Basic EP Analysis (Chemerinsky 667)

1. What is the classification?

Facial classification
Facially neutral, but discriminatory impact
Must show discriminatory impact + discriminatory purpose
2. What level of scrutiny should be applied?
Strict scrutiny: race, national origin, alienage (sometimes), fundamental rights (SDP)
Law must be necessary to achieve a compelling government purpose
No less discriminatory alternative is available
Government has burden of proof
Rational basis w/ bite: rational basis, but still unreasonable
Ex. Cleburne, Moreno, Romer v. Evans laws held unconstitutional under
rational basis
Intermediate scrutiny: gender, nonmarital children
Law must be substantially related to an important government purpose
Government has the burden of proof
Rational basis: everything not subjected to strict & intermediate scrutiny, nonfundamental rights (SDP) (ex. WA v. Glucksberg, Vacco v. Quill)
Law must be rationally related to a legitimate government purpose
Challenger has burden of proof
Considerations for choosing level of scrutiny:
Immutable characteristics heightened scrutiny
Ability of the group to protect itself through the political process
History of discrimination against the group
Likelihood that the classification reflects prejudice vs. permissible
government purpose (Cleburne)
3. Does the particular government action meet the level of scrutiny?
Degree to which law is underinclusive and/or overinclusive
Underinclusive: law doesnt apply to individuals similar to whom the law
applies
Overinclusive: law applies to those who need not be included in order for
the government to achieve its purpose
Ex. Korematsu (which was also underinclusive)

Rational Basis (Chemerinsky 677)

Carolene Products, fn. 4: SC defers to government economic & social regulations

unless they infringe on a fundamental right (SDP) or discriminate against a group that
warrants special judicial protection (EP)
Legitimate purpose requirement
What is a legitimate purpose?
Traditional police purpose: public safety, public health, public morals
Williamson v. Lee Optical: public health = legitimate purpose
Possibly public morals (Compare McGowan v. MD w/ Romer
v. Evans)
Other goals not forbidden by the Constitution
Governmental desire to harm a politically unpopular group is NOT
legitimate (ex. Moreno: government wanted to discriminate against
hippies)
Actual purpose or conceivable purpose?
Conceivable purpose ok regardless of actual purpose
Reasonable relationship requirement
Law upheld unless governments action is clearly wrong/arbitrary
Allows for both underinclusive & overinclusive laws
Underinclusive: government may take one step at a time (Williamson
v. Lee Optical)

Classifications Based on Race (Chemirinsky 690)

1. Pre-13A & 14A Discrimination

Prigg v. PA (1842) (B: 227; C: 691): declared PA law preventing removal of anyone
from the state & returning them to slavery
Dred Scott (1857) (B: 229; C: 692): slaves arent citizens & cant claim the rights and
privileges of citizens
Congress couldnt grant citizenship to slaves; this would be a taking of
property w/out DP or just compensation

2. Post-Civil War
1 of 14A:
Overrules Dred Scott: people born or naturalized in the US are citizens of
the US & their state
Privileges & immunities clause
DP applied to states
EP
Strict scrutiny
First articulated by SC in Korematsu
Justifications:
14A enacted specifically to protect blacks
Relative political powerlessness of minorities
Carolene Products fn. 4: discrete & insular minorities may not
be able to rely on political processes for protection b/c of
prejudice
Race = immutable

3. Facially discriminatory laws

Classifications that disadvantage minorities:

Ex. Strauder v. WV (1879): declared WV law limiting voting to white male

WV citizens over 21 unconstitutional
Ex. Buchanan v. Warley (1917): declared law that prevented blacks from
buying homes in white neighborhoods unconstitutional
Ex. Korematsu (1944) (& other Japanese internment cases): only time
facially discriminatory classification has been held constitutional
Justification: national security; inability to distinguish b/w loyal &
disloyal
Enormously overinclusive & underinclusive
Classifications that burden whites and minorities
Pace v. AL (1883): upheld law providing harsher penalties for adultery &
fornication for mixed-race couples
McLaughlin v. FL (1964): overruled Pace; struck down law prohibiting
habitual occupation of a room at night by unmarried interracial couples
Loving v. VA (1967): declared anti-mixed-race marriage law
unconstitutional
Mere equal application of a law doesnt make it constitutional
Hunter v. Erickson (1969): declared ordinance that required that laws
regulating housing questions on the basis of race etc. must first be
approved by referendum unconstitutional
Washington v. Seattle School Dist. No. 1 (1982): declared law preventing
busing unconstitutional
Law removed ability to address a racial problem from the
decisionmaking body in such a way as to burden minority interests
Laws requiring separation of races
Civil Rights Cases (1883)
State action doctrine: 14A applies only to government action (still
good law)
Invalidated Civil Rights Act of 1875 which prohibited discrimination
in places of public accommodations
Plessy v. Ferguson (1896) (p. 359): upheld separate but equal
13A claim: Act doesnt establish involuntary servitude
14A claim: separate but equal doesnt abridge privileges &
immunities, deprives blacks of property w/out DP, or deny blacks EP;
valid use of police power
Attack on Separate but Equal

Missouri ex rel. Gaines v. Canada (1938) (p. 894)

MO didnt provide EP by paying tuition for blacks to go to out-of-state
law schools instead of in-state; entitled to substantially equal in-state
facilities
Sipuel v. University of OK (1948) (p. 897)
Reaffirmed Gaines; black student couldnt be denied admission to law
school solely on basis of race & was entitled to equal education
Sweatt v. Painter (1950) (p. 897)
Separate law school built for black student was unequal; required
admission to white university
School did not provide substantially equal facilities
McLaurin v. OK State Regents (1950) (p. 897)
Once admitted, universities couldnt force black students to sit in
separate sections
Brown v. Board of Education (1954) (p. 898)
Separate educational facilities are inherently unequal & violate 14A EP
Racial segregation generates a feeling of inferiority in blacks
Bolling v. Sharpe (1954) (p. 913)
Separate but equal in DC violates 5A DP; no proper governmental
objective for restricting liberty
Really talking about SDP
Brown II (1955) (p. 928)
Remand to local courts to create non-discriminatory public schools w/
all deliberate speed
5. Facially Neutral Laws w/ Discriminatory Impact or Administration
General rule: laws with discriminatory impact/administration must have
discriminatory purpose to be treated as racial classifications (and therefore trigger
strict scrutiny)
Framework for proving discriminatory purpose in Arlington Heights
BURDEN SHIFT: once plaintiff shows a discriminatory purpose, the
burden shifts to the laws defenders to show that the law wouldve been
enacted w/out the discriminatory factor (Arlington Heights, Hunter v.
Underwood (p. 1040))

