Kolenc ConLawII Spring 2017

Constitutional
Law II – Spring 17’ Prof. Kolenc

A DUE PROCESS
• Bill of Rights. Constitution limits the federal government
o Most of the Bill of Rights is incorporated against the States by the 14th Am. Due Process Cl.
o State infringement of fundamental unenumerated rights also requires stricter scrutiny by the Courts.
o The Due Process Cl. Have both a “substantive” and “procedural” component
o The 14th Am. also contains another basis on which to attack the constitutionality of a government action –
The Equal Protection Clause
§ Barron v. Baltimore
I. 14th Amendment. “No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process
of law; nor shall any state deny to any person within its jurisdiction the equal protection of the laws. [1-P&I; 2-
Proced. & Subst. Due Process; 3- EPC)
a. Reconstruction Amendments. Civil Rights Cases – The 14th Am. cannot be used to regulate conduct
of private actors.
♦ Exceptions:
When private actors assume public functions (e.g. company towns)
When private actors act with/under authority of public actors
The judicial enforcement exception (*focus on this exception for exam purposes)
⇒ Shelley v. Kraemer
The ct’s decision to enforce the restrictive covenant was state action
P is affirmatively asking ct to enforce the restrictive covenant which is
discrimination
⇒ Ct. must decide even handedly and neutral (that’s all the constitution req’s)
II. 5th Amendment. “[N]o person shall be deprived of life, liberty or property without due process of law; nor shall
private property be taken for public use, without just compensation.” (5th Am. only applies to the federal
government)
III. Procedural Due Process. Governs certain procedure that the government must follow when infringing on a
person’s rights. What procedures are necessary before certain rights are taken away. If the state wants to take
away an individual’s, it must have a state interest to do so. It assesses how much a person is due when the gov’t
intends to deprive someone of life, liberty or property.
a. Procedural due process? Where do you get that right (Source of Law)?
♦ Constitution
♦ Federal law & Treaty
♦ State law
♦ Natural Law?
b. State Action Doctrine. The U.S. Constitution primarily regulates State actors, not private actors.
♦ (1) Must have notice that “right” will be taken away
♦ (2) And possibility to be heard
♦ Two Step Process:
Step 1: What is the Nature of Life, Liberty & Property right?
⇒ What rights are protected? (e.g. does it trigger constitutional protection?
Does the Constitution recognize it?) Yes? Move to step 2.
Must be something that the Constitution recognizes
Must convince the ct that a sufficiently important life, liberty or
property interest is at stake
Ct. looks to the “nature” of the right at stake
Source of Law Analysis: If not spelled out in the Constitution, these
rights are created and defined by positive federal and state law.
⇒ Liberty? Ct. interpret (and expand) list
Liberties enumerated in the Bill of Rights
Unenumerated rights: parental rights, school discipline,
institutionalizing someone.
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Constitutional Law II – Spring 17’ Prof. Kolenc
⇒ Property Interests: “positive law” (derives from Bill of Rights)
Possible Interests: employment, social entitlements
Welfare is a property right, requiring a hearing prior to deprivation
(Goldberg case)
Roth & Perry cases
v Both professors at public universities terminated from job
v Roth: one-year K; no prior history; no reasonable expectation
of K renewal
v Perry: one-year K; 10-yr history; plus official policies created
legitimate expectation of renewal
⇒ Step 2: How much process is due?
Minimum Requirements: Notice and Opportunity to be heard.
v Opportunity to be heard must be give pre-deprivation or post-
deprivation. The Eldridge factors will help determine if Notice
and Opportunity to be heard requirements have been satisfied.
Matthews v. Eldridge Test. (Balancing Factors – not elements!)
v (1) Nature of Private Interest Affected (pretty heavy) (e.g.
suspended from school)
i. Something particularly weighty (e.g. welfare)
ii. Not particularly weighty (e.g. ½ suspension from
school)
iii. The weightier that interest the more process given to
the individual
v (2) Gov’t interest: burden of additional procedures (how big of
burden is it to the government?)
i. Weight against the Gov’t interest. What burden does
this place on the Gov’t? What reason does the Gov’t
have to get rid of someone immediately?
ii. Ex. CIA agent has the exposure to top secret material
and they think person is a spy from Russia. Do we
want to get rid of person immediately opposed to
waiting 6 months for a hearing? (Gov’t interest would
be post-deprivation b/c the gov’t interest is high).
iii. The weightier of gov’t interest = less procedures after
the deprivation of the right.
v (2) Risk of erroneous deprivation under current procedures +
assessment of additional procedures (e.g. how risky is it where
they make a mistake)
i. What are the current procedures?
ii. What procedures are being requested?
iii. Is the risk any less? (whole hearing v. wait until right is
taken away).
Cleveland Board of Ed v. Laudermill (Employee lied on Employment
application)
IV. Privileges & Immunities. “No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States. (14th Am)”
a. States must treat citizens of other states [i.e., residents, but not aliens or corporations] in a non-
discriminatory fashion in matters that are “fundamental to the promotion of interstate harmony,” unless
the State has a “substantial reason” for the discrimination.
b. Steps to Establishing a P&I Cl. Violation:
i. What right did state violate?
o Life, Liberty or Property?
ii. Is it a fundamental right?
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o Fundamental: Employment & medical services
o Not Fundamental: Admission to state universities & issuance of recreational hunting
licenses.
o Baldwin v Fish
iii. Distinction b/t citizen of “several states” v. “united states”
o Slaughter Houses cases
V. Incorporation of the Bill or Rights through Due Process Clause
a. Barron v. Baltimore
b. Two Theories:
i. “Total Incorporation” (J. Black) – Amend. 1-8
ii. “Selective Incorporation” (J. Frankfurter)
o How do we know which rights to incorporate?
a. (e.g. where do individuals rights come from? “Enumerated v. Unenumerated
fundamental right)
b. Those that are implicit [fundamental]
c. Our concept of ordered liberty (e.g. “deeply rooted . . .”)
o Ct. looks at Amendments 1-8 for guidance
c. How do we know which rights to incorporate? (i.e., where do individual rights come from?)
i. Those that are “implicit in [i.e., fundamental to] OUR concept of ordered liberty” (i.e., “deeply
rooted in this Nation’s history and tradition”)
d. McDonald v. Chicago (2nd Am. Right)
VI. Substantive Due Process. Focuses on substance of the rights themselves (e.g. life, liberty). If you have a right
that is substantive, the state has a limit on what they can do.
a. Substantive Due Process Exam Approach.
i. (1) Define “Substantive Due Process” and identify the doctrine’s historical basis in Supreme Ct.
precedent involving economic liberty.
o A way for the ct. to require the gov’t to show a sufficiently strong reason to
regulating certain fundamental rights that ppl have. Specifically, unenumerated
rights under liberty of the DPC.
o Lochner v. New York – “means-end” testing
ii. (2) Analyze “Substantive Due Process,” to include the level generality at which the issue should
be framed, an assessment of the competing interests at stake, and the two levels of scrutiny
associated w/Substantive Due Process:
o Strict Scrutiny
o Rational basis and concept of RB with bite
Standard of Review Means Ends

Rational Basis Rationally related (to achieve) Legitimate Interest
Intermediate Scrutiny Substantially related (to achieve) Important State Interest
Strict Scrutiny Narrowly Tailored / Necessary (to Compelling State Interest
achieve) (analyze alt. means if you
can’t determine if there
was a compelling state int.)
iii. What rights are protected?

o Life (including unborn life at viability phase), Property, Liberty
iv. How do cts evaluate level of scrutiny? (Analysis)
o Ends Test: Tests the strength of the state’s interest in regulating the right (e.g. legitimate
reason vs. a compelling)
o Means Test: Tests the alignment of the State’s chosen means with the desired end (e.g.
rationally related vs. narrowly tailored to the interest)
o If dealing with a “fundamental right” = SS; Not fundamental right = RB
b. Strict Scrutiny – Suspect classification or fundamental right
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Gov’t may only regulate a “fundamental right” if it is a (1) compelling governmental interest that is (2)
narrowly tailored / necessary to further the interest, and there was no least restrictive alternative means.
i. “Means Test:” Narrowly tailored – Is the law closely fit to its purpose; not overly broad?
ii. A form of heightened scrutiny where the gov’t may only regulate a “fundamental” right if it has:
o A compelling governmental interest that is
o narrowly tailored / necessary to achieve that gov’t interest
iii. Fundamental Rights
o Liberties that are “deeply rooted in this Nation’s history and tradition” and “implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” (Glucksberg)
o If not a fundamental right Rational Basis Test is applied.
iv. Economic Liberties.
o Minimum Wage Law. Due process issue to practice a trade
a. RB applies; Gov’t wins.
b. Lochner v. New York
v. Right to Privacy
o “Right to Child Rearing & Education” Gov’t can interfere only if they meet SS.
