
have occurred if there/d never been a constitutional violation in
the first place. This is o0 because courts have broad authority
to create remedies.)
o #3TE- once a school system has
desegregated)achieved a unita"< statuts (and .istrict
"t has decreed as such), it gets removed from this
harsher category. (f it then ends up resegregated (but
not purposefully, de facto), they/re o0.
;;
3. A++i".ati-e A#tion
a. O-e"-iew
&tandard of review: strict scrutiny, no matter what race it/s
benefiting.
"roson ) 5derand P remedying past discrimination can be a
compelling interest.
Ba,,e
DonBt A$.it Ba,,e*Da-is P"o%"a. OH A$.it Ba,,e*St"i,e Down Da-is Poli#<
rennan (concur) Powell
lac0mun (concur) 9tevens
Ehite (concur) urger
Marhsall (concur) 9tewart
!ehnNuist
A++i".ati-e A#tion OH A++i".ati-e A#tion NOT OH
Powell 9tevens
rennan (concur) urger
lac0mun (concur) 9tewart
Ehite (concur) !ehnNuist
Marhsall (concur)
G"utte"
U)ol$ UM Law Poli#< St"i,e Down UM Law Poli#<
3/"onnor !ehnNuist
reyer Thomas
9tevens 9calia
Kinsburg Mennedy
9outer
G"atD
U)ol$ UM Un$e"%"a$ Poli#< St"i,e Down UM Un$e"%"a$ Poli#<
9outer !ehnNuist
Kinsburg Thomas (")
9tevens (no standings) 9calia
Mennedy
reyer ("%3/"onnor) (inclusion v.
e$clusion)
;@
3/"onnor (")
>. Re%ents o+ te Uni-e"sit< o+ Cali+o"nia -. Ba,,e (89 ,>7+, p.
=;,)(2owell)- Fractured "ourt struc0 8" .avis Med 9chool policy of
reserving ,= spots for minority candidates. MaGo"it< ne-e" a$o)te$ a
stan$a"$ o+ "e-iew.
2 &oldin's
,) Powell @ Ste-ens G"ou); 5ffirm lower court decision admitting a00e.
.avis Nuota program (reserving ,=seats for minorities only) is unlawful
under Title C( (prohibits racial discrimination in any federally%funded
program).
Ste-ens G"ou) Reasonin%; 2lain language of Title C( says that race
cannot be basis for admissions in federally%funded programs.
Powell Reasonin%; &Title C( must be held to proscribe only those
racial classifications that would violate the E2" or the @
th

5mendment.' (p. =;6)
Powell standard of review: strict scrutiny Hcompelling govt.
interest, no less ornerous alternativesI.
There is a compelling govt. interest Hnot remedying past
discrimination, because .avis isn/t a competent
institutional decisionma0er to decide thatI, but creating
diversity in education. ut there are less ornerous
alternatives He.g. Farvard college program uses race and
ote" $i-e"sit< +a#to"s as a plus factorI.
2owell (not majority)- factual predicate of past
discrimination that needs to be remedied must be
determined by judicial)leg)admin body.
;=
A++i".ati-e A#tion 0O"i%ins Onl<4
Powell; 5pply strict scrutiny (narrowly tailored means including factors other than diversity).
"reating diversity in education is compelling interest, as is remedying past discrimination Hbut
only if institution discriminated in past and appropriate decision%ma0er found as suchI. E2 is an
individual right not to be treated differently on the basis of race. (a00e)
B"ennan*Wite*Ma"sall*Bla#,.un; 5pply intermediate scrutiny to 55 because there/s an
important, articulated purpose Hremedying past discriminationI that doesn/t stigmati?e He.g.
Ehites who don/t get inI. Fistoric purpose of ,;
th
5m. is to help minorities. E2 is a group right:
blac0s as a class have been discriminated against. (a00e)
Ma"sall; &(t is more than a little ironic that, after several hundred years of class%based
discrimination against #egroes, the "ourt is unwilling to hold that a class%based remedy
for that discrimination is permissible.' (p. =@6) (a00e)
Bla#,.un; &(n order to get beyond racism, we must first ta0e account of race. There is
no other way. 5nd in order to treat some persons eNually, we must treat them different.
Ee cannot%we dare not%let the E2" perpetuate racial supremacy.' (p. =@*) (a00e)
Ste-ens*Bu"%e"*Stewa"t*RenCuist; Title C( e$pressly forbids using any race%based
classification. (a00e)
,emedying past discrimination: this is only allowed it institution
upon which the remedy is imposed discriminated in the past (and
appropriate institutional decisionma0er decides as such).
Individual ,ight: E2 is an in$i-i$ual "i%t not to be treated
differently on the basis of race. &(t is the individual who is entitled
to judicial protection against classification upon his racial or ethnic
bac0ground because such distinctions impinge upon personal
rights.' (p. =;;)
6) Powell @ B"ennan G"ou); 9tri0e down lower court order that race can/t
be considered. "an ta0e race into consideration after you/ve made
appropriate findings.
B"ennan G"ou) Reasonin%;
&tandard of ,eview: (ntermediate standard of review for racial
classifications used for remedial purposes because this is benign
discrimination. Hnote not !!I
#ot strict because-
oEhites don/t have any of the traditional factors of
suspectness (are not subordinate: aren/t stigmati?ed
when they lose their spaces).
oFistoric purpose of ,;th 5m is to help minorities who
have suffered historical discrimination.
9tigma % only when classification stigmati?es does it
become suspect. Ehites aren/t stigmati?ed when they
don/t get in (lose their spaces) because of 55.
5ffirmative action meets intermediate standard, it/s
significantly related to important 9tate interest in
remedying past discrimination.
There/s no real constitutional difference between Nuotas
and a plus system. (oth are acceptable.)
"an/t use class, must use race (race correlates with
standardi?ed test scores, class doesn/t.)
Kovt. can ta0e race into account to remedy past discrimination.
.oesn/t need to be a factual predicate of past discrimination by a
govt. institution because people aren/t going to readily admit that
they discriminated in the past.
Kroup right P blac0s as a group have been discriminated against.
Powell Reasonin%; 55 in general should survive. !ace can be a
factor in determining admission, but not the only factor (this is
necessary to meet the narrowly tailored reNuirement, because diversity
involves more than race).
5chieving diversity in education is a compelling govt. interest, it
just needs to be met with a program that survives strict scrutiny.
;7
3nce a program says they consider more than just
race, we can accept that in good faith that they/re
not just using race.
#. A+te".at o+ Ba,,eF Ste)s to G"utte"
,. Fullilove v. Mlut?ni0 (no longer good law) (89 ,>+4, p. ==4) (urger) P "ourt
upheld a &set aside' provision in the 2ublic Eor0s 5ct of ,>77, reNuiring state
and local governments receiving federal public wor0s grants, to allocate at least
,4 percent of the funds for purchasing services from businesses controlled by
minorities.
Di$nBt a$o)t eite" te st"i#t s#"utin< o" inte".e$iate stan$a"$s o+
"e-iew set +o"t in Ba,,eO instea$ a))lie$ a .o"e =sea"#in%
e(a.inationF? #on#lu$in% tat te )"o%"a. woul$ satis+< eite" te
st"i#t s#"utin< o" inte".e$iate "e-iew tests.
Emphasi?e that strict scrutiny not warranted when "ongress acts to
remedy past instances of societal discrimination, even if not based on
factual predicate (more deference needed).
9tressing the broad remedial powers of "ongress, "hief 1ustice urger
noted that the program was limited in e$tent and duration and was
narrowly%tailored to the end of remedying discriminatory treatment of
minorities on public wor0s projects.
Se-en Justi#es a##e)te$ te )"in#i)le tat "a#e #ons#ious )"o%"a.s
to "e.e$< )ast $is#"i.ination .a< >e Constitutional
,) 2owell (concurrence) P reaffirmed his support for the strict scrutiny
standard of review which he found satisfied in this case.
6) Marshall, rennan, and lac0mun (concurrence) P used
intermediate standard of review.
*) 9tewart and !ehnNuist (dissent) P adopted the view that &the
government may never act to the detriment of a person solely
because of that person/s race. The color of a person/s s0in and the
country of his origin are immutable facts that bear no relation to the
ability, disadvantage, moral culpability or any other characteristics of
constitutionally permissible interests to government. (n short, racial
discrimination is by definition invidious discrimination.' Even a
race%conscious judicial decree is permitted only to remedy &the
actual effects of illegal race discrimination.' (e.g. rown)
6. W<%ant -. Ja#,son Boa"$ o+ E$u#ation (89 ,>+=, p. ==,)(2owell, badly
fragmented court, @%;)- teacher/s collective bargaining agreement stating that
only a certain O of minorities will be laid off. .istrict "ourt upholds
agreement, stating that compelling state interest is &providing role models for
children'. 9" stri0es down @);.
Powell )lu"alit<; strict scrutiny.
role models for 0ids is not compelling, too amorphous
;+
remedying societal discrimination generally is too amorphous )
speculative ) limitless as an interest
need showing of past discrimination by the gov entity involved
before race%conscious action can be ta0en
OBConno" 0C4; past societal discrimination can be compelling, but here
not narrowly tailored enough.
Wite 0C4; there/s a difference between hiring preferences (o0) and laying
off whites but not minorities because lay offs cause great harm (not merely
lost opportunity cost).
Ma"sall @' 0D)- program was meant to solve serious educational
problems in the public schools.
Ste-ens 0D4- state has legit interest in employing more blac0 teachers to
benefit children.
*. Cit< o+ Ri#.on$ -. C"oson (89 ,>+>, p. ==*) (3/"onnor, = to *)- a))l<
st"i#t s#"utin< to state a++i".ati-e a#tion )"o%"a.s. Te stan$a"$ o+
"e-iew un$e" te EPC is not $e)en$ent on te "a#e o+ tose >u"$ene$ o"
>ene+ite$ >< a )a"ti#ula" #lassi+i#ation. 9" holds that a city ordinance
reNuiring prime contractors who were awarded city construction contracts to
subcontract at least *4O of the dollar amount of each M to minority businesses
violates E2.
2rinciple of consistency- 99 standard applied to both blac0 and white
classifications.
&5bsent searching judicial inNuiry into the justification for such race%
based measures, there is simply no way of determining what
classifications are Ubenign/ or Uremedial/ and what classifications are in
fact motivated by illegitimate notions of racial inferiority or simple racial
politics.'
3/"onnor did emphasi?e that eli.ination o+ %o-e"n.entBs )assi-e
su))o"t +o" $o#u.ente$ )"i-ate "a#ial $is#"i.ination woul$ >e a
#o.)ellin% inte"est, but the set%aside program failed the strict scrutiny
standard of review because-
,. "ity ordinance was not based on sufficiently specific statistical
findings that the city was actually remedying the effects of specific
identified past illegal racial segregation in the city/s construction
industry.
6. 2lan isn/t narrowly drawn P racial Nuotas should not be used where
other means such as case%by%case considerations was possible. !ather
than race%conscious remedies, racially neutral alternatives should be
used. The city is reNuired to consider the effects of its remedial
program on third parties P differed from Fullilove where "ongress
included a waiver procedure in its set%aside program, which indicated
a clear recognition that the scope of the discrimination program would
vary from mar0et to mar0et
*. "ity is also bound to limit the program/s scope and duration, consider
the impact on affected third parties.
