Con Law II (cite cases often!

)
Review of Key Amendments:

• Amend. I: Prohibits Congress from creating laws that have to do with establishment of religion,
exercise of religion, practice of free speech, or the right to peaceably assemble.
• Amend. V: Protects people from being held for capital/infamous crimes unless the person was
indicted by a grand jury. Also prohibits double jeopardy, forcing a person to self-incriminate,
depriving a person of life, liberty or property w/o due process of law, and prevents the taking of
private property w/o just compensation.
• Amend. IX: The rights enumerated in the Constitution are to be construed so as not to deny or
disparage other rights retained by the people (called “implied rights”).
• Amend. X: Reserves all other rights not delegated to the U.S. to the states/people.
• Amend. XIII: The only part of the Constitution that applies to private citizens/companies and not
just government. Prohibits slavery/involuntary servitude.
• Amend. XIV: Requires the states to abide by the Bill of Rights through the due process clause
(“nor shall any State deprive any person of life, liberty, or property, without due process of law”).
There is procedural and substantive due process. Due process includes certain fundamental
rights – including those in the Bill of Rights. Thus, the Court has incorporated the Bill of Rights
via the due process clause of the XIVth. This is called due process incorporation. This
amendment also guarantees equal protection of the laws.
• Amend. XV: Guarantees the right to vote to citizens.
INCORPORATION CLAUSE: In the 14th Amendment (see above). The Court has adopted a selective
incorporation interpretation (as opposed to total incorporation, which would apply all of the Bill or
Rights to the states). This means that the Court has to look at each individual clause in the Bill of Rights
and determine whether the intention of the drafters was to apply to the states. The controversy behind
this interpretation is that it may involve only judicial subjectivity in deciding which rights the states
must follow. Palko case came up with a test for determining whether or not a right is fundamental or
not for this purpose in criminal cases (see below for further discussion). The selective approach reflects
the notion that included in due process are certain fundamental rights which are included in the bill of
rights. Modernly, however, all of the major rights have been selected as fundamental.

Those which have not been incorporated include: 2nd Amendment right to bear arms (only
applies to federal govt, but Court is going to revisit this soon), 5th Amendment requirement of grand
jury indictment, 7th Amendment right to a jury trial in civil case. The 3rd Amendment has not yet been
litigated (prohibits the quartering of soldiers in the time of war).

So applied to the states are: most of the Bill of Rights, certain implied rights, and…

EQUAL PROTECTION (EP): the essence of an EP claim is whether the govt has drawn the line
between groups in an acceptable place.

Methodology

I. General Rule: Under the 14th Amendment, similarly situated people must be treated the same
(states are prohibited from depriving anyone of equal protection under the law)
II. Basic Question: Is the government’s classification justified by a sufficient purpose?
a. What is the Classification?
i. How has the government defined the groups being benefited/burdened?
b. What is the Level of Scrutiny?
i. Rational Basis  Non-Suspect Classification
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 1. The classification is rationally related to a legitimate interest.
2. Everyone else…. [age, disability, wealth, sexual orientation = Romer v.
Evans, economic regulation, etc.]
ii.Intermediate  Quasi-Suspect Classification
1. The classification is substantially related to an important government
interest.
2. Illegitimacy and Gender [e.g. gender based affirmative action]
3. Facially Neutral? Need impact + intent
iii.Strict Suspect Classification
1. The classification is necessary to promote a compelling interest and there is
no less restrictive alternative (it’s narrowly tailored).
2. Race or National Origin [e.g. race based affirmative action]
3. Other Fundamental Right (p. 14) Voting, right to travel, access to the courts
iv.Facially Neutral?
1. Need discriminatory impact + one discriminatory purpose to trigger Strict
Scrutiny(if not, then we use rational basis) P. 12
a. Totality of the circumstances to find +
i. Factors:
ii.BACKGROUND: historical background, legislative history
iii.PROCEDURAL: sequence of events and departure from past
procedural practices
iv.SUBSTANTIVE: departure from past substantive approaches,
foreseeability
v.Other contextual information (policies, etc.)
b. “Because of”  strict scrutiny (disparate impact +) In spite of 
rational basis (no plus) (Arlington Heights)
c. Does the Government Action Pass the Level of Scrutiny?
i. What is the purpose of the government action? [NOTE: Always make sure that the
purpose would otherwise be constitutional! If not, then none of this analysis is
necessary!]
1. Rational Basis = legitimate interest
2. Intermediate = important interest
3. Strict = compelling interest
ii.Is there a sufficient connection b/w the classification and the purpose?
1. Rational Basis (Burden is on Π)
a. Does the classification/government action rationally relate to the
legitimate purpose?
i. Does not need to be the least restrictive alternative.
ii.Does animus doctrine apply? See page 3.
iii.Can be over or under inclusive and still be valid.
iv.Will only consider claimed purpose as opposed to the real
purpose, unless the law has absolutely no connection therewith
2. Intermediate (Burden is on the Government)
a. Does the classification/government action substantially relate to the
important purpose?
i. Can discuss whether there are other less restrictive alternatives,
but does not have to be the least
b. Intermediate Scrutiny Heavy [archaic stereotypes?]
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 i. If so, more heavily scrutinize the purpose/fit to more resemble
strict scrutiny. (US v. Virginia – VMI case). Is there an
exceedingly persuasive justification?
c. Intermediate Scrutiny Light (male/female distinctions at child’s birth?
Remedial to make up for past discrimination?)
i. If so, be more accepting of male/female distinctions and accept
common-sense justifications. (Michael M. and Nguyen)
3. Strict
a. Is the classification/government action necessary to accomplish the
compelling purpose?
i. Is it the least restrictive alternative?
b. Burden is on the Government!
EP suit involves a P claiming that the government has drawn the line b/w the favored and disfavored
groups in an impermissible place. These suits involve 3 basic questions: (1) How has the gov’t
defined the group being benefited or burdened (means)? (2) What is the goal the gov’t is pursuing
(ends)? Is there a sufficient cxn b/w the means the gov’t is using and the ends it is pursuing (fit or
nexus)?
NOTE: The legislative purpose must be valid – it can’t be forbidden by other constitutional
provisions. The purpose must be conceivably legitimate under rational basis review (it must be
arguable). If the purpose does violate the constitution, then the law is invalid and an EP challenge is
unnecessary.

Classifications that are challenged under EP are either reviewed under rational review when the
classification being drawn is related in a discernible way to the achievement of a permissible gov’t
purpose. The reason for this level of scrutiny in the majority of cases is respect for the legislature –
the legislature and its elected officials are in a better place to determine if the policy serves the
purpose effectively. However, EP challenges are reviewed under strict scrutiny when the gov’t is
making constitutionally suspect classifications.
NOTE: A difference/classification is relevant if, but only if, it bears a rational relationship to the
purpose of the rule (i.e. to the state’s objectives).
NOTE: The basic rational review analysis is used as the default for all individual rights analysis
(not just EP), unless a higher level of scrutiny is provided.

○Rational Review (the default review) Examples

This requires a 2 part test: (1) conceivably legitimate interest contemplated by the
legislature and (2) there is a conceivably rational cxn between means and ends (the law has to
serve the interest – some part of the problem is addressed)
For (1) the interest can be post hoc! In other words, the legitimate interest can come
out during litigation.

1. Invalid Purpose: US Dept. of Agriculture v. Moreno (1973) The purpose of the Food
Stamp Act was to “raise levels of nutrition of low-income households’ and increase utilization
of food so as to strengthen agricultural economy.” The classification excluded food stamp
benefits to household in which unrelated people lived together. At first glance, this purpose
seems legitimate – to support the family unit and prevent fraud. However, the Court stated
that the classification was clearly irrelevant to the purpose of the Act, but instead was aimed
at preventing hippie communes from getting benefits. The Court concluded this from the
legislative history of the act. The Court said that EP means that a bare congressional desire
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 to harm a politically unpopular group cannot constitute a legitimate governmental
interest/purpose. This is later deemed as the animus doctrine.

City of Cleburne v. Cleburne Living Ctr. (1985) The law differentiated mentally
retarded people between other similarly situated groups (like nursing homes, homes for
convalescents, sanitariums, etc.) and prevented them from living in group homes in a certain
area. The city claims that it wants to protect the mentally retarded from group homes from
harassment from junior high students and from the threat of floods. The Court finds an EP
violation – the other similarly situated groups are equally at risk of these harms and perhaps
even more likely to be harmed than the mentally retarded. The Court found this law as an
irrational prejudice against the mentally retarded. Although these interests could be found as
valid, the court is more likely to step in because of the animus doctrine.

2. Overinclusion: NYC Transit Authority v. Beazer (1979) The govt’s legitimate interests
included safety, convenience, and saving money. Even though the TA’s no-methadone rule
treated methadone users and nonusers differently (and included methadone users that were
employable), the Court thought that the rule didn’t violate EP because there was a diff b/w
the 2 classes relevant to the state’s objective of a safe and efficient transit system. This case
is a good example of rational basis review and how easy it is to pass (even if the law, as here,
is questionable and perhaps not prudent).

3. Underinclusion: Williamson v. Lee Optical Co. (1955) A law said that opticians couldn’t
fit old glasses with new frames without a new prescription. However, the law did not prohibit
ready-to-wear glasses from being purchased without a new prescription. Reform can proceed
one step at a time, and the legislative interest being served does not have to be all-inclusive.
The law may “exact a needless, wasteful requirement in many cases. But it is for the
legislature, not the courts, to balance the advantages and disadvantages of the new
requirement.

4. “Actual Purpose” Review: Minnesota v. Clover Leaf Creamery Co. (1981) The law
banned the sale of milk in plastic nonreturnable containers but permitted such sale in
nonreturnable paperboard milk cartons. Rational basis review is applied. As long as the
position of the govt is at least debatable that some part of the problem is going to be dealt
with, the Courts will not get into second-guessing whether the legislature made the right
choice. Ps argue that a different economic purpose was the real motivation for the law, not
environmental reasons as were claimed. The Court said that it would not invalidate a state
statute under EP merely because some legislators supported the law because it would
economically benefit the state. Such a law would only be invalidated for its “actual purpose”
if there is no evidence whatsoever that the law was aimed at the claimed purpose. There is a
strong presumption in favor of the state law. (Remember, however, that the animus doctrine
would be an exception to this).

SUMMARY: Under rational review, it’s often OK to be under or over inclusive or for there to be
another “actual purpose” that wasn’t originally claimed as the real purpose of the law.
However, under strict scrutiny these are often not OK.

○Strict Scrutiny Test: Applies to “Suspect” Classifications

Involves line-drawing based on race or national origin). 0It’s less fair to burden someone
because of something that they have no choice about. You choose whether you want to be
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an optician or ophthalmologist, not whether you’re white or black. Strauder - the purpose of
the 14th amendment was to provide equal treatment to people (blacks) that had been being
discriminated against. We need to be more suspicious of laws that seek to discriminate
against these same people that the 14th originally aimed to protect. Under this level of
scrutiny a law needs to be (1) actually necessary to achieve a compelling interest and
(2) the means must be narrowly drawn to address the compelling interest (must
use the least discriminatory alternative possible). Thus, it can’t be under or over-
inclusive. To be necessary to achieve a compelling interest, the program
must…..(see Croson discussion questions)
To be narrowly tailored, the program must 1. Define benefit class narrowly to fit compelling
interest, 2. Ensure that a race-neutral program will not achieve equality, 3. Ensure that the
remedy will address the problem, 4. Ensure that the program is not unnecessarily rigid
(requiring a case-by-case analysis), and 5. Include a time limit/periodic review.

The beginnings of the strict scrutiny standard appeared in the following cases:

Race: Strauder v. West Virginia (1880) The race discrimination was a law that required
juries to be made of only white males. A black man on trial argues that this law violates EP.
Today we’d argue: 0Although the legitimate/compelling interest is to have qualified jurors, the
law is not narrowly drawn enough to be valid. The law is over-inclusive - it excludes blacks
who would otherwise be qualified for jury duty. A less-restrictive alternative would be to give
a neutral test to everybody, not just black jurors. This law might also be under-inclusive - it
doesn’t question the qualifications of non-black jurors that wouldn’t meet this requirement.
Note that if the purpose is to obtain qualified jurors, the law would pass rational basis review.
However, it can’t pass strict scrutiny.

National Origin: Korematsu v. U.S. (1944) During WWII, Korematsu challenges an order
from a military commander that all Japanese/Japanese descendants on West Coast be moved
to “relocation centers.” This order was both over and under inclusive, but was upheld
because of the security threats in time of war. This case is now frequently considered to be
wrongly decided.
So, to argue that it passes strict scrutiny today we’d argue: 0The compelling interest is
war-time safety, but the law only applied to one group of people in one area of the country.
Thus, the law is over and under-inclusive because it relocates Japanese-Americans who pose
no threat and it doesn’t include non-Japanese-Americans who do pose a threat. However, it
may be the least-restrictive measure because of the “war hysteria” in the west coast.
Conversely, we could argue: 0See (b) above - “war hysteria” isn’t valid as justification for
this type of measure, because it’s not the least-restrictive method of achieving war-time
safety. It doesn’t apply to German-Americans, Italian-Americans, etc. A background check on
all citizens of these descents to see their ties/connections with the US may be a better
alternative.