Interference violates the right of the parent to raise their child.
a. Pierce v. Society of the Sisters – “Right to Child Rearing”
⇒ 2 private schools in Oregon challenged an Oregon law that required
children between 8 and 16 yrs of age to attend public school
⇒ Under Meyer v. Nebraska doctrine, the statute unreasonably interferes
with the liberty of parents to direct upbringing and education of
children (Strict Scrutiny applied)
⇒ Skinner v. Oklahoma – “Right to Procreate”
Okl. Statute deprives certain individuals of a right to have
offspring.
Ct. relies on EPC and applies SS
o “The Right of Privacy: Death & Dying” (refuse medical treatment)
a. Cruzan v. MO Dept of Health (did not read – but briefly mentioned)
b. Liberty interest at stake? Right to refuse unwanted medical treatment (incl.
food and water);
⇒ Brennan: the right to determine what shall be done with one’s own
body.
⇒ Stevens: Choices about death
⇒ Scalia: The right to commit suicide by refusing to take appropriate
measures necessary to preserve one’s life
⇒ Fundamental right? Ct. assumes right is constitutionally protected
but does not say at what level; looks to common-law roots
Brennan: deeply rooted and fundamental
Stevens: the core of liberty
Scalia: No. This is not a right historically and traditionally
protected against state interference due to historical
criminalization of suicide.
c. Washington v. Glucksberg
⇒ Issue: whether 14th Am. protects a liberty right to commit and assist
suicide
⇒ How do we know if this is a fundamental right?
Glucksberg Test: Is it deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty, such that
neither liberty nor justice would exist if they were sacrificed
v Holding: Suicide is not a fundamental right b/c it is not
deeply rooted in this Nation’s history and tradition.
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Suicide is NOT a fundamental interest, even if it is a
personal autonomy
v Rational Basis Test applied
v Legitimate State Interests
- Preventing suicide, especially among
vulnerable
- Protecting integrity & ethics of medical
profession
- Avoiding the “slippery slope” to euthanasia
- Ban is at least reasonably related to these
interests
⇒ Right of Privacy comes from Griswold v. Connecticut case
o Right to Privacy: Abortion. Women have a fundamental right to terminate their
pregnancies.
a. Roe v. Wade
⇒ Right being protected?
Liberty interest; women’s decision to terminate pregnancy
⇒ What level of scrutiny? Strict Scrutiny.
Maj Opinion: Ct attempts to find a definition of “person,” but is
“persuaded” that the word ‘person’ as used in the 14th Am. does
not include the unborn.
⇒ State Interests furthered by abortion ban?
Women’s health; Potentiality of human life as it grows in womb.
⇒ When does state interest become “compelling?”
Women’s Health: after the first trimester, medical fact establishes
that the risk of death from abortion is greater than risk of death
from childbirth itself.
Potentiality of Life: Court finds no consensus on when life
begins; viability is point when meaningful life can occur apart
from the mother
b. Planned Parenthood v. Casey
⇒ Ct. reaffirmed the decision in Roe v. Wade, but changed the law and
upheld that SS is no longer used for abortion and now uses the undue
burden test
⇒ Ct. never defined undue burden test w/any clear precision but ruled:
Ex. 1 – A 24 hr. waiting period / recordkeeping system is not
unduly burdensome (gives enough time for mother to change her
mind)
Ex. 2 – Req’t that abortions be performed by licensed physicians
is not unduly burdensome
Ex. 3 – Prohibition of partial-birth abortion is not unduly
burdensome and is constitutional (Gonzales v. Carhart)
Ex. 4 – Gov’t is never constitutionally req’d to subsidize or
provide facilities to support abortions.
Ex. 5 – Gov’t never req’d to pay for abortions and never need to
ask facilities to perform abortions
Ex. 6 – Spousal consent / notification laws are unconstitutional
v A state cannot condition a married woman’s right to get
an abortion on the basis of getting consent from her
husband nor does she need to give notice to her husband.
v Policy: The right to abortion is a women’s right to make
and no one needs to give consent / be notified.
Ex. 7 – Parental notice / consent requirements minor abortions.
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v State may require parental consent to a minor abortion
only if it creates an alternative procedure. Where a minor
can obtain an abortion by going before a judge, the judge
can approve by (1) finding its in the minors best interest
or (2) she is mature to decide for herself.
⇒ Case used to determine when to overturn stare decisis (precedent
cases).
⇒ Undue Burden Test: Does it place a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus. (use for abortion cases
only) – used to evaluate pre-viability abortions.
Look at benefit v. burden
Prior to viability gov’t cannot prohibit abortions. Gov’t may
regulate abortions so long as it does not place an undue burden
on the right.
Viability is the time where the fetus can survive outside of the
womb.
“Health Exception” to termination of fetus after viability
v Termination of pregnancy during viability allowed if its
necessary to protect woman’ life / health
v Doe v. Bolton
- Exceptions included: Physical life type issue,
emotional, psychological, familial, financial
health
⇒ Four Factors When Deciding to Overturn Stare Decisis (WRFC)
(1) is the precedent workable? (2) Relied on? (3) Facts changed
(overtime)? (4) Ct-Legitimacy at stake? (if we were to overturn
the precedent would we be potentially de-legitimizing the ct. in
some way?
c. Stenberg v. Carhart
⇒ Partial-birth Abortion Decisions
⇒ Law did not provide “health” exception
⇒ Applied “undue burden” standard
⇒ Partial-birth abortion ban upheld despite lack of health exception
d. Gonzales v. Carhart
⇒ “facial” challenge no “health exception” needed b/c this type of
procedure wasn’t medically necessary and there were other ways to get
an abortion
⇒ Applied “Undue Burden” standard
⇒ Gov’t legitimate and substantial interest in preserving and promoting
fetal life
⇒ Legal abortion methods are laden with the power to devalue human life
⇒ Additional ethical and moral concerns with partial-birth abortion
procedures
⇒ Did Congress pass Act to place a “substantial obstacle” in woman’s
choice?
⇒ “as-applied” challenge
e. Women’s Whole Health
⇒ Texas req’d: (1) doctors performing abortions to have admitting
privileges at a hospital within 30 miles; and (2) all abortion clinics to
comply w/standards set for ambulatory surgical centers. Clinics had 14
months to comply.
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⇒ Texas stated purpose was to raise the standard and quality of care for
women seeking abortions and to protect the health and welfare of
women seeking abortions.
⇒ How to interpret the “undue burden” standard?
Balance the burden that the state is placing on the procedure (+)
with the benefits that the woman is getting out of the regulation
(+) and if the burden is undue, based on small amount of benefit,
(=) then you can strike it down even if doesn’t put a substantial
obstacle in the way.
o Right to Marry. Right to marry is safeguarded as a fundamental right (both same-sex and
opposite sex) under the liberty of the DPC. State laws that prohibit same-sex marriage
violated the right to marry and is therefore, unconstitutional.
a. Loving v. Virginia
⇒ State Interest (Ends)?
Racial integrity of its citizens
Prevent corruption of bad blood, obliteration of racial pride, a
mongrel breed of citizens
⇒ Means? Criminalize interracial marriage
⇒ Analysis
Marriage is one of the basic civil rights of man. To deny this
fundamental freedom on so unsupportable a basis as the racial
classifications embodied in these statutes deprives liberty w/o
due process
b. The “Direct & Substantial Interference” Test (Zablocki)
⇒ Is every regulation of a fundamental right subjected to strict scrutiny?
Marriage licenses
Blood tests
Compulsory education laws
⇒ Zablocki v. Redhail
Cts will ask whether the regulation poses a “direct and substantial
interference” on the right.
If not, no need for strict scrutiny (e.g. use RB)
⇒ Reasonable regulations that do no significantly interfere w/ the decision
to marry may be appropriate, but not ones that interfere directly and
substantially with that right
c. U.S. v. Windsor
d. Obergefell v. Hodges
⇒ Marriage v. same-sex marriage
⇒ Fundamental or not?
Deeply rooted v. Court’s approach in privacy cases
Four traditions applied in majority
o Right to Procreate. Gov’t can impose involuntary instillation only if it meet SS
o Right to Custody. Gov’t must prove a compelling reason before terminating custody.
(e.g. parental abuse or neglect). State can create an irrebutable presumption that a married
woman’s husband is the father of her child (if wife had an affair) Michael v. Gerald
o Right to Consensual Adult Homosexual Activities.
a. Lawrence v. Texas
⇒ Ct. did not indicate level of scrutiny
⇒ However, ct. held that state laws that prohibit private consensual sexual
activities violates the liberty interest of the DPC.