;>
(on$urren$es!
&tevens: ad hoc balancing
4ennedy: agrees w) 9calia morally, but feels its too great a
departure from precedent
&calia: govt. can act race%conciously 3#AD to remedy (T9 3E#
past discriminatory acts
otherwise, 5AM39T per se unconstitutional (only emergency
li0e prison riot can justify state race classification)
need to show particular victim of a specific discriminatory act
colorblind approach
.issents ()arshall5+rennan5+lac6mun); Marshall, lac0mun, should still
adhere to use of an intermediate standard of review for remedial racial
classifications.
;. Met"o B"oa$#astin% -. :CC (89 ,>>4, p. =7;) (rennan) (o-e""ule$ in
A$a"an$)- "ourt upholds two policies of the F"" afforded favorable
treatment to minority%owned businesses. Fullilove had stressed that race%
conscious programs mandated by "ongress warrant more deferential treatment.
A$o)ts inte".e$iate stan$a"$ o+ "e-iew +o" >eni%n "a#eA#ons#ious
.easu"es .an$ate$ >< Con%"essMe-en i+ tose .easu"es a"e not
="e.e$ial? in te sense o+ >ein% $esi%ne$ to #o.)ensate -i#ti.s o+
)ast %o-e"n.ental o" so#ietal $is#"i.ination.
9uch measures are constitutionally permissible to the e$tent that they
serve important governmental objectives within the power of "ongress
and are substantially related to the achievement of those objectives so long
as they do not impose &undue burdens on nonminorities.'
o Fere, the policies served First 5mendment values and
implemented the important governmental interest in promoting
diversity of information and view in broadcast programming. oth
the F"" and "ongress had found that there was a substantial ne$us
between the minority preference programs and increasing minority
ownership and representation in broadcasting. Moreover, the
programs did not involve Nuotas and nonminorities were still able
to compete for licenses.
.issent (3/"onnor)- you need to use strict scrutiny with all race%conscious
programs.
@4
@. A$a"an$ Const"u#to"sF In#. -. PENA (89 ,>>@, p. =77)
(3/"onnor)Mennedy)!ehnNuist)9calia)Thomas)- All "a#ial*etni#
#lassi+i#ations .ust >e anal<De$ un$e" st"i#t s#"utin<. * general principles
govern-
,. &6epticism: the need for searching review for all race and ethnicity
classifications in order to smo0e out invidious discrimination
6. Consistency: since E2 is a person right, standards of review should not
depend on the race of the person benefited or burdened. H2lurality
indicates that this does not mean that the classification is necessarily
unconstitutional. "onsistency applies to the standards of review in
race%based cases, not to the applications and outcomes. P trying to
dispel the notion of &strict in theory, fatal in fact.'
*. Congruence: E2 analysis under the ,;
th
and @
th
5mendments uses the
same standard of review. ut this does not necessarily means that 99
will apply the same way (may give greater deference to federal
programs: more li0ely to find narrow tailoring, etc).
(on$urren$es!
S#alia; no creditor)debtor races under the "onstitution: only
wronged individuals are entitled to remedy. eningn
discrimination can never meet 99.
To.as; close to a per se rule no 55 rule. #o meaningful
difference b)t benign and invidious discrimination, moral and
"onstitutional eNuivalence. enign fosters notion of inferiority, is
paternalistic
.issents!
Ste-ens; &mista0ing a welcome mat for a no tresspassing sign.'
(nvidious discrim is hurting people, while benign discrim is
helping them. Majority treats these two 8#A(ME things the same.
Soute"; 5darand view of 99 as applied to a remedial racial
preference would in fact not function differently than Fullilove/s
unlabelled standard.
Gins>u"%; &benign' racial classifications M5D be able to survive
the 9trict 9crutiny of 5derand. 2urpose of 99 is to distinguish b)t
permissible and impermissible uses of race in government action.
@,
=. G"utte" -. Bollin%e" (89 644*, 9upp. p. +,) (3/"onnor)- "ourt upheld 8niversity
of Michigan Aaw 9chool policy of individuali?ed consideration of applicants that
included evaluation of diversity contribution the student would ma0e, with special
reference to the inclusion of students who came from groups that have been
subjected to historical discrimination: policy intended to achieve &critical mass' of
minority students.
&tandard of review: 99 (and 8%M Aaw program survives 99)
,easoning:
&. Di-e"sit< is a #o.)ellin% %o-e"n.ental inte"est tat #an Gusti+< te
use o+ "a#e in uni-e"sit< a$.issions because there is an overriding
importance of preparing students for wor0 and citi?enship)rights B
ability of academic freedom)promoting interracial dialogue: this is
evidenced by other institutions which also recogni?e that the places
that produce leaders must be diverse-
a. Military uses affirmative action to ensure diversity
in officer corps, which is necessary to protect
national security.
b. Fortune @44 companies use affirmative action to
ensure diverse composition of e$ecutives because
successful business management reNuires a wide%
range of viewpoints.
'. Law s#ool )oli#< was na""owl< tailo"e$ >e#ause;
a. Indi#iduali2ed $onsideration! Employed a plus factor and an
evaluation system which allowed for individuali?ed assessment
that included consideration of other types of diversity (i.e.
individuali?ed and fle$ible)
b. (onsideration of ,a$e6Neutral /a$tors! #arrow tailoring does
not reNuire e$haustion of every conceivable race%neutral
alternative, but does reNuire serious good faith consideration of
wor0able race%neutral alternatives to achieve diversity.
Ca"a#te"isti#s all %oo$ AA )"o%"a.s soul$ a-e;
5ll students who are admitted, no matter what race
they are, are Nualified to be there.
5ll other applicants had a way to highlight their
diversity through personal statements and will
sometimes get admitted over students who are
racially diverse. 9ome students w) lower
benchmar0s that minority students are admitted and
have an opportunity to show their contribution to
diversity.
@6
Every file is individually considered by the
committee.
/. Go-e"n.ent use o+ "a#e nee$ not >e "e.e$ial in natu"e (i.e. don/t
need to be remedying past discrimination at the law school).
5. Kives a lot of $e+e"en#e to s#ools in #oosin% te #o.)osition o+
tei" #lass so lon% as a$.ission s<ste. $oesnBt in#lu$e CuotasR
%oo$ +ait )"esu.e$ absent a showing to the contrary. Thus, defers
to Michigan/s e$planation that &critical mass' does not operate as a
Nuota.
3. 9uggests need for &sunset provisions' to ensure that deviation from the
norm of eNual treatment of all racial and ethnic groups is remedial and
temporary. 9uggests &blan0et sunset provision' b)c within 6@ years
the use of racial preferences will no longer be necessary to further the
interest approved today.
(on$urren$es!
Gins>u"%- disagrees with majority on three points-
,) "oncerned that &sunset provision' may be ta0en as a
command and that remedy made ta0e longer than 6@
years
6) (ntimates that some affirmative action programs don/t
reNuire strict scrutiny
*) Thin0s that diversity might not be a compelling
governmental interest in all aspects of lifeRholding
should be narrowed to only include education.
.issents! (conservatives concur w) sunset idea)
S#alia-
,) !acial classifications are never justified.
6) .iversity itself is not a compelling government
interest: rather, it is the means to another interest-
cross%racial understanding and good citi?enship.
Michigan/s policy is not narrowly tailored to achieve
these objectives b)c they are life lessons not uniNuely
learned in higher education.
*) 5lso, unclear what policy of the decision rests on
(individuali?ed consideration, goals vs. Nuotas, good
faith effortsG)
To.as- agrees with application of strict scrutiny but feels
that-
,) No Compelling interest: 3nly limited case law
indicating that diversity is a compelling governmental
@*
interest. (some of 0ind pressing public necessity
eNuivalent to preventing anarchy or violence). Maybe
there/d by more of a compelling state interest if 8M
Aaw students stayed in M(.
6) Less onerous means: Michigan needs to use race%
neutral alternative: failure to do so indicates that the
real objective of the admissions program is to
maintain an elite institution while trying to promote
diversity (i.e. can/t have your ca0e and eat it, too). (f
8M wants to let in more minorities, should lower
standards.
*) $dherence to &&: Kiving such broad deference to
schools that they will use good faith ta0es teeth out of
strict scrutiny.
;) Creation of stigma: 5dmissions program stigmati?es
both majority (through their rejection) and minority
(creates inference that those admitted are less
Nualified).
RenCuist- disagrees with majority because-
,) Aaw school policy not narrowly tailored b)c critical mass
acts as a Nuota not an individuali?ed policy,
6) Evidenced by statistics of admission (if 64 percent
blac0s in society, then law school class typically
composed of 64 percent blac0s).
Henne$<; Aaw school gave insufficient consideration to
race%neutral alternatives for the admissions program to
survive the narrowly tailored reNuirement of strict scrutiny.
!ace can be a plus%factor in admissions, but school/s not
being true to a00e individual consideration reNuirement
because once they reali?e they don/t have enough
minorities, race becomes outcome%determinative.
7. G"atD -. Bollin%e" (89 644*, 9upp. ,46) (!ehnNuist) P "ourt e$amined two
admissions policies from the 8niversity of Michigan "ollege of Aiterature and
5rts (undergraduate college)- ,>>@%,>>+ was a Nuota system),>>+%644 had
point system that awarded 64 plus points for minorities, athletes or those that
came from bad high school, and awarded lesser points for other categories.
Cou"t el$ tat;
,. 2olicy not narrowly tailored b)c awarding 64 plus points for
race $oes not #onstitute in$i-i$ualiDe$ #onsi$e"ationR
has the effect of ma0ing "a#e te $e#isi-e +a#to" in
a$.issions.
6. &Flagging 9ystem' which sought to ensure individuali?ed
@;
consideration did not save system from lac0 of narrow
tailoringR+a#t tat in$i-i$ualiDe$ "e-iew o+ e-e"<
a))li#ation was not a$.inist"ati-el< +easi>le $oes not
sa-e it +"o. #onstitutional in-ali$ation.
(on$urren$es!
B"e<e"- necessary to distinguish between policies of inclusion and
policies of e$clusion. 2olice of inclusion are more li0ely to be
constitutional.
.issents!
Ste-ens- no standing b)c petitioners can/t prove that they face an
imminent threat of future injury
Soute"*Gins>u"%- also does not find standing: thought admissions
policy was constitutional because it allowed all applicants to compete
for all spots (race was not dispositive: wea0 argument says .ienes),
and that flagging system warranted further evaluation but seemed to be
individuali?ed consideration. There/s no Nuota system here. 9hould
distinguish between policies that help minorities and policies that hurt
them.
@@
IV. NotAsoASus)e#t*Luasi Sus)e#t Classi+i#ations
A. Gen$e"
&. Gen$e" is NOT as sus)e#t #lassi+i#ation so St"i#t S#"utin< is NOT use$
(s there a real differenceG if yes P rationality review
(s there merely disparate impact, w) no evidence of purposeful
discrimG if yes P rationality review
(f there is no real difference, evidence of purposeful discrim
(ntermediate 9crutiny ) &E$ceedingly persuasive justification'
'. W< %en$e" is li,e "a#e;
historic and pervasive discrimination
visible trait
immutable
discrimination based on stereotypical thin0ing
/. W< %en$e" is NOT li,e "a#e;
1ustice 2owell in a00e asserted that &the perception of racial
classifications as inherently odious stems from a len%t< an$ t"a%i#
isto"< that gender%based classifications do not share.'