Loving v. Virginia (1967) [Invalidation of facially neutral law] Virginia’s law was against
interracial marriage. The law prohibits non-whites from marrying whites, but allows non-
whites to marry non-whites and whites to marry whites. Virginia argues that everyone is
discriminated against equally because neither group can marry the other. The Court rejects
this argument and finds the law to be racially discriminatory because: 0 the law amounts to a

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 racial classification (so there is strict scrutiny), but even before we apply the strict scrutiny
there’s an improper purpose. The inherent purpose of the law is to maintain racial purity,
underneath which discrimination lays. There is an inherent air of racial superiority/inferiority
because it implies that a “diluted” white bloodline is lesser than a pure white bloodline. This
is exactly the type of thing that the 14th amendment was trying to hold off. Thus, this would
have even failed rational basis review.

Remedial Programs: Croson (1989) Questions the legitimacy of a remedial program.

Intellectually, affirmative action is troublesome because it treats people differently based on
their race. The city of Richmond adopted a set-aside program which required contractors to
sub-contract at least 30% of the work to minority business enterprises (MBEs). The Court
determined that state/local affirmative action is subject to strict scrutiny. There must be a
compelling interest and the law must be narrowly drawn to pass strict scrutiny.
The compelling interest is that 0States can use racial classifications in statutory schemes
to remedy past wrongs within the relevant jurisdiction (here the city of Richmond). To be
narrowly drawn, 0you have to define the beneficiary class (show that minority contractors
were discriminated against) narrowly. Then you have to ensure that a race-neutral program
wouldn’t work, if a race-neutral policy would achieve equality then a race-based policy is
inappropriate. The remedy has to closely fit the problem that we’re trying to remedy (if you
want to implement a 30% set aside for minority contractors, then you have to show a 30%
problem first). On the flip side, the program cannot be unnecessarily rigid - the program has
to fit the problem as closely as possible (this requires a case-by-case analysis). Finally, there
has to be a time limit/periodic review to be narrowly tailored.
So, Richmond can use affirmative action to remedy past discrimination within the
jurisdiction, even if the state only took a “passive” role in (i.e. not taking stance against
private discrimination). The Court drew distinctions between federal and state/local
governments (but then Aderand applied the same strict scrutiny standard to federal level
affirmative action). The Court found the affirmative-action program as over-inclusive and also
not narrowly drawn (in dictum). See Discussion Questions for further explanation.

What happens if a policy is not facially discriminatory, but is discriminatory in effect (i.e.
higher penalty for crack cocaine v. powder cocaine)? We deal with this under intermediate
strict scrutiny below under the sub-title “Additional Complications in Heightened Equal-
Protection Analysis.”

○Intermediate Scrutiny: Applies to Gender Classifications (“Quasi-Suspect” Classifications) and

illegitimacy

Cases leading up to a higher level of scrutiny for gender:

Reed v. Reed (1971, p. 621): First case to invalidate a gender classification under EP.
Law stated that males were preferred over females to serve as the administrator of an
estate. Within this class (equally close relatives to testator), the males are benefitted and
the females are burdened. The Court creates a legal fiction in saying that the law flunks
mere rationality. 0We can come up with a legitimate interest for such a law - ease of
administration, reduction of costs, etc. Furthermore, in 1971 men were generally more
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 trained in business and administrative settings. Thus there is a rational basis for such a
law and the law does pass mere rationality. Thus, the Court was leaning towards a stricter
level of scrutiny to be used in gender cases.

Fronteiro v. Richardson (1973): The Court goes to the opposite end and 4 justices say
that gender discrimination laws should be subject to strict discrimination! The law
automatically allowed male service members to claim a dependent spouse, but didn’t
allow female service members to automatically claim a dependent spouse. Again, this
would pass rational review because of the trends of the time. However, it wouldn’t pass
strict scrutiny because there is no compelling interest. Again, the Court is transitioning
toward higher scrutiny than mere rationality.

Intermediate Scrutiny is Finally Announced:

Craig v. Boren (1976): The Court finally announces intermediate scrutiny for gender
classifications. The law prohibits selling 3.2% alc. beer to 18-20 year old males but does
not prohibit selling it to the same age group of women. Thus there is an overt distinction
between men and women. The Court says that it will apply more than rational basis, but
less than strict scrutiny. This law would definitely pass mere rationality based on the
traffic statistics, etc. The important interest is traffic safety, but the means is not
substantially related to this interest. The State provided as evidence statistics that 2% of
males were arrested for drinking and driving, while only .18% of females were arrested. A
2% prevalence rate among males is not enough to provide a substantial relation, plus the
2% statistic doesn’t measure the use and dangerousness of 3.2% beer amongst this
population at all. Furthermore, the law only prohibits the selling of 3.2% beer to this
population, not their consumption of it once obtained. Thus, the relation b/w gender and
traffic safety is far too tenuous to satisfy intermediate scrutiny.

Justifications for intermediate scrutiny (but not strict scrutiny) for gender cases:

0A. Justifications for strict scrutiny of racial classifications that arguably apply as much
(or maybe even more) to gender classifications  Like race, gender is rarely (if
ever) relevant to any governmental purpose. Gender is also immutable like race - you are
born being a man or a woman, thus it’s unfair to use gender against someone. Genders
are commonly subject to stereotypes like races are.

B. Justifications for strict scrutiny of racial classifications that arguably apply less
strongly to gender classifications  The prime intent of the 14th amendment was to
protect against discrimination against the newly freed slaves, not to promote gender
equality. The drafters didn’t accidentally leave out women. Also, there is a moral norm in
the community to protect women moreso than to protect a certain “race.” Women aren’t
technically a “minority” if they grouped together they could be a majority.

Example of more stringent intermediate scrutiny (“intermediate scrutiny heavy”):

U.S. v. Virginia (VMI case) (1996) Ginsburg opinion seems to apply an even more
heightened standard to gender classifications (applies an exceedingly persuasive
justification standard which tends to more resemble strict scrutiny). The U.S. challenges
Virginia and the VMI school (Virginia Military Institute) as a male-only school, claiming VMI’s
admission policy violated EP. VMI’s mission is to produce “citizen-soldiers” and uses an

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 “adversative method” modeled on English public schools (and once used in military
instruction) – includes physical rigor, minute regulation of behavior, equality of tx., absence of
privacy, and indoctrination of desirable values. VMI has produced many leaders. In response
to the initial challenge, VA created a school for women (VWIL), however it incorporated a
“cooperative method” of teaching focusing on self-esteem and leadership courses, and only
provide B.A. degrees. Additionally, VWIL also had significantly lower financial resources. The
school’s mission in producing citizen-soldiers is not substantially advanced by excluding
women. Thus, Virginia has not met the exceedingly persuasive justification standard for
gender classification. Furthermore, Virginia has not even corrected the error by providing an
equal female-only institution (so promoting diversity in education isn’t their true purpose).
This resembles strict scrutiny because it says that as long there are some women that could
benefit from VMI, then all applicants need to be considered individually regardless of gender.
A law that fits most women (in this case) is being struck down because it doesn’t fit some
women.

Examples of less strict versions of intermediate scrutiny (intermediate scrutiny light):

Michael M. v. Sonoma County Superior Court (1981) The Court upheld a statutory rape
law that only applied to males who engage in sex with a female under 18. P was a 17 year
old male who had sex with a 16 year old girl. The court found that the purpose of the statute
was to prevent illegitimate pregnancies (which is an important interest), and that this statute
was appropriate to serve as a deterrent to males only (because females are naturally
deterred by the responsibility/burdens of pregnancy).

Nguyen v. INS (2001) Ct upheld statute that said if mother was US citizen and father was
not, then the child was considered a US citizen. BUT, if father was US citizen and mother was
not, then child treated as non-citizen UNLESS formal proof of paternity by the age of 18. Here,
son was 22 when he got DNA test of father. Important gov’t interest is establishing parent-
child relationship (supporting the formation of relationships by requiring them to grant
citizenship to child). Majority upholds the statute based on assertion that mothers are always
present at birth, and thus automatically have relationship with child. However, fathers may
not even know that he had fathered a child at all. Dissent: Statute assumes parent-child
relationship btw mother and child upon birth, which is not the same w/ father (reflecting
gender stereotype that mother’s are more likely to bond with children). However, a gender
neutral statute proving an actual relationship would better serve the gov’t interest. This
statute is based on stereotypes that women have better relationships w/ children than men.
Remember, that under intermediate scrutiny the law doesn’t have to be the best method, it
only has to have a substantial relation to the interest.

Examples of intermediate scrutiny as applied to “benign” gender classification:

Califano v. Goldfarb (1977) Ct invalidated insurance benefits pgm, where widow received
benefits based on earnings of deceased husband, but benefits of deceased wife only payable
to widower IF can show he was receiving at least ½ of his support from wife. This argued to
discriminate against men and women (who are denied the benefits of their hard work in
benefiting their families). Gov’t Interest: diff stds of eligibility for diff social welfare needs.
BUT, statute phrased in terms of dependence, not need, and based on presumption that
wives are usually dependent. Reqt operates to deprive women of protection for their families
which men receive as result of their employment. RULE: Remedying effect of past

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 discrimination against women is substantial govt interest that can justify treating the sexes
differently.

Wengler v. Druggists Mutual Ins. Co. (1980) The Court invalidated a portion of Missouri’s
workers’ comp statute under which a widower of a deceased worker was entitled to death
benefits only if he was mentally or physically incapacitated from wage earning or proved
actual dependence on his wife’s earnings. Unlike in Goldfarb, this program was not paid into
by the female spouse’s earnings, but it was still considered discriminatory against both men
and women. So, it doesn’t matter if it’s a contributory benefit program or not.

Califano v. Webster (1977) Ct upheld social security law allowing women to exclude 3
lower-earning years for calculating monthly average wage w/ effect of granting higher
monthly benefits to retired female workers. IS applied. Substantial Gov’t Interest: wanted to
compensate women for past economic discrimination = remedial. This justifies difference
from Goldfarb. There is no disadvantage to this – women are either benefited or not affected.

Benign Classification Comparison (Racial vs. Gender): Gender has easier test than race for a
benign classification, which doesn’t make a lot of sense b/c 14th A designed to protect race.
Benign racial classification  SS, but Benign gender classification  IS.

COMPARISON OF SCRUTINY STANDARDS:

Rational: conceivable legitimate interest + some cxn between means and ends (classification
fits some part of the problem)

Intermediate: important interest + real and substantial relation to interest

Strict: compelling interest + narrowly drawn (least discriminatory alternative)

○Additional Complications in Heightened EP Analysis

University Admissions Affirmative Action – Strict Scrutiny

Grutter v. Bollinger (2003) P (a white resident) sued University of Michigan Law School
claiming that she had not been admitted b/c the school had relied on race in violation of EP.
The Court found that student body diversity (achieving a ‘critical mass’ of diverse students) is a
compelling state interest under strict scrutiny because it is defined by reference to the
educational benefits of diversity (the interest doesn’t just require a flat percentage of minority
students for racial balancing). Furthermore, the admissions policy was found to be narrowly-
tailored because it doesn’t simply use a quota system. Instead, each individual student
receives personalized consideration of multiple factors, one of which is race. In other words the
school “awards no mechanical, predetermined diversity bonuses based on race or ethnicity.”
This denotes the acceptable way to achieve a critical mass of diversity – race is only used as a
“plus.”
Gratz v. Bollinger (2003) A points system awarding 20 extra points for persons of color was
struck down because it didn’t provide an individualistic assessment with race simply another
factor to consider. This denotes the unacceptable way to achieve a critical mass of diversity.

Community School Districts and Affirmative Action

Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) The
programs were not narrowly drawn enough to be constitutional. The goals of the programs

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 were to achieve racial diversity. There is still room for these schools to use factors to enrich
the classroom with diversity, however, neither of these programs passes constitutionality
(they both fail to be narrowly drawn). They’re narrowly drawn because “the minimal effect
these classifications have on student assignments suggests that other means would be
effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of
students between schools.” Race-based criteria may have been okay for “a more nuanced,
individual evaluation of school needs and student characteristics that might include race as a
component” (from concurring opinion).

○ The Requirement that Discrimination be “Intentional” to Trigger Heightened Scrutiny (i.e.

Purposeful Discrimination)

These cases show why the Court won’t invalidate policies just for showing disparate impact,
because Congress may be legitimately working towards a valid goal. The Court doesn’t want
most government policies to be reviewed with strict scrutiny (because that would be an improper
role for the Court to play).

Washington v. Davis (1976) This sets forth the test (a totality of the circumstances test)
that we use to decide what level of scrutiny to apply to a facially non-racially discriminatory
policy that disadvantages racial minorities. Unsuccessful black applicants for positions on the
police force claimed that a verbal ability test unconstitutionally discriminated against them.
Disparate impact is not enough, but disparate impact can sometimes be probative. In
analyzing these facially neutral policies, the Court will decide if the classification in the policy
constitutes a “racial classification.” If it does, then the Court will apply strict scrutiny and
most likely invalidate the law. If it doesn’t, the court will use rational basis review despite the
classification’s disproportionate impact on the minority group. Disparate impact is usually a
“plus,” but other factors are also looked at (see Arlington Heights below for other factors).

Yick Wo v. Hopkins (1886) Example of a disparate impact that is so extreme that it speaks
for itself and establishes a discriminatory purpose for the law.

Gomillion v. Lightfoot (1960) Another example of an extreme disparate impact. A law

changed the boundaries of a city from a square to a random shape and just happened to have
the effect of excluding blacks from the community.