B. EQUAL PROTECTION CLAUSE
I. 14th Amendment. “No state shall deny to any person within its jurisdiction the equal protection of the laws.”
a. Dred Scott v. Sanford (Bad Law!)
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II. Formal Equal Protection Levels
a. Strict Scrutiny – “Suspect protected class”
♦ Must be necessary / narrowly tailored to achieve (Means test)
♦ a compelling government interest (end’s test)
♦ Ct. will look to see if there was no least restrictive alternative to achieve the gov’t interest
♦ BOP on Gov’t
♦ Ex. Classifications based on race and national origin
b. Intermediate Scrutiny – “Quasi-suspect class”
♦ Must be substantially related to achieve (means test)
♦ a important gov’t interest (ends test)
♦ Ct. must be persuaded that the gov’t objective is an important one
♦ Ct. will look at gov’t actual objective
♦ Doesn’t have to be the best way; not the least restrictive means
♦ BOP on the Gov’t
♦ Ex. Classifications based on gender & marital status
♦ A group will qualify as a “quasi-suspect” class if: (4 Factors from Cleburne)
1. The group in question has suffered a history of discrimination
2. Individuals exhibit obvious, immutable or distinguishable characteristics that define them
as a discrete group
3. Group is a minority/politically powerless
4. Characteristics distinguishing the group have little relation to legitimate policy objectives
to an individual’s ability to perform or contribute to society
5. *4 factors will get you from RB to IS
c. Rational Basis – any other classification
Highly deferential standard that presumes a Gov’t regulation to be valid, and sustains it if it is:
♦ rationally related to achieve (means test)
♦ a legitimate gov’t interest (ends test)
♦ Applies when “fundamental” rights or suspect protected class is not involved
♦ BOP is on the challenger
♦ In some cases, the ct will apply a more searching review – “Rational Basis with bite” – extra
inquiry they use to search not normally used in a general RB analysis.
1. A criticism that the ct. is really not applying a deferential rational basis, but is being more
critical.
♦ Legislation is presumed to be valid and will be sustained if it is rationally related to a legitimate
state interest
♦ A law will be struck own if the challenger can show there’s no legitimate purpose or the law is
not rationally related to that purpose.
♦ What is legitimate?
1. The Ct. is extremely deferential to the government
2. Actual purpose – any conceivable interest, even if not the govt’s actual purpose, can
suffice
♦ Rationally Related
1. Deference to the gov’t – laws will be upheld unless the govt’s actions is clearly wrong, a
display of arbitrary power, not an exercise of judgment
III. Approach to Equal Protection Analysis
a. Step 1 Identify the type of law at issue to determine the proper level of scrutiny. What is the
classification? (how is the gov’t drawing the distinction among the people)
♦ Facially Discrimination: Classifications exists on the face of the law (facially discrimination)
(Strauder Case)
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1. Ex. All white male persons who are 21 yo and who are citizens of this State shall be liable
to serve as jurors
The aim of the 14th Am. is to protect an emancipated race, and to strike down
all possible legal discrimination against those who belong to it.
♦ Facially-Neutral w / a Discriminatory Effect: Alternatively, the law is facially neutral with a
discriminatory effect to the law or purpose intended against protected class (Yick Wo Case). If
facially neutral, you must determine intent using circumstantial evidence (e.g. statistical data)
and other data.
1. Ex. San Francisco law permit needed for wooden Laundromats
Fire hazard concerns or discrimination?
Statistical data = strong circumstantial evidence
0 out of 200 Chinese permits granted
80 out of 81 Non-Chinese permits granted
♦ Facially & Actual Neutral – Neutral on its face, Neutral in legislative intent, but may have
disproportionate impact on class protected (Washington v. Davis)
1. Ex. Higher % of black applicants than white failed a qualifying test administered by the
Police Dept. in D.C. Some of unsuccessful black applicants claimed it was unconst’l
discrimination against them
Racially disproportionate impact present
Holding: Such an impact standing alone is not enough to trigger EP. SS. They
must also prove that there was a racial classification intent to discriminate
against the African American test takers. RB was applied here.
Justification: A rule that held every neutral statute that in practice benefits or
burdens one race more than another would be far-reaching and would raise
serious questions about a whole range of everyday laws
Bottom line: statistical data not as strong, but it appears intent was truly race-
neutral
2. Race-based, but not facially neutral laws:
“Separate but equal”
Plessy v. Ferguson
Brown v. Bd. of Ed
Equality in banning interracial marriage
Loving v. Virginia
3. The “Intent” Problem
If you discover an intent to classify based on a protected class, then you can
apply the level of scrutiny associated with that class (e.g. race è SS; Gender
è IS)
If no intent to classify, then apply Davis Rational Basis test.
♦ What is the level of scrutiny?
1. Strict: race, national origin (sometimes alienage)
2. Intermediate: gender, marital status (e.g. single v. married)
3. Rational Basis: minimum level for all other classes
♦ Does the gov’t action meet the level of scrutiny? (Ends/Means analysis)
b. Step 2 Identify & weigh the State Interests
♦ Is the interest legitimate, important or compelling?
c. Step 3 Identify & assess link b/t State interests and law
♦ Is the law rationally, substantially, narrowly tailored to the asserted State interest?
♦ If heightened scrutiny, are reasonable alternatives available to the State’s chosen path?
IV. Affirmative Action – Admissions in higher education – Any scheme which gives a preference to one racial
group for admission to a public university must be strictly scrutinized. However, such preferences will not
necessarily be invalidated as the result of SS.
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a. Race-conscious admissions measures will receive strict scrutiny, and must be narrowly tailored to
achieve a compelling objective.
b. Educational diversity in the student body can be a compelling objective. (but mere racial balancing is
not a compelling objective)
♦ Grutter v. Bollinger
1. Holding – This form of affirmative action is constitutional. The interest in a diverse
student body is a compelling interest and the approach in that it relies on an
individualized, non-mechanical evaluation of each applicant is narrowly tailored to
achieve that interest.
c. One student at a time evaluation in which the student’s race is merely one factor among various ones
considered is narrowly tailored to achieving the goal of having an educationally diverse student
body.
d. Quota’s through a point system based on race is not narrowly tailored and violates equal protection
♦ Gratz v Bollinger
1. Holding – This form of affirmative action is unconstitutional, b/c it is not narrowly
tailored to the achievement of the compelling interest in student body diversity. The
scheme is mechanical one that is equivalent to quota, not an individualized-evaluation
scheme like the one approved in Grutter.
e. Admissions to Public schools by race-conscious means
♦ No individual student’s race may be considered in making that student’s public high-
school or elementary school assignment, is the district is not combating prior official
segregation. Parents Involved
f. Fisher I & II
g. De Jure (by law) v. De Facto (fact) Segregation
♦ Plessy v. Ferguson
♦ Brown v. Bd. of Ed.
♦ Parents Involved
V. Gender Classifications – Like race classification, laws can be facially discriminatory or facially-neutral (where
you must show intent and effect). – Ct. applies Intermediate Scrutiny.
a. Intermediate Scrutiny standard for both gender classifications discriminating against women and those
discriminating against women and those discriminating against men.
b. Craig v. Boren (UNCONST)
♦ F. Males were being discriminated against, when Oklahoma law prohibited the sale of beer to
males under age of 21 and allowed to females under age of 18.
1. Important Interest (“ends test”) – Gov’t contended that the purpose of the classification
was to enhance traffic safety. [Yes it is an important government interest]
2. Gov’t introduced statistical data showing .18% of females and .2% of males’ b/t ages 18
to 20 were arrested for driving under the influence of alcohol.
3. “Substantially Related” (“means test”) – The prohibition of the sale of beer to males
under age of 21 was not substantially related to the important government interest of
protecting the public welfare and safety of its citizens b/c the statistical difference b/t
males and females with respect to the purchase of beer does not justify the differential
treatment they are accorded under the OK law.
♦ H. The OK law was found unconstitutional b/c the law to ban the sale of beer to males under the
age of 21 was not substantially related to the government interest to protect the public welfare
and safety of the people. IS applied here.
c. U.S. v. Virginia (UNCONST)
♦ F. Women were excluded from the VA military Institute and provided the VA Women’s
Institute for Leadership at Mary Baldwin College as an alternative) and stated that there must be
an “exceedingly persuasive justification” for gender classifications with the burden resting
entirely on the State and the justification must not rely on overbroad generalizations about the
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different talents, capacities or preferences of males and females, emphasizing the successful
gender integration of the federal military academics.
♦ I. Did VMI’s method violate the EPC?
♦ H. Yes, VA has shown no “exceedingly persuasive justification” for excluding women. A State
may not preclude a class based on gender from participating in a unique program. IS applied
here.