Kender classifications $o not i.)ose a sti%.a u)on wo.en nor do
the classifications reflect any assumption that women as a class are
morally inferior.
2erhaps there strongest argument is that wo.en a"e not a =$is#"ete
an$ insula" .ino"it<,' as they have been given the right to vote since
,>64 and now constitute a numerical majority of the electorate.
B. !isto"i#al Gen$e" Cases
&. Ree$ -. Ree$ (,>7,) (urger)- "ourt unanimously struc0 down an (daho
law giving men a preference over females as administrators of estates.
Kender is a non%suspect classification, but still must meet rational
relation standard. The state claimed that the law rationally served
the public interests in avoiding disputes and in limiting the
wor0load of the probate courts. "ourt invalidated, however,
because giving preference to males not enough of a rational relation
to state interest in achieving administrative efficiency and avoiding
inter%family disputes.
Fere, "ourt reluctant to change standard of review, so just
manipulated rational basis to achieve the desired resultRa))lie$
"ational "elation test wit sa")e" +o#us; "eCui"e$ +ai" an$
su>stantial "elationsi) to le%iti.ate state en$s
'. :"ontie"o -. Ri#a"$on (,>7*) (rennan)- "ourt invalidated a statutory
preference which always regarded spouses of male service members as
dependent, but reNuired spouse of female service member to prove
@=
dependency.
Plu"alit< argues that application of strict scrutiny standard of review
warranted because of pervasive but subtle discrimination against
women (often times worse than blac0s) (this is only plurality, so it/s
never binding law).
!ationale- can/t impose burdens on characteristics that people can/t
change (i.e. immutable)Rif it does, must be regarded as suspect.
2owell ($on$urren$e) P 5greed with plurality that law was
unconstitutional, but on grounds that it violated Fifth 5mendment .ue
2rocess. :elt tat Cou"t soul$ wait +o" states to "ati+< ECual
Ri%ts A.en$.ent >e+o"e it >e%an to a))l< ei%tene$ stan$a"$s
o+ "e-iewNtis )"e-ente$ te a))li#ation o+ st"i#t s#"utin<.
". Mo$e"n Gen$e" Cases
,. C"ai% -. Bo"en (89 ,>7=, p. 76*) (rennan)- "ourt invalidated 30lahoma
statute that prohibited sale of a certain type of beer to women under ,+ and
men under 6,. O"i%in o+ inte".e$iate "e-iew +o" %en$e".
B"ennan a>an$ons atte.)t to a))l< st"i#t s#"utin< an$F instea$F
a))lies inte".e$iate stan$a"$ o+ "e-iew; purposeful gender
classifications must serve important governmental objectives and must
be substantially related to the achievement of those objectives.
Fere, there was an i.)o"tant %o-e"n.ental o>Ge#ti-e (preventing
drun0 driving) for law because men involved in far more drun0 driving
accidents than women 8T gender classification not su>stantiall<
"elate$ to achieving traffic safety b)c only 6 percent men involved in
such accidents (included too many men, even if more men than women
drin0 and drive).
o 8se of statistics doesn/t justify use of stereotypes in the law-
&2roving broad sociological propositions by statistics is a
dubious business, and one that inevitably is in tension w) the
normative philosophy that underlies the ENual 2rotection
"lause.' (p. 76;)
RenCuist (dissent)- challenged the "ourt/s use of a new standard in
eNual protection (wanted to stic0 with rational basis review).
5 law that discriminates against men should not be subjected to
anything other than !! because there/s no history of
discrimination against men. Hnote similarity w) Kinsburg in 55
casesI
@7
6. Pe"sonnel A$.inist"ato" -. :eene< (89 ,>7>, p. 76>) (9tewart)-
Nee$ to sow )u")ose to $is#"i.inate in order to offend the
constitution. Ai0e race, discrimination must be &because of a desire to
discriminate against women,' not merely &in spite of discriminatory
effects.'
"ourt reasoned that %en$e" #lassi+i#ation was sus)e#t >e#ause it a$
a $is)a"ate i.)a#tO a))lie$ inte".e$iate stan$a"$ o+ "e-iew.
o &tandard of ,eview: &e$ceedingly pervasive justification,' bit
only if you have purposeful discrimination (as opposed to just
disparate impact).
o "ourt holds that disparate impact alone is not enough to ma0e
statute unconstitutional, but can be indicative of purposeful
discrimination, which is the condition that violates the
Fourteenth 5mendment ENual 2rotection "lause.
"ourt upheld Massachusetts statute which gave veterans preference in
hiring for state civil service positions (an overwhelming number of
veterans are males). This is a preference for vets over non%vets, not for
men over women.
o Cou"t u)el$ te statute >*# it was )asse$ inAs)ite o+
$is#"i.inato"< i.)a#t not >*# o+ it 0i.e. no )u")ose+ul
$is#"i.ination4F as it is foreseeable that many statutes will
have a disparate impactRworried about slippery slope that
would reNuire invalidation of many laws.
Ma"sall (dissent) P should use intermediate scrutiny because the
scheme seems to demonstrate purposeful gender discrimination.
(urden should then shift to state to show it doesn/t.) #eed to loo0 at
the alternatives available (there are others ways to help veterans
readjust to society).
*. Ge$ul$i% -. Aiello (89 ,>7;, 7*;) (9tewart)- 9" upholds "5 disability
insurance plan, which e$empts from coverage any wor0 loss resulting from a
normal pregnancy, uses "ational >asis "e-iew. Hlater overturned by Title C((I
&tandard of ,eview: !! because men and women as a class aren/t treated
differently (non%pregnant women are treated the same as men). #ot men v.
women, pregnant v. non%pregnant.
8nless 3 can show that pregnancy is a prete$t for invidious
discrimination, legislation can e$clude pregnancy just li0e any other
condition.
B"ennan (dissent)- singling out a se$%lin0ed disability peculiar to
women is se$ discrimination
@+
;. B"a< -. Ale(an$"ia Wo.enBs !ealt Clini# (89 ,>>*, p. 7*;) (9calia)-
2eople bloc0ing access to abortion clinics aren/t discriminating against women
as a class, only against women see0ing abortions.
"ongress overturned w) Freedom of access to "linic Entrances 5ct of
,>>;
.. Real Di++e"en#es Ju"is)"u$en#e
,. O-e"-iew; To some, laws that reflect real differences, but not stereotypes, are
not suspect. 3thers want government action to be gender%neutral and subject
to intermediate scrutiny whenever it classifies based on race.
6. Cont"astin% Real Di++e"en#es A))"oa#es;
"raig P presumptive invalidity for purposeful se$ discrim, loo0 for
actual purpose/s importance, se$ must be a &highly accurate pro$y.'
Michael M, !ost0er P focus on whether men and women are different in
fact in the conte$t of the law at issue (if they are different, classification
not as suspect).
*. Real Di++e"en#es Cases
a. Mi#ael M. -. Su)e"io" Cou"t (89 ,>+,, p. 7*=) (!ehnNuist)- Wen
te"e a"e "eal $i++e"en#es >etween .en an$ wo.enF the legislation is
more li0ely to survive strict scrutiny (and scrutiny may not be as strict).
EP $oesnBt "eCui"e eCual t"eat.ent o+ te se(es we"e .en an$
wo.en a"enBt si.ila"l< situate$. "5 statutory rape law ma0es it
illegal to have se$ w) a woman under ,+, but not a man under ,+.
This gender%based classification realistically reflects the fact that
the se$es are not similarly situated in certain circumstances.
The different treatment of males and females bears a &fair and
substantial relationship' to the &important' governmental interest
of preventing teenage pregnancies, which was at least one of the
purposes of the law.
ecause virtually all significant harmful and identifiable
conseNuences of teenage pregnancy fall on the female, a leg. acts
reasonably when it elects to punish only the male, who suffers few
of the conseNuences of his act.
.issent 0Ste-ens4;
Ehen you apply inte".e$iate s#"utin<, you need to loo0 at
the a#tual )u")ose of the law, not just any possible purpose.
Even assuming that preventing teenage pregnancy is the real
purpose, the leg. still doesn/t survive scrutiny because there are
%en$e"Aneut"al alte"nati-es. They/re used in *7 states, and
there/s no showing that the situation in those states E!T teen
pregnancy is worse.
@>
>. Ro,ste" -. Gol$>e"% (89 ,>+,, p. 7;6) (!ehnNuist)- where "ourt upheld
law reNuiring only men to register to the draftRdifference between se$es
is that women not used for combat duty.
#. Ca>an -. Moa..e$ (,>7>)- state law allows mother but not father of an
illegitimate child to bloc0 child/s adoption by w)holding consent. "t says
8#"3#9T @);. This is based on stereotyping mother v. father/s rels w)
children.
$. Pa"a. -. !u%es (,>7>) (9tewart)- "t holds @); no E2 violation by state
law that allows illegitimate father right to sue for child/s wrongful death
only if he has legitimated the child. #o discrimination because genders
aren/t similarly situated P only men can ta0e action to legitimate their
children.
E. Mo$e"n Gen$e" Stan$a"$s
,. Mississi))i Uni-e"sit< +o" Wo.en -. !o%an (89 ,>+6, p. 7;+) (3/"onnor)-
"ourt struc0 Mississippi/s policy to admit only females to a nursing school.
2rimary justification for the all%female nursing school was that it was intended
to remedy past discrimination against women in education, but "ourt applies
inte".e$iate stan$a"$ o+ "e-iew that there was no e(#ee$in%l< )e"suasi-e
Gusti+i#ation because women had not been subjected to past discrimination in
the nursing profession and the e$clusion of males reinforced gender
stereotypes.
"ourt also rejected argument that school was promoting diversity by
offering single%se$ environmentsRmust give both se$es opportunity
to benefit from a certain 0ind of diversity (no comparable single%se$
nursing school for men)
.issents!
Powell- single%se$ education is long%standing tradition
Bu"%e"*Bla#,.un- single%se$ education is important, educational
diversity is important
6. JEB -. Ala>a.a (89 ,>>;, p. 7;>) (lac0mun)- gender%based use of
peremptory challenges by the prosecutor in a paternity and child support
action held unconstitutional. (9tate argues that there are differences in
men)woman re- their attitudes toward a case.)
&tandard of ,eview: (ntermediate review)e$ceedingly pervasive
justification.
&Ee shall not accept as a defense to gender%based peremptory
challenges &the very stereotypes the law condemns.'
.issents!
=4
RenCuist- real differences between se$es justify different
treatment here.
S#alia- There/s no stigmati?ing discrimination: no systematic, se$%
based animus. oth men and women are, at different times,
e$cluded by preemptory challenges.
*. Unite$ States -. Vi"%inia (89 ,>>=, p. 7@,) (Kinsburg, =%,%, Hno ThomasI)-
"ourt struc0 CM( (state institution) policy of refusing to admit women.
.istrict held that CM( had to do one of three things in order to comply with
the ENual 2rotection "lause- (,) admit women, (6) establish eNual female
institutions, (*) abandon state funding and become private.