Village of Arlington Heights v. MHDC (1977) See excerpt in Smith Materials. The MHDC
applied to re-zone area from single-family zone to multi-family zone (to allow for low-income
housing). The argument is that the application was denied based on race. The Court says
that it’s true that a disproportionate amount of minorities would have been affected by the
rezoning, but not enough for the disparate impact to speak for itself that the decision was
totally racially motivated. The Court says it also will look at the procedure of how the decision
was made (legislative/administrative background – what was the focus on? The merits of a
zoning decision or race?), History (does the city have a long history of refusing such requests
for racial purposes, or is this instance unique?), Specific substantive decisions , Procedural
history (were additional procedural roadblocks set in place for this decision, was a substantive
change in rules made?), and legislative history with contemporary standards (meetings
minutes, quotes, reports, etc.) . Part IIIB sets forth the standard. “When there is a proof that
a discriminatory purpose has been a motivating factor in the decision, this judicial deference
is no longer justified.” Note 1, p. 535 (Mass. v. Feeney) – disproportionate impact is a good
starting point, but there’s a difference between a decision made “because of” its adverse
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 effect on a minority group versus one made “in spite of” its impact on a minority group. “In
spite of” increases likelihood of constitutionality.

McCleskey v. Kemp (1987) Demonstrates the split in view about the administration of the
criminal justice system and the death penalty.

Sample Major Essay Question (see Handout): Law 123 doesn’t draw a race-based or
national origin-based distinction. Thus, the law is facially neutral. However, it has
disproportionate impact on those of Mediterranean national origin (84% of the people that
have to go through the delays to get a marriage license are of this national origin). Having
disproportionate impact is not enough – we need a “plus” by considering the totality of the
circumstances. In other words, we need to show that one purpose behind the law was to
discriminate. Here, there is not enough to turn this into purposeful discrimination, because
(unlike Gomillion) there is an explanation for the law besides a desire to discriminate. The
genetic defect is supported by the numbers, and so the purpose of the law is based in nature.
So, here the law was enacted in spite of [or regardless of] the disparate impact, not because
of the disparate impact on those of Mediterranean origin. The totality of the circumstances
analysis (see below for analysis outline from Smith’s grading sheet)): procedure of how the
law was made; foreseeability (it was foreseeable that such a law would have such a disparate
impact); history (there is no history of discrimination against Greek Americans here);
procedural history (here, there is a problem because all other genetic diseases are not being
considered the same); and the specific sequence of events leading up to the enactment.

However, if the court were to find discriminatory impact “plus,” then we go on to the strict
scrutiny analysis: compelling interest (preventing genetic abnormalities along with
decreasing health care costs for the state) and narrowly drawn (the law is under-inclusive
because it doesn’t cover other genetic illnesses that are just as severe, it allows marriage at
the end of the process, and un-married people have children; the law is over-inclusive
because the state could just use information campaigns like it does for all other genetic
illnesses, and could expedite the counseling/testing process).

Because the Court will most likely not find purposeful discrimination, it would probably
apply rational basis standard.

Totality of the Circumstances Analysis Breakdown:

BACKGROUND: historical background, legislative history
PROCEDURAL: sequence of events and departure from past procedural practices
SUBSTANTIVE: departure from past substantive approaches, foreseeability
Other contextual information (policies, etc.)

Non-Facially Discriminatory Laws Analysis:

1. Preliminary analysis to find purposeful discrimination
a. disproportionate impact “plus” [impact + totality of the circumstances analysis above]
-if so go to #2 (if not, go to rational basis in)
2. Apply strict scrutiny analysis:
a. compelling interest
b. narrowly drawn to achieve compelling interest

PODCAST LECTURE NOTES: Other areas applying EP scrutiny standards (even though
there is no race/gender/etc discrimination = FUNDAMENTAL RIGHTS STRAND OF EP
11
These cases are dealt with under EP by accident almost (just how the cases arose). However, it
may logically have made more sense to talk about them in the context of due process. There
are a series of individual cases that end up making arcane minor distinctions.
EXAM: Likely on M.C.
Heightened Scrutiny Applied to Classifications Based on:
Voting: Denial of the right to vote being asserted under EP as a fundamental right. The Court
says that even though the Constitution doesn’t carve out an express right to vote, the Court
is going to imply it as a fundamental right. Ordinarily the lines being drawn under EP would
be subject to rational basis review. Here, we have at most wealth classifications (which have
never generated anything more than rational basis review). However, the Court in some of
these cases is applying Strict Scrutiny, which is why it recognizes voting as a fundamental
right (to justify applying strict scrutiny).

Harper v. Virginia State Board of Elections (1966): Poll tax ($1.50) to vote. Poll
taxes had been previously used on a racially discriminatory basis, this one applies
regardless of race (so, if anything it’s discriminating against poor people). This law would
pass rational basis review – 1. Raise revenue, 2. People who are willing pay have a stake in
the voting process, 3. History’s on the side of poll tax rationality. Once you’re granted the
right to vote, you have a fundamental right that can’t be interfered with unless the statute
is narrowly drawn to accomplish a compelling interest. Wealth and fee paying has no
relation to voting capability. This case established that there is a fundamental right to
vote, that can’t be discriminated against without being closely scrutinized (which in later
cases resembles strict scrutiny).

Bush v. Gore (2000): The Court continues to call the right to vote fundamental, including
the right to have your vote counted equally. A statewide re-count supervised by one
judicial officer is unreasonable. However, this case wasn’t establishing a right to equal
vote counting under strict scrutiny in all cases. Instead, the Court says that this result is
specific to this case. This is a modern case that talks about the right to vote as
fundamental, which includes more than simply your access to the polls.

Kramer v. Union Free School District (1969): New York education law says that
people can only vote in the schools if they own property or have children in the district.
The appellant is a bachelor who does not own property or have children in the district. NY
justifies it under rational basis (they want to ensure that everyone voting has an interest in
the school board, property taxes pay for the schools and kids go to the schools). This
would be rational, but it doesn’t pass heightened scrutiny. If the challenged state statute
grants the right to some residents and not other, then the statute must further a
compelling interest. In a general purpose election, like a school district, restrictions on the
right to vote trigger a fundamental implied right to vote and must be narrowly scrutinized.
Thus, it usually fails to further a compelling interest.

Note Cases: These are special purpose elections (not general purpose elections). General
purpose elections trigger the fundamental right to vote, but special purpose elections (if
the special purpose relates to land owning, etc.), then it must only pass rational basis
review. So, there’s a line being drawn.

Note Cases that do involve fundamental rights:

12
 Cipriano v. City of Houma (1969): The Court invalidated a LA law permitting only
property-owning taxpayers to vote whether to issue municipal utility bonds. The Court
emphasized that the revenue bonds were to be paid entirely from the operation of the
utilities, and that they therefore did not especially burden the owners of real property.

Pheonix v. Kolodziejski (1970): An AZ law permitting only property-owning

taxpayers to vote whether to issue general obligation bonds was invalidated. The
Court said that even if you weren’t a property owner, you still had an interest in the
general facilities financed by the bonds.

Note: Both of these laws would have been upheld under rational basis review.

Note cases that do not involve fundamental rights (that involve limited
services – not services used by the general public):

Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973): The Court
upheld a Cali statute permitting only landowners to vote in water storage district
elections and allocating votes in proportion to the assessed value of farming. The main
purpose of the districts was to provide water for farming. The districts’ project costs
were assessed against the land in proportion to the benefits received. Thus, the
district did not exercise what might be thought of as “normal governmental authority.”
The Court said that the special limited purpose (as opposed to special general purpose)
and disproportionate effect o its activities on landowners as a group made strict
scrutiny inapplicable (as opposed to the above 3 cases). This then passed rational
basis review.

Ball v. James (1981): Extended Salyer, and upheld a “one-acre, one-vote” scheme for
voting for directors of a large water reclamation district in AZ. Unlike the water district
in Salyer, which covered only a sparsely populated agricultural area, the water
reclamation district in Ball financed most of its water operations by selling electricity to
several hundred thousand residents. The Court applied rational basis and not strict
scrutiny, because the district “cannot enact any laws governing the conduct of citizens,
nor does it administer such normal functions of government as the maintenance of
streets, the operation of schools, or sanitation, health, and welfare services. The
relationship b/w nonvoting residents and the district was “essentially that between
consumers and a business enterprise from which they buy.”

The Court is essentially trying to distinguish between when an election is for a general
government purpose (the city is undertaking general obligation bonds to run various
services, etc.) or a special limited purpose.

Durational Residency Requirements: To what extent can states restrict voting rights
because a time-line wasn’t met?

Dunn v. Blumstein (1972): Affirmed states power to limit voting to bona fide
residents, but invalidated a statute that required voters to be in the state for 1 year.
These restrictions are unconstitutional unless the State can demonstrate that they are
13
 necessary to promote a compelling governmental interest. Here, the State did not
prove that 1 year was required to “insure purity of the ballot box” and insure a
“knowledgeable voter” (the 2 interests cited by the State).

Marston v. Lewis (1973) and Burns v. Forston (1973): The Court upheld a similar
50 day durational residence requirement, noting that the 50 day period was
“necessary” to serve the states’ “important interest in accurate voter lists.”

(So the limit is somewhere in between 50 days and 1 year).

Enrollment requirements for voting in primaries:

Rosario v. Rockefeller (1973): To be eligible to vote in the next primary party

election, you have to register your party affiliation at least 30 days before a general
election (which would be 11 months ahead of the primary). The purpose of this is to
only allow real members of these parties to vote in the party. We want to make sure
there’s at least a history of party affiliation. The Court says that this is allowed.
Distinguished from Dunn by saying that it doesn’t violate your absolute right to vote
but only imposes a time deadline.

But, 23 months is too long… Kusper v. Pontikes (1973): Because this would lock
voters into their prior affiliations too much.

Access to the Courts/Judicial Process: There are cases on both sides. Unlike the voting area
where there is an assumption of a fundamental right, here granting access to the judicial
process is an exception, not the rule. One has a selectively fundamental right to access to
some judicial processes, but usually don’t.

CRIMINAL:
Cases adding access to the fundamental right:

Griffin v. Illinois (1956): A state must furnish an indigent criminal defendant with a
free trial transcript if such a transcript is necessary for “adequate and effective
appellate review” of his conviction.

Douglas v. California (1963): An indigent criminal defendant has the right to counsel
on appeal whether or not the counsel is helpful to the defendant (this applies only to
non-discretionary, guaranteed, rights to appeal).

Cases not adding more access to the fundamental right:

Ross v. Moffitt (1974): States do not have to provide counsel for indigent defendants
petitioning for discretionary state appellate review or for review in the US Supreme
Court. (This applies when appeals are discretionary and not guaranteed).

Fuller v. Oregon (1974): A law was upheld that gave indigents counsel but that the
state can recoup the money if the person becomes non-indigent (they fall into
inheritance, etc.). Recoupment statutes are OK even if they create an incentive to
14
 refuse appellate counsel, provided that you don’t impose special restrictions on
criminal defendants that other people trying to avoid judgments can’t assert.

Rinaldi v. Yeager (1966): Invalidated a similar statute requiring unsuccessful

appellants confined to prison, but not those receiving suspended sentenced, placed on
probation, or penalized only by a fine, to repay the state for the cost of transcripts).

CIVIL: More access is granted if the civil procedure is for a separately

fundamental interest.

Cases adding access:

Boddie v. Connecticut (1971): The Court has to waive court fees for divorce for poor
people. [Because this touches directly on the marital relationship, which have a
separate fundamental importance – also included are other familial rights (fee waivers
for paternity tests, etc.)]

Cases not adding access:

U.S. v. Kras (1973): The Court upheld a provision of the Bankruptcy Act requiring
individuals seeking voluntary discharge to pay costs and fees of about $50.

Ortwein v. Schwab (1973): An administrative appeal does not require the state to
waive fees associated therewith.

Out-of-State Residency/Travel: The right to travel is an implied fundamental right to travel

interstate. This is the right to move interstate and relocate without having your new status as
a new/non-resident be used against you in certain situations.

Shapiro v. Thompson (1969): 1 year residency requirement before you could get
welfare. The state had some significant justifications for this law (prevent fraud, not
become a welfare meal, reward longstanding residents, protect the state’s finances, etc.).
The Court struck this down – this may be rational, but because the right to travel
interstate is fundamental, and this law is not narrowly drawn to accomplish these
purposes, it fails.

Saenz v. Roe (1999): The Court invalidated a Cali statute imposing durational residence
requirements by limiting welfare benefits during the recipient’s first year of residence.
This law is more moderate that Shapiro, but was still struck down. The Court said that it
was inappropriate to deter welfare applicants from migrating to California.

The rule of thumb is that durational residency requirements are generally not allowed.

Zobel v. Williams (1982): The Court held that an Alaska statute distributing the income
derived from its natural resources to adult citizens in varying amounts depending on the
length of residence in the state violated the EP clause.

SUBSTANTIVE DUE PROCESS

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The essence of a SDP argument is very different than an EP argument. It’s not the way the government
is drawing the classification, it’s about the interests that are being affected by the government policy
(is the law unfair?). Remember that many times EP and SDP are both present at the same time. SDP
has to do with the interests being affected (life, liberty, property). SDP applies to everyone – EP applies
only to the burdened/benefited groups involved. There are some areas where there are higher
procedural safeguards to justify a governmental intrusion.