♦ A. “Substantial Relationship” often considers the
1. Reliance on stereotypes and overbroad generalizations
2. Use of Gender as a proxy
3. Availability of gender-neutral alternatives
d. Personnel Admin. of Mass. v. Feeney (CONST)
♦ F. P challenges the Mass. rule that provides a hiring preference to military veterans. P argues
that b/c D has a hiring process for veteran’s over non-veteran’s for civil service positions, the D
is discriminating against women.
♦ I. Does the hiring process that favors veterans violate the EPC of the U.S. Constitution
♦ H. No. The benefit of this act was offered to any person who was a veteran. The law is
preference for veterans of either sex over non veterans of either sex. It was not designed to favor
men over women. RB applied here.
VI. Sexual Orientation
a. Romer v. Evans (UNCONST) – RB applied here
b. U.S. v. Windsor (UNCONST) – RB w / bite Applied based on animus
C. FREEDOM OF RELIGION (FIRST AMENDMENT)

I. Bill of Rights & Incorporation into 14th Amendment: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” – First Amendment.
II. “Establishment Clause” – The Sup. Ct. held that the E.C. prohibits all of these practices: Neither state nor Fed.
Gov’t can force or influence a person to go or remain away from Church against their will or force him to
profess a belief or disbelief in any religion. Nor can a person be publishing for entertaining a religious belief for
church attendance/non-attendance.
a. Ct. has never been able to settle fully on what the establishment clause does or prevents, other than
having no national church.
b. The “Separation of Church & State:” refers to a civic ideal in which the gov’t and religion operate in
separate spheres: the gov’t is secular, and the clergy and congregations have no formal political
authority.
c. E.C. is highly contested by strict separationalists v. non-preferentialists.
d. Strict “Separationalist” – no valid role for religion in gov’t affairs. They want to use most extreme
separation which means any step in the direction of establishing a religion includes any contact b/t
gov’t and religion.
e. “Non-Preferentialists” – point to a long history of contact b/t gov’t and religion and say no that’s not
what the E.C. is asked to do.
f. “Neutrality Principal” – a standard we began w / the idea that gov’t must be “neutral” toward religion.
On one hand, it can’t establish a religion and it can’t prohibit people from practicing a religion. But on
the other hand we can’t treat people’s religion differently just b/c they are religious. (e.g. were not
going to send out the fire dept. to your church to put out a church fire, simply b/c F.D. is funded by
tax $$).
g. Government Aid to Religion
♦ Lemon v. Kurtzman (“Lemon Test”) UNCONST. – attempt to put all establishment clause
cases together, sometimes the test is simply ignored (e.g. legislative prayer). The law passed the
“neutrality principal” towards religion. However, money ends up in the hands of the schools in
order to pay salaries of the teachers to teach kids. And there is a concern that there is too much
money is going toward the schools, and is the gov’t directly funding religion and is that a
problem under the E.C.
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1. F. These two appeals raise questions to the PA and RI statutes providing state aid to
church related elementary and secondary schools. The RI stat. authorized state officials to
supplement the salaries of teachers of secular subjects in nonpublic elementary schools by
paying directly to a teacher an amount in excess of 15% of his current annual salary. The
PA stat. authorized state Superintendent of public instruction to purchase specified secular
educational services from nonpublic schools.
2. PA nonpublic elementary & secondary education act was passed in response to a crisis
that the PA legislature found, existed in the State’s nonpublic schools due to rapidly rising
costs. Statute authorizes state superintendent of public instruction to purchase specified
secular educational services from nonpublic schools. The statute prohibits reimbursement
for any course that contains any subject matter expressing religious teaching or the morals
or forms of worship of any sect. However, the statute allowed for reimbursement to
religious schools for teacher’s salaries, textbooks and other instruction materials.
3. I. Is it constitutional for the state to provide financial assistance to religious schools for
the cost of teaching secular subjects?
4. Lemon Test Rule: Apply the Lemon test to decide whether a law violates the
Establishment Clause: (SEA) – You need all 3 in order for the law to pass.
have a secular legislative purpose (intent; non-religious purpose) Intent of
the legislature. Was it for a religious reason or for a secular reason.
not advance or inhibit religion (effect of actual law; advance or harm
religion) whether the principle or primary effect from when they passed the
law secular. The principle effect may not advance religion but there may be a
secondary effect where religion is benefited or harmed. As long as the main
effect of the law does not advance religion à Prong #2 is valid. AND
not excessively entangle church and state. (gov’t will be entangled but can’t
be excessive). Does this law foster an excessive entanglement of religion?
Gov’t will be entangled with religion sometimes; it just can’t be excessive.
To determine whether the gov’t entanglement with religion is excessive
the ct. must: (CNR) (1) examine the character and purposes of the
institutions that are benefitted, (2) the nature of the authority that the
state provides, and (3) the resulting relationship b/t the gov’t and the
religious authority.
5. H. No! The statutes resulted in excessive entanglement b/t the government and religion.
(Prong #3 fails)
Looking at the 1st prong (secular purpose): Ct. says that this is not a
purpose to advance religion and they had a legitimate secondary purpose:
intended to enhance the secular education in all schools. The purpose of the
legislation: Gov’t was trying to raise the level of education but all on secular
aspects. Passes the first prong b/c it doesn’t appear that it shows it was
intended to further religion
Looking at the 2d prong (Does it advance or inhibit religion): Argument:
By funding the teachers the funds are fungible and this gives the teacher the
ability to teach religion instruction more effectively. Also, what if they go out
of business? State just provided money to the teachers to teach secular
subjects and now the school will be more solvent and but for this money the
school would not have gone out of business. Ct. says they do not need to
figure out whether it will have a principle effect of religion and will resolve it
on the 3d prong.
Looking at the 3rd prong (excessive Entanglement): In order to determine
whether the gov’t entanglement with religion is excessive, we must:
teachers are nuns and are dedicated to furthering religious instruction
crucifixes on the wall; there are religious symbols throughout school
how will they teach science (e.g. origins of life)?
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how will they teach math (e.g. word problems with religion in them)?
Ct. says it’s not possible to isolate religion from secular education b/c
there are too many other religion situations going on. (e.g. proximity of
other churches, teacher’s faith).
The statute excluded teachers employed by non public schools whose
average per-pupil expenditures on secular education equal or exceed
the comparable figures for public schools. H. Ct. found both statutes
foster an impermissible degree of entanglement.
♦ The ct. sought to look at the part of “respecting an establishment of religion” and how it not
only applied to the federal gov’t but also to the States. (1947 that’s when E.C. applied to the
States through the 14th Am.)
♦ Zelman v. Simmons CONST. (“Lemon Test Applied”)
1. F. School Voucher Case: Cleveland public schools were performing badly, and in an
effort to resolve this issue, the state of OH put a school voucher plan together under
which parents could elect their children in private school taking part in the program. OH
is giving money to parents, and they are independently making their own decision and get
to choose to send their child to a secular or religious school. The gov’t is not
implementing this decision.
2. I. Did the OH program advance or inhibit religion?
Whether the Ohio program nonetheless has the forbidden “effect” of
advancing or inhibiting the religion?
THERE IS NO DISPUTE that the program challenged was enacted for the
valid secular purpose of providing educational assistance to poor children in a
failing public school system.
The court mentions 3 cases in which all three times the court rejected
applying the establishment clause challenge to the program/act.
In Muller, Witters, & Zobrest this make clear that where a govt aid program
is neutral with respect to religion, and provides assistance directly to a broad
class of citizens who, in turn, direct govt. aid to religious schools wholly as a
result of their own genuine and indept. private choice, the program is not
readily subject to challenge under the Establishment Clause.
The Ohio Program:
The program challenged here is a program of true private choice and
this constitutional.
The Ohio program is neutral in all respects toward religion.
It confers educational assistance directly to a broad class of individuals
defined without reference to religion, i.e. any parent of a school-age
child who resides in the school dist.
The program permits the participation of all schools within the districts
– religious or nonreligious.
Adjacent public schools also may participate and have a financial
incentive to do so.
Program benefits are available to participating families on neutral
terms, with no reference to religion.
There are no “financial incentives” that “skew” the program toward religious
schools.
*** The program here in fact creates financial disincentives for religious
school, with private schools receiving only half the govt. assistance given to
the community schools and 1/3 of the assistance given to magnet schools.
Adjacent public schools, should choose to accept program students, are also
eligible to receive two to three times the state funding of private religious
schools.
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The court also states that there is no evidence that the program fails to
provide genuine opportunities for Cleveland parents to select secular
education opportunities for their school-aged children. – They have many
choices.
3. H. No. The OH program is entirely neutral with respect to religion. A school voucher
program which allows parents to send their children to private school is not in violation of
the E.C.
In sum, the O.H. program is entirely neutral with respect to religion
It provides benefits directly to a wide spectrum of individuals , defined only
by financial need and residence in a particular school district.