Impact is so clearly discriminatory that it mustve been adopted for a discriminatory

purpose inference from impact
Yick Wo v. Hopkins (1886) (p. 1021)
Discriminatory purpose inferred from unequal application of law to
deny Chinese permits to operate laundries discriminatory
administration
Gomillion v. Lightfoot (1960) (p. 1023)
Discriminatory purpose inferred from gerrymandering to exclude all
but 4 or 5 blacks from Tuskeegee by redrawing map from a square to a
28-sided figure discriminatory impact
When is a decision w/ disproportionate racial impact based on race?
Griggs v. Duke Power Co. (1971) (p. 1024)
Under Title VII, you dont have to show discriminatory purpose if you
can prove disparate impact (specific to Title VII)
Permits defense of business necessity
May be unconstitutional after Davis; but limited in scope to
employment, whereas 14A EP covers all discrimination
Washington v. Davis (1976) (p. 1026)
Proof of discriminatory impact (blacks failing required police test
more often than whites) insufficient to show existence of racial
classification
EP designed to prevent official conduct discriminating on the basis of
race
Allowing discriminatory impact would be a slippery slope
Personnel Administrator of Massachusetts v. Feeney (1979) (p. 1031)
Discriminatory purpose implies that decisionmaker took a course of
action at least in part because of, not in spite of, its adverse effects
upon an identifiable group
Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) (p.
1039)
Reaffirmed Washington v. Davis rule
Factors for determining racial motivation:
1. Impact of the official action (ex. Yick Wo & Gomillion)
2. Historical background

3. Specific sequence of events leading up to the challenged decision

4. Departures from the normal procedural sequence
5. Substantive departures where factors usually considered important
to decisionmaker strongly favor a decision contrary to the one reached
6. Legislative or administrative history
Palmer v. Thompson (1971) (p. 1041)
Act doesnt violate EP solely because of the motivations of the people who
voted for it
Possibly invalidated by Washington v. Davis & Arlington Heights
Rogers v. Lodge (1982) (p. 1042)
Voting system invalidated where it was racially neutral when adopted but
was being maintained for invidious purposes
McCleskey v. Kemp (1987) (p. 1055)
Proof of discriminatory impact in death penalty administration insufficient
to show EP violation
Defendant must show that decisionmakers in his specific case acted w/
discriminatory purpose to show EP violation in his case
Need to show that the legislature enacted/maintained the death penalty b/c
of anticipated discriminatory effect to invalidate the death penalty under
EP
Racial profiling & EP (p. 1064)
Whren v. US (1996) (p. 1064)
US v. Armstrong (1996) (p. 1065)
Applying discriminatory purpose + discriminatory effect to selective
prosecution claims
Repeals or Limitations of Civil Rights Laws & Remedies
Hunter v. Erickson (1969) (p. 1067)
Invalidated section of Akron Charter (EP) that repealed open housing
laws & required voter approval for future open housing laws
Section treated racial housing matters differently from other racial and
housing matters discriminatory purpose

Discriminatory effect law places special burdens on racial minorities

w/in the governmental process
Washington v. Seattle School Dist. No. 1 (1982) (p. 1069)
Facially neutral initiative prohibiting busing was drawn for racial
purposes
Discriminatory impact: removed power of decisionmaking body to
address racial problem in a way that burdens minority interests
6. Remedies for School Segregation
Early cases
Brown II: blacks must be admitted to schools with all deliberate speed
Cooper v. Aaron (1958) (p. 929)
SC ordered Little Rock to proceed w/ school desegregation & held that
the states were bound by comply with Brown
Goss v. Knoxville Board of Education (1963) (p. 930)
Minority-to-majority transfer provisions unconstitutional based
solely on racial factors & perpetuates segregation
Griffin v. Prince Edward County School Board (1964) (p. 929)
Declared it unconstitutional for schools to close rather than
desegregate discriminatory intent
Civil Rights Act of 1964, Title VI: prohibits discrimination by schools
receiving federal funds
Authorized US AG to intervene in desegregation suits
Green v. New Kent County School Board (1968) (p. 932)
Declared freedom of choice plan unconstitutional where it resulted in
segregated schools; board obligated to devise a plan that would
desegregate schools
Segregation in northern states: de facto segregation
Keyes v. School District No. 1 of Denver (1973) (p. 937)
De facto segregation
Plaintiffs must prove intentional state action causing segregation on
substantial part of the system

Finding of intentional segregation in a meaningful portion of the

system creates a presumption of intentional segregation in other
schools
Burden shifts to show that other segregated schools w/in the system
arent the result of intentional segregation
De facto segregation = constitutional violation only if there is proof of
discriminatory purpose
Judicial power to impose remedies
Swann v. Charlotte-Mecklenburg Bd. Of Ed. (1971) (p. 935)
District court allowed to implement busing plan to ensure that all
schools had b/w 9% & 38% black students when school authorities
failed to remedy segregation
Mathematical ratios are a useful starting point in formulating remedies
Plan for a unitary system could retain some one-race schools
Once a constitutional violation has been shown, district court
possessed the power to order pupil reassignment on the basis of race
Interdistrict relief (p. 941)
Milliken v. Bradley (1974) (p. 941)
Must show that a constitutional violation in one district produces a
significant segregative effect in another district before a court can
implement Interdistrict relief
Milliken II (1977) (p. 943)
Court can impose remedies beyond pupil reassignment
Ex. court could order state to spend money for remedial
education for black students
Jenkins I (1990) (p. 943)
Upheld power to increase taxes to fund magnet schools & other
improvements to remedy segregation (but reversed on facts of the
case)
7. Retrenchment
Pasadena City Board of Education v. Spangler (1976) (p. 943)
School board need not continue reassigning students on the basis of race to
compensate for demographic changes
Bd. Of Ed. of Oklahoma City v. Dowell (1991) (p. 943)

10

After achievement of unitary school system, court-ordered desegregation

could end even where it would result in resegregation
Consent decrees should be ended if board has complied in good faith &
vestiges of past discrimination have been eliminated to the extent
practicable
Freeman v. Pitts (1992) (p. 944)
Once a portion of a desegregation order is met, court should remove
decree as to that part & remain involved only as to the other parts of the
plan that havent yet been achieved
Missouri v. Jenkins (Jenkins II) (1995) (p. 945)
No proof of interdistrict violation, so district courts order to attract
nonminority students from outside the district was impermissible
District courts order to increase teacher salaries wasnt necessary as a
remedy
Disparity in student test scores didnt justify continuing desegregation
order

11

Suspect Classification Doctrine (p. 956)

1. Origin of the Doctrine
US v. Carolene Products (1938) (p. 513)
o Fn. 4: where prejudice against discrete & insular minorities tends to curtail
operation of the political processes ordinarily to be relied upon to protect
minorities, situation may call for more search scrutiny
2. Anti-miscegenation statutes
McLaughlin v. FL (1964) (p. 958)
o Repudiated Pace v. AL & invalidated SC law that punished interracial
cohabitations more severely than same-race cohabitation
o Racial classifications are constitutionally suspect in light of 14As goal of
eliminating state-sponsored racial discrimination
o Law that affects freedom from invidious racial discrimination will be upheld
only if necessary to the accomplishment of a permissible state policy
Loving v. Virginia (1967) (p. 959)
o Racial classifications must be subjected to the most rigid scrutiny
Must be shown to be necessary to the accomplishment of some
permissible state objective