Analysis:SDP tests generally whether a statute/government action is reasonable. The analysis differs if
we’re dealing with a fundamental right versus a economic/social regulation.
What Level of Scrutiny?
Rational Basis Indirect economic and social regulations that do not involve a fundamental right (like
right to die – Glucksberg p. 27) and economic regulations - See Lyng, p. 21)/
Is the government action rationally related to a legitimate government purpose?
May not be arbitrary and capricious
Must be reasonable and fair
Strict Scrutiny
RULE: If government regulation infringes on a fundamental right it will be invalidated unless it’s necessary to
promote a compelling state interest when there is no less burdensome means to accomplish the purpose (narrowly
tailored).
Fundamental rights = Reject Medical Treatment and Privacy: contraception purchase and use, consensual sexual
relations in home (Lawrence), marriage, child bearing and rearing, education, relations (family right to stay together -
Moore), but NOT abortion – see below; does also include other rights like 1st A. rights, right to travel and vote, etc.
Undue Burden (Planned Parenthood v. Casey p. 23) No longer the trimester system
Abortion
Regulation validity dependent upon the viability of the fetus:
Prior to viability = state may not prohibit abortion, but may regulate it as long as they don’t create an undue burden on
the right to have one
Example of no undue burden = requirement of informed consent, 24 waiting period, parental consent with alternative
procedure
Undue burden = spousal notification
Post viability (fetus could live outside of womb) = State may prohibit abortion unless woman’s health is threatened

○Strict Scrutiny for Privacy-Based Protections for Matters of Marriage/Family

Meyer v. Nebraska (1923): Liberty of parents to direct upbrining of children: The Court
declared unconstitutional a law that prohibited teaching in any language other than English in
the public schools. “The fundamental theory of liberty upon which all government … repose
excludes any general power of the state to standardize its children by forcing them to accept
instruction from public teachers only. The Child is not the mere creature of the state; those who
nurture him and direct his destiny have the right [and duty] to recognize and prepare him for his
additional obligations.”
Griswold v. Connecticut (1965) Establishes that married people have a fundamental right to
have access to contraception. A CT statute prevented any person from using birth control. This
law’s conceivable legitimate purpose is to discourage extramarital affairs. The law is rationally
related to the interest because some people will probably be discouraged from having
16
extramarital affairs because they won’t be able to use birth control (the risk of having an
unwanted pregnancy is too high). This law is overinclusive because it applies to married people
who don’t want to have affairs, and also prevents many forms of family planning. Plus, this law
is unnecessary to obtain it’s goal because there are already criminal statutes that criminalize
extra-marital affairs. The law is underinclusive because it ignores the fact that BC can be used to
avoid the spread of diseases (it’s not just to prevent pregnancies), and also leaves out condoms.
But these facts don’t make the law irrational. There is a fundamental right of privacy, and that
right applies to married peoples’ access to contraception. This law intrudes into the marital
bedroom and marital privacy. Later cases will extend Griswold beyond marriage to all people
(Eisenstadt and Carey).

SDP is especially treacherous for the Court – an implied right doesn’t offer the Court much in
the way of guidance (there is no language in the Constitution for the Court to follow). It
sometimes seems like the Court has to make up principles to follow (involving judicial
subjectivity), which can be seen as a dangerous process. Douglas’ opinion can be seen as the
safer/more cautious approach because the penumbras are emanated from written text. Douglas
– He finds a right to privacy by stating that based on the 1, 3, 4, 5, 9, amendments emit shadows
of implied rights (or penumbras of rights). The right to associate involves an implied right to not
associate and be private. The right to not have troops forcibly assigned to your house involves
privacy in home. Goldberg – focuses on the 9th amendment. The 9th establishes that rights that
aren’t expressly specified still exist (so there are implied rights). He looks at the deep-rooted,
traditional, nature of implied rights. Harlan – 14th amendment due process clause, which
includes a substantive component. We must look to history and traditions to decide (which
resembles the Palko test, see #11) what substantive DP touches. Orderly and free society
requires these rights, and laws affecting these must be reviewed with strict scrutiny. Harlan is
the most free-wheeling (although this has become the most basic approach!). The judges agree
on the conclusion, but not on the theory.
Moore v. City of East Cleveland (1977) Relations (family’s right to stay together) - A law
prohibited a grandson from living with his grandmother. The ordinance limited occupancy of any
dwelling unit to members of the same “family,” and narrowly defined “family” as including only a
few categories of related individuals. The Court, in a plurality opinion, concluded that the
ordinance violated SDP. This law would easily pass rational basis review because the
conceivable legitimate interest is to minimize traffic, congestion, and burden on the school
system. It’s rational to think that “traditional” family units will cause less of a concern about
traffic, congestion and burden on the school system (because a traditional family typically
involves parents and a few kids – not multiple sets of adults and extended family, or kids being
registered with an aunt to go to a different school). However, under strict scrutiny, these are not
compelling interests and aren’t narrowly drawn (you could achieve the same result by limiting
the number of cars per household).
Lyng v. Castillo (1986) Economic - Un-related people get treated better under the Food Stamp
Act because they each can separately qualify for more stamps, even if they live together. This
law was upheld under rational basis review b/c it involved only a financial deterrent. The law
doesn’t preclude living together. Instead it will only cost more to the family to live together. It
discourages poor families from living together, but it’s only financial discouragement. The Court
draws a distinction that prevents or precludes something from happening. Preclusion triggers
strict scrutiny, but prevention doesn’t always trigger strict scrutiny (especially if it only
discourages a way of living). This

17
 The rule of Moore/Lyng is that strict scrutiny is not triggered if only financial disincentive is
involved.
Zablocki v. Redhail (1978) The law prevents a person from obtaining a marriage license if that
person has a minor and is under an obligation to pay child support without a prior judicial
determination that the obligation is being met. This triggers and fails strict scrutiny (because it
precludes marriage, a fundamental right). There is a compelling interest (to ensure that child
support obligations are being paid), but it isn’t narrowly tailored. There is already a way to make
people pay child support (there are other laws already in place to enforce this orders). Also, the
law doesn’t seem to accomplish its purpose (it doesn’t really get child support payments paid),
but instead only precludes marriage for these people. If you really wanted child support paid,
you’d enforce the laws already in place. This case establishes that there is a fundamental right to
marry.
Califano v. Jobst (1977) see p. 905. Involved another financial disincentive to marry and so is
upheld under rational basis.

Reno v. Flores (1993)

Michael H. v. Gerald D. (1989) P and D’s wife had an extramarital affair and she ended up
having his baby. A paternity test showed that the baby was P’s. The wife then moved back in
with D and refused to let P visit the child. California law assumes that a child born to a married
woman is presumed to be the husband’s child. This can be rebutted, but not by a party outside
of the marriage. P claims that because the law doesn’t afford him a way to rebut the
presumption, the law violates his substantive due process rights (stemming from the
fundamental right for parents to have relationships with their children). The Court considers
whether the law should recognize the right of an adulterous father to interrupt the marital unit to
claim paternity (based on historical values and fundamental rights) – and it refuses to extend
SDP to encompass this (b/c P was not part of a unitary family, he had no interest of the
necessary sort). There is a fundamental right to have children and have a relationship with your
child, but this case deals with how this right is defined. Smith thinks that this opinion doesn’t
give enough weight to a biological father’s interest (beyond obtaining custody and visitation
rights) in being recognized legally as the child’s biological father. This case establishes (only by
a plurality) that a biological but adulterous father does not have a fundamental right to be legally
recognized as a child’s father.
ON exam, we have to argue how narrow/general certain rights should be construed. Example,
The line for right to relations is between the traditional family plus the non-traditional family
which resembles a traditional family v. a non-traditional family that is very much different than a
traditional family. The Court doesn’t extend family rights to intermittent relationships, but it will
extend them to non-traditional family structures that have endured and are morally OK.
Stanley v. Illinois (1972)
Summary – a line is being drawn in the cases between an absolute interference into the right of
family relationships versus a financial disincentive to conduct family relationships in certain
ways. A financial disincentive does not equal a direct and substantial interference with the right
to marry, right to choose contraceptives, right to choose which family members to live with, etc.
○Strict Scrutiny, Downgraded to “Undue Burden” Analysis, for Abortion

Roe v. Wade (1973) Deals with the right to choose abortion after consultation with your
doctor. The Court held that there is a fundamental right of a woman to choose abortion at
least to the extent that she shouldn’t have to face unjustified state prohibitions. The
fundamental right of privacy includes abortion. This is not an absolute right to abortion upon
18
 demand. Instead, it’s a right (until the Casey decision) to assert the abortion right until the
state can show strict scrutiny is met. So, when does a state have a compelling interest?
Abortion right scheme varies depending on which trimester the pregnancy is at. 1st trimester
= maternal health is not compelling (no restriction can be put on the doctor during this time)
since abortion is safer than childbirth during the 1st trimester. 2nd trimester = maternal health
is compelling, because abortion is no longer as safe or safer than pregnancy (so we can
regulate to protect maternal health during the 2nd trimester), but the regulations also have to
be narrowly drawn. 3rd trimester = fetus’ life is viable, which provides for a compelling
interest for the state to protect fetal life (i.e. ban abortion) except where necessary to protect
the life or health of the mother. See discussion questions!

After Roe, a more conservative administration took control and slowly instated more
conservative thinkers on the Court. Thus, the decisions after Roe increasingly focus on the
narrowly tailored requirement. These decisions point out the difference between the
fundamental right to choose abortion versus the state paying for and providing abortion services.

Maher v. Roe (1977) The Court approached the abortion issue from an equal protection
angle. This cases involved pregnant indigent women. You get money if you want an abortion
for therapeutic medical purposes, but you don’t get money if you are pregnant and want an
abortion not for therapeutic medical purposes. Encouraging childbirth (poor women will end
up giving birth because they can’t afford abortion) is seen as a legitimate state interest and
the law was upheld under rational basis review. Rational basis review was used because the
Court looked at the law under an equal protection lens instead of through a fundamental right
of privacy/SDP lens. This case relies on a formality to apply rational basis, when in reality it
affects women’s right to choose abortion. The Court places heavy emphasis on the difference
between affirmatively blocking women from choosing abortion and simply not supporting
abortion. Note that this law would have a very hard time passing strict scrutiny if it were
applied – there probably isn’t a compelling interest in ensuring these births and the law is
probably not narrowly tailored. Harris v. McRae (1980) Ct upheld law that
prohibited use of Medicaid funds to pay for abortion except when life of mother in jeopardy or
necessary for Vs of rape. RBT applied  doesn’t affect the abstract right to choose, even
though more financially difficult. Statute is not placing obstacles in her way; it is woman’s
own poverty.

Rust v. Sullivan Title X funding for family planning clinics, but prohibits abortion talk
altogether. The federal government has the right to decide that it doesn’t want federal
taxpayer money to go toward funding abortion. (probably don’t need to know this case very
well).

Planned Parentood of Southeastern Pennsylvania v. Casey (1992) Upheld Roe, while

still announcing an undue burden standard for abortion regulations. Note that this decision is
not technically legally binding because it is a plurality opinion. We no longer measure the
interest or the closeness of the fit – we only look to the effect of the burden. Notice also that
we no longer look at the trimester system! The interest to protect maternal health and
baby’s life strengthens steadily as the pregnancy goes on.

NOTE: any law that interferes with any woman’s right to have an abortion is reviewed under
the undue burden standard. The undue burden test is the standard. Abortion is still

19
 considered a fundamental right, but the standard applied to it is an anomaly (the undue
burden standard).

Undue burden per Casey = When the government interferes to where it’s the functional
equivalent to preventing abortion. In other words, an undue burden is when a state
regulation has the purpose or effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus. (This is not the same as SS, because we no longer
have to weight the compelling interest or if it’s narrowly tailored – only if it’s an undue
burden).

What are the laws that are and are not undue burdens?

Undue Burden (will not be upheld): requiring spousal notification (or wife certification of
notification per Casey); requiring spousal consent
Reasons: These burdens may have broader/longer-term effects on the women, and will thus
increase the likelihood that women will forego abortion. These requirements are also
relatively paternalistic and imply that women can’t make these decisions on her own (instead
need help from their husbands). These requirements are arguably saying that a married
woman may have decided not to tell her husband on purpose, and that this decision is not in
the best interest of her marriage. The ultimate effect could be either increasing victimization
of women and/or making women in abusive relationships more helpless.

Not Undue Burden (will be upheld): 24 hour waiting period (you can make women wait 24 hours
to get an abortion); requiring informed consent disclosure of both medical and sociological
information; information gathering with sufficient privacy protections (state can collect stats);
can require parental consent, parental notification or judicial bypass for minors (CA state
constitution has stronger privacy protections and so allows minors more freedom); ban on partial
birth abortion
Reasons: Requiring information or wait periods will only cause a small delay or small increase
in costs (because of the additional doctors’ time that will be used up) that won’t substantially
interfere with the woman’s right to have an abortion. The 24 hour delay can be very
burdensome for some women (see p. 872-3 – effectively require 2 trips, require further
explanation to family, etc), but this waiting period still is not enough to find and undue burden
(a State is permitted to enact persuasive measures which favor childbirth over abortion). So,
mere delay is not enough, additional expense is not enough, and a particularly severe burden
on some women is not enough.

○ Additional Complications in Heightened Substantive Due Process Analysis

1. Varying Applications of the “Undue Burden” Standard in Recent Partial Birth Abortion Litigation

This section will help clarify what the undue burden consists of. In 1992, Casey announced the
undue burden test. After which we had 8 years of Courts trying to figure out what an undue
burden consists of and when a health exception to any partial birth abortion is required. Finally,
the Court began to step in in 2000.