Liability hase!
o &tandard of ,eview: E$ceedingly 2ersuasive 1ustification Hthis
is the most tough version of (ntermediate review we/ve seen
yet: uses actual purpose and least restrictive means P loo0s a
lot li0e 9T!("T 9"!8T(#DI. H#3TE- 8#.E! this standard
almost all laws go down. .ifficult to meet E21 and
intermediate, if one woman can do it.I
burden of persuasion rests entirely on the state
5T AE59T that the classification serves &important
governmental objectives and that the means employed
are substantially related to the achievement of those
objectives'
justification must be the 5"T85A one
not post hoc coo0ed up for litigation
justification cannot be stereotypical
o !ejects stated purpose of diversity of educ- not the actual
purpose because there/s not similar program for women
(!ehnNuist says diversity not brought up until C5 was
challenged)(note this is different from Michael M case).
#o deference on purpose.
C5 says based on real male)female differences, but ct.
says this is stereotyping, and some women can do it.
o 5lso rejects state interest in adversarial system that would
be destroyed by women. .."t. found that women at CM(
would change the program, but ct. says no hard evidence of
destruction. .oesn/t accept e$pert forecast. Koal of CM(
suited to women (citi?en soldiers) as well as men.
cites 8.9. military academies.
=,
,emedy hase!
o CE(A doesn/t remedy violation.
CE(A is but a pale shadow. Must &aim to eliminate so
far as possible the discriminatory effects of the past and
bar li0e discrimination in the future.' F(KF 8!.E#.
CE(A is different in 0ind, not as prestigious, no
adversarial program.
9ome alterations to rat line and privacy admittedly would
be necessary, but stereotypes about the way women are
not allowed
(on$urren$e 0RenCuist4; Miss. 8niv. case put CM( on notice and
they did nothing to remedy. 3nly one gender is benefited here so
rejects diversity. Fe might change mind if alternate program was at
8C5 with its money and prestige P done timely, and eNually.
.issent 0S#alia4; court is in essence adopting strict scrutiny by
substituting e$ceedingly pervasive justification for the intermediate
standard of review.
Liability &tage
o (ntermediate standard does not reNuire a perfect fit between
means and ends, but this is what the maj demands.
o "ourt is adding &no less onerous alternatives' to intermediate
scrutiny
o Eould have used &substantially related to an important gov/t
interest.' (mportant state policy here is diversity in education
and good and effective education.
9ays allowing women would destroy the program P
deference to lower ct/s finding.
5rgues tradition (usually only found in .2) and also
that there is single se$ ed for women in private schools.
9ays no standard of review can override tradition
(weary here of saying what is traditional is
constitutional) DRAMATIC #an%e su%%este$ in int.
"e-iew.
,emedial &tage
o Finds no violation at liability stage but addresses this anyway.
9ays court/s dealing with what some women want and can do
is strict scrutiny (.ienes says wrong. Ee/re in remedy phase
now so all vestiges have to be purged). 9ays CE(A based on
e$perts suggestions, tailored for women.
=6
o 9ays same%se$ education is dead after this, won/t want to face
litigation.
V. Mental Reta"$ation an$ !o.ose(ualit<; Rational >asis wit Teet
A. Mental Reta"$ation
,. Cit< o+ Cle>u"ne -. Cle>u"ne Li-in% Cente"F In#.F (,>+@ p. 7+*)
(Ehite)- reNuiring a special use permit for a proposed group home for the
mentally retarded was not rationally related to any permissible gov/t
purpose and violates E2. ReGe#ts .ental "eta"$ation as a sus)e#t #lass.
o Ehere individuals in the group affected by a law have
distinguishing characteristics relevant to the interests the state
has authority to implement, the courts are very reluctant to
closely scrutini?e leg. choices as to whether, how and to what
e$tent those interests should be pursued.
o 5 ,e< i$eas e"e on w< no ei%tene$ "e-iew;
o There are real differences between groups: state can
ta0e these into account.
o #o reason to e$pect prejudiceSvirtual representation
argument
o They are not politically insular, many laws for them
o 9lippery slope argument- we don/t want to have to
e$tend special protections to all disabled groups.
o &tandard of review: RR w* >ite. #o deference to d. ct. finding,
and not allowed to address problem one step at a time.
Li,elioo$ o+ )"eGu$i#e le$ to "ationalit< wit >iteR animus
cannot be the basis for law, must have public purpose beyond
animus.
o &tandard of ,eview $pplied: 2ermit idea still fails. 9tate/s
interests of avoiding overcrowding and lessening congestion of
streets fails because apartment houses, frats, hospitals are
e$empt from the ordinance. #ot rationally related to gov/t
purpose. (t/s arbitrary.
B. Ga< Ri%ts
,. Ro.e" -. E-ans, (,>>= p. 7>6) (Mennedy)- "ourt invalidated "olorado
constitutional amendment, which prohibited local municipalities from
passing ordinances that barred discrimination against homose$uals.
"olorado argued that the amendment simply denied gays and lesbians
special rights and instead treated them li0e everyone else, which 1ustice
Mennedy flatly rejects.
=*
Fere, "ourt finds that the 5mendment places homose$uals in a
solitary class of persons who were precluded, as no other group,
from securing specific legal protection against discrimination in both
the public and private sectors: however, e7ual prote$tion
jurispruden$e re$o'ni2es that any $lassifi$ation disad#anta'es
some ad#anta'es others, so la- is still #alid if there -as a rational
basis for the dis$rimination 8homose1uals not a suspe$t $lass, so
no stri$t s$rutiny9, -hi$h the %mendment la$0s be$ause!
a. It does not bear a rational relationship to state interest in
promotin' freedom of asso$iation P "olorado had claimed
that the law was intended to ensure that landlords could
maintain freedom to e$clude gays and lesbians from renting
their property (state entitled to afford its citi?ens
opportunity not to associate with what it deems to be an
immoral element of society). #o rational relationship
between 5mendment and goal of protecting freedom of
association b)c it was both too narrow and too broad-
,. Too narrow because it disadvantages the
group burdened by law through
identification of a single trait.
6. Too broad because it affected rights not
related to freedom of association P nullified
legal protections relating to purchase of
property, insurance, private education,
health and welfare services, and
employment
b. Le'islati#e desire to harm a politi$ally unpopular 'roup
does not $onstitute a le'itimate 'o#ernmental interest P
fact that 5mendment ma0es it more difficult for one group
of citi?ens than for all others to see0 aid from the
government (here, homose$uals forced to see0 an
additional amendment, while all others can use local
instrumentalities to protect their rights) leads to the
inevitable inference that the disadvantage imposed is born
of animosity toward the class of persons affected
S#alia (dissent) P 5mendment merely prohibits special)preferential
treatment of homose$uals, and therefore did not implicate eNual
protection.
a. ENual protection not triggered by ma0ing individuals resort
to a higher level of decision%ma0ingRstill receiving
protection from the law.
=;
b. Aaw has satisfies rational basis standard of review P points
out that "ourt didn/t overrule owers (criminali?ing
homose$ual conduct): if it is rational for a state to ma0e
homose$ual conduct criminal, then surely it is rational for a
state to ma0e laws disfavoring such conducts. 9tate has the
right to legislate in order to preserve its view of se$ual
morality statewide, e.g. polygamy, incest (but it did not
claim to be legislating for this purpose hereRin previous
cases, didn/t 9calia sign onto the proposition that state
interest asserted must be real not hypothesi?edG): 5s a
result, state can single out se$ual practices of a group.
c. .ecision of the majority based on cultural ideals of the
"ourt, whose members come from elite class in 89Rthus,
not e$pressing views in democratic manner (really hitting
at the premises of judicial review that "ourt can invalidate
majority viewpoint when it violates the "onstitution)

'. Law"en#e -. Te(as (8.9. 644*, 9upp. @4) (supra 32 6+)
OBConno" (concurs) doesn/t want +owers
overturned, but holds on E.2. grounds.
the line between conduct and class here is so close, that a ban
on conduct is a burden on the class.
she wants &more searching' rationality review for when govt.
inhibits personal relationships. (cites Cleburne? and ,omer).
#ot a legitimate government interest, morality has never been
accepted.
.istinguishes +owers, because this is just a ban on same%se$
sodomy on morality grounds, that was all sodomy.
says gay marriage can be illegal, to protect the tradition of
marriage. Fer opinion does not apply to gay marriage P she/s
insistent.
S#alia 0Dissent4 says everyone is prohibited from the conduct, not a
class%based ban.
*. Bae" -. Lewin (Faw. ,>>*, p. +47)- the Fawaii 9upreme "ourt held that
a law restricting marriage to opposite%se$ couple came within the state
constitutional prohibition against se$ual discrimination (later reversed by
Fawaiian constitutional amendment by state referendum).
E#iden$es that states $an pro#ide more prote$tion than the
(onstitution.
"ongress responded to this decision by passing the ..3.M.5., which
provides that &no state shall be reNuired to give effect to any law of
another state respecting)recogni?ing same%se$ marriage.'
=@
Might be unconstitutional under !omer b)c it involves animus toward
a certain group of people (not a legitimate state interest), but it might
be possible to differentiate homose$uality from homose$ual marriage.
5nalogy to LovingG 9ome say race is irrelevant to what ma0es a
relationship a marriage, but dual gender reNuirement is based upon the
inherent se$ual congruency between husband and wife
E. :un$a.ental Ri%ts an$ Inte"ests
Ehen a classification by govt. hurts a fundamental right you apply strict
scrutiny can ma0e argument both on E2 and .2 analyses.
Ehat is fundamentalG 8se the same idea of .2 incorporated rights (so
selective incorporation J)
(mplied fundamental right of marriage and family (so this is
challenged under both E2 and .2)- 90inner caseScourt stri0es down
a state law provision for se$ual sterili?ation of persons convicted more
than twice of felonies involving moral turpitude. 9ays law violates E2
9ome interests have been deemed fundamental right based on E2 clause itself.
#o fundamental right to vote in the "onst. They use ,@
th
5m can/t
prohibit voting by blac0s. 5lso use ,;
th
5m. !ight to have your vote
counted eNually. (9ee ush v. Kore? p. +@*). "ourt says discrim in
how a vote counts is a discrim in the political process that violates E2.
Earren "ourt years. 9trong in fundamental rights, established E2 rights under
lots of non%F! (e.g. healthcare, poverty%based classifications li0e housing,
welfare).
&. Inte"state T"a-el
a) 9hapiro v. Thompson (,>=> p. +4>)
!eNuire , year residency to get welfare benefits. Ehat
standard of reviewG Fundamental right of interstate
movement is significantly burdened so you use strict scrutiny.
FEA.- (rennan) 2urpose of inhibiting migration by
needy persons is constitutionally impermissible.
b) 9aen? v. !oe (,>>> p. +,+) (e$perts thought 9hapiro would be
overturned)
"5 limits the ma$ welfare benefits available to newly arrived
residence. (f you have lived in state for fewer than ,6 months
then you are limited to the amount payable by the state of your
prior residence. "hallenged on 9hapiro and Wobel wants strict
scrutiny right to travel.
FEA.- (9tevens) violated 2B( clause of ,;
th
5m (not E2)
because denying the same privileges as longer residents of the
state.