3. Modern strict scrutiny

Whether the law in question is narrowly tailored to achieve a compelling
governmental interest

4. Race, National Origin & Reasonableness

Korematsu v. US (1944) (p. 966)
o Upheld classification under strict scrutiny based on necessity to prevent
espionage & sabotage
Hernandez v. Texas (1954) (p. 1010)
o Exclusion based on national origin violates 14A EP
o 14A not directed solely against black-white discrimination

5. Proxy cases
Hernandez v. NY (1991) (p. 1014): language as proxy for race
o Upheld juror challenges based on being bilingual; challenging juror b/c hes
Latino would violate EP, but challenges here werent based on race or national
origin
o Need to show discriminatory intent
Rice v. Cayetano (2000) (p. 1016): indigenous origin as proxy for race
o Voting restricted to native Hawaiians, defined by ancestry, violates 15A where
ancestry is a proxy for race

12

Affirmative Action (pp. 1071-1156, Supp. 59-103)

13

1. Affirmative action is analyzed using strict scrutiny

Adarand: all racial classifications imposed by government analyzed using strict scrutiny
o Reaffirmed in Grutter & Gratz
Regents of the University of California v. Bakke (1978) (p. 1072)
o Powells concurrence held that strict scrutiny was appropriate for affirmative
action even though whites arent a discrete & insular minority
EP is an individual right
o Diversity goal: while CAs program was unconstitutional, race could be used as a
factor in admissions to enhance diversity, which is a compelling governmental
interest
Narrowly-tailored private voluntary affirmative action plans under Civil Rights Act of
1964
o United Steelworkers v. Weber (1979) (p. 1078)
Upheld private employers voluntary affirmative action plan under
o Johnson v. Transportation Agency (1987) (p. 1078)
Upheld private voluntary affirmative action program benefiting women;
Civil Rights Act only required showing a manifest imbalance
Fullilove v. Klutznick (1980) (p. 1078)
o Upheld MBE set-aside; fractured opinion; no longer good law
Wygant v. Jackson Bd. Of Ed. (1986) (p. 1080)
o Rejecting plan that would layoff non-minority teachers first to preserve racial
balance using strict scrutiny
o Alleviating the effects of societal discrimination & providing minority faculty role
models arent compelling state purposes
o Before racial classifications are allowed, need to show some prior discrimination
by the governmental unit involved
US v. Paradise (1987) (p. 1081): upholding plan using strict scrutiny

14

o Upheld court order requiring that one black be hired for every white hired for
particular positions
o Plan survived strict scrutiny b/c it was narrowly tailored to remedy past
discrimination by the Department & preserve societal interest in compliance w/
judgment of federal courts
City of Richmond v. J.A. Croson Co. (1989) (p. 1081): state & local AA programs
o First express holding that strict scrutiny should be used in evaluating state and
local affirmative action programs
o Invalidated Richmonds 30% set-aside for minority contractors under strict
scrutiny not linked to identified discrimination, so cant be narrowly tailored
30% wasnt correlated to the actual percentage of minorities in Richmond
Past societal discrimination alone is insufficient to justify racial
preferencing
Courts main problem is rigid racial preference to remedy amorphous past
discrimination
o Congress has unique powers under 5 of 14A that state & local governments
dont have; but state & local governments arent precluded from taking remedial
measures to eradicate the effects of private discrimination within its own
legislative jurisdiction
o Richmond is majority-minority city
Metro Broadcasting, Inc. v. FCC (1990) (p. 1107)
o Upheld FCCs minority preference policies
o Benign racial classifications mandated by Congress should only be analyzed using
intermediate scrutiny
o Diversity is an important governmental interest
o OVERRULED by Adarand
Adarand Constructors v. Pena (1995) (p. 1109)
o Section of the SBA awarded compensation to contractors doing business w/
minority-controlled subcontractors
o Strict scrutiny adopted as standard for analyzing all affirmative action narrowly
tailored to further compelling governmental interests
o Strict scrutiny doesnt mean strict in theory but fatal in fact
Grutter v. Bollinger (2003) (p. 1120)
o Under strict scrutiny, student body diversity is a compelling state interest that can
justify the use of racial classifications in university admissions

15

o Narrow tailoring doesnt require exhaustion of every conceivable race-neutral

alternative; just serious, good faith consideration of alternatives
o Remedy is time-limited
Gratz v. Bollinger (2003) (p. 1142)
o Use of point scale wasnt narrowly tailored to achieve a compelling governmental
interest in diversity
2. Appropriate purposes for affirmative action
Remedying past discrimination
o Ex. US v. Paradise: compelling interest in remedying past discrimination
o But the type of remedy provided in Fullilove may not be constitutional after
Croson & Adarand (see Chemirinsky p. 738)
o Wygant: societal discrimination alone isnt enough to justify a racial classification
o Affirmative action ok if:
Directed at entities proven to have engaged in illegal discrimination; and
Limited to providing remedy to proven victims of that discrimination so
the discrimination probably needs to be RECENT (so those who were
discriminated against can benefit from the remedy)
Diversity
o Bakke & Grutter: compelling governmental interest in enhancing diversity in
colleges & universities
o Diversity as a compelling governmental interest outside the education context is
less clear; upheld in Metro, but Metro was overruled
3. Appropriate techniques
Numerical set-asides
o Only permissible to remedy clearly proven past discrimination (see Paradise)
Race as one factor
o Bakke: race could be one factor in admissions decisions
o Metro Broadcasting: FCC could use race as a factor in licensing decisions

16

o Grutter: colleges may use race as one factor, among many, to benefit minorities &
enhance diversity
Deviations from seniority systems
o Rejected in Wygant
4. Recent cases Seattle & Louisville
Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2006) (p. 59)
o Seattle adopted plan to correct for effects of racially identifiable housing patterns
on school assignments; never before subject to court-ordered desegregation
o Louisville implemented percentages plan after leaving court-ordered
desegregation to help maintain racial balance
o Plans werent justified by remedying effects of past discrimination
o Plans not justified for diversity: race is decisive, not merely one factor; notion of
diversity is limited
o Kennedys opinion is controlling
Increasing diversity & avoiding racial isolation can be compelling state
interests
School districts may take race-conscious measures to combat de facto
resegregation

17

Gender Discrimination (pp. 337-346, 1179-1338)