Stenberg v. Carhart (2000) Challenged Nebraska law that prohibited partial birth abortion.
Majority made 2 points: 1. The law is an undue burden because it is written in a way to
potentially prohibit the more commonly used abortion method, thus it could be a bigger intrusion
into abortion rights; 2: Another independent reason to find an undue burden is because there is

20
 no maternal health exceptions (Nebraska failed to say that the ban on this rare method of
abortion does not apply if partial-birth abortion is necessary to protect the health of the mother).
This case says that the maternal health exception requirement extends throughout pregnancy
(not just during the 3rd trimester as previously). In the face of uncertainty, err on the side of the
pregnant woman. As long as there is substantial medical evidence to show that partial birth
abortion is safer for some women, there must be a health exception to any ban.

Gonzales v. Carhart (2007) Partial birth abortion ban is upheld, and is the current state of the
law. Federal law against partial birth abortion was upheld (by closely divided vote), because the
law is significantly different than the Nebraska law from Stenberg. The Stenberg law was written
so that it could be used to prohibit the commonly used abortion method. The Federal law is not
susceptible to an interpretation which bans the common method. For example, the
Congressional law required the doctors to intend to perform the partial birth abortion method (so
the scienter wouldn’t be present if an emergency during the common procedure required the
doctor to perform the uncommon procedure). The maternal health exception requirement isn’t
differentiated from Stenberg as easily – Gonzales, arrives at the conclusion that in face of
uncertainty, err on the side of letting government do what it thinks will legitimately protect life.
This Court says that substantial evidence that the partial birth abortion is safer is not enough –
you have to have substantial medical evidence that lack of partial birth abortion is materially
unsafe (there will be a health impairment for some women) before an exception to the ban is
required. This may reflect the change in the Supreme Court justices to a more conservative
majority.

Note: Summary is that the current law applies the undue burden test, and in the case of medical
uncertainty the government can still act to ban partial birth abortion.

2. The Uncertain Status of Broader Rights to Sexual Privacy and Personal Autonomy

This section has to do with the rights of homosexuals.

Bowers v. Hardwick (1986) The Court was asked to invalidate a state ban on sodomy by
consenting adults. Although the ban applies to homo and heterosexuals, the Court looks at it as
applies to homosexuals (and whether the Constitution confers a fundamental right upon
homosexuals to engage in sodomy). Lawrence says that the Court should have reviewed this
case more broadly - This involves a privacy right of individuals to intimately express themselves
in the privacy of their own homes (which has deeply rooted support in our nation’s history).
Although there isn’t a fundamental right to engage in sodomy, so we apply rational basis scrutiny
(this is overruled in Lawrence). Does this law further a conceivably legitimate interest? Yes, to
reflect and advances the majority view of morality. Criminalizing sodomy is a rational basis to
further the morality interest. The law was upheld. Note that this was a very close case.
Lawrence v. Texas (2003) Says that furthering majority of public’s view on morality is not a
legitimate interest, and that protecting the intimate relationships of homosexuals is a right of
association. The Court said that the view taken in Bowers was much too narrow – this was about
the right for everyone to have sex, not just homosexuals. The law touches upon the most private
human conduct and in the most private of places, the home. The right to be free from criminal
sanctions when one engages in private relationships within the privacy of their own home is
protected. Note, however, that the Court does not say that this right is fundamental – it doesn’t
even say what level of scrutiny it is applying. It said that the right for homosexuals to engage in
sodomy is not a fundamental right, but it doesn’t apply rational basis review! It applies

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 something in between rational basis and strict scrutiny – almost hyper rational review. Basically,
the Court said that the law is irrational and so is invalid. But, once again, the Court doesn’t set a
clear in between standard. As the private right gets more important, a law restricting that right
needs to be more heavily scrutinized.

3. Uncertainties in the Scope of Medical Autonomy: The “Right to Die” and the “Right to Try to
Live”

Cruzan (1990) – The case about the right for physicians to passively withdraw treatment. A
competent adult can refuse treatment (note, however, that the patient isn’t a party to the suit).
If a patient is treated against his will then it may constitute battery. In this case, the parents
were actually the party to the suit. The patient was in a coma and the parents requested that
they pull the plug because they knew their daughter wouldn’t want to continue like that. The
hospital refused. When we have an incompetent adult, then the state has more authority to
protect the incompetent adult against a wrong decision made by a surrogate (because the wrong
decision isn’t reversible). Thus, for a surrogate to have the right to pull the plug, States have the
right to require higher evidentiary standards. Missouri requires clear and convincing evidence,
and only evidence of specific statements of treatment choice made by the patient when
competent is admissible to support a finding that the patient would wish to avoid further medical
treatment. But, the Court again fails to specify whether the right to refuse treatment is a
fundamental right or not, and just assumes that a constitutionally protected right exists in these
situations! Thus, for competent adults, we know that there’s a right but we don’t know what
level of scrutiny is required. For incompetent adults, there is more of a right for the States to
protect them, but we don’t know how strict the evidentiary burdens they impose can be.
Glucksberg (1997) - The case about the right to partake in actively assisting people in dying.
The Court said that there is no fundamental right to actively assist people in dying, so States can
make it criminal/other penalties for physicians to assist in this way. All the government needs is
a rational basis to uphold a regulation invalidating physician assisted suicide. The majority
defined the right involved as the right to commit suicide, and there is no fundamental right to
commit suicide (the historical traditions of the country don’t include a deeply rooted support of
suicide, in fact it’s against suicide). There is no fundamental right to end one’s life through
affirmative assistance of another. And, as a result, the Court says that it will only apply the
rational basis test for law prohibiting physician assisted suicide. It’s interesting to note, however,
that Justice Rehnquist goes well above and beyond rational basis in supporting his decision to
uphold the laws (he gives like 5 legitimate interests for validating the regs) – the interest in
protecting mentally unstable groups, to protect the integrity of the medical profession, to protect
the poor/elderly/and disabled, the interest in preserving human life, and the possibility that such
a path would eventually be extended to voluntary or involuntary euthanasia. The concurring
opinions, however, are very different. Thus, the Court may be divided in future cases.

Note: The distinction between active/passive participation is crucial!

FREE SPEECH AND THE FIRST AMENDMENT

Methodology:

I. General Rule: The 1st Amendment (thru the 14th A.) prohibits government from certain
regulation of speech and other forms of expression.
II. Unprotected Speech? If so, we apply rational basis review
a. Incites/Threatens Harm
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 i. Incitement: Speech directed at 1. Inciting or producing 2. Immediate/imminent 3.
Lawless action 4. Under circumstances likely to produce such action. (Brandenberg
p. 29)
1. BUT, mere advocacy (includes more passive support and sympathy for people
acting illegally) is protected
ii.True Threats: Something that is spoken to an individual that makes the individual
feel fear. See Planned Parenthood v. ACLA p. 30.
1. We use an objective standard of whether a reasonable person would interpret
the message as seriously threatening. We look thru the eyes of the
threatened person.
2. BUT, a threat to use lawful action is protected!
iii.Hostile Audience: When a speaker’s audience is hostile (doesn’t agree with
speaker), not where the speaker is hostile (which is incitement)
1. Elements:
a. 1. When there is a clear and present danger of immediate breach of
the peace 2. That is not preventable by reasonable police/public safety
precautions. There cannot be a pretext for disqualifying the idea.
(Feiner, p. 31)
iv.Fighting Words: FW are directed at an individual addressee and would reasonably
invoke the person to immediately fight back or breach the peace. This is like hostile
audience, but is directed an one person instead of an audience.
b. Obscene [not just offensive or indecent]
i. Obscene speech is not protected, everything less than obscene is protected
1. Miller p. 33 for 3 part obscenity test
2. Child porn always obscene, unless actually made with adults (see Ferber and
Aschroft, p. 34)
ii.Offensive speech (public utterance of offensive words) generally cannot be policed.
(Cohen, p. 34) But, the exception is (Pacifica) which involves privacy concerns of the
home (if a fundamental interest is involved).
c. Does the regulation differentiate between similar types of unprotected speech?
i. A Law that discriminates among words or other forms of expression w/in the same
constitutionally unprotected category on the basis of content or viewpoint violates
the 1st A. See RAV p. 35.
III. Protected Speech?
a. Facial Attacks: p. 42
i. Prior Restraints: Prior restraint of speech versus subsequent punishment for
unprotected/unlawful speech. We’re concerned with licensing and censorship. The
licensing procedure must remove all standardless discretion from the purpose
issuing the license. This is the chief evil contemplated by the 1st amendment!
ii.Overbreadth: Applies when we have a statute that does regulate unprotected
speech, but it also regulates a substantial amount of protected speech.
iii.Vague: This doctrine involves the standard formula that as a matter of DP the law
is void if on its face persons of common intelligence have to guess at its meaning.
(All laws can be invalidated using this doctrine)
b. Improper Regulation of Time/Place/Manner of Speech?
i. FORUM: p. 40. The beginning presumption is that a certain place is not a public
forum; and the general trend to is to not call places public forums if they’re not in
the traditional category.
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 1. Traditional Public [streets, sidewalks, parks]
a. Content Neutral: Intermediate Scrutiny
i. Government has a significant interest that is not substantially
more burdensome than necessary, and the regulation leaves
open ample alternative channels.
b. Content Based
i. Viewpoint: Strict Scrutiny
1. Government has a compelling interest that is narrowly
drawn
ii.Subject Matter: Strict Scrutiny
2. Non-Traditional Public [state fairgrounds, municipal auditoriums]
a. Content Neutral: Intermediate Scrutiny (see Heffron)
i. But, emphasize element 1 (significant interest) and take into
account the “special attributes” of the forum (i.e. nature and
function of the forum)
b. Content Based
i. Viewpoint: Strict Scrutiny
ii.Subject Matter: Strict Scrutiny
3. Non-Public [bus, military base, airport terminal, school internal mailbox
system]
a. Content Neutral: Reasonableness Test
i. Regulation must be reasonable and not an effort to suppress
expression merely because of views (Perry)
b. Content Based
i. Viewpoint: Strict Scrutiny
ii.Subject Matter: Reasonableness Test
c. Not Forum/Location Specific?
i. See Time p. 37
ii.A law can be broken up into content-neutral and content based components.
iii.Content Neutral: Intermediate Scrutiny
iv.Content Based:
1. Viewpoint: Strict Scrutiny
2. Subject Matter: Strict Scrutiny
○Expression that incites unlawful conduct and/or threatens harm

This includes 4 types of speech that is unprotected because it’s likely to disrupt public order, all of
which require the application of a different doctrine.

Incitement: The speaker is speaking and we’re worried that the audience will do what the speaker
is calling for.

Brandenburg v. Ohio (1969) The 1st amendment does not apply to unprotected speech, and so
for unprotected speech you aren’t afforded any higher levels of scrutiny. Unprotected speech
includes libel, obscenity and threats. However, incitement (actively calling for illegal action) is not
protected, but mere advocacy (includes more passive support and sympathy for people acting
illegally) is protected. The leader of Ohio’s KKK is arrested and convicted under the Ohio Criminal
Syndicalism statute. Brandenberg then made a speech asking for revenge against the
government. The issues are whether the law only applies to unprotected incitement, and whether
Brandenberg’s speech qualifies as incitement. The Court defines unprotected speech. The Court
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 strikes down this whole law as overbroad. Brandenberg’s conviction is struck down as a result (not
because his speech is wonderful, and not because he didn’t commit incitement, but because the
law under which he was convicted was overbroad). Incitement = Speech directed at 1.
Inciting or producing 2. Immediate/imminent 3. Lawless action 4. Under circumstances
likely to produce such action. This is very speech-protected because of how hard it is to meet
this definition. The speech probably wasn’t incitement because he used words such as “if” and
“may,” etc. The speech much go beyond advocated the value of the illegal action.

See hypothetical

NAACP v. Claiborne Hardware Co. (1982) p. 1065 Incitement was not present. This case
involved an NAACP sponsored boycott of racially discriminatory merchants in Claiborne County,
MS. An NAACP official stated in a public speech “If we catch any of you going in any of them racist
stores, we’re gonna break your damn neck.” The Court held that this speech was protected by the
1st amendment because the “mere advocacy of the use of force or violence doesn’t remove
speech from the protection of the 1st amendment.”

For the “circumstances” element we consider the police presence (more presence = more
deterrence), the potential for violence (are they armed?), the mood surrounding the gathering,
and past circumstances.

True Threats: Something that is spoken to an individual that makes the individual feel fear. We’re
worried that people will circumscribe their behavior because they’re afraid of the threat being
carried out.

Bridges v. California (1941) You can threaten to use legitimate actions in response to
someone’s behavior (this is protected language). In this case, litigation was between 2 rival
unions. A president of the union against whom the trial judge had ruled, published a telegram he
had sent ot the Secretary of Labor describing the judge’s decision as “outrageous” and suggesting
that, if the decision were enforced, his union would call a strike. This was not an unprotected true
threat.

Watts v. US (1969)

Planned Parenthood v. American Coalition of Life Activists (9th Circ. 2002) There was a list
of people performing abortions posted on the web, for the purposes of perhaps suing them in the
future if abortion became illegal. The website was called the Nuremberg Files – evoking WWII and
people who were performing genocide. The list included their names, addresses, and photos of
them. The list also crossed off names who had been murdered. The basic message was that
these doctors were committing crimes against humanity and should be eliminated. A reasonable
conclusion that the doctors would make from this is that there were going to be people hunting
them. The problem is that the website didn’t contain any language that was overtly threatening.
“While advocating violence is protected, threatening a person with violence is not.” The Court
applied an objective standard: whether a reasonable person would foresee that the statement
would be interpreted by those to whom the maker communicates the statement as a serious
expression of intent to harm or assault. It is not necessary that the D intend to, or be able to carry
out his threat. The doctors’ fear did not simply happen unreasonably, ACLA intended to intimidate
them from doing what they do. Therefore, maintaining the website was not protected under the
1st amendment. Note that the majority in this case looked at the threat thru the eyes of the

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 recipient, not the deliverer. The dissent in this case, however, claims that the threat must be
made by someone who controls whether or not the threat is acted upon.