==
'. Me$i#al Ca"e
a) Memorial Fospital v. Maricopa "ty, ,>7* p. +,;Sone year
durational residency reNuirement as a condition to an indigent/s
receiving non%emergency hospital or medical care at public
e$pense. Marshall held that 9hapiro is controlling and state failed
to demonstrate a compelling interest for burdening the right to
interstate travel. Medical care is as much a basic necessity of life
to the indigent as welfare assistance.
/. Di-o"#e
a) 9osna v. (owa (,>7@ p. +,;)- !ehnNuist holds that a one year
residency reNuirement for divorce in (owa is const/l. (t is part of
(owa/s statutory regulation of domestic relations, an area that has
long been regarded as a virtually e$clusive province of the states.
2 is not irretrievably foreclosed from what is sought, e" a##ess
to te #ou"ts is .e"el< $ela<e$. "ourt doesn/t 0ic0 in
heightened review.
5. Votin%
a) .unn v. lumstein (,>76 p. +,@)- reNuirement that a person be a
resident of the state for a year and of the county for * months
before being allowed to vote violates E2. Marshall uses 99
denies people of the fundamental political right of preservation
of all rights.
b) Marston v. Aewis (,>7* p. +,@)- court upholds @4 durational
voting residency reNuirement and @4 day voter registration cutoff
reNuirement. 9tate interestSfreNuency of mista0es by volunteer
registrarsSin accurate voter lists.
3. Resi$en#e "eCui"e.ent +o" e.)lo<ees
a) Mc"arthy v. 2hilly "ivil 9ervice "ommission (,>7= p. +,=)-
court upheld as not irrational, a municipal regulation reNuiring
employees of 2hilly to be residents of the city. 2hilly reNuires
bona fide continuing residency rather than one of prior durational
residency so inapplicable to travel cases
=7
:REEDOM O: EKPRESSION
I. :i"st A.en$.ent Issues
&4 A>solutis.- speech is fully protected. &"ongress shall ma0e no law abridging the
freedom of speech' means &"ongress shall ma0e #3 law.'
'4 S)ee# -. Con$u#tS1ustice lac0. 5ll speech is ,44O protected but conduct or
speech merged with conduct is essentially action and not protected.
/4 Ce"tain #ate%o"ies are not part of ,
st
5m. &freedom of speech' rather than all
speech. "ertain categories are of such low value that any minimal value is so
outweighed by the harm that the court says this is not protected. (e.g. 0iddie porn)
8nprotected speech gets only rational basis review. (lac0)or0)
54 Balan#in% anal<sisSFolmes says all about facts and circumstances. "lear and
2resent .anger doctrine. alance need for security against values of ,
st
5m.
34 CitiDen Pa"ti#i)ant Teo"< (p. +>;%+>@). (dea is that our country is a
participatory democracy, which should encourage robust criticism of the
government.
o 9ome categories of e$pression need not be protected He.g. something that is
not about ideas, doesn/t contribute to the mar0etplace of ideasI, but must
always provide protection for core political speech because it contributes to
the attainment of political truth. (or0)Mic0lejohn)
o ,7>+ 9edition 5ct P would not be upheld today. 2rohibited the publication of
&false, scandalous, or malicious' criticism of the government, "ongress or the
2resident designed to bring established governmental authority into &contempt
or disrepute.' 9ignificant b)c many of the drafters of the First 5mendment
signed onRwasn/t this the sort of the thing they were trying to preventG
24 Ma",et)la#e o+ I$eas Teo"<- !epresents the application of 9ocial .arwinism to
ideas. First 5mendment must protect free trade of ideas from governmental
interference because it is necessary to arrive at truth. E$change of both right and
wrong ideas is necessary for mar0et to function properly because wrong ideas
help society reali?e what is right
o 5brams v. 8nited 9tates P although defendant was convicted under
the Espionage 5ct for distributing language intended to incite
resistance to the war effort, Folmes dissent is part of opinion most
largely Nuoted. Fe emphasi?ed the lac0 of immediate danger from
the pamphlets, and emphasi?ed that &the best test of the truth is the
power of the though to get itself accepted in the competition of the
mar0et'
=+
64 In$i-i$ual "i%t .o$el; the emphasis on liberty to develop one/s faculties to
promote individual autonomy and to further self%determination has been called
&the most coherent theory of the first amendment.'
o Aiberty model protects individual from certain types of
governmental interference. 9peech is protected not as a means to a
collective good)its value to society, but because of the value of
speech conduct to the individual (it/s how we e$press ourselves,
develop our own ideas).
o The liberty theory justifies protection because of the way the
protected conduct fosters individual self%reali?ation and self%
determination without improperly interfering with the legitimate
claims of others.
14 Te Ma"# Anton< )"o>le.Sat no time does he urge !oman citi?ens to do
anything but he/s riling them up and intended to do so. (s he engaged in
incitementG Fard to identify.

"lear and 2resent .anger Folmes)randeis
!easonableness :itlow? 3hitney
(ncitement )asses
Kravity of the Evil Dennis
(ncitement, randenburg Test +randenburg
II. O"i%ins o+ :"ee S)ee# Do#t"ine
&. Re%ulatin% A$-o#a#<; Te Clea" an$ P"esent Dan%e"
Do#t"ine
a. Te O"i%insMte(tF isto"< an$ +un#tions o+
+"ee$o. o+ e()"ession
,) S#en#, -. US (,>,> p. +>4)- (early outlines of "2.)
9chen0 mailed leaflets to draft%age men stating that the draft was
in violation of the ,*
th
5m. "ourt affirms convictions of
Espionage 5ct.
(Folmes) early outline for Clea" an$ P"esent Dan%e" test
("B2.)Sa publication could be used to convict when the words
used are used in such circumstances and a"e o+ su# natu"e as to
#"eate a C8PD tat te< will >"in% a>out te su>stanti-e e-ils
tat Con%"ess as a "i%t to )"e-ent. It is a Cuestion o+
)"o(i.it< an$ $e%"ee.
Ehat may be protected during times of peace may not be protected
in times of war.
The most stringent protection of free speech would not protect a
man in falsely shouting fire in a theatre and causing a panic
=>
#ote %%3ld rule%%+ad endency est- if natural and probable
conseNuences of the speech was to produce illegal conduct or
cause harm, then it was appropriate for gov/t to regulate. Fear of
causing harm to gov/t. Folmes "B2. was rejection of natural and
probable conseNuences approach. Ta0es away some of the govt/s
power, but still shows somewhat of a deference to govt.
6) A>"a.s -. US (,>,> p. +>,)- (eginnings of "2.)
2amphlet argues against e$peditionary forces that were sent to
!ussia to encounter olshevi0s. "onvicted under Espionage
5ct, for urging curtailment of production of war materials.
5brams charges that Espionage act is unconstitutional.
!ELD- affirms conviction citing &henc6
DISSENT; (#ote%%we are only given Folmes/ dissent (wrote
&chenc6) (Folmes)
o Test; 2ublishing opinions for the very purpose of
obstructing might indicate a greater danger. ((ntent Hmental
state of wanting to obstructI J act Hadvocating obstructionI
J su##ess Hlater part of the opinionI T "2. violation).
Dou should allow speech unless it seems to pose an
immediate danger to the correction of evil- &it is
only the present danger of immediate evil or an
intent to bring it about that warrants "ongress in
setting a limit to the e$pression of opinion.'
3nly a emergency that ma0es something
immediately dangerous.
(mminent- no time for debate.
#3TE- this formula is in his opinion, but he later
seems to contradict it.
"ompare with Kitlow v. #D (p. >4,)- suppress the
danger at its incipiency Has opposed to when it
poses "2.I.
o Test A))lie$; 3nly publication of this leaflet without more
wasn/t going to hurt the govt. Must be present of
immediate evil
o C"eation o+ Ma",et)la#e o+ i$eas teo"<. The best test of
truth is the power of the thought to get itself accepted in the
competition of the mar0et
This is one of the leading models of free speech
analysis, 8T-
arron attac0s this b)c of current monopoly
of mar0etplace: wants govt. regulation to
allow for freedom.
74
!edish- how will we 0now the truth once we
find itG
>. Atta#,s on CPD; "2. cuts off e$press as soon as it comes close to
being effective, thus only allowing for abstract)innocuous speech. 5llows
too much of a danger to society, waits too long before stopping speech.
,) Gitlow -. NE (,>6@ p. >4,)) (9anford)(stop danger it its
incipiency)- "ourt upheld a #ew Dor0 statute punishing
criminal anarchy, which are &utterances inciting the overthrow
of organi?ed government by unlawful means.' "ourt held that
the freedom of speech and of the press is among the
fundamental personal rights and &liberties' protected by the
.ue 2rocess "lause of the Fourteenth 5mendment: as a result,
they cannot be impaired by the states. First 5mendment only
prevents abridgements by "ongress.
o De+e"en#e to Le%; Ehen the legislature determines that
a category of speech is so inimical to the general
welfare &every presumption is be indulged in favor of
the validity of the statute.' (t is only where the statute is
an &arbitrary and unreasonable' use of state police
power that it violates freedom of e$pression.
9ince the #ew Dor0 legislature could reasonably
conclude that utterances inciting to the overthrow of
government by unlawful means are to be
suppressed, it &may, in the e(e"#ise its Gu$%.ent to
su))"ess te t"eatene$ $an%e" in its in#i)ien#<.?
Thus, state can outlaw a particular category of
speech as presenting a clear and present danger,
and in doing so, they are not "eCui"e$ to
e(a.ine te i..e$ia#< o+ $an%e" in ea#
)a"ti#ula" #ase (i.e. whether this particular act
presented a clear and present danger justifying
suppression).
o DISSENT (!ol.es an$ B"an$eis)- Every idea is an
incitement, so assessment of the immediacy and
severity of the danger is needed Hand can be
accomplished by judicial reviewI.
7,
#. De-elo)in% te $o#t"ine
&. Witne< -. CA (,>67 p. >4*) (more development of "2.: &present
becomes &imminent,' and evil presented must be a serious, probably
one) HO-e""ule$ >< B"an$en>u"%I-
:ACTS; "5 communist convicted under "5 "riminal
9yndicalism 5ct: law is directed at speech itself. Aeg. has
decided that this speech is sufficiently dangerous that it should
be suppressed: "ourt can/t second%guess leg. reasoning, as long
as it/s reasonable. 2 is convicted. 9he challenges the
application of the law to her. "onviction upheld.
CONCURRENCE 0B"an$eis an$ !ol.es4 (ecomes
majority over time)-
Con-i#tion u)el$ +o" )"o#e$u"al "eason; 5greed
with decision, but only because 2 didn/t argue "2..
Gitlow "eGe#te$; rejects its assertion that the "ourt
should not judge the evidentiary support in each case
for the application of the clear and present danger test.
Aeg. at best only creates a rebuttable
presumption that speech is dangerous: up to
court to decide if it violates the statute.
Hrejection of Kitlow, which said leg should only
be overturned if law is completely
unreasonableI. "ourt can/t just blindly accept
leg. determination.
New test +o" su))"ession o+ +"ee s)ee#; must be
reasonable ground to believe that the danger
apprehended from incitement is imminent.
Must be the probability of se"ious danger to the
9tate.
5dvocacy of violence isn/t enough unless
danger is immediately li0ely. Kovt. can
suppress speech when danger is &so i..inent
that it may befall before there is opportunity for
discussion.'