1. Level of Scrutiny
Early cases approving gender discrimination no scrutiny or rational basis
o Bradwell v. IL (1873) (p. 337)
Right of women to labor isnt protected under the Privileges & Immunities
Clause of 14A
Denied woman the right to practice law
o Minor v. Happersett (1874) (p. 343)
Upheld constitutionality of excluding women from voting
Voting isnt a privilege & immunity of US citizenship
o Muller v. OR (1908) (p. 1181)
Upheld 10-hour limit for working women, even though Lochner had
invalidated a similar provision for men
Premised on the differences between sexes
o Adkins v. Childrens Hospital (1923) (p. 1181)
Minimum wage law for women violated liberty of contract
Later overruled in West Coast Hotel
o Goesaert v. Cleary (1948) (p. 1182)
Upheld law forbidding women to work as bartenders in most cases under a
minimum rationality standard (rational basis)
o Hoyt v. FL (1182) (p. 1961)
Upheld FL law that included women on jury lists only when they
requested it; rational basis
Emergence of Intermediate Scrutiny

18

o Reed v. Reed (1971) (p. 1183)

Invalidated ID law that preferred men over women in choosing estate
administrators using rational basis
But Court had to recognize that classification on the basis of gender was
impermissible in order to reach the result it did
o Frontiero v. Richardson (1973) (p. 1188)
Plurality endorsed strict scrutiny for gender classifications
Benefits administration differed by whether the dependant was a man or
woman
o Craig v. Boren (1976) (p. 1214) (near beer)
Intermediate scrutiny: classifications by gender must be substantially
related to important governmental objectives
Cases about traditional male/female roles archaic and overbroad generalizations:
o Weinberger v. Wiesenfeld (1975) (p. 1215): invalidated statute that provided
benefits to widows, but not widowers
Statute reflected archaic and overbroad generalizations)
o Califano v. Goldfarb (1977) (p. 1215): struck down unequal social security
benefits for widows & widowers
o Califano v. Westcott (1979) (p. 1215): invalidated statute that gave aid to
unemployed fathers, but not unemployed mothers
o Orr v. Orr (1979) (p. 1216): invalidated statute requiring husbands but not wives
to pay alimony upon divorce
Statutes designed to compensate for past discrimination must be carefully
tailored to avoid reinforcing stereotypes about the proper place of women
& their need for special protection
Modern cases intermediate scrutiny w/ bite
o Mississippi University for Women v. Hogan (1982) (p. 1250)
Statute excluding males from enrolling in state-supported nursing school
violates EP
Based on overbroad & archaic generalizations
Intermediate scrutiny w/ exceedingly persuasive justification
o US v. Virginia (1996) (p. 1229)

19

Parties defending gender-based action must demonstrate an exceedingly

persuasive justification intermediate scrutiny w/ bite
Invalidated Virginias exclusion of women from VMI & creation of
alternate military school for women
Post hoc justifications arent allowed
2. Proving Gender Classification
Facial classification
o Ex. Craig v. Boren, US v. VA
Facially neutral discriminatory purpose + discriminatory impact
o Personnel Administrator of MA v. Feeney (1979) (p. 1262)
MA statute giving preference to veterans in hiring decisions (and that
incidentally discriminates against women since federal law largely
prohibits them from serving in the military) doesnt violate EP
Where statutory classification is neutral, need to analyze whether the
adverse effects reflect invidious gender-based discrimination (i.e.
discriminatory purpose)
Pregnancy-based gender classifications
o Geduldig v. Aiello (1974) (p. 1276) (pre-Craig v. Boren)
Statute excluding pregnancy disabilities from insurance scheme
established for private employers & employees doesnt violate EP
Statute isnt gender-based, so no need to raise scrutiny
No risk from which men are protected and women arent, and vice versa
Effectively overruled by Congress
o Michael M. v. Superior Court of Sonoma County (1981) (p. 1283)
Statutory rape law doesnt violate EP by discriminating against men
(intermediate scrutiny)
Women alone are capable of becoming pregnant & state has a strong
interest in preventing illegitimate teenage pregnancy
o Nevada Dept. of Human Resources v. Hibbs (2003) (p. 1305)
Congress had 5 authority to enact prophylactic legislation to mandate that
states provide leave for men & women after childbirth

20

3. Gender Classifications Benefiting Women

Gender classifications benefiting women & based on role stereotypes arent allowed
o Ex. Orr v. Orr, Weinberger v. Wiesenfeld, Califano v. Goldfarb, Mississippi
University for Women v. Hogan
o Court upheld law benefiting women even though based on stereotypes in Michael
M. v. Superior Court
o See also draft cases
Gender classifications benefiting women & designed to remedy past discrimination &
differences in opportunity are generally allowed
o Ex. Califano v. Webster (1977) (p. 1323)
Upheld law allowing women preference in receiving social security
benefits; purpose was to remedy the effects of past discrimination
o Ex. Johnson v. Transportation Agency (1987) (p. 1323)
Upheld agency taking sex into account in promoting female employee
over male; plan was designed to remedy underrepresentation
4. Gender & the Military
Rostker v. Goldberg (1981) (p. 1318)
o Upheld constitutionality of Act that exempted women from registration for the
draft
o Deference to militarys judgment that excluding women was necessary to create a
combat force

21

Substantive Due Process (pp. 412-435, 1339-1465, Supp. 105-129)

Framework
1. Is there a fundamental right?
Carolene Products footnote: judiciary defers to legislature unless theres discrimination
against a discrete & insular minority or infringement of a fundamental right
Moore v. City of East Cleveland: fundamental rights include liberties that are deeply
rooted in this nations history & tradition
2. Is the constitutional right infringed?
Look at the directness and substantiality of the interference (Zablocki)
o Ex. unconstitutional condition
3. Is there a sufficient justification for the governments infringement?
Government must present a compelling interest to justify infringing on a fundamental
right
If right isnt fundamental, only need legitimate purpose
4. Is the means sufficiently related to the purpose?
Government must show that the law is necessary to achieve the compelling government
objective
o No less restrictive means available
Origins of SDP
1. Rise of SDP DP limits the governments regulatory power
Munn v. IL (1877) (p. 413)

22

o Upheld state law limiting rates charged by grain storage warehouses under state
police power
o When a statute regulates the use of private property, it doesnt necessarily deprive
an owner of property without DP
o Judiciarys job is to evaluate the reasonableness of state regulations
Railroad Commission Cases (1890) (p. 414)
o Upheld state railroad rate regulation
o DP could be used to challenge rate regulation in the future
Minnesota Rate Cases (1890) (p. 414)
o Struck down statute granting state railroad commission unreviewable authority to
set rates
2. Lochner v. NY (1905) (p. 417)
NY regulation of hours bakers could work violated 14A DP, which included freedom to
contract; didnt serve a valid police purpose
Freedom of contract is a basic liberty & property right protected by 14A DP
Government can only interfere w/ freedom of contract to serve a valid police purpose
Judiciarys role is to carefully scrutinize legislation interfering w/ freedom of contract
Holmes dissent: The Fourteenth Amendment does not enact Mr. Herbert Spencers
Social Statics
3. Origins of modern SDP
Meyer v. Nebraska (1923) (p. 1340)
o Struck down law criminalizing the teaching of foreign languages to children not
yet in 8th grade
o Law was an incursion on teachers right to teach & the right of the parents to have
him teach their children
o Liberty denotes more than merely freedom from bodily restraint
Pierce v. Society of Sisters (1925) (p. 1340)
o Statute requiring children to attend public schools unreasonably interferes with
the liberty of parents to direct the upbringing and education of their children