Expression that Provokes a Hostile Group or Individual Reaction: The Heckler’s Veto” and “Fighting
Words” Situations

Hostile Audience: Like incitement, but the people that may be moved to breach public order are
outraged by the speaker and are not supporting the speaker. The audience is hostile towards the
speaker, not in agreement with the speaker. We’re worried that the speaker’s opponents will be
outraged enough to react violently.

When can government shut down a speaker? 1. When there is a clear and present danger of
immediate breach of the peace 2. that is not preventable by reasonable police/public safety
precautions. There cannot be a pretext for disqualifying the idea. (This is the standard that is mostly
agreed upon by commentators, although there isn’t a case on it).

Terminello v. Chicago (1949) Stands for the proposition that speech may not be restricted just
because the ideas expressed offend the audience.

Cantwell v. Connecticut (1940) A Jehovah’s witness played a phonograph record that sharply
attacked the Roman Catholic religion, and he was charged with inciting a breach of the peace.
The speech was protected because the speech raised no clear and present menace to public
peace and order. The purpose of the speech is important. If the purpose of the speech is to
express one’s opinions or inform citizens, it’s more likely to be protected. If the purpose of the
speech is to arouse the audience, it’s more likely to be unprotected.

Feiner v. N.Y. (1951) A man was talking to people through his car’s speaker in a high-pitched
voice to a racially mixed crowd. He was making derogatory about President Truman and other
public officials (calling them “champagne sipping bums” etc.). A crowd started to gather, which
made it hard for people to pass on the sidewalk. Officers approached him and asked him to stop
talking and gave him a few minutes to wrap it up. He continued to talk, so finally they
commanded him to stop. He refused and was arrested. Elements: Clear and present danger of
an immediate breach of the peace? The majority concluded that there was because the
audience was getting agitated/pushing/shoving, and someone in the audience threatened
violence if the officers didn’t stop the speech. The opposition would argue that because it was
just a single guy and because he wasn’t right next to Feiner (so effective police action could
have prevented him from starting violence) the threat was not credible. But, the majority
concluded that the entire crowd was at-risk to becoming violent, which two police officers
couldn’t have effectively prevented. Justice Black, in his dissent, concluded that the officers
should first try to calm down the crowd before stopping the speaker. This dissent has really
become the majority opinion today! The officers need to try to take care of the situation through
reasonable police protection, and if this doesn’t work, then and only then can they shut down the
speaker. Remember, that you can’t use the excuse that it’s a “clear and present danger” as a
pretext for shutting the unpopular speaker down.

Gregory v. City of Chicago (1969) p. 1083 This is a great example of a hostile audience
situation, but the Court reversed convictions of the speakers! Gregory is a comedian and
increasingly over his career became an advocate for African American rights. He led a march of
about 85 protesters to the home of the Mayor. Some onlookers (a small group that then grew to
over 1000 onlookers!) began trying to interfere with the march, and began calling them racial
26
 slurs and throwing rocks and eggs to them. The officers told Gregory that they wanted him to
stop his protest because the onlookers were getting so out of hand that they couldn’t control
them. Gregory and his group refused and then were arrested under a disorderly conduct
ordinance (which declared it unlawful for any person to make any improper noise, riot,
disturbance, breach of the peace, etc.), because there wasn’t any evidence that they did
anything disorderly. Compared to Feiner, there was a clear and present danger here that wasn’t
preventable by police protections. The Court unanimously overturned the convictions of
disorderly conduct and announced that this was a “simple case,” because nothing in the
evidence indicated that Gregory had done anything unlawful. The police let a situation get out of
control without trying much to get it under control, and eventually the onlookers took over. This
isn’t Gregory’s fault – the police should’ve tried to get control of the situation early on. We have
to look at the risks involved and all of the alternatives that the police could’ve done to avoid
having to stop the speaker. This case is a little surprising, considering the outcome of Feiner.

Note that the tendency is to not find a hostile audience situation unless there are extreme
circumstances.

Fighting Words: This is like hostile audience in that it involves people who respond negatively to the
speaker’s words, but it applies to individuals instead of groups. The fighting words are directed at
an individual. FW are directed to an individual addressee and would reasonably invoke the person to
immediately fight back or breach the peace.

Street v. NY (1969) p. 1087 Burning a flag is not directed at an individual, and so cannot be
held as fighting words.

Cohen v. California (1971) p. 1087 Cohen wore a jacket in a LA courthouse that said “Fuck the
Draft.” He was convicted for disturbing the peace. This wasn’t obscene because he wasn’t
trying to get people to be provocative (he didn’t really want people to have sex with the draft),
this wasn’t inciteful because he wasn’t specifically trying to get people to do something. This
wasn’t fighting words because, it was clearly not directed to the person of the hearer (it wasn’t
directed at an individual) and so it isn’t reasonable that the listener would react and fight back.

Chaplinsky v. New Hampshire (1942) A statute was narrowly drawn to only limit speech that
has the characteristic to cause a breach of the peace including fighting words. The statute, on
its face and as applied, did not contravene the 14th amendment, and therefore the Court didn’t
review the specific facts surrounding the incident (it didn’t review evidence of provocation, etc.).

The note cases on page 1088 involving police officers are interesting, because they involve
words spoken to police officers but would be fighting words if directed at regular persons. These
weren’t fighting words because officers are trained to be hard to provoke. These cases don’t
really give us much guidance though, because the cases based overturning the convictions on
overbroad statutes instead.

○ Expression that is Unprotected Because of its Objectionable Nature: Distinguishing Among Obscene,
Indecent, Offensive, and Ultra-Violent Speech (these cases are interesting because they are
disapproved on moral grounds)

Test for Determining Whether Something is Obscene:

Miller v. California (1973) This case sets forth the test that is still used to determine what
language is obscene. This test is trying to balance the rights of free speech with the abilities of the

27
 government to prevent moral degradation. In a legal sense, “obscenity” is unprotected, and
anything less than that is protected (including anything that is porn, indecent, offensive, or
profane). Anything that is not obscene is reviewed under strict scrutiny. So, how do we decide if
something is actually obscene? There are three parts (and they are designed to allow individual
juries to apply their community’s standards):
1. What is the appeal of the work? (Does it appeal to the “prurient” interest?) Prurient means
lustful, lewd, morbid, etc. We’re trying to distinguish between a healthy interest in sex and a
unhealthy interest in sex. We apply an average person standard, look at the work as a whole,
and apply contemporary community standards.

2. How is sex depicted (what is the manner of depiction)? Does it depict or describe sexual
conduct (specifically defined by applicable state law) in a patently offensive way? Contemporary
community standards apply here as well (and this can vary from community to community).

3. What is the value of the work? We look at the whole work, and consider whether it lacks
serious, literary, artistic, political or scientific value.

NOTE: When language is not protected, then the 4th amendment protections do not apply and so strict
scrutiny doesn’t apply. Thus, we apply rational basis review to unprotected speech.

Child Pornography as a Narrow Extension of the Miller test:

New York v. Ferber (1982) Upholds a statute that doesn’t meet the Miller test, and extends the
borders of Miller to include child pornography as obscene unprotected speech. Child pornography is
treated differently than other forms of “speech” because: 1. It’s child abuse. Children don’t have the
ability to protect themselves from being exploited, whereas adults have the ability to choose to
participate in the activities; 2. Sales generate demand for more child abuse, if you drop the sales
then you drop the incentive for it; 3. There is no value in child pornography (no artistic value); 4.
Child pornography constitutes a permanent record of the abuse.

Ashcroft v. The Free Speech Coalition (2002) The Court invalidated a regulation that prohibited
sexually explicit images that appear to depict minors, but were in fact produced with adults. Even
though this type of porn may increase demand for child porn, the other reasons why actual child
porn was included in obscenity do not apply. The line is drawn between actual child porn and virtual
child porn. The Court interprets Ferber as not about its subject (porn), but more about how the porn
was made. The actual child porn is images or real child abuse. If the porn doesn’t involve real
children, then the Miller test still applies and obscenity is not extended to include it.

The Lewd, Profane and Indecent (but not obscene):

Cohen v. California (1971) This is the case where Cohen wears a “Fuck the Draft” jacket to the LA
courthouse. “The ability of the government, consonant with the Constitution, to shut off discourse
solely to protect others from hearing it is … dependent upon a showing that substantial privacy
interests are being invaded in an essentially intolerable manner. Any broader view of this authority
would effectively empower a majority to silence dissidents simply as a matter of personal
predilections.” The court protects Cohen’s ability to use profanity in this way. If this were deemed
unprotected, then there would be no objective limitation on other types of language – the Court
would instead open the door to censorship. Profanity can sometimes tap into the emotional
dimension of speech that polite language can’t get across. This case stands for the proposition that

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government cannot, without a special reason, bar profanity/indecency in public (unless there is a
special privacy interest or other special right involved).

FCC v. Pacifica Foundation (1978) The Court said that the FCC could put in the permanent file of
a radio station a note that the station violated the FCC decency standard. The station had played
George Carlin’s commentary on profanity at noon during the day. The Court says that this is not
punitive (although realistically it kind of is). The distinction in this case from the “speech” involved
in Cohen, is that the broadcasting comes directly into the privacy of a home.

So, the general rule is that government can’t police public utterance of offensive words.

But, the exception is (Pacifica) which involves privacy concerns of the home, a parent’s rights to
screen what their children are exposed to (applies to language that appears with no warning –
commercials, ads, etc. – and depending on the time of day), the special circumstances that support
censorship (here, the FCC is an expert administrative agency dealing with radio broadcasting, which
is a heavily regulated industry), and the censorship doesn’t ban the profanity completely but instead
requires it to be played at a different time.

The exception does not apply to:

Sable Communications, Inc.v. FCC (1989) The Court unanimously held unconstitutional a
federal statute prohibiting the interstate transmission of “indecent” commercial telephone
messages (“dial-a-porn” services).

Reno v. ACLU (1997) The Court invalidated 2 sections of the Communications Decency Act of
1996 that were designed to protect minors from “indecent” and “patently offensive”
communications on the Internet. The Court says that the definitions would suppress a lot of
speech that adults didn’t really intend to reach children – the regulation wasn’t narrow enough.

Ashcroft v. ACLU (2004) Congress enacted the Child Online Protection Act, which was designed
to address the constitutional defects the Court identified in Reno. The Court upheld the Federal
District Court’s preliminary injunction against enforcing COPA, because it found that there “are
plausible, less restrictive alternatives to COPA.” For example, more filters can be used, and the
law only applies to domestic pornography (not foreign).

◊ An Additional Complication: The RAV Decision and when Regulating Even “Unprotected Speech”
Violates the 1st Amendment

R.A.V. v. City of St. Paul (1992) A teenager burned a cross on a black family’s lawn. All of
the justices agree that the teenager’s conviction needs to be overturned (he was convicted
under a Bias-Motivated Crime Ordinance), but they vehemently disagree on why.
RULE: Law that discriminates among words or other forms of expression w/in the same
constitutionally unprotected category on the basis of content or viewpoint violates the 1st A.
(1) Ct invalidated ordinance that prevented display of burning cross, a swastika, or other
symbol that one knows arouses anger, alarm or resentment in others on the basis of
race, creed, color, religion or gender. Teenager burned a cross on black family’s lawn in
violation of ordinance.
(2) Overbreadth was most obvious route to invalidate, but Scalia wanted to reach campus
speech laws.
(3) Scalia (majority): Law makes certain speech within a category of unprotected speech
unlawful based on content or viewpoint and this is unconstitutional.

29
 (a) Assumes statute applies to fighting words = unprotected category and you can’t
discriminate w/in this category. Ct says you must ban ALL fighting words and make
law content-neutral.
(b) BUT, what difference does it make if preventing some fighting words if none of it is
protected and you can ban all of it?
(4) Exception: Content-discrimination within an unprotected category of speech is
allowed when the basis for it consists entirely of the very reason the category at issue
is proscribable in the first place.
(a) Pres Example
i) All threats are unprotected and threats against Pres are particularly dangerous;
it is the very reason threats are proscribed in the first place.
(5) Concur (White): says exception swallows own rule.
(a) The expressions at issue in RAV are the type of fighting words that category was
meant to prevent.
(b) Further, even if treat expression as real speech and not as fighting words, govt has
compelling interest to prevent expression (prevent violence), so can regulate.
(6) Concur (Stevens): Law doesn’t discriminate based on subject matter, but discriminates
on basis of harm that speech causes.
(a) Ex: People are allowed to make contracts, but not contracts to kill, which is a sub-
category. Discriminating against similar kinds of speech on basis of harm that
occurs.

Hate Crime Laws carrying greater penalties

Wisconsin v. Mitchell, p.1224 Ct overturned state court holding that hate crime
enhancement statute violated 1st A. Gave increased penalty for committing a crime b/c of
race, religion, color, gender, etc. RAV didn’t make hate crime enhancements
unconstitutional. Distinguished RAV: statute regulates conduct, not speech. Criticism: if I
inflict harm against you b/c you’re a woman, then I’m doing this based on my viewpoint,
which I’m being punished for.