It permits such individuals to exercise genuine choice among options public
and private, secular and religious.
The program is therefore a program of true private choice.
In keeping with an unbroken line of decisions rejecting challenged to similar
programs à WE HOLD THAT THE PROGRAM DOES NOT OFFEND
THE ESTABLISHMENT CLAUSE.
4. A. The purpose of the program was secular. It was meant to assist poor children in a
failing public school to complete their education. The OH voucher plan does not advance
or inhibit religion under the principle or primary effect. It shows no discrimination
towards the recipients of the educational aid except on financial grounds, in that poor
families receive greater preference for admission and more aid. It allows all schools
irrespective of religions affiliation to participate. The statute incentivizes private schools,
but in fact provides disincentives for religious schools. A participating private school get
only half the aid a community school receives and only a third of that given to magnet
schools. A law is neutral w/respect to its primary effect if the religious consequence is
non-immediate, incidental and indirect.
♦ When to use Lemon Test? To establish the neutrality of the legislatures statute when gov’t wants
to provide aid to religion.
h. Religion and Prayer in Government Institutions – The Est. Clause does not bar all religious activities
– including prayer – in public institutions. Est. Clause does not prevent the display of religious
symbols on gov’t property if the symbols have secular purpose and do not amount to an endorsement
of a particular religion or religion in general. Est. Clause bars prayers in public schools if the
prayer is an official or approved part of school activities.
♦ Illinois ex rel. McCollum v. Board of Education—Justice Black reasoned that the policy violated
Establishment Clause because it amounted to “a utilization of the tax-established and tax-
supported public school system to aid religious groups to spread their faith.” Black also
concluded—the policy “impermissibly afforded sectarian groups an invaluable aid in that it
helped to provide pupils for their religious classes through use of the state’s compulsory public
school machinery.”—Both of these features of the policy were inconsistent with the principle of
separation of church and state.
♦ Zorach v. Clauson—upheld a public school policy permitting the release of children from
school during school hours to attend sectarian outside the public schools. Court concluded that
the policy did not violate the Establishment Clause; “public schools do no more than
accommodate their schedules to a program of outside religious instruction.”
♦ Wallace v. Jaffree (“Purpose Prong [#1] of Lemon”) UNCONT.
1. F. Moment of Silence Case: AL legislature enacted a statute authorizing teachers to
provide a period of silence for meditation or voluntary prayer. P (Jaffree), father of 3
children in AL public schools, brought a lawsuit claiming the statutes violated the E.C.
The statute permitted teachers to lead willing students in a prescribed prayer to Almighty
God . . . the Creator and Supreme Judge of the world.
2. I. Did AL law violate First Amendment Est. Clause?
3. R. Lemon Test
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4. H. Yes. AL law did violate the 1st. Am Est. Cl. Ct. determined the constitutionality of
AL’s prayers and meditation statute by applying the “secular purpose test” from Lemon.
Ct. held that the state did not exercise a duty to maintain absolute neutrality toward
religion, and it was an affirmative endorsement of religion. Statute lacked any secular
purpose (failed prong #1) as it sought to establish religion in public schools, thus violating
the 1st Am Est. Cl.
5. A. From the legislative record it was clear that this was merely passed in an effort to
return voluntary prayer to the public schools. The legislative intent to return prayer to
public schools is quite different from merely protecting every student’s right to engage in
voluntary prayer during an appropriate moment of silence.
6. C. O’Connor mentions Endorsement Test:
♦ Lee v. Weisman (“Coercion Test”) UNCONST.
1. F. Prayer at graduation Case: P (Weisman) brought suit against the public school alleging
that the school sponsored non-denominational prayer offered at a public school
graduation. A rabbi was invited to deliver a prayer at a public school’s graduation
ceremony. The rabbi was given a copy of a pamphlet that recommended prayers at civic
ceremonies be inclusive and sensitive.
2. I. Whether including clerical members who offer prayer as part of the official school
graduation ceremony is consistent with the religious clauses of the 1st Am of the
Constitution.
3. H. No. including clerical members who offer prayer as part of the official school
ceremony is not consistent with the religion Cl. of the 1st. Am of the Constitution. The
fact that the Principal sent for a clergy member to offer a prayer at a public school
graduation, is as if a state decreed the prayers must occur. The Principal’s act of giving
the cleric guidelines for the prayer means the Principal directed and controlled the content
of the prayer in direct violation of the Est. Cl. The State may not place school age
children in a position of participating protesting, prayer at public graduation ceremonies.
4. A. Gov’t involvement creates “a state sponsored and state-directed religious exercise in a
public school.” Such conduct conflicts w/settled rules proscribing prayer for students. The
school’s rule creates subtle and indirect coercion (students must stand respectfully and
silently), forcing students to act in ways, which establish a state religion. The gov’t may
not compose official prayers to recite as part of a religious program carried on by gov’t.
♦ Marsh v. Chambers (History & Tradition Test) CONST
1. F. Ernest Chambers, a member of the Nebraska legislature, challenged the legislature's
chaplaincy practice in federal court. This practice involves the offering of a prayer at the
beginning of each legislative session by a chaplain chosen by the state and paid out of
public funds.
2. I. Does the chaplaincy practice of the Nebraska legislature violate the Establishment
Clause of the First Amendment?
3. A. The Ct. upheld the chaplaincy practice. In his opinion, Chief Js. Burger abandoned the
three-part test of Lemon v. Kurtzman. In its place, Burger rested the Ct’s opinion on
historical custom. Prayers by tax supported legislative chaplains could be traced to the
First Continental Congress and to the First Congress that framed the Bill of Rights. As a
consequence, the chaplaincy practice had become “part of the fabric of our society.” In
such circumstances, an invocation for Divine guidance is not an establishment or religion.
It is, simply a tolerable acknowledgment of beliefs widely held among the ppl of this
country.
i. Public Symbolic Displays of Religion
♦ Lynch v. Donnelly (Endorsement Test) CONST.
1. F. A crèche included in a Christmas display, located in a park, owned by a nonprofit
organization, is alleged to violate the Establishment Clause, due to a government entity’s
involvement with religion. The display included such objects as a Santa Claus house, a
Christmas tree, a banner reading “Seasons Greetings,” and a crèche. The crèche had been
15
included in the display for over 40 years. The Plaintiff objected to the display and took
action against the Defendant, Dennis Lynch (Defendant), the Mayor of the city. In ruling
on the case, the Supreme Court of the United States (Supreme Court) acknowledges that
the line-drawing test set forth in Lemon is useful when inquiring into whether the
challenged law or conduct has a secular purpose, whether its principal or primary effect is
to advance or inhibit religion and whether it creates an excessive entanglement of
government with religion. The Supreme Court also acknowledges while the Lemon
test is useful, there analysis will not be confined to a single test. The Supreme Court
ruled that the inclusion of the crèche in the Christmas display and the benefit caused by
the inclusion of the crèche to one religion over another is incidental, indirect and remote.
Moreover, the display of the crèche is not an advancement or endorsement of religion. It
is only government recognition of Christmas itself.
2. I. Whether the inclusion of a crèche in a Christmas display, erected by the city, in a park
owned by a nonprofit violates the Est. Clause of the Constitution?
3. A. The inclusion of a crèche in a Christmas display is not an advancement or endorsement
of religion any more than the Gov’t recognition of Christmas itself or the inclusion of
religious paintings in governmentally sponsored museums. The city has a secular purpose
for including the crèche and it does not endorse one religion over the other. The display
engenders a friendly community spirit of good will in keeping with the season. Display is
sponsored by the city to celebrate the holiday. It does not create excessive entanglement.
♦ McCreary Cty v. ACLU of Kentucky UNCONST (Lemon Test)
1. F. The County of McCreary and the County of Pulaski had a display of a gold-framed
copy of King James Version of the Ten Commandments placed on the wall of their
respective courthouses. The displays even had the religious citation of the Book of
Exodus 20:3-17. This was placed so that all citizens could see the display. In the first case
the ACLU sued in federal court for this display. A month later the legislative bodies of
each county authorized a second display. This one stated the Ten Commandments are the
precedent legal code upon which the civil and criminal codes of the counties of Kentucky
are founded. The District court ordered the displays be removed. Then the counties tried
another display, this one showing the Ten Commandments and 8 other historical relevant
documents.
2. I: Whether placing the Ten Commandments on the wall of a public courthouse is a
violation of the Establishment Clause. YES
3. R: Placing religious documents on courthouse walls are a violation of the Establishment
Clause and will not be allowed.
4. A: There is deeply-rooted history in this country against the combination of church and
state. It is this Government’s job to remain neutral when it comes to matters of religion. A
public courthouse, regardless of how it is displayed, can not in good conscious place the
Ten Commandments in public view. Clearly having religious picture on the wall that
states which bible the writings came from is clearly a combination of church and state.