76
6. Masses Pu>lisin% Co. -. Patten HThe Masses "aseI H!an$Bs
In#ite.ent Test*alte"nati-e to CPDP (5pp. "t. ,>,7)- Mailing of
communist newspaper called &the Masses.' Fed. govt. moves to
suppress.
!an$ test; 3nly direct advocacy that eNuals incitement can be
sanctioned: must prohibit under this test if the words are a direct
incitement to brea0ing the law. (f spea0er stays at abstract
advocacy, he/s protected.
o Aearned Fand says there is a distinction between abstract
advocacy and incitement.
!an$Bs Masses*In#ite.ent Test -. CPD;
"2. focuses on conte$t, Masses focuses on content-
(f you advocate and no one listens then you can/t be
punished under "2.. ut under Masses)incitement
test you could be punished.
(ntent for incitement is enough. (f there is no danger
of harm then why can the govt. punish thisG Focus
here is not on circumstances and conte$t. Fere the
focus is on the words. Ehat is being said, speech
itself does it serve the values of ,
st
5m. Marc 5ntony
problem. (see above).
*. Dennis -. US (,>@, p. >47) (Cinson) Happlying Fand influence to
"2.: essentially 0noc0s out &present)imminence'I- 2lurality upheld
9mith 5ct conviction per facial and applied challenge. ,, leaders of the
"ommunist party convicted for conspiracy to overthrow the govt.
M#Ca"t<*:ea" o+ Co..unis. In+luen#e; 2laced heavy
emphasis on need for govt. to respond to communist threat.
Kovt. could move against the conspiracy or attempt even though
the attempt was obviously doomed at the outset. 2robability of
success could not be the criterion and imminence could not be
the measure of govt. power.
G"a-it< o+ te E-il Test; 5dopts Fand/s test from the app court
below- in each case courts must as0 whether the %"a-it< o+ te
e-ilF $is#ounte$ >< its i.)"o>a>ilit<F Gusti+ies su# in-asion
o+ +"ee s)ee# as is ne#essa"< to a-oi$ te $an%e". Ta0es time
(imminence) out of the eNuation (li0e 9anford).
7*
;. Eates -. US (,>@7)- 9mith 5ct (same as .ennis). Mitigates .ennis.
(nterprets statute to proscribe advocacy of action rather than advocacy
of abstract ideas.
#o mention of imminence or probability of success.
9ounds li0e randeis in 3hitney.
@. Bon$ -. :lo<$- K5 legislator removed from office because he
sympathi?ed with draft%dodgers. 8nconstitutional. Fad not urged
illegal action, only advocated a belief.
=. Watts- &(f they ever ma0e me carry a rifle, (/ll 0ill A1.'
9tatute against threatening the 2resident is constitutional, but here
the .. didn/t ma0e a threat.
(t was hyperbole, not advocacy.
7;
III. Te .o$e"n $o#t"ine
A. B"an$en>u"% -. Oio (p. >,7, ,>=>)
:ACTS; MMM leader. &if govt.
continues to suppress the white man we might need to ta0e
revenge,' he says at televised rally. "onvicted under 3F
9yndicalism 5ct.
!ELD (per curiam)- Aaw is
unconstitutional on its face and as applied because it punishes
mere advocacy. 3verrules 3hitney
B"an$en>u"% test- cannot regulate advocacy e$cept
where advocacy is $i"e#te$ to in#itin% o" )"o$u#in%
i..inent lawless a#tion an$ is li,el< to in#ite o"
)"o$u#e su# a#tion. Mere advocacy is protected.
Test A))lie$; fails under over%breadth, 3F "95 punishes
mere advocacy.
Dienes*Gunte" inte")"etation o+ B"an$en>u"% Test; 6%
part test that reNuires both incitement and a chance of real
danger resulting.
More speech protective than .ennis HFand/s gravity
of the evil, discounted by its improbabilityI
2ic0ed up Dates)randeis in Ehitney Hmere
advocacy isn/t enoughI an$ #o.>ine$ w* CPD
8T leaves out Dates reNuirement of serious danger
Hthough some say it/s implicitI.
!ow to a))l< B"an$en>u"% on e(a.;
Aoo0 at content of speech to see that it reaches the
levels of directed to inciting- can/t be just &mere
advocacy of abstract doctrine.'
2ay attention to the conte$t of the speech- ma0e
sure there/s an imminent li0ely harm.
(f a statute can/t be read to enclose these elements,
then it might be unconstitutional. 8nless these
elements are alleged and proved by the govt, the
law/s not being constitutionally applied.
B"an$en>u"% 8 CPD;
randenburg court never cites "2..
lac0).ouglas (") say they/re not adopting "2..
5ctual incitementG
o 9ome commentators say actual incitement
not needed- (9ee Fit Man- if you have
7@
advocacy that/s li0ely to result in some
harm, the speech is punishable.)
o M39T commentators say it is needed P only
when advocacy reaches the level of
incitement can it be punished.
O-e">"ea$t Do#t"ine;
5ny statute that does more than what randenburg
prohibits this can be attac0ed as overbroad.
There must be substantial overbreadth in
order to ma0e the law facially
unconstitutional.
#3TE- outside of First 5mendment
law, laws can only be struc0 down if
they are pervasively overbroad. E)
,5m, you just need substantially
overbroad. (ut see "asey, 32 ,>).
Even if your client isn/t injured by the
overbreadth of the law, but just by the non%
overbroad part of it, she can sue to overturn
the law based on overbreadth.
Con#u" 0Dou%las4 0Bla#, also #on#u"s >e#ause e ates
C8PD4
o .oesn/t thin0 "B2 should be the test.
B. !ess -. In$iana 0,>7* p. >66) ("2. applied)- antiwar demonstrator says
&we/ll ta0e the fuc0ing streets later' "ourt says nothing more than advocacy
of illegal action at some indefinite future time. (nvo0es the randenburg test,
not imminent P so const/l.
C. NAACP -. Clai">o"ne !a"$wa"e; threatened to discipline blac0 5mericans
who violate a ban on eating at a segregated lunch counter. #ot enough P not
imminent, and unli0elihood.
7=
M3.E!# F(!9T 5ME#.ME#T 5#5AD9(9
"ontent%ased !egulation
Ciewpoint !egulation
(advocacy cases)
9ubject%matter !egulation
()osley? +oos? &imon .
&chuster? +randenburg)
.irectly tied to content,
regulates speech
because of the message
conveyed.
P"esu.)ti-el< In-ali$
% urden is on the government
St"i#t S#"utin<- &The law must be necessary to
accomplish a compelling government interest.'
% there cannot be a less onerous alternative,
narrowly tailored
"ategories- (low%value speech deserving no or
little ,st 5mendment 2rotection)
,. danger)incitement
6. fighting words
*. obscenity
;. 0iddie porn
@. true threats
=. cross%burning
7. fraud
% "onsider ,.$.@.? (no discrim. within a
category)
"ontent%#eutral !egulation
(City of ,enton? urner? City of
Ladue H0ind of AadueI)
(ncidental urden on 9peech
1ustified apart from the
content of the speech.
Aess ris0 these regulations
will e$clude particular ideas
or viewpoints.
Inte".e$iate S#"utin<- &The law must be
substantially related to an important government
interest.' Must be direct and effective.
% (f a public forum, must be an alternative
available.
97+rien 9tandard
a. Furthers an important or substantial
governmental interest
b. 8nrelated to the 9uppression of free
e$pression.
c. (ncidental restriction on alleged First
5mendment speech not greater than is essential.
BOT!;
% 5lso loo0 for vagueness
% 3verbreadth- better if substantial.
77
I. Te St"u#tu"e o+ S)ee# Re%ulation
A. ContentA>ase$ Re%ulation
Ehen the govt. regulates because of what the spea0er is saying, some
supposed harm that is to flow from the speech itself, they are using
content%based regulation.
Kovt. now has the burden to survive 99-
Must show that this 0ind of speech fits into categories of low%
value speech that gets little or no First 5mendment protection.
(e.g. 0iddie porn)fraud in telemar0eting) 3!
Must show that restricting this speech is necessary to a
compelling
govt. interest. (strict scrutiny)
Kovt. can survive 99 by showing that speech fails the randenburg
test.
Fow to spot content%based regulation-
(s govt. regulating the view of the spea0erG
Fas govt. adopted a regulation because of a disagreement with the
message it conveysG
(s govt. regulated based on content of matterG
&. ContentABase$ Cases
a) Poli#e De)t -. Mosel< (,>76 p. >6*) (Marshall)- "ontent%based
regulation is presumptively unconstitutional. 2rohibition against
pic0eting in front of school e$cept for labor pic0eting. 2ic0eting
is protected conduct under ,
st
5mendment.
!ol$in%; law is facially unconstitutional as content%based
viewpoint discrimination.
Rule; Kov/t may not allow forum to those viewpoints it finds
acceptable and deny forum to those with whom it disagrees-
&5bove all else, the First 5mendment means that government
has no power to restrict e$pression because of its message, its
ideas, its subject matter, or its content.' (p. >6*)
3nce a forum is opened up to assembly or spea0ing by some
groups, govt. may not prohibit others from assembling or
spea0ing on the basis of what they intend to say. 9elective
e$clusion from a public forum may not be based on content
alone.
Fundamental rights E2 is the basis of the decision. Test-
significant burden on fundamental right so applies strict
scrutiny and says it violates E2.
So.e #ate%o"ies un)"ote#te$; when gov/t uses content
based regulation, the gov/t must establish that the speech falls
7+
into a category of unprotected or low value speech, or the
regulation is presumptively unconst/l.
b) Boos -. Be""< (,>++ p. >6@)- 1ust become something/s not
viewpoint based doesn/t mean it/s not content%based. ."
Foreign embassies. Aaw says no have signs that bring foreign
govt. into public disrepute can be within @44 ft. of embassy.
!ol$in%; "ourt agrees not viewpoint based but still content
based because it is subject%matter, all displays critical of
foreign govt. (t/s still content based so uses 99 and fails.
o 6d portion saying that police could disperse
demonstrators less than @44 feet from embassy P
o0ay, time, place and manner restriction.
No se#on$a"< e++e#ts test; !ejects secondary effectsS
listeners/ reactions to the speech are not the secondary
effects we meant
c) Si.on 8 Si.on 8 S#uste" -. Me.>e"s o+ NE State C"i.e
Vi#ti.s Boa"$ (,>>, p. >6=)- #on%viewpoint%based laws can still
be unconstitutional content%based laws. 9on of 9am AawSforces
publishers to give boo0 proceeds to victims.
!ol$in%; this is not viewpoint%based (charges both anti and
pro%crime speech) but it/s still content based. Aaw is not
#T enough (would have targeted boo0s by MAM)Malcolm
L.)
SS Test A))lie$; there is a fundamental govt. interest in
not allowing people to profit from crimes, but this law isn/t
#T enough.
$4 Re)u>li#an Pa"t< o+ Minnesota -. Wite (9upp. p. ,6* (6446))
(9calia: @%;)- "ontent%based gets 99, M# announce clause struc0
down.
1udge candidates in M# can/t announce their position on
disputed legal issues. &announce clause' #ot limited to
pledge or promise provisions.
+tandard of ,e#ie-! This is content%based: apply 99
(necessary to further an important govt. interest)
+tandard of ,e#ie- %pplied! 9tate interests- impartiality of
judges and appearance of judicial impartiality. 2olitical
speech at the core of the ,
st
am. 9peech about elections at
core of first amendment.