Virginia v. Black Ct held that statute that banned cross burning w/ intent to intimidate a
person or group does not violate the 1st A, but held statute unconstitutional b/c it treated any
cross burning as prima facie E of intent to intimidate
(1) Plurality: Not everyone who burns crosses is trying to intimidate others so this statute
is overbroad b/c automatic presumption that there is intent to intimidate
(a) In one case, KKK was burning cross at their own meeting and there was no one to
intimidate present
(b) In other case, neighbor burned cross on black man’s lawn to intimidate him
(2) Distinguish RAV
(a) This cross burning statute applies regardless of content or viewpoint; it is not
limited to race, religion, color, creed. The entire category of cross burning is
unprotected b/c = threat.
(b) Isn’t cross burning part of larger category of intimidation?
i) Yes, but RAV exception applies: cross burning is a form of intimidation that is
particularly threatening and dangerous, so consists entirely of the very reason
the category of threats is proscribable.
(3) Concur (Scalia): Says prima facie = rebuttable presumption, whereas plurality treats as
irrebuttable. Means statute is not overbroad.
(4) Dissent (Souter): Denies exception applies
(a) Statute discriminates on basis of viewpoint of white supremacy
(5) Dissent (Thomas): Statute punishes conduct, not speech. You can punish all cross
burnings b/c this is conduct and does not pose 1st A issue.

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Protected Speech: How Much Additional Protection Does the 1st Amendment Provide? 2
basic dimensions

○ Strict Scrutiny depending upon Whether Speech Regulation is “Content-Based” or “Content-

Neutral”
If a law is content-based, then it has to pass strict scrutiny (address a compelling interest and be
narrowly drawn). Determine if you are discriminating based on viewpoint or subject matter. If the
law is content-neutral, then it has to pass “intermediate scrutiny” (time place or manner in which
the speech is taking place).

Intermediate scrutiny = 1. Law must serve a significant government interest (but not compelling);
2. The law must not be substantially more restrictive than necessary (but not narrowly drawn); and
3. The law must leave open ample alternatives for communication (of the information).

The overall analytical framework:

Time v. Regan (Smith materials, NY 1982 and US) The federal law made it punishable to sell or
possess any materials that could be used to counterfeit money. Included in this law is a
prohibition against showing depictions of money or stamps. The D/C says that Time’s use of the
money depictions is protected speech – they’re using it to make a point. Time had shown a
picture of crumpled up money in a bball hoop. The question is how much protection is due to the
speech. Some of the exceptions in the law were content based and some were content neutral:
Content-based: Newsworthy purposes (historical, numisemantic, philatellic) – all 3 of
which are subject-matter based. “Newsworthy” may be either subject-matter or viewpoint
depending on the type of news.
Strict Scrutiny Analysis: The compelling interests were the prevention of counterfeiting, and
the respect and value of the US currency. The Court holds that preventing counterfeiting is a
compelling interest (preventing the downfall of the US banking/currency system). But, the Court
said that promoting respect is not a compelling interest, b/c the Gov’t. doesn’t have the right to
force respect (people are entitled under the free speech clause to hold the government in
contempt if they want to).
The next step is to determine if it’s narrowly drawn. Is it precise to raise concerns about
counterfeiting? No – it’s overbroad. Every depiction that is not historic, numisemantic or
phillatellic is prohibited. It’s also underinclusive. It actually exempts the magazines that are the
most threatening to the compelling interest – magazines that cater to stamp/coin collectors!
Content-neutral: Black and white images, and the size can’t be close to real life. These
are content-neutral because they’re regulating the manner in which money is depicted, not the
subject-matter or viewpoint related to depicting money.
Intermediate Scrutiny Analysis: The significant interest is easy, because we already know that
preventing counterfeiting is a compelling interest (so it’s automatically a significant interest).
It’s not substantially more restrictive than necessary, because….. There are other ample
alternatives for communicating because it allows for the depictions to be made, just not exact
depictions.

On EXAM  We can assume that all laws are severable into content-based and content-neutral,
and then we need to analyze both types.

Examples of Cases Applying the Analytical Framework

Regulations Viewed as Content-Based:

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Police Dept of Chicago v. Mosley (1972) A law prohibited picketing near a school. The law
says that the application of this prohibition depends on what you’re picketing – labor picketers
are okay, but others are not. This is subject-matter (it doesn’t matter what the viewpoint on
labor is) and content-based (if the content has to do with labor, then you can picket). This
doesn’t pass strict scrutiny because making a distinction not based on a compelling interest is
inappropriate (a compelling interest would be prohibiting disruptive picketing).

Carey v. Brown (1980) another case in which a subject based distinction is improper and
flunks the narrowly drawn test.

Burson v. Freeman (1992) Subject-matter based and we apply strict scrutiny. The Court
says that it passes strict scrutiny, but this is kind of surprising. Compelling interest – free
voting and election without undue influence and protecting the reliability of the election system
(ensuring that there is no fraud). The Court says that this is narrowly drawn because (although
there are arguments that this is not narrowly drawn – there are already other laws about
preventing voter fraud and intimidation, and this law isn’t exactly connected to these
interests). One of the big arguments is whether the 100 foot zone is necessary (there isn’t
much evidence to support why 100 feet is appropriate). The right to hand out pamphlets has
to be balanced with the constitutional right of people to vote – here, the right of the people to
vote independently wins. Voter rights versus free speech rights. Thus, the court is more willing
to restrict free speech and approach something more similar to intermediate scrutiny.

Regulations Viewed as Content-Neutral:

Int’l. Soc. of Krishna Consciousness v. Heffron (1981) Minnesota put on a state fair, and
the laws of the state allowed a society to make rules that were necessary and proper to run the
fair. Rule 6.05 prohibited any vendor to distribute materials and to sell things, unless you have
a booth. The Intl Soc. of Krishna Consciousness didn’t like this rule because they have a
religious practice of interacting with people by walking around and distributing materials. The
MN Supreme Court deemed the rule unconstitutional, at least as applied to the Krishnas. US
Supreme Court overturned this. This is a content-neutral rule because it applies to all people
that want to distribute materials at the fair. This is a place and manner restriction. The
significant government interest is the orderly movement of large crowds. The restriction isn’t
substantially more restrictive than necessary because if you grant an exception for the
Krishnas, then you would have to grant exceptions to all religious groups. Then, there would be
a challenge that the restriction is favoring religious groups. The connection b/w putting people
in a booth and orderly crowd control is that the booths keep people moving in order (there are
large pedestrian areas and rows of booths). There are ample alternatives because they can
purchase a booth inside the fair, and they can distribute materials as they normally do outside
of the fair. This case is an example of the intermediate scrutiny standard and how it’s more
easily met.

Frisby v. Shultz (1988) Peaceful picketing in front of a particular residence was prohibited.
This is content neutral because it didn’t matter what the subject or viewpoint of the picketers.
The restriction was one of place and manner. This passed the intermediate scrutiny test
because there is a significant government interest (the privacy of the homes), which is not
substantially more restrictive than necessary (there are other ways to protest), and there are
ample alternatives (the picketers can protest in a different way).

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 Clark v. Community for Creative Non-Violence (1983) A park regulation prohibited
camping. The CCNV put up tent cities for the purpose of conducting a round-the-clock
demonstration designed to dramatize the plight of the homeless. However, the regulation
prevented them from sleeping in the tents. This is content neutral. This passes the
intermediate scrutiny test.

Madsen v. Women’s Health Center, Inc. (1994) A regulation made a buffer zone around
abortion clinics for demonstrations. The Court upheld the buffer zone regulation. This is
content-neutral because it restricted all demonstrations (even though it’s likely that only
abortion demonstrators would be affected). Even though anti-abortion protesters are the only
ones causing the problem, if other protesters starting causing a problem the restriction would
apply to them too. The significant interest is patient privacy and protection. Other parts of the
regulation were invalidated because they were substantially more restrictive than necessary.

○ Variable Scrutiny depending upon Whether Regulation Occurs in a “Public Forum”

The Overall Analytical Framework

There are 3 kinds of forums for the exchange of information: 1. Traditional public forum (a place
that traditionally has been associated with a public space – street, park, sidewalk, etc.); 2. Non-
traditional public forums (i.e. public forum by designation – the government has done something
to designate it as a public forum, like a state fair grounds, municipal auditorium); 3. Non-public
forums (school mailboxes, airport, military base, advertising space on bus). The beginning
presumption is that a certain place is not a public forum; and the general trend to is to not call
places public forums if they’re not in the traditional category.

If we are regulating a public forum (or non-traditional P.F. based on designation) we apply strict
scrutiny (regardless if it’s viewpoint or SM) if content based and intermediate scrutiny if content-
neutral.

If we are regulating a non-public forum, if it is content based we apply strict scrutiny if viewpoint
and rational basis review if subject matter! So, a military base prohibits republican speech then it
has to pass strict scrutiny, but it prohibits all political speech then it has to pass rational basis
review.

On exam, we can start with public forum, content based, or content neutral. It doesn’t matter.

Davis, Hague, Heffron

Perry Educators Ass’n v. Perry Local Educators Ass’n (1983) Perry operated an inter-school
mail system. The school association didn’t allow the Perry Local Educators’ Association (PLEA)
access to the mail system, even though it did allow the Perry Educator’s Association (PEA) (2
competing unions). The Court said that this is not a public forum, because the mailboxes are used
for the communication needs of the teachers and to learn about things relating to students. Mere
selective access isn’t enough to see the mailboxes as generally open to all organizations.

Cases Determing the Nature of the Forum (and Applying the Relevant Analysis)

We look to 2 factors: 1. The nature/purpose of the location and 2. The access policies/practices
(are they limited or general)?

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Lehman v. City of Shaker Heights (1974) The city’s regulation allowed non-political advertising
on public transit, but not political. This is a subject-matter distinction. The Court says that this is
not a public forum, so the Court asks whether it is reasonable for the bus company to not allow
political ads on the bus. This is reasonable because it minimizes the risk of abuse (where the
incumbent would be using government property to promote themselves). Thus, it is reasonable to
keep the government out of politics. The inside of city buses is not a public forum. Note, however,
that this law would be hard to uphold under strict scrutiny. This is not a public forum because it is
not akin to a public hall, auditorium, etc. Also, the people on the bus are using it as a necessity,
not always voluntarily (there’s a kind of captive audience issue). The nature and purpose of the
location = the nature of the public transit system is that the users don’t have the ability to use
private transportation and the purpose of the system is to commute people. The purpose of the
location is not a general forum for the exchange of views, the purpose instead is simply
transportation. Additionally, the city consciously has limited access to its transit system
advertising space in order to minimize chances of abuse, the appearance of favoritism, and the
risk of imposing upon a captive audience.

Southeastern Promotions v. Conrad (1975) A municipal auditorium is a public forum.

Grayned v. Rockford Notion of incompatibility or compatibility. This notion is helpful to consider

when analyzing the nature/purpose of the location. The crucial question is whether the manner of
expression is basically incompatible with the normal activity of a particular place at a particular
time.

Greer v. Spock (1976) Spock, the People’s Party’s candidate for President of the U.S. requested
permission to enter the base to hold a meeting to discuss election issues. The commanding officer
rejected the request, citing a regulation that prohibited demonstrations, picketing, sit-ins, protest
marches, political speeches, etc. This at first seems like viewpoint discrimination, but because the
policy doesn’t make a viewpoint distinction (instead it’s subject matter) then the regulation is
upheld. The military base is not a public forum, even though it allowed civilian access. Political
speech on a military base is incompatible with the apolitical nature of the military and the training
of troops. Also, civilian access is limited.

USPS v. Council of Greenburgh Civic Associations (1981) The Court upheld a federal statute
prohibiting the deposit of unstamped “mailable matter” in a letter box approved by the USPS. A
civic association wants to change this law to allow them to put leaflets in mailboxes for free (the
civic association routinely delivered its messages by placing unstamped notices in the letter boxes
of private homes). The Court found mailboxes to not be public forums. The orderly delivery of the
mail and the protection of postal revenue are reasonable purposes for the regulation. Also, there’s
a legitimate purpose in limiting the number of hands reaching into private mailboxes. There’s a
history of limited access – the post office has had exclusive access to mailboxes for quite some
time. If this were a non-traditional public forum, we’d have to use intermediate scrutiny because
the regulation is content-neutral.

US v. Kokinda (1990) A sidewalk was held not to be a public forum! The sidewalk in front of the
USPS was not a public sidewalk, it was an internal sidewalk on postal property.

Int’l Society for Krishna Consciousness v. Lee (1992) A regulation prohibits the repetitive
solicitation or distribution of flowers, flyers, brochures, pamphlets, etc., in the terminal buildings.
The Court upheld the ban on solicitation but invalidated the ban on the sale or distribution of
literature. Airport terminals are not public fora because the general purpose of an airport is to
34
 quickly move people thru the terminal to the appropriate planes, not for lengthy conversations.
So, the prohibition on solicitation need only satisfy a requirement of reasonableness. This standard
is satisfied easily by the disruptive effect that solicitation may have on business. Thus, airport
terminals are not public forums.