The Counties argue that the Framers of the Constitution use the Ten Commandments in
their laws and in the text of many national speeches songs and statements. However it is
not for the government to impose the ideas of a monotheistic religion upon the people of
this Country. As long as an objective observer can look upon a display and see it clearly is
reinforcing some for of religion it does not belong in a Court House
III. “Free Exercise Clause” - “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof.” – First Amendment. The gov’t cannot punish people solely for holding certain
religious beliefs and the gov’t cannot outlaw worship, such by making it a law a crime to attend services. The
gov’t cannot impose special disabilities on the basis of religious belief or religious status.
a. Current Standard: The government may enforce a law that burdens a particular religious practice
only if: (1) the law is both neutral and of general applicability, or (2) the government has a
compelling interest for imposing the burden and that law is narrowly tailored to advance that
interest (Employment Division, Dept. of Human Resources of Oregon v. Smith)
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♦ A law is not neutral if the object of the law is to infringe upon or restrict practices because of
their religious motivation.
♦ A law lacks general applicability if it is underinclusive, applying to religious practices but not to
similar non-religious practices.
b. Employment Division Dept. of HR of Oregon v. Smith (The Smith Case) CONST
♦ This case is parallel to Washington v. Davis. Look at the Facially Discriminatory; Facially-
neutral with an discriminative effect and Facially-Actual Natural (like in EPC) Then apply the
Smith and Hialeah cases.
♦ F. Oregon Statute prohibited the sacramental use of peyote. After Smith ingested peyote during
a ceremony of the Native American Church, he was terminated from his job as a drug
counselor.
♦ I. Does an individual’s religious beliefs excuse non-compliance with an otherwise valid law
prohibiting conduct that the state is free to regulate?
♦ H. No. The right of free exercise does not relieve an individual of the obligation to comply w/a
valid and neutral law of general applicability on the ground that the law makes criminal
conduct that his religion proscribes.
♦ A. This Ct. has never held that an individual’s religious beliefs excuse him from compliance
with valid laws prohibiting conduct that the state is free to regulate. The Respondents’ free
exercise claim in unconnected to any communicative activity or parental right. The govt’s
ability to enforce general applicable prohibitions of socially harmful conduct, like its ability to
carry out other aspects of its public policy, “cannot depend on measuring the effects of a
governmental action on a religious objector’s spiritual development.” To make an individual’s
obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs,
except where the state’s interest is compelling, permitting him by virtue,” “to become a law
unto himself,” contradicts both constitutional and common sense. The ct. cannot afford the
luxury of deeming presumptively invalid, as applied to the religious objector every regulation of
conduct that does not protect an interest of the highest order. Therefore, the prohibition of the
use of peyote, even for the sacramental purposes, is constitutional.
c. Church of the Lukumi v. Hialeah UNCONST
♦ F. An ordinance prohibited ritual animal sacrifice. The Church of Lukumi performed the
sacrificial killing of animals as required by the Santeria religion, and challenged the Hialeah
ordinance prohibiting such killings as a violation of the Free Ex. Cl. of the 1st Am.
♦ I. Must a law be justified by a compelling interest and be narrowly tailored to advance that
interest if its object is to infringe upon or restrict religious practice?
♦ H. Yes. Neutral and general applicable laws need not meet this higher level of scrutiny. The
ordinances at issue, however, were not neutral and generally applicable. They restricted the
practices b/c of their religious motivation. Thought not evidence on the face of the ordinances,
their non-neutrality is clear from the expressed concerns of residents and citizens, the expressed
motive of council members, and the ordinances’ operation. Practically the only conduct
prohibited by the ordinances is that exercised by Santeria church members. In addition, the
ordinances in no way promoted the legitimate concerns of public morals, peace or safety
advanced in their support. Thus, since the ordinances were not neutral and were not narrowly
tailored to serve a compelling interest = unconstitutional.
d. Locke v. Davey CONST
♦ F. Davey qualified for a state scholarship but elected to earn a degree in theology. Devotional
degrees are excluded under the program, so Davey did not receive scholarship funds.
♦ I: Does excluding devotional degrees from an otherwise inclusive scholarship program violate
the Religion Clauses of the Constitution? NO
♦ R: Excluding devotional degrees from an otherwise inclusive scholarship program does not
violate the Religion Clauses of the Constitution.
♦ A: Washington could allow scholarship recipients to earn devotional degrees without violating
the Establishment Clause. Washington’s constitution, however, is more stringent than the
17
federal constitution and does not allow even indirect funding of religious instruction. This
could be construed as violating the Free Exercise Clause of the Constitution, but nothing in the
scholarship program suggests an animus toward religion. Students may attend religious
institutions and participate in religious classes. Washington simply places great import in
separating government funds from solely religious training.
♦ C: The program is constitutional.
D. FREEDOM OF SPEECH
I. Types of Governmental regulations on speech:
a. Content-based regulations - restraint based on the content of what is being said.
♦ Ct. subjects content-based restrictions to strict scrutiny: the government may enforce a content-
based restriction on speech in a public forum only if the regulation is:
1. necessary to serve compelling state interest and
2. the regulations is narrowly tailored to achieve that end.
b. Content-Neutral – regulations do not run the same risk of gov’t censorship as do content-based
restrictions, and they accordingly raise fewer concerns. They are permitted as they are narrowly
tailored to serve a significant governmental interest and leave open ample alternative channels for
communication (subject to a less searching level of scrutiny than content-based regulations).
♦ Renton v. Playtime Theatres CONST - Renton enacted an ordinance geographically limiting
adult motion picture theatres
1. I. May a municipality enact zoning regulations limiting the area where adult motion
picture theaters may operate?
2. R. A municipality enact zoning regulations limiting the area where adult motion picture
theaters may operate.
3. A. A municipality may enact zoning regulations limiting the area where adult motion
pictures theaters may operate. “Content-neutral” restrictions on speech are permissible so
long as they serve a substantial interest and do not unreasonably limit alternative avenues
of communications
4. C. Here, the regulations are content-neutral, as the purpose of the ordinance was to
prevent the blight associated with adult theaters, not the content of the films. This is a
substantial interest.
5. NOTE: Pay attention to zoning laws. It was intended to regulate the secondary effects.
c. Reasonable time, place and manner restrictions – Gov’t may impose, even in public forums, if the
restrictions:
♦ Content neutral
♦ Narrowly tailored to serve a significant governmental interest and
♦ Leave open ample alternative channels for communication of information
♦ Ward v. Rock CONST - After NYC required bands performing in the Central Park bandshell to
use City approved amplification equipment and technicians, Rock Against Racism argued that
there were less intrusive means of regulating the volume.
1. I. Must valid time, place and manner restrictions be the least restrictive alternative? NO
2. R: Valid time, place, and manner restrictions need not be the least restrictive alternatives.
3. A: government may impose, even in public forums, if the restrictions: 1) are content
neutral; 2) are narrowly tailored to serve a significant governmental interest; and 3) leave
open ample alternative channels for communication of information.
4. C: Here, the regulations are content neutral because the noise control is unrelated to
content. Moreover, controlling noise pollution is a significant government interest. The
requirement of narrow tailoring has been met since the regulation promotes the City’s
interest in limiting sound, an interest that would not have been achieved without the
regulations.
d. Generally applicable regulations that incidentally affect expression – A Court will uphold a regulation
that incidentally affects speech if “it furthers an important governmental interest; if the governmental
18
interest is unrelated to the suppression of free expression; and if the incidental restriction or alleged
First Amendment freedoms is no greater than is essential to the furtherance of that interest.”
♦ U.S. v. O’Brien – CONST. O’Brien was convicted of a violation of federal statute after he
publicly burned his draft card during a demonstration against the compulsory draft and the war
in Vietnam.
1. I. Whether the 1965 Amendment is unconstitutional as applied to Defendant because his
act of burning the draft card was protected “symbolic speech” within the First
Amendment? NO
Whether the draft cards are merely pieces of paper designed only to notify
registrants of their registration or classification, to be retained or tossed into
the waste basket according to the convenience of the registrant? NO
Whether the 1965 Amendment is unconstitutional as enacted because it was
intended to “suppress freedom of speech? NO
2. R. When both speech and non-speech elements are combined in the same conduct, a
sufficiently important governmental interest in regulating the non-speech element can
justify incidental limitations of First Amendment freedoms.
3. A. Judgment of the Court of Appeals reversed. It cannot be accepted that there is an
endless and limitless variety of conduct that constitutes “speech” whenever the person
engaging in the conduct intends to express an idea. However, even if the alleged
communicative element of Defendant’s conduct is sufficient to bring into play the First
Amendment of the United States Constitution (Constitution), it does not necessarily
follow that the destruction of a draft card is constitutionally protected activity. First, a
government regulation is sufficiently justified if it is within the constitutional power of
the government. Second, if it furthers a substantial or important governmental interest.