23

Skinner v. Oklahoma (1942) (p. 1341)

o Invalidated Oklahoma sterilization law under EP, but discusses marriage &
procreation as a fundamental civil right of man

Modern SDP
Theories of Fundamental Rights Adjudication (p. 1355)
1. Conventional morality: Courts job is to ascertain and enforce societys conventional
morality
a. But do Americans share a conventional morality? If so, are our courts the place
to discover it? See Ely, p. 1361
2. Rights-based: grounds a practice in rights that have some independence from
conventional moral views (natural law)
a. Ely: natural law doesnt exist in a form useful for resolving constitutional disputes
b. McConnell: judges arent well-equipped to engage in moral reasoning
3. Critique: levels of abstraction problem: Ely criticizes Tribes argument that you need to
define a right at a high enough level to protect unconventional practices (i.e. homosexual
sex) (p. 1364)
1. Marriage & contraception
Griswold v. Connecticut (1965) (p. 1342)
o Statute prohibiting giving advice about contraception to married couples violates
14A DP
o Specific guarantees in the Bill of Rights have penumbras that help give the rights
life and substance
Right to privacy is a fundamental right guaranteed by various provisions
of the Bill of Rights
Penumbra approach hasnt been followed in subsequent cases just
Douglas trying not to use SDP
Eisenstadt v. Baird (1972) (p. 1353)
o Statute prohibiting distribution of contraceptives to unmarried people violated EP
under rational basis scrutiny by distinguishing b/w married & unmarried
individuals in a way that didnt rationally further a legitimate state interest

24

o Right of privacy = right of the individual to be free from unwarranted

governmental intrusion into fundamental matters like decision whether to have a
child
Carey v. Population Services International (1977) (p. 1354)
o Struck down laws restricting distribution of contraceptives
o Since the decision to have a child is a fundamental right, it is analyzed using strict
scrutiny
Zablocki v. Redhail (1978) (p. 1354)
o Struck down law withholding marriage licenses from people with outstanding
child support payments using EP
o Recognized marriage as a fundamental right & analyzed using strict scrutiny
2. Families
Village of Belle Terre v. Boraas (1974) (p. 1370)
o Upheld ordinance that limited the number of unrelated people who could live
together in one house
o Ordinance involved no fundamental or privacy rights; state can use its zoning
authority to safeguard family values
Moore v. City of East Cleveland (1977) (p. 1370)
o Liberty includes protection for family rights, including the extended family
o Invalidated ordinance limiting cohabitation to nuclear families
Michael H. v. Gerald D. (1989) (p. 1371)
o Upheld irrebuttable presumption that a married womans husband is the father of
her child, even though it negates the biological fathers rights
o No liberty interest for the biological father b/c no tradition of protecting the
fathers rights when the mother is married to someone else
o Scalia: tradition should be defined at the most specific level of abstraction
(footnote f only gets plurality)
Balkins criticism of this reasoning: p. 1382
Troxel v. Granville (2000) (p. 1386)
o Grandparents dont have a fundamental right to raise their grandchildren

25

3. Abortion JUDICIAL BYPASS

Roe v. Wade (1973) (p. 1388)
o Constitution protects right of woman to choose to terminate her pregnancy prior
to viability (the point at which the states interest in potential life becomes
compelling)
o Government regulations of abortion must meet strict scrutiny
o Zone of privacy in the Constitution only includes rights that are fundamental or
implicit in the concept of ordered liberty (from Palko v. Connecticut)
o States interest in the health of the mother becomes compelling at the end of the
first trimester
Webster v. Reproductive Health Services (1989) (p. 1423)
o Upheld MO restrictions prohibiting the use of public hospitals to perform or assist
abortions
o Upheld Roe; plurality got rid of the trimester framework but OConnor would
uphold it
Planned Parenthood v. Casey (1993) (p. 1424)
o Plurality opinion overruled trimester system & use of strict scrutiny for abortion
regulations
o Undue burden test: government regulation of abortions prior to viability should
be allowed unless it places an undue burden on access to abortion
Undue burden: state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking to abort a nonviable
fetus
o States can take measures to persuade women to choose childbirth over abortion
o Invalidated spousal notification requirement imposes an undue burden on
women who might be victims of spousal abuse
4. Regulation of abortion
Pre-Casey
o Akron I (1983) (p. 1405)
Invalidated ordinance requiring 24-hour waiting period before performing
abortion using strict scrutiny
But Casey upheld a waiting period using undue burden
Invalidated part requiring physicians to give women information designed
to discourage abortions

26

o Planned Parenthood of Central Missouri v. Danforth (1976) (p. 1419)

Government may require written informed consent for abortions
But government cant require husbands consent
Invalidated parental consent law
o Belotti v. Baird (1979) (p. 1420)
Parental consent ok only if it provides a judicial bypass procedure
o Thornburgh v. American College of Obstetricians & Gynecologists (1986) (p.
1419)
Invalidated law requiring that women be given certain types of
information 24 hours before consenting to abortion
But Casey upheld a similar provision & overruled this part of
Thornburgh
o Hodgson v. Minnesota (1990) (p. 1420)
Invalidated two-parent notification requirement that didnt include a
judicial bypass
Post-Casey
Stenberg v. Carhart (2000) (p. 1457)
o Law prohibiting partial birth abortion (unless necessary to save mothers life)
poses an undue burden on womans right to abortion
No provision for life of the mother
Undue burden on choosing one type of abortion is an undue burden on
abortion itself
o Preempted by Carhart II
Gonzales v. Carhart (Carhart II) (2007) (Supp. 105)
o Upholding Partial Birth Abortion Act of 2003 requirements dont pose an
undue burden on late-term but pre-viability abortions by imposing a
substantial option

27

Sexual Orientation (pp. 1465-1568)

1. Bowers v. Hardwick (1986) (p. 1466): Homosexual conduct
Right to privacy doesnt protect a right to engage in consensual sodomy not
fundamental and implicit in the concept of ordered liberty
Previous SDP jurisprudence on marriage, family, etc. doesnt have any relation to the
rights of homosexuals
Rational basis scrutiny rational relation to upholding notions of morality
2. Romer v. Evans (1996) (p. 1505): Homosexual status
Voters passed amendment saying that governments couldnt take sexual orientation into
account in determining minority status, preferential treatment, or discrimination claim
Amendment violates EP: imposes a special disability on homosexuals alone
Amendment fails rational basis (with bite) review for being too narrow and too broad
identifies a single trait and then denies protection across the board
3. Lawrence v. Texas (2003) (p. 1482): Homosexual conduct
Statute criminalizing consensual homosexual sodomy is unconstitutional violation of
SDP
o Statute controls a personal relationship thats w/in the liberty of persons to choose
Rational basis: TX statute furthers no legitimate state interest to justify its intrusion into
the private life of an individual
Level of scrutiny to be used is unclear
4. Circuit court cases on homosexuality (see reading for 3/31)
5. Boy Scouts of America v. Dale (2000) (p. 1533)
NJ couldnt apply its public accommodations law to prevent Boy Scouts from dismissing
a scoutmaster who was also a gay rights activist
Boy Scouts is a group formed for expressive purposes; cant force them to accept
members who express contrary views
6. Military service
Thomasson v. Perry (4th Cir. 1996) (p. 1539)