,. #ot narrowly tailored and not necessary.
1udges/ view on legal issues not compelling
interest. (t/s natural to have views.
7>
6. 5ppearanceSnot a legitimate interest. 1udges
have views about issues and this is desirable %%
why be a judge if you don/t have views
*. Third meaning of impartiality (* meanings are
traditional sense)lac0 of political views)open%
mindedness)- M# didn/t adopt the clause to
further this: judges don/t base their entire
opinions once on the bench on statements they
made beforehand.
CONCURRENCE 0Henne$<4; doesn/t favor strict
scrutiny, but thin0s content%based law prohibiting speech is
invalid unless speech falls into a categorical e$clusion.
9ays this is content%based and doesn/t fall into a category
of e$ceptions so it/s unconstitutional. 5bsolutist approach.
CONCURRENCE 0OBConno"4; (f Minn. worried about
impartiality, don/t elect judges.
DISSENT Dissent 0Gins>e"%*Soute"*B"e<e"*Ste-ens4
Ma0e distinction between judicial elections and regular
elections. eing a candidate for political office is
fundamentally different than judge P you/re not
representing constituent viewpoints. 9atisfies 99. M# law
preserves judicial integrity)necessary to 0eep candidates
from cleverly ma0ing promises in violation of the
pledge)promise prohibition.
+4
B. ContentANeut"al Re%ulation; 0IR4
"ourt applies intermediate review: two different formulations-
,) ubli$ forum $ases Hparts of the publicly%managed property
generally available for debateI- substantially related to an
important or substantial govt. interest, and an alternative forum
must be available.
6) Other $ontent6neutral $ases! must meet intermediate review
and imposed no greater restriction on speech than is essential.
(9ee 3/rien)
#o less onerous alternatives reNuirement.
(!- 9ubstantially Hdirectly)effectivelyI related to an important govt.
interest.
&. ContentANeut"al Re%ulations Cases
a4 Tu"ne" B"oa$#astin% S<ste.s -. :CC (,>>; p. >67) ("ourt
0ic0s in 3/rien intermediate standard of review for content%
neutral leg.)- Federal law reNuires that cable TC devote portion
of channels to local broadcast.
:CC law is #ontentAneut"alF %ets IR- the burden is w)o
regard to the content of speech. T2M regulation.
IR A))lie$- 2urpose wasn/t to favor broadcasting of
specific subject matter, just to get free programming to
people who don/t have cable. (5mericans should have
access to information.)
DISSENT- this regulation, while praiseworthy, is a
specific type of programming (local content only).
>4 Renton -. Pla<ti.eF In#. (,>+= p. >6@)- ("ourt upholds
something as content%neutral secondary effects)!eally H.ienesI
it/s probably content%based) "ity ordinance prohibiting adult
motion pictures ,444 ft of par0s, schools, churches, etc.
Go-t. #an )"oi>it s)ee# >e#ause o+ its se#on$a"<
e++e#ts*not #ontentA>ase$; this is a reasonable T2M
discrimination because govt./s only concerned about the
secondary effects of the speech H.ienes disagrees w) thisI,
e.g. protection of property value)urban ills.
o "t. applies intermediate scrutiny)state interest was
?oning laws. They serve a substantial govt. interest
and this 0ind of regulation allows for reasonable
alternatives. (Theaters can go elsewhere.)
DISSENT; (f this isn/t viewpoint discrimination, it/s at
least subject matter (only adult theaters are affected). 99
should apply.
+,
#4 Cit< o+ Los An%eles %. Al.e$a Boo,s (9upp. p. ,6, (no year
listed))- More prohibition of &secondary effects) 3rdinance that you
cannot have more than one adult entertainment business in the same
building. #o majority opinion.
IR; 2lurality applies intermediate review. City of ,enton is
controlling. This is a content%neutral time, place, manner
restriction addressed to secondary effects.
De+e"en#e to le%.; Kive deference to leg., allowed any
reasonably believed relevant evidence.
CONCURRENCE 0Henne$<4; This is content%based, but
should only get intermediate review (Mennedy/s against
tiered review.) Mennedy/s version of (! is more
demanding, reNuires-
,) Aaw has purpose and effect of suppressing
secondary effects (really about crime control)
6) Aaw leaves the %uality and accessibility of the
speech substantially intact.
DISSENT; Aaw is content%based, but still only gets (!
(Mennedy%style) and fails it.
NOTEAIR is -e"< st"i#t now; "ourt started using less
onerous alternatives 0ind of analysis in the >4s.
$4 Cit< o+ LaDue -. Gilleo (,>>; p. >6=)- 9econdary effects test
doesn/t wor0 here. "ourt holds that it/s unconst to have ordinance
that prohibits homeowners from displaying signs e$cept residence
identification for sale and safety ha?ards. 5lso allowed church
signs schools. 2urpose advocated by city- avoid visual clutter,
privacy and ambience, safety and traffic ha?ards.
#ot sufficiently compelling to support a content%based
restriction
+6
e4 Wat#towe" Bi>le an$ T"a#t So#iet< -. Villa%e o+ St"atton
(9upp. p. ,**) (9tevens)- !eNuiring a permit to go door%to%door
violates the ,
st
5m. (1ehovah/s Eitnesses challenge it).
+tandard of ,e#ie-! court says unnecessary to determine
standard of review. Fe/s a balancer. (most similar to intermed.
review). 9tevens thin0s it/s clearly unconstitutional, so no need
to delineate a standard. H"ould pretty much rewrite the opinion
using intermediate review.I
,eason for stri0in' do-n permit re7uirement!
o There are important interests served here (e.g. privacy),
but the law is overbroad.
2reventing crime- permits don/t stop criminals.
They/ll just find another way to get to the door.
2rotecting privacy- you can still hang a no%
solicitation sign.
2revents fraud (can/t say you/re someone you/re
not)- there are other ways to do this.
o 3ther reasons driving 9tevens-
The little people need door%to%door as a means of
disseminating their opinion.
The law breaches the interest in anonymity. Dou
have to list w) the city what cause you/re wal0ing
for.
.estroys spontaneous speech P can/t just go tell
your neighbor not to vote for the mayor.
DISSENT 0RenCuist4; reasonable T2M, should get (!,
which it would survive. 9olicitors can just get a permit P
not e$cessive burden. Aess uninvited 0noc0s, crime
prevention P narrowly tailored to these interests.
CONCURRENCE 0B"e<e"4; crime is a wea0 argument
and that this was never argued. This is heightened scrutiny
so we loo0 at what actual purpose is.
+4 To.as -. Ci#a%o Pa", (p. ;7)- #ot all permit systems are
unconstitutional. Fave to get a permit to spea0 in public par0. 3n
its face this is content neutral time place manner.
9atisfies intermediate scrutiny. Even though officials have
some discretion, it still satisfies intermediate review to
preserve and coordinate multiple uses of public forum and
get compensation for damage from protests.
+*
C. :i%tin% Wo"$s an$ O++ensi-e S)ee#
CPD -. :W;
o "2. focuses on the actual danger created by the speech: FE
focuses on the content of the words themselves.
o "2. focuses on whether there was a danger of incitement in the
circumstances, FE focuses on whether the average person would
be incited.
o The more that a court using FE loo0s at the actual
circumstances, the more it/s really applying "2.. This, to
.ienes, seems to be what/s happening in lower courts.
o Most courts today stri0e down laws li0e these struc0 down under
overbreath doctrine.
&4 Ca)lins,< -. New !a.)si"e (,>;6)- Test for determining FE.
1ehovah/s witness denounces religion as a &rac0et.' Ehen marshall
warns him, he says- &you are a god%damned rac0eteer and a god%
damned facist.' H#F 9" tried to give statute
Test +o" $ete".inin% +i%tin% wo"$s; what constitutes fighting
words is not to be defined in terms of what a particular addressee
thin0s, but rather wete" .en o+ #o..on intelli%en#e woul$
un$e"stan$ te wo"$s li,el< to #ause te a-e"a%e a$$"essee to
+i%t. (p. >@>)
o !ationale is that fighting words fall within a category of
speech that does receive First 5mendment protection (e.g.
lewd and obscene, libel): words by which their very
utterance inflict injury or tend to incite an immediate
breach of the peace
Two #ate%o"ies o+ :W;
,) Those which by their very utterance inflict injury 3!
6) Tend to incite an immediate breach of the peace.
'4 Coen -. Cali+o"nia (,>7,, p. >@>) (Farlan)- !ejects the idea that all
obscene speech T FE. "ourt reversed conviction of a man for
violation of disturbing the peace statute who wore a &Fuc0 the .raft'
shirt in A5. "onvicted under law that prohibits disturbing the peace
with offensive conduct. Aower ct. gave the statute a savings
construction: offensive conduct is that which has a tendency to prove
others to acts of violence Hit was reasonably foreseeable that this
would happen w) the jac0etI)disturb the peace.
Not a #a)ti-e listene" "e%ulation; people are only captive
listeners if you/re thrusting info on them when they/re in
their homes)violating their privacy interests. (i.e.
government may properly act to prohibit intrusions into the
privacy of the home by unwelcome views, but it cannot
+;
totally e$clude those views from public dialogueRany
contrary rule would effectively empower a majority to
silence dissidents simply as a matter or personal
predilections).
ContentA>ase$ %ets SS; "ourt seems to apply strict
scrutiny because this was a content%based regulation.
9tatute reNuired intent to breach peace, which defendant
did not haveRthus, state punishing solely because of the
message of his e$pressive activity.
#ot T2M
#ot category of speech that/s unprotected (not
obscenity because not erotic)
#ot FE (not directed at specific person)
Cou"ts #an e(#ise )a"ti#ula"l< insultin% #on$u#t +"o.
te )u>li# $is#ou"se; he/s being punished not for wearing
the jac0et but for what the jac0et says.
DISSENT; "haplins0y controls.
/4 !ostile C"ow$ Issues; ultimately loo0ed at whether there was a threat
of actual violence as to trump the ,
st
5mendment. ('
n$
)a"t o+ te
Ca)lins,< test). Fec0ler/s veto struc0 down in 90o0ie.
a. Villa%e o+ S,o,ie -. National So#ialist Pa"t< ((A 9")(p. >=*)-
"ourt struc0 statute which banned display swasti0a because it
did not fall within fighting words e$ception.
!e#,le"sB Veto St"u#, Down; 5 hostile audience is not a
basis for restraining otherwise legal First 5mendment
activity: see 8nited 9tates v. Feiner (,>@,) (Cinson)
Rationale; (,) heavy presumption against prior restraints,
and (6) display of swasti0a was well%planned and 0nown
throughout the community, so no danger that were peace
threatening (citi?ens are forewarned and don/t have to see
them if they don/t want to).
+@
D4 E()"essi-e Con$u#t
Two Nuestions to as0-
,. (s it speech or e$pressive conduct that will implicate ,
st
5mG
6. (s it content%basedG ((f so, does strict scrutiny apply, or is it in an
unprotected categoryG)
6 ways that conduct can bring in ,
st
5mendment- (though not all conduct is
protected by ,
st
5mendment) %%
,. Method to e$pressSpic0eting signs, canvassing. "onduct as means of
communicating.