Third, if the governmental interest is unrelated to the suppression of free expression.
Fourth, if the incidental restriction on alleged First Amendment constitutional freedoms is
no greater than is essential to the furtherance of that interest. The 1965 Amendment meets
all these requirements. Therefore, the 1965 Amendment is constitutional as applied to
Defendant.
4. C. This case creates a symbolic speech test that was used here to uphold the 1965
Amendment to the UMTSA.
5. NOTE: Under the O’Brien test, content –neutral laws that have incidental effect on
activities protected under the First Amendment are subject to intermediate scrutiny.
Consider whether:
1) the challenged law was in fact content neutral; and
2) whether, if so, the Court properly concluded that is was constitutional
valid.
e. Prior restraint - is an executive or judicial order prohibiting a communication before it has occurred.
♦ NY Times Co. v. U.S. - UNCONST. action seeking an injunction. The federal government
sought to enjoin the NY Times and the Washington Post from publishing the Pentagon Papers.
1. I. Must one seeking a prior restraint on expression meet a heavy burden of showing
justification for imposition of the restraint? YES
2. R. Any system of prior restraints of expression comes to the court bearing heavy
presumption against the constitutional validity.
3. A: Here, the federal government carried a heavy burden of showing justification for the
enforcement of such a restraint. It did not meet that burden. The denial of injunction
relief is affirmed.
f. Vague or overbroad restrictions – the government may pass laws restricting libel, fighting words, and
obscenity; but if not artfully phrased, a legislature attempts to regulate these kinds of speech may
suffer from two common problems in the First Amendment.
♦ First, the government might pass a law that is overbroad, meaning that it reaches both
protected and unprotected speech.
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♦ Second, the government might enact a law that suffers from vagueness, meaning that the law
does not make clear to a reasonable person what it prohibits and what it does not.
1. When claiming that a law is unconstitutional, a plaintiff can assert either as “as-applied
challenge” (the P claims that the law is unconstitutional as applied to the facts of his or
her case) or a “facial challenge” (the P claims that the law is invalid —and therefore
incapable of any valid application) to the law.
2. NAACP v. Button – UNCONST A Virginia statute banning “improper solicitation of any
legal or professional business” as applied to the NAACP was held unconstitutional
because the NAACP uses litigation as a form of political expression.
I: Whether Virginia’s statute violates the First Amendment of the
Constitution? YES
R: The First Amendment of the United States Constitution protects vigorous
advocacy of lawful ends against government intrusion.
A: Judgment of the highest state court reversed. The activities of the
NAACP, its affiliates and legal staff shown in the record are modes of
expression and association protected by the First Amendment of the
Constitution, which Virginia may not prohibit as improper solicitation of
legal business. The First Amendment of the Constitution protects vigorous
advocacy of lawful ends against government intrusion. In the context of the
NAACP’s objectives, litigation is not a technique for resolving personal
matters, it is a means for achieving equality in treatment for members of the
Negro community. It is thus a form of political expression. Further, the
statute is vague and overly broad which may result in selective enforcement
against unpopular cases. The state has failed to advance any substantial
regulatory interest in the form of substantive evils flowing from the
NAACP’s activities, which can justify the broad prohibitions, which it
imposed. Therefore, Virginia’s statute violates the First Amendment of the
Constitution.
3. Schad v. Borough of Mt Ephraim - Defendants, operators of an "adult" bookstore with a
coin-operated mechanism permitting customers to watch a live nude dancer, appealed the
judgment of the Superior Court of New Jersey, Appellate Division, that upheld
defendants' convictions for violating Mount Ephraim, N.J., Code § 99-15B(1), (2) (1979),
a zoning ordinance.
On appeal, the Court agreed with defendants' contentions that the imposition
of criminal penalties under an ordinance prohibiting all live entertainment
violated their First and Fourteenth Amendment free speech rights. The
construction of § 99-15B to mean that "live entertainment" was not a
permitted use in any establishment in the Borough of Mount Ephraim
(Borough) was binding on the Court. By excluding live entertainment
throughout the Borough, § 99-15B prohibited a wide range of constitutionally
protected expression. None of the Borough's asserted justifications withstood
scrutiny because no evidence demonstrated: 1) that permitting live
entertainment would conflict with the Borough's plan to create a commercial
area that catered only to the "immediate needs" of its residents; 2) that live
entertainment posed problems regarding parking, trash, police protection, and
medical facilities more significant than those associated with various
permitted uses; or 3) that there were municipal interests that made it
reasonable to exclude all commercial live entertainment. Accordingly, the
convictions of defendants were infirm.
The Court reversed the judgment of the superior court that upheld defendants'
convictions for violating the zoning ordinance. The Court remanded the case
for further proceedings.
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II. Speech Categories
a. Incitement and Advocacy of Crime
♦ Brandenburg v. Ohio – UNCONST an Ohio law prohibited the teaching or advocacy of the
doctrines of criminal syndicalism. The Defendant, Brandenburg a leader in the Ku Klux Klan,
made a speech promoting the taking of vengeful actions against government and was therefore
convicted under the Ohio Law
♦ I. Did the Statute, prohibiting public speech that advocated certain violent activities, violate the
Defendant’s right to free speech under the First and Fourteenth Amendments of the United
States Constitution? YES
♦ R: Speech can be prohibited if it is “directed at inciting or producing imminent lawless action”
and it is likely to incite or produce such action.
♦ A: The Act properly made it illegal to advocate or teach doctrines of violence, but did not
address the issue of whether such advocacy or teaching would actually incite imminent
lawlessness. The mere abstract teaching of the need or propriety to resort to violence is not the
same as preparing a group for violent action. Because the statute failed to provide for the second
part of the test it was overly broad and thus in violation of the First Amendment of the
Constitution.
b. Defamation – Two Restrictions:
♦ Public Official, political candidate or public figure may not recover in tort for a defamatory
statement relating to his official conduct unless the statement was both false and made with
“actual malice”
1. NY Times Co. v. Sullivan – CONST The Plaintiff, Sullivan (Plaintiff) sued the
Defendant, the New York Times Co. (Defendant), for printing an advertisement about the
civil rights movement in the south that defamed the Plaintiff.
I: Is the Defendant liable for defamation for printing an advertisement,
which criticized a public official’s official conduct? NO
R: The constitutional guarantees require a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual
malice – that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.
A: Safeguards for freedom of speech and of the press are required by the First
and Fourteenth Amendments of the United States Constitution (Constitution)
in a libel action brought by a public official against critics of his official
conduct.
* Under Alabama law, a publication is libelous per se if the words tend to
injure a person in his reputation or to bring him into public contempt. The
jury must find that the words were published of and concerning the plaintiff.
Once libel per se has been established, the defendant has no defense as to
stated facts unless he can persuade the jury that they were true in all their
particulars.
* Erroneous statement is inevitable in free debate and it must be protected if
the freedoms of expression are to have the breathing space that the need to
survive.
* The constitutional guarantees require a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual
malice – that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.
* The Supreme Court of the United States (Supreme Court) holds that the
Constitution delimits a State’s power to award damages for libel in actions
brought by public officials against critics of their official conduct. In this
case, the rule requiring proof of actual malice is applicable.
21
* The Defendant’s failure to retract the advertisement upon the Plaintiff’s
demand is not adequate evidence of malice for constitutional purposes.
Likewise, it is not adequate evidence of malice that the Defendant failed to
check the advertisements accuracy against the news stories in the Defendant’s
own files. Also, the evidence was constitutionally defective in another
respect: it was incapable of supporting the jury’s finding that the allegedly
libelous statements were made of and concerning the Plaintiff.
♦ Private figure may not recover for a defamatory statement regarding a matter of public concern
unless the statement was both false and made knowingly or at least negligently.
1. Snyder v. Phelps – UNCONST. The family of deceased Marine Lance Cpl. Matthew
Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at
his funeral. The family accused the church and its founders of defamation, invasion of
privacy and the intentional infliction of emotional distress for displaying signs that said,
"Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge
Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals
for the Fourth Circuit held that the judgment violated the First Amendment's protections
on religious expression. The church members' speech is protected, "notwithstanding the
distasteful and repugnant nature of the words."
I: Does the First Amendment protect protesters at a funeral from liability for
intentionally inflicting emotional distress on the family of the deceased?
YES
A: The Supreme Court affirmed the lower court's decision in an opinion by
Chief Justice John G. Roberts, Jr. The Court held that the First Amendment
shields those who stage a protest at the funeral of a military service member
from liability. Justice Stephen J. Breyer filed a concurring opinion in which
he wrote that while he agreed with the majority's conclusion in the case, "I do
not believe that our First Amendment analysis can stop at that point."
c. Obscenity (First Am. Does not Protect) - government therefore, can regulate and even ban obscene
materials, including those that might appear in magazines, movies, internet sites, and so forth.