28

o DADT is constitutional under rational basis; deference to military policy

7. Same-sex marriage
Goodridge v. Dept. of Public Health (Mass. 2003) (p. 1545)
o Statute banning same-sex marriage is unconstitutional
o Doesnt further any legitimate state interest; identifies people by a single trait and
then denies them protection across the board
Bowen v. Gilliard test for heightened scrutiny (p. 1524)
1. Group has been subjected to historical discrimination
a. Homosexuals obviously have the question is which other group to use as an
analogy
2. Group exhibits obvious, immutable or distinguishing characteristics that define them as a
discrete group
a. Immutability: Depends on whether homosexuality is immutable
b. Visibility: ability to remain in the closet
3. Group is a minority or politically powerless
a. Many homosexuals remain in the closet; but more and more are organizing to
influence politics
Homosexuality as sex discrimination? (p. 1528)
Law objects to homosexuals choice of a sex partner because of the homosexuals own
sex; would permit the behavior if it came from someone of the opposite sex
Taboo against same-sex relations = preservation of male supremacy
o Gender subordination
o Undermines traditional heterosexual gender identities

29

Right to Die (pp. 1569-1652)

1. Right to refuse treatment
Cruzan v. Director, MO Dept. of Health (1990) (p. 1569)
o Constitution doesnt prohibit Missouri from preventing withdrawal of medical
treatment without clear & convincing evidence
o Competent adults have a constitutional right to refuse medical care
Assumption that Constitution would grant a competent person a
constitutionally protected right to refuse lifesaving treatment gets 5 votes
o State has an interest in protecting & preserving human life, which it can do by
imposing heightened evidentiary requirements
o Didnt clearly articulate a level of scrutiny for right-to-die cases
2. Assisted suicide
Washington v. Glucksberg (1997) (p. 1579)
o Prohibition against causing or aiding a suicide doesnt violate 14A DP
o The right to assisted suicide isnt a fundamental liberty protected by SDP;
history & tradition opposes a right to assisted suicide
o Since its not a fundamental right, rational basis applies
Vacco v. Quill (1997) (p. 1586)
o Prohibition against assisted suicide doesnt violate 14A EP
o Doesnt discriminate against a protected class, so rational basis

30

Welfare State (pp. 1593-1702)

1. Does the Constitution prohibit a welfare state?
Legislatures have wide berth since 1937 in making judgments about the public purpose of
any given decision to allocate welfare benefits
Lucas County v. State of Ohio (1906) (p. 1594)
o Invalidated OH act providing relief for blind people; no precedent; relief is
actually a gift, and legislature has no right to make it from the public funds
o Legitimacy of the welfare state isnt questioned; rather, the issue is whether the
policies adopted actually serve the public welfare
Lyng v. Intl Union, UAW (1988) (p. 1596)
o Statute denying food stamps to people on strike doesnt violate 5A DP under
rational basis scrutiny
o Amendment is rationally related to the legitimate governmental objective of
avoiding favoritism to one side in private labor disputes
2. Rise of the Modern Welfare State
3. Does the Constitution guarantee any welfare rights?
West Coast Hotel v. Parrish (1937) (p. 1606)
o Upheld state-mandated minimum wage; government must meet the bare cost of
living
Rights of Indigents in the Criminal Justice System
o Griffin v. IL (1956) (p. 1607): once the state has provided a mandatory appeals
system, it must provide a trial transcript to indigent criminal defendants for the
appeal
Under EP, cant discriminate against people on the basis of their ability to
pay for a mandatory service
o Gideon v. Wainwright (1963) (p. 1607): required counsel for all felony defendants
at trial under 6A
o Douglas v. CA (1963) (p. 1608): invalidated CA procedure to determine whether
an indigent defendant needed appointed counsel on appeal
Violated EP by discriminating between rich & poor
Creation of Fundamental Interests under EP

31

o Brennan/Michelman: Constitution guarantees some level of minimum protection

against the effects of poverty
o Harper v. VA Board of Elections (1966) (p. 1609)
State poll tax levied on everyone violates EP when it makes affluence of
the voter or payment of a fee an electoral standard
Requirement of paying a fee to vote is invidious discrimination & invades
a fundamental right (voting)
Although the state doesnt have to extend the right to vote generally, once
it does, it cant invidiously discriminate in how it provides the right
o Boddie v. Connecticut (1971) (p. 1615)
Invalidated requirement of filing fee & service of process fee in order to
commence divorce proceedings as applied to indigent persons under DP
State has a monopoly on granting divorce, so requiring fees from indigent
people deprives them of something that only the state can provide
Implicates marriage, which is a fundamental right
Minimum needs rejected
o Daindridge v. Williams (1970) (p. 1616)
Statute limiting monthly grants to families w/ dependent children to $250
regardless of size or need doesnt discriminate in violation of EP
Analyzed under rational basis as an economic/social welfare classification
upheld if any state of facts reasonably may be conceived to justify it
o Lindsey v. Normet (1972) (p. 1620)
Rejected claim that need for decent shelter was a fundamental interest that
would call for heightened scrutiny of statutory procedure for eviction of
tenants after nonpayment of rent
Constitution doesnt guarantee access to housing of a particular
nature
o US v. Kras (1973) (p. 1621)
Filing fees for bankruptcy dont affect a fundamental interest
government doesnt have a monopoly over repayment of debts
Right to education
o San Antonio Independent School District v. Rodriguez (1973) (p. 1624): Equal
provision of public education
TX school funding scheme that relies heavily on local property wealth
doesnt disadvantage any suspect class & doesnt violate 14A EP