6. 9ymbolic speechSconduct can be the speech itself. 9wasti0a, cross
burning. 9ymbolism can show the depth of our meaning. 9hortcut
from mind to mind
,) RAV -. Cit< o+ St. Paul (p. >=+ ,>>6) (9calia: @)*(c)),(c) (categorical speech
does get some protection)can/t be content%based prohibitions w)in
category)(FE doctrine still stands)-
:a#ts; Teens, including !.5.C. burn a cross on property of blac0
family. Ciolation of 9t. 2aul ias%Motivated crime ordinance.
&whoever places on public or private property a symbol, object,
appellation, characteri?ation or graffiti, including, but not
limited to, a >u"nin% #"oss o" NaDi swasti,a, which one 0nows or
has reasonable grounds to 0now arouses anger, alarm, or resentment
in others on the basis of race, color, creed, religion, or gender
commits disorderly conduct and shall be guilty of a .is$e.eano".'
o . argues law is facially overbroad and vague. Minn. 9"
give saving construction that the is the same as fighting
words in Chaplins6y.
!ol$in%; "t reverses >%4 but .ienes says it/s really @ to ; court is
sharply split P ; concurrences disagree in the analysis.
CanBt a-e #ontent $is#"i.ination w*in #ate%o"ies o+ s)ee#
(even in unprotected category); court is bound by state/s narrowing
construction, but law is unconstitutional on its face because it has
content0based discrimination within the low0value category.
&tandard of review: since it/s content%based, uses strict
scrutiny.
o Fails: it/s not narrowly tailored. There are
alternatives P law could ban all fighting words
to survive.
o M# 9"/s interpretation of the statute creates a
content%based category of low%value speech
(swasti0a)burning cross) that/s less protected
than other low%value speech (e.g. doesn/t ban
symbols of bias against gays).
+=
,ethin6ing categorization: "ategories now get some
protection. They represent a type of speech that can be
regulated, but their e$pressive component is still
protected by the ,
st
5mendment. 9ometimes fighting
words are very e$pressive and are still protected
speech.
wo times content0based discrimination w5in a
category of speech isn7t presumptively invalid (because
no fear of viewpoint discrimation):
o A
st
e#ception%when category is very reason
speech is prohibited Hparticular form of e$treme
obscenityI: true threats are not protected.
Ehen these three things are present, there/s no
real danger of covert viewpoint discrimination.
E.g.-
o Threats against 23T89- protecting
individuals from fear of violence)fact
that threatened violence will
occur)disruption that fear engenders.
o This is a neutral factor)no real danger of
viewpoint discrimination.
o 6
nd
e#ceptionBsecondary effects ("ity of
!enton): speech that/s associated with
secondary effects is regulated for reasons
unrelated to the conduct, so there/s no danger of
viewpoint discrimination. E.g.(not necessarily
the only e$amples)-
o Aaw that forbids obscene live
performances involving minors (this
involves the secondary danger of 0ids
being used in these performances: this is
a secondary reason besides that normally
used to condemn obscenity)
o Aaw that forbids se$ually derogatory
words in the wor0place (this involves
secondary effects of creating a hostile
wor0 environment). 9peech involved is
only incidental to the other effect of
preventing discrimination. are held to
violate Title C(( (hostile wor0
environment). H.ienes)Ehite thin0 this
is still content%based.I
+7
CONCURRENCE 0Wite*Bla#,.un*OBConno"4;
o*ndermines categorical approach: majority
analysis undermines the "5TEK3!("5A
approach. 8psets settled law, categories should get
#3 protection.
oNeed more adherence to &&: majority essentially
undermines 99- you can have content%based
discrimination w)in a category because, under
E2)F!, courts can ensure that obscene speech
prohibition isn/t regulated more against one group
than against another.
o&tatute still fails: tradition ,
st
5mendment
analysisSthe statute is overbroad, reaches protected
analysis. M# 9" construed the statute to prohibit
speech that causes anger)alarm)resentment, but
these effects doesn/t deem speech unconstitutional.
("ohen v. "5) Hthe fact that speech is offensive
doesn/t mean it/s constitutionally unprotectedI.
CONCURRENCE; 0Ste-ens4
o&tatute still fails: Aaw is overbroad, but content%
based distinctions are necessary: we ma0e
distinctions based on the content of the speech (e.g.
political)religious speech is valued more than some
other 0inds).
oCategorical approach is bad: rejects whole idea of
cateogories (so does .ienes): it doesn/t really
achieve any end, because it/s hard to tell what fits
into what category)puts too much emphasis on
definitions. (Ehat/s commercial speechG Ehat/s
obscenityG) "an/t have ,5m analysis turn on
unclear categories.
6) Wis#onsin -. Mit#ell (8.9. ,>>*, p. >+@)
X Fate crimes. .. got 7 years instead of 6 years because he pic0ed
his victim based on his race. 9" says motivation is
relevant)doesn/t ma0e it unconstutional. !egulation is directed at
conduct, not speech (leg. can conclude that bias%motivated conduct
is more harmful.)
++
*) Distin%uisin% s)ee# +"o. e()"essi-e #on$u#t;
(s first 5mendment is implicated P speech or conductG (t/s speech
if someone/s intending to communicate a message.
(s law content%based or content%neutralG (s something being
regulated because of its communicative messageG
(f something is content based, does 99 applyG ((s it categoricalG
Hnote that just because something/s in the category doesn/t mean
it/s not protected at allI.
(f something/s content%neutral, it gets (! (3/rien)
a) Vi"%inia -. Bla#, (8.9. 644*, 9upp. p. ,;@) (creation of &true
threats doctrine)-
:a#ts; C5 law prohibits cross%burning to intimidate P and cross
burning is prima facie evidence of intimidation. C5 argues the
law is content%neutral, and merely addressing secondary effects
(intimidation).
Cou"t ol$s law un#onstitutional; "t. held that the law was
unconst/l because of the prima facie clause P overly broad,
reaching to protected speech.
C"eation o+ t"ue t"eats #ate%o"< o+ lowA-alue s)ee#; true
threats encompass those statements where the spea6ing means
to communicate a serious e#pression of intent to commit an act
of unlawful violence to a particular individual5groupC
o "ross%burning with the intent to intimidate is true
threat, C5 can criminali?e cross%burning.
Aoo0s at history of cross%burning, and the
harm associated with the message.
ma0es someone fear bodily harm.
concern over disruption that fear
engenders
protecting people from chance that
violence will occur.
o Escapes ,.$.@. Hcan/t content%base in categoryI
under first e$ception, because there is no threat of
content%based discrimination within the unprotected
category, because 5AA intimidation is included, no
real danger of viewpoint discrimination.
Con#u""en#e 0Soute"*Henne$<*Gins>u"%*P"o>a>l<
Ste-ens4;
o (deological motivations may be present even when
there is an attempt to intimidate (so when you/re
punishing someone for intent to intimidate, there e$ists
a strong possibility that they/re also being punished for
their ideological message).
+>
o #ot arguing substantial overbreadth, arguing that the
e$ceptions from !5C don/t apply. The entire statute is
unconstitutional and will clearly go down.
b) US -. OBB"ien (,>=+ p. >++)(Earren)- criminal penalties for
0nowingly destroying your draft card. Fe 0new he was violating it
and says he/s e$pressing his opposition to the war. Fe attac0s
facially and as applied. "onviction affirmed.
Issue a>out ow to $e#i$e i+ so.etin% is
e()"essi-e*#o..uni#ati-e is still unsettle$. 8sually assumes
arrguendo that it/s communicative. ut intent to communicate
isn/t enough always to get 99.
o 9pence v. Eashington (p. ,444)- (nvasion of
"ambodia)0illing of Ment 9tate students, 9pence puts
peace symbol on 5merican flag. "onvicted under flag
misuse statute. Ma0es ,
st
5mendment defense. "ourt
reverses conviction under ,
st
5m groups, #"eates 'A)a"t
test; (9pence passes, his speech is protected.)
,) Eas there an intent to communicate a particulari?ed
messageG
6) Kiven all of the circumstances, was it probable that
this particulari?ed message would be understood by
the audienceG Aoo0 at factual
conte$t)environment)conduct.
OBB"ien test +o" NON #ontentA>ase$ "e%ulation 0#ontentA
neut"al4;
,) Is te "e%ulation witin te #onstBl )owe" o+ te %o-t9
This almost always met.
6) Is it an i.)o"tant o" su>stantial %o-t. inte"est9
Fere it is the functioning of the draft.
*) Is te %o-Bt inte"est un"elate$ to te su))"ession o+ +"ee
e()"ession9 (6%trac0ing, content based or content neutral)
Is it "elate$ to te .essa%e9 (f so, no can
3/rien.
Fere government interest is limited to
noncommunicative aspect so 3/rien test will be
applied. Facially content neutral. (#ote- if you
find it/s related then you go to trac0 one test content
based)
;) MeansMNa""owl< tailo"e$*no >"oa$e" tan essential to
+u"te" te inte"est;
#ot a less restrictive means testG (#o less onerous
alternative) #3. sounds li0e it but the way it is
applied is different. There was already a law that
>4
said you had to possess a card which would have
been the less restrictive means.
@) Is te"e an alte"nati-e +o"u. a-aila>le9 Hadded by
concurrenceI
c) Te(as -. Jonson (,>+> p. >>*)
(rennan)9calia)Mennedy)Marshall)lac0mun)- .emonstrators at
!epublican convention in .allas burns an 5merican flag. "onvicted
for desecrating a venerated object. 9tatute is unconstitutional as
applied.
Anal<sis;
,. E()"essi-e #on$u#t9 TL concedes it is e$pressive
speech. "t cites 9pence test. (ntentionally communicative
and capable of being understood as communicative
6. Con$u#t o" E()"ession9 (f content%neutral, apply
3/rien. "ontent%based- 99. (trac0ing) (f content%based,
categorical,
loo0 at !5C.
9peech and conduct is mi$ed here (ends up
being content%based because want to protect flag from
e$pression of dissatisfaction w) govt., oos v. erry
HembassyI) Fave to loo0 at reasons why govt. is
regulating. 9tate interests here- ,) preventing breach
of the peace: 6) preserving the flag as symbol of
national unity.
,.
Preventing +reach of peace. 9tate can regulate
speech that incites imminent lawless action. #o
imminent threat of disorder here. 5lso again
rejects hostile crowd argument and upholds
randenburg.
5lso not fighting words. #o reasonable
onloo0er could view this as direct personal
insult. Fighting words was formed on one
on one it has merged a little but is supposed
to be separate
9tate can still act to prevent imminent
lawless action under randenburg.
6.
Preserve the flag as symbol of nation and national
unity- These concerns blossom only when
someone is sending a message and so we are
outside 3/rien. Trac0 one applies. TL is
punishing core ,
st
am speechSe$pression of
dissatisfaction with gov/t. TL isn/t trying to
>,
prevent physical integrity of flag in all
circumstances li0e burning an old flag. 9tatute
says when it causes serious offense that/s
content based.
DISSENT (!ehnNuist). 9ays burning of flag is itself a category of
speech. Flag is not just another symbol but is special category.
urning a flag is not essential to e$pressing idea.
NOTE; 5fter TL v. 1ohnson. "ongress passes new statute which
doesn/t allow any flag burning. ut in "ichman? "ourt stri0es
down again. Kov/t purpose still related to speech.
>6