♦ Obscenity Test:
1. whether an average person, applying contemporary community standards would find that
the work, taken as a whole, appeals to the prurient (characterized by or arousing
inordinate or unusual sexual desire) interest;
2. whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value
4. Roth v. U.S. – CONST. two defendants were convicted under obscenity statutes for
selling obscene material. Roth was convicted under a federal statute.
I. Is obscenity outside the protection of the First Amendment freedom of
expression guarantees? YES
R: Obscenity is not a constitutionally protected expression
A: The apparently unconditional phrasing of the 1st Amendment has been
held by this Court not to protect every utterance. However, all ideas having
even the slightest degree of socially redeeming value are fully protected
unless they encroach upon the limited areas of more important interests.
Obscenity has been held to carry no socially redeeming value and is,
therefore, outside the protection of the 1st amendment. A properly drawn and
enforced statute outlawing obscenity will withstand the test of
constitutionality. The portrayal of sex is not obscenity per se, as is evidenced
by the large range of classic presentations in art, literature, and scientific
words.
22
d. Symbolic Conduct – (forms of expressive conduct) O’Brien—when speech and non-speech elements
are combined in the same course of conduct, a sufficiently important governmental interest in
regulating the non-speech element can justify incidental limitations on 1st Amendment freedoms.
♦ The government may regulate expressive conduct if four conditions are met:
1. the regulation is within the constitutional power of the Government;
2. the regulation furthers an important or substantial governmental interest;
3. the governmental interest is unrelated to the suppression of free expression; and
4. the incidental restriction on alleged 1st Amendment freedoms is no greater than is
essential to the furtherance of that interest
♦ O’Brien Test (not strict scrutiny)
1. Texas v. Johnson - CONST A conviction for burning the United States flag based on a
Texas law was overturned after the Supreme Court of the United States found that the
Texas law was unconstitutional.
I: 1. Whether Defendant’s burning of the flag constituted expressive
conduct, permitting him to invoke the First Amendment of the United States
Constitution? YES
2. Whether the state’s interest in preserving the flag as a symbol of
nationhood justifies Defendant’s conviction? NO
R: The government generally has a freer hand in restricting expressive
conduct than it has in restricting the written or spoken word. It may not,
however, proscribe particular conduct because it has expressive elements. It
is not simply the verbal or nonverbal nature of the expression, but the
governmental interest at stake, that helps to determine whether a restriction
on that expression is valid.
A: 1. Judgment of the Court of Criminal Appeals affirmed. The very purpose
of a national flag is to serve as a symbol of our country. Pregnant with
expressive content, the flag as readily signifies this nation, as does the
combination of letters found in “America.” Texas conceded that Defendant’s
conduct was expressive conduct. He burned the flag as part of a political
demonstration. Therefore, Defendant’s burning of the flag constituted
expressive conduct thereby permitting him to invoke the First Amendment of
the Constitution.
2. Judgment of the Court of Criminal Appeals affirmed. The state’s
restriction on Defendant’s expression is content-based. Therefore, the state’s
asserted interest in preserving the special symbolic character of the flag must
be subjected to the “most exacting scrutiny.” To say that the Government has
an interest in encouraging proper treatment of the flag is not to say that it may
criminally punish a person for burning the flag as a means of political protest.
Therefore, the state’s interest in preserving the flag as a symbol of nationhood
does not justify Defendant’s conviction because it is not consistent with the
First Amendment of the Constitution.
e. Provocative Speech - we consider speech that is likely to provoke the listener to respond with violence
against the speaker, otherwise known as “fighting words”; profanity; hate speech; and threats.
♦ This case SCOUTUS held that the 1st amendment does not protect “insulting or fighting
words—whose which by their very utterance inflict injury or tend to incite an immediate breach
of the peace. (COURT NEVER OVERRULED THIS CASE):
♦ Chaplinsky v. State of New Hampshire—Appeal from criminal conviction; Chaplinksy was
convicted of violating a state criminal statute that prohibited persons from addressing so-called
fighting words to another person in public.
1. I: Did the statute or the application of the statute to Chaplinsky’s comments violate his
free speech rights under the First Amendment of the Constitution? NO
2. R: “Fighting words” are not entitled to protection under the First Amendment of the
United States Constitution
23
3. A: Considering the purpose of the First Amendment of the Constitution, it is obvious that
the right to free speech is not absolute under all circumstances. There are some narrowly
defined classes of speech that have never been protected by the First Amendment of the
Constitution. These include “fighting words,” words that inflict injury or tend to excite an
immediate breach of the peace. Such words are of such little expositional or social value
that any benefit they might produce is far outweighed by their costs on social interests in
order and morality. The statute at issue is narrowly drawn to define and punish specific
conduct lying within the domain of government power. Moreover, the Supreme Court of
New Hampshire, which is the ultimate arbiter of the meanings of New Hampshire law,
has defined the Statute as applying only to “fighting words”.
4. C: Therefore, the Statute does not unconstitutionally impinge upon the right of free
speech.
♦ Cohen v. California – UNCONST. criminal prosecution for violation of disturbing the peace
statute; Cohen wore a jacket with words “Fuck the Draft” on it in a courthouse corridor and was
arrested and convicted under disturbing the peace statute.
1. I: Whether California can excise, as “offensive conduct,” one particular scurrilous epithet
from the public discourse, either upon the theory of the court below that its use is
inherently likely to cause violent reactions or upon a more general assertion that the
states, acting as guardians of the public morality, may properly remove this offensive
word from the public vocabulary? NO
2. R: Emotive speech that is used to get attention is protected by the constitution.
3. A: Defendant’s speech is protected by the First Amendment of the United States
Constitution. The only conviction that the state sought to punish was communication.
Thus, this case rests solely upon “speech.” The state lacks power to punish Defendant for
the content of his message because he showed no intent to incite disobedience to the draft.
Thus, his conviction rests upon his exercise of the “freedom of speech” and can only be
justified as a valid regulation of the manner in which he exercised that freedom. This is
not an obscenity case because his message is not erotic. This case does not involve
“fighting words” because his message is not directed at another person. Further, the
public is free to avert their eyes from the distasteful message. His message constitutes
emotive speech because it seeks to get our attention.
4. C: This speech is protected by the First Amendment of the Constitution; therefore, his
conviction must be overturned.
♦ R.A.V. v. City of St. Paul, Minn. – UNCONST. appeal from reversal of dismissal of “hate
crime” prosecution; when R.A.V. was charged with allegedly burning a cross inside the fenced
yard of a black family, the City of St. Paul charged R.A.V. under the Bias-Motivated Crime
Ordinance.
1. I: Is the ordinance substantially over broad and unconstitutionally content-based? YES
2. R: Prohibition of the use of fighting words must be uniform across all topics or else the
law is an unconstitutional restriction of speech.
3. A: The ordinance is unconstitutional on its face. It is a content-based ordinance that does
not fall into an exception of the First Amendment of the United States Constitution.
f. Commercial Speech
♦ 44 Liquormart, Inc. v. Rhode Island - UNCONST. appeal of decision upholding a state law
prohibiting alcohol advertising. Rhode Island banned the advertising of retail prices of
alcoholic beverages.
1. I: Can a state constitutionally prohibit the advertising of alcohol prices? NO
2. R: Restriction of commercial speech must advance a state interest to a “material degree”
and be no more restrictive than necessary.
3. A: Justice Stevens found Rhode Island's statutory ban on liquor price advertising to be an
unconstitutional infringement of the liquor sellers' First Amendment right to freedom of
speech. In response to Rhode Island's claim that it passed the statutory ban to protect
consumers from "commercial harms," Justice Stevens held that governmental
24
impediments to truthful and accurate commercial messages rarely protect consumers. On
the contrary, courts must take "special care" when considering such "protective" measures
since they often hinder public choice and obstruct necessary debate over public policy
issues. Furthermore, Rhode Island failed to show that its statutory ban would lower
market-wide liquor consumption, must less alter alcohol consumption among abusive
drinkers who are most in need of assistance. Finally, Justice Stevens held that although
the Twenty-first Amendment did empower Rhode Island to regulate the sale of liquor,
such regulatory power is not to be exercised to the detriment of its constitutional
obligation to protect and abide by the First Amendment's freedom of speech guarantee.
25

Kolenc ConLawII Spring 2017

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Constitutional

Law II – Spring 17’ Prof. Kolenc

Standard of Review Means Ends

iii. What rights are protected?

C. FREEDOM OF RELIGION (FIRST AMENDMENT)

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