32

Doesnt violate a fundamental SDP right; nexus b/w education & speech
doesnt mean that every citizen has the right to the most effective speech
or most informed electoral choice
Substantive equal protection
Discrimination against the poor doesnt invoke heightened scrutiny
poverty isnt a suspect classification rational basis
o Plyler v. Doe (1982) (p. 1641): Minimal provision of educational resources
TX statute that withholds funds to pay for education of illegal aliens &
authorizes school districts to deny enrollment to illegal aliens violates EP
Education is fundamental to our society
Denial of education to an isolated group of children offends the goals of
EP
Level of scrutiny unclear, although majority talks about fundamental
role of education & isolated and discrete classes
State duty to rescue
o DeShaney v. Winnebago County Dept. of Social Services (1989) (p. 1653)
State had no constitutional duty to protect child from his abusive father &
didnt violate his 14A liberty right by failing to protect him
DP doesnt require protection against private actors & isnt a guarantee of
minimal levels of safety
States affirmative duty to protect arises only when it has limited the
individuals freedom to act on his own behalf (i.e. incarceration)
o Youngberg v. Romeo (1982) (p. 1654): state generally has no constitutional duty to
provide substantive services for those within its border
o Estelle v. Gamble (1976) (p. 1654): affirmative duty to act arises from stateimposed limitation on persons freedom to act on his own behalf
o Castle Rock v. Gonzales (2005) (p. 1658)
Towns failure to enforce restraining order did not violate SDP b/c theres
no property interest in police enforcement of a restraining order
A benefit isnt a protected entitlement if government officials may grant or
deny it in their discretion
State action doctrine (p. 1664)
o State action must be present for the state to be obligated to provide someone with
resources must be prevented from being responsible for their own welfare
o American Manufactures Mutual Insurance Co. v. Sullivan (19999) (p. 1665)

33

Need a sufficiently close nexus between the state & the challenged action
of the regulated entity so that the entity may be fairly treated as that of the
state itself before its action is converted into that of the state for 14A
purposes
Nexus depends on state coercive power or encouragement
4. Procedural Due Process Protection of Entitlements & Interests
What procedural safeguards are due?
o Goldberg v. Kelly (1970) (p. 1668)
NY welfare programs system of terminating welfare payments prior to the
holding of a hearing violates DP
Termination of aid deprives a person of the means to live; cant be done
without a pre-termination evidentiary hearing
o Mathews v. Eldridge (1976) (p. 1671)
Factors to balance in determining administrative procedures required by
DP:
Private interest affected by official action
Risk of erroneous deprivation & probable value of additional or
substitute procedural safeguards
Governments interest
5. Burdens on Travel strict scrutiny for violations of a fundamental right
Crandall v. NV (1868) (p. 1673): invalidated NV departure tax
Edwards v. CA (1941) (p. 1673): invalidated CA law forbidding bringing indigents into
the state
Right to travel as fundamental right
o Shapiro v. Thompson (1969) (p. 1674)
Statute that denies welfare assistance to residents of the state who havent
resided there for at least 1 year immediately preceding their applications
for welfare violates EP
Statute creates two classes & then denies benefits to one of them
Purpose of deterring people who need welfare from entering the state is
unconstitutional restriction on travel
Right to relocate

34

o Dunn v. Blumstein (1972) (p. 1680): invalidated TNs one-year residence

requirement for voting under EP strict scrutiny
o Memorial Hospital v. Maricopa County (1974) (p. 1680): invalidated statute
requiring one-year residence in the county as a condition for indigents receiving
non-emergency medical care at the countys expense under EP
o Sosna v. Iowa (1975) (p. 1681): upheld Iowas requirement that a party reside in
the state for one year before bringing divorce action against a non-resident
Welfare to long-time residents vs. newcomers
o Zobel v. Williams (1982) (p. 1682): distribution of oil revenues based on length of
residency violates EP under rational basis
Congressional consent
Reconsideration of Shapiro
o Saenz v. Roe (1999) (p. 1684)
CA limitation on welfare benefits for new residents is unconstitutional
under 14A Citizenship and Privileges & Immunities Clauses
Privileges & Immunities protects the right to be treated like other citizens
of another state
Privilege of national citizenship not to be treated differently from citizens
of a state (14A, not 4A)
6. Unconstitutional conditions
Rights, Waivers & Inducements to Change Behavior
Abortion funding cases
o Maher v. Roe (1977) (p. 1692)
Regulation limiting state Medicaid funds for first trimester abortions to
those that are medically necessary doesnt violate 14A EP rights of
indigent pregnant women seeking abortions
State has no constitutional obligation to pay for abortions
No suspect class of fundamental right at stake; women can still choose to
have abortions
State has strong interest in protecting life & encouraging normal
childbirth, which the regulation rationally furthers by subsidizing
childbirth instead of abortion
o Harris v. McRae (1980) (p. 1696)
Statute prohibiting use of federal funds to perform abortions with no
exception for health of mother is constitutional doesnt impinge on the
DP liberty interest recognized in Roe v. Wade
Freedom of choice doesnt contain constitutional entitlements to funding
of the full range of choices
o Webster v. Reproductive Health Services (1989) (p. 1698)
Law prohibiting abortions in public facilities doesnt discriminate in
violation of EP; leaves pregnant women with a range of options for having
an abortion

35

Free Speech (pp. 84-91, 460-471, 1702-1741)

36

Original meaning: freedom from prior restraint (p. 84)

WWI & 1A (p. 460)
Debs v. US (1919) (p. 460): affirmed conviction of Debs for violating Espionage Act
(prohibiting speech inciting insubordination in the military or refusal to serve)
Schenck v. US (1919) (p. 461): clear-and-present-danger test
o Issue for speech cases is whether the words are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent
Abrams v. US (1919) (p. 462): emergence of clear and present danger test as
constitutional standard
Gitlow v. NY (1925) (p. 463): 1A applies to states; deferred to legislatures judgment that
certain speech could be punished (as opposed to speech uttered in the course of
committing another crime)
o Didnt apply clear and present danger test
Whitney v. California (1925) (p. 464): reasonableness test for clear & present danger
o Clear and present danger test: the incidence of the evil apprehended is so
imminent that it may befall before there is opportunity to full discussion
o Must be reasonable ground to fear that serious evil will result if free speech is
practiced
Dennis v. US (1951) (p. 465)
o Court must ask whether the gravity of the evil, discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid the danger
Brandenburg v. Ohio (1969) (p. 468): overruled Whitney
Government can limit free speech when advocacy is directed to inciting or producing
imminent lawless action & likely to incite or produce such action
Test:
o 1. Imminent harm

37

o 2. Likelihood of producing illegal action

o 3. Intent to cause imminent illegality
Freedom of Speech in the Welfare State (p. 1702)
1. Right to lobby & tax deductibility
Regan v. Taxation With Representation of Washington (1983) (p. 1702)
o Upheld provision conditioning tax exempt status on foregoing lobbying
o Legislatures decision not to subsidize the exercise of a fundamental right doesnt
infringe the right, and thus isnt subject to strict scrutiny
o Government doesnt have to subsidize the exercise of 1A rights
2. Restrictions on radio stations accepting federal subsidies
FCC v. League of Women Voters of CA (1984) (p. 1704)
o Act prohibiting noncommercial educational station that receives a grant from the
CPB to engage in editorializing is an unconstitutional condition that violates 1A
o Strict scrutiny: restraints on broadcast media are legitimate only if narrowly
tailored to further a substantial governmental interest
o Content-based suppression of speech
3. Restrictions on disclosing abortion information
Rust v. Sullivan (1991) (p. 1708)
o Regulations prohibiting use of federal funding for programs where abortion is a
method of family planning isnt an unconstitutional condition under 1A
o Government can selectively fund a program to encourage certain activities
without simultaneously funding a program that deals with the same program in a
different way
o Governments actions dont deny a benefit to anyone just specifies how public
funds must be spent
4. Public forums & funding

38

Rosenberger v. Rector of UVA (1995) (p. 1716): content-based (viewpoint) discrimination

o UVA regulation denying funding to a religiously-themed student publication
violates 1A by engaging in viewpoint discrimination
o Separation of church & state not implicated no establishment of religion where
the publication would be funded as part of a neutral scheme of subsidization of
diverse student organizations
o Distinguished Rust: there, government itself was speaking; here, University isnt
speaking instead, its withholding funds meant to encourage diversity of views
from private speakers
NEA v. Finley (1998) (p. 1724)
o Upheld statute (under facial challenge) that said NEA should take decency and
respect into account when deciding which art to fund
o Statute doesnt direct rejection of any given proposal; language is merely advisory
Post, Subsidized Speech (p. 1725): distinctions for deciding how & under what
conditions subsidized speech can be regulated by the government
o Regulation of public discourse vs. regulation of the managerial domain
o Whether the condition on government subsidies is classified as regulations
imposed upon persons, or internal directives guiding the conduct of state
institutions (conduct rules or decision rules)
5. Public libraries
US v. American Library Association (2003) (p. 1731) (plurality)
o Upheld law withholding federal funding for internet access in libraries unless they
install blocking software
o Government has broad discretion to make content-based judgments in deciding
what private speech to make available to the public
o Where government is providing subsidies, it can define the limits of the program
under which it provides subsidies
6. Speech by government lawyers
Legal Services Corp. v. Velazquez (2001) (p. 1738)
o Act denying federal financial assistance to programs that litigate to reform
welfare systems is unconstitutional
o LSC attorney is speaking on behalf of his private client, not the government, in a
claim against the government for welfare benefits
o Government had essentially created a limited forum & had impermissibly
attempted to control the content of speech within it limited government laws
from legitimate judicial challenge

39

Religion (pp. 1741-1800)

1. Unemployment compensation & religious commitments
Thomas v. Review Board of IN Employment Security Div. (1981) (p. 1741)
o IN law denying unemployment benefits to Jehovas Witness for leaving his job
because it conflicted with his religious beliefs unconstitutional violation of Free
Exercise Clause
o Everson: person cant be compelled to choose between exercise of 1A right &
participation in otherwise available public program
o Sherbert v. Verner: 7th Day Adventist had right to receive unemployment after
declining to work on Saturday for religious reasons
o State may justify intruding on religious liberty by showing that its the least
restrictive means of achieving a compelling state interest (strict scrutiny)
Hobbie v. Unemployment Appeals Commission of FL (1987) (p. 1745)
o State required to provide unemployment benefits to woman who was fired when
she refused to work on Saturday
Employment Div., Dept. of Human Resources of OR v. Smith (1990) (p. 1746)
o Drug counselor discharged for cause after using peyote as part of religious
ceremony; OR law criminalizing drugs was applied evenly & sustained under
rational basis
o Test: neutral laws of general applicability need only meet rational basis, no matter
how much they burden religion
Church of the Lukumi Babalu Aye v. Hialeah (1993) (Chemirinsky p. 1260)
o Statute unconstitutional under Smith where not neutral because its clear object
was to prohibit a religious practice
2. Aid to schools conditioned on secular education no-aid paradigm
Committee for Public Education & Liberty v. Nyquist (1973) (p. 1747)
o Program providing financial aid for private schools & families that send their
children to private schools violates Establishment Clause
o Lemon test for Establishment:
1. Law must reflect secular purpose
2. Law much have primary effect that neither advances nor inhibits
religion

40

 3. Law must avoid excessive government entanglement with religion

o Subsidies & tuition had the primary effect of advancing religion by subsidizing
religious schools & making it easier for children to go to religious schools
Laycock: Theories for Establishment Clause Cases (p. 1756)
o 1. No-aid theory: state money paid to religious school/students expands schools
budget & aides religion
o 2. Purchase-of-services theory: state money paid to religious schools is a purchase
of educational services
o 3. Equal treatment theory: government obligated to pay for secular aspects of
education in religious schools; OR government is free to make such payments if
it wishes
o 4. Child-benefit theory: state can provide educational benefits directly to children
or parents, even if used in connection w/ religious school
o 5. Tracing theory: Court approves money only where it can be traced to a wholly
secular expenditure
o 6. Little-bit theory: a little bit of aid to religious schools is permissible, but it must
be structured in a way that keeps it from becoming too much
Mueller v. Allen (1983) (p. 1758): tax deduction that applied to transportation & supply
expenses for sending children to religious schools held permissible
3. New paradigm
Witters v. WA Dept. of Services for the Blind (1986) (p. 1760)
o Upheld statute that delivered aid directly to blind students for vocational
rehabilitation; student then chose what school to give the money too
Zobrest v. Catalina Foothills Schools Dist. (1993) (p. 1760): neutrality
o Provision of sign language interpreter using federal funds to deaf student
attending religious school is constitutional; program neutrally provides benefits to
broad class of citizens defined w/out reference to religion
Mitchell v. Helms (2000) (p. 1761)
o Upheld distribution of federal funds & education-related materials to, inter alia,
private schools
o Where government, for legitimate secular purpose, gives aide on the same terms,
w/out regard to religion, to all who adequately further that purpose, aid going to a
religious recipient only furthers the secular purpose
Zelman v. Simmons-Harris (2002) (p. 1762): vouchers; NEW TEST
o Voucher program, where parents could choose to use money to send children to
private schools, doesnt violate Establishment or Free Exercise Clauses
o Neutrality: program is neutral w/r/t religion

41

o Direct aid: program provides assistance directly to a broad class of citizens, who
in turn may give the money to religious schools (true private choice)
4. Boundary between Establishment & Free Exercise
Locke v. Davey (2004) (p. 1779)
o State can deny scholarship funding for students majoring in theology without
violating the Free Exercise Clause government is allowed to provide such
funding, but not constitutionally required to do so
o Zelman: link between government funds & religious training is broken by
independent and private choice of recipients
o Denial of scholarship money to study religion doesnt burden free exercise of
religion in any way
5. Administering welfare state through religious organizations
Bowen v. Kendrick (1988) (p. 1786)
o Act allowing for involvement of religious organizations in response to teenage
pregnancy doesnt violate the Establishment Clause
o Applying Lemon test:
Secular purpose: eliminating/reducing problems caused by teenage
pregnancy
Effects:
Congress allowed to recognize that religious organizations have a
role to play in solving certain secular problems
Act is neutral w/r/t grantees religious or non-religious status
Entanglement: no reason to fear that governments monitoring of the
program will cause it to intrude into the operation of religious grantees
since the organizations arent necessarily pervasively sectarian

42