○ An Additional Complication in Free-Speech Analysis: Special Tools for Protecting Speech:

Overbreadth, Vagueness & Prior Restraint

Overbreadth and vagueness overlap a lot even though they’re doctrinally distinct:

Overbreadth = 1st amendment doctrine. Applies when we have a statute that does regulate
unprotected speech, but it also regulates a substantial amount of protected speech. The
unprotected (doesn’t apply to protected speakers) speaker claims that the government could
regulate what they’re saying, but the current regulation is too broad to be valid. Under this
doctrine, a “guilty” speaker is not punished because the regulation used is invalid – this is “strong
medicine.” Also, we then strike down the whole statute. This kinda resembles the doctrine of 3rd
party standing (where someone asserts the rights of 3rd parties). Arguments against this doctrine
= it lets the court escape defining the limit of the doctrine (remember Gooding case under fighting
words). The Supreme Court has a difficulty when analyzing state statutes, because normally the
States are responsible for narrowly tailoring a state statute.

Vagueness = 5th amendment doctrine. Involves the due process requirement. All laws (not just
those which involve 1st amendment, like for overbreadth) cannot be overly vague. This doctrine
involves the standard formula that as a matter of DP the law is void if on its face persons of
common intelligence have to guess at its meaning. Just using subjective words doesn’t make a
statute vague (you can use words like “reasonable,” etc.). But, not all subjective standards are
equal. Remember Grayned v. Goguen on p. 1117.

Prior restraint = this is the chief purpose of including the 1st amendment in the Constitution, to
prevent prior restraint. There’s a clear distinction between prior restraint and subsequent
punishment (you speak and then you’re punished for it). Almost everything we’ve studied is
subsequent punishment. The framers had no intention to prohibit subsequent punishment.
However, prior restraint involves a situation where you actually have to get prior permission
before you speak. Classic examples of prior restraint are permit requirements before you can
march in a park, other licensing schemes, or injunction (gag order from the court). Prior restraint
is so bad because it’s more inhibiting than subsequent punishment, “suppression by a stroke of
the pen is more likely to be applied than suppression by the criminal process.” If you can convince
a court that the regulation entails prior restraint, you may have more of a chance of succeeding.
We’re concerned with “censorship.” There’s 2 kinds of problems in the licensing area (see Lovell
v. Griffin): 1. Standardless discretion (a censor is given discretion to roam free without meaningful
standards to follow); 2. Censorship.

Lovell v. Griffin (1938) An ordinance allows a city manager to refuse a permit to Jehovah’s
witnesses, and there’s speculation that he did it because he didn’t agree with their message.
The law prohibited distributing literature of any kind without first obtaining the written
permission of the city manager. We would have to re-write the regulation to include clear
standards that would guide the city manager’s decisions (time/place/manner standards, etc.), so
that he would have little to no discretion in the decision.

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 City of Lakewood v. Plain Dealer (1988) The Court used Lovell standards to invalidate an
ordinance that gave a mayor standardless discretion to grant or deny permits to place newsracks
on public property.

Freedman v. Maryland (1965) A case that upheld a regulation that was thought to include
enough standards. It involves prior restraint because the regulation provided for a licensing
procedure/censorship procedure which required all movies to be approved before being shown to
the public. The Court upholds this regulation because it delineates 3 requirements that must be
met before the movie can be withheld from the public: 1. The government must show that the
movie involves unprotected speech (it’s obscene); 2. There must be procedure for prompt
judicial review; 3. The judicial review itself must by timely (it can’t lag on for months).

So, our basic concern is whether the speech is protected or unprotected for this class. But, we
need to be aware that there are other special concerns that can also be used to invalidate/uphold
a law.

Sample Exam question (handout) for E/F: F is subject to an overbreadth argument, E is not. Our
question then is whether F is substantially overbroad, which it is. Speaker E, however, would only be
able to argue that what he said did not constitute fighting words. F has an additional overbreadth
argument, whereas E has only the argument based on his words. F would clearly not survive
constitutional scrutiny, even if F did speak fighting words. Speaker E may or may not be convicted, but
the only issue is whether he spoke fighting words or not. Useful case comparisons include RAV,
Brandenburg, Cohen, Gooding, etc.

NOTE: Overbreadth means the statute covers a large amount of both protected and unprotected
speech – overbreadth is a technical term. Overly broad applies only to a statute that covers protected
speech, and whether the law is narrowly drawn enough to pass the requisite type of scrutiny. Thus,
overbreadth and overly broad are not the same concepts.

THE ESTABLISHMENT CLAUSE and THE FREE EXERCISE CLAUSE of the FIRST AMENDMENT

Methodology:

I. General Rule: 1st A. prohibits government from infringing on religious freedom.

II. 3 Competing Theories:
a. Separationist
i. Favors the Lemon Test
b. Accomodationist/Neutrality
i. Urge for Lemon to be abandoned (Scalia)
III. Financial Support?
a. Lemon Test (has not been relied on heavily since 1985) p. 44:
i. Statute must have a secular legislative purpose.
ii. Its principal or primary effect must be one that neither advances nor inhibits
religion.
iii.Must not foster ‘an excessive government entanglement with religion.’
b. Mueller and Zelman (p. 45) This is the Test that is currently binding
i. Law is OK if:
1. Government aid is facially (from its terms) neutrally available (no skewing
toward one religion or advantage to religion, etc.), broadly applicable, and

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 2. The money flowed indirectly to the religious organization from the
government (is the government deciding to use this option or is a private
person deciding to use the option).
IV. Government Association with Religion? There is no majority for one test over the
other:
a. Accomodationist = neutral/non-preferentialist
b. Separationist = Lemon, requires that all 3 elements be met b/f government can justify a
law
c. Possible Tests:
i. Lemon (most separationist)
ii.The Impermissible Purposes Test (applying Lemon’s first element) (Wallace p. 46 –
school prayer cases)
iii.Non-Endorsement Principle – adaptation of 2nd Lemon element.
1. This is the most frequently applied test. You have to show that the primary
effect is not to favor religion for the statute to survive. Does it send a
message that believers favored and non-believers disfavored? This is very
fact-specific – we focus on the context.
2. Lynch and County of Allegheny (p. 47) Religious displays.
iv.The Anti-Coercion Principle - Acknowledging that the point of the establishment
clause is to prevent people from feeling coerced into a religion. (Lee p. 47)
v.The Neutrality/Non-Preferentialist Principle: 10 Commandments Cases, no majority
approach
1. Van Orden p. 48: the Court’s analysis is driven by the nature of the
monument and by our Nation’s history.
2. McCreary p. 50: Focus on the purpose of the display (Lemon’s first element
is important!)
The Establishment Clause, Part 1: Alternative approaches to assessing governmental financial
support of religion (The wavering road to the current court’s increasing tolerance of support for
religious private schools)

○ An Introduction to the Establishment Clause and Contending Interpretations of Its Core Purpose
and Reach

Establishment clause applies when the government favors religion. Free exercise clause applies
when the government disfavors religion.

[Note on Free Exercise Clause = If laws discriminate against religion, then we apply
strict scrutiny. If the law only burdens a religion, then we apply rational basis
scrutiny.]

There is a controversy over whether the establishment clause is meant to prevent favoritism of
religion by the government (but it can provide support equally), or whether it’s supposed to
restrict the government’s ability to support religion at all (separatism).

In the area of the establishment clause, we don’t apply the different scrutiny tests as we do in
other areas. Instead, we have specific tests to determine if it violates the establishment clause
or not (it’s not about the level of scrutiny).

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 There are 2 types of cases dealing with the establishment clause: 1. Those dealing with money
(mostly funding private religious schools); and 2. Those dealing with an association between
government and religion. Separationist v. Accomodationist.

Government can overtly support religious schools if certain requirements are met. The law is
clear in this case.

Everson v. Bd of Educ. (1947)

○ The “Key Cases” Defining and Applying the Settled Modern Approach to Determining whether
Governmental Financial Support is Constitutional

Lemon v. Kurtzman (1971) The hallmark of separationism. The court identified 3 tests for
determining whether a statute violates the establishment clause. 1. Statute must have a secular
legislative purpose. 2. Its principal or primary effect must be one that neither advances nor
inhibits religion. 3. Must not foster ‘an excessive government entanglement with religion.’

Note: This Lemon test has not been relied on by a majority to invalidate any practice since 1985
and member of the Supreme Court have criticized it. The current law is set forth in the next case
below:

Mueller v. Alien (1983) A MN statute allowed taxpayers to deduct expenses incurred for tuition,
textbooks, and transportation for their children’s education in elementary and secondary
schools, applicable to public and private schools. The statute didn’t give a preference to
religious v. non-religious schools (it’s relatively neutral in theory). The counter-argument is that
in public school you don’t usually have to pay for tuition or books. It’s up to the parents to send
their kids to school – so if the statute ends up benefiting catholic schools, then it’s the parents’
fault not the government’s fault. The aid flows indirectly to religious schools through the
medium of parents. So, if 1) government aid is facially (from its terms) neutrally available (no
skewing toward one religion or advantage to religion, etc.), broadly applicable, and 2) the money
flowed indirectly to the religious organization from the government (is the government deciding
to use this option or is a private person deciding to use the option), then the law is OK.

Witters v. Washington Dept of Services for the Blind, Zobrest v. Catalina Foothills School District

Zelman v. Simmons-Harris (2002) OH created a voucher program for students in the

Cleveland schools. The vouchers could be used for kids to attend a participating school of their
parent’s choosing (private, secular or religious). The program provides tutorial aid for students
who choose to remain in public school. Almost all of the vouchers were used in religious schools.
The Court upheld the program (by a 5-4 decision), because: 1. The aid program is neutral w.r.t.
religion, and 2. The money arrived at the religious schools indirectly through the parents.

Essay Question A/B: State A: This would be easier on the 1st Zelman criterion b/c it doesn’t
distinguish b/w a public/private school (it’s more broadly applicable). However, the check is made
out to the school by the government, but this is OK per Mueller/Zelman b/c it’s still the parent’s
choice. State B: The school directly receives the money, and there isn’t any indication that a
parent’s choice is involved (so the money flows directly to the school). This is not OK per Zelman
majority, but this doesn’t necessarily invalidate the government plan. Overall, State A’s action
seems to pass the 2 parts of the test better.

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The Establishment Clause, Part 2: Alternative Approaches to Assessing Mainly Symbolic Governmental
Support of Religion (The Various Standards Still in Search of a Majority)

In this area, unlike in the financial support scenario, there is yet to be a majority backing up one
perspective. This may change this term!

Accomodationist = neutral/non-preferentialist

Separationist = Lemon; requires that all 3 elements be met b/f government can justify a law

○ The “Key Cases” Defining and Applying the Competing Approaches for Determining whether
Governmental Symbolic Support is Constitutional

A. The Lemon Test – the most separationist

1. A secular purpose (at least one of the purposes has to be secular); and

2. Primary effect cannot be to favor religion; and

3. No excessive entanglement between government and religion

B. The Impermissible Purposes Test (applying Lemon’s first element)

This involves the school prayer cases:

Stone v. Graham (1980) 10 commandments had to be displayed in every classroom in the

state. The court said that there was no secular purpose (the only purpose was that the state
wanted the kids to know that they should believe in the commandments).

Wallace v. Jaffree (1985) Statute authorized a moment of silence for meditation and
volunteer prayer. A previous revised version of the statute authorized a moment of silence, of
which the secular purpose is that a moment of silence is used to get ready for the school day,
etc. The enacted statute, however, inserted the prayer authorization. The only purpose for
revising the law and including and singling out the prayer piece is to encourage the practice of
religion through prayer. The Court said that the previous statute served a secular purpose (the
meditation only statute), but the new statute served no secular purpose already served by the
meditation only statute.

If can only find religious purpose in the statute, then the statute is unconstitutional.

This is a slight less separationist because it only requires one of the 3 Lemon elements.

C. The Non-Endorsement Principle (an adaptation of Lemon’s second element)

This is the most frequently applied test. You have to show that the primary effect is not to
favor religion for the statute to survive. Does it send a message that believers favored and
non-believers disfavored? This is very fact-specific – we focus on the context.

We use a reasonable observer standard (the reasonable observer is familiar with the hx and
the context) and the question is does it send a message that believers are favored in the
political community and non-believers are disfavored?

Lynch v. Donnelly (1984) A nativity scene was set up in the city, which is religious because it
represents the birth of Christ. The Court said that, given the context, the average observer
39
 wouldn’t think the non-christian people would be disfavored. Instead, the average observer
would see this as an endorsement of the “season.”

Upholding 10 Commandments Monument on Texas State Capitol grounds:

County of Allegheny v. ACLU (1989) A nativity scene set up by itself without a larger non-
religious context is invalid. In the same case, a display of a menorah was held up because it
was surrounded by a xmas tree and a salute to liberty.

D. The Anti-Coercion Principle

Acknowledging that the point of the establishment clause is to prevent people from feeling
coerced into a religion.

Lee v. Weisman (1992) School principals of public schools were permitted to invite members
of the clergy to offer invocation and benediction prayers as part of the formal graduation
ceremonies for middle and high schools. The majority said that the prayer is psychologically
coercive. Two elements of coercion: 1. Student doesn’t obtain the benefits of attending the
graduation (graduation is an important event, and it’s not always voluntary in practice), 2.
Once there, there will be peer pressure to stand and take part in the prayer.

E. The Neutrality/Non-Preferentialist Principle: 10 Commandments Cases

There is really no agreement in the Court on how to approach these cases.

Van Orden v. Perry (2005 - plurality) Issue was whether the Establishment Clause allows
for a monument with the Ten Commandments inscribed to remain at the Texas state capitol.
The monument is one of 17 monuments and 21 historical markers in the 22 acres surrounding
the capitol. Van Orden is a lawyer who, for the 6 years prior to this lawsuit, has frequented the
capitol to use the law library – during which he encountered the monument. He has claimed
numerous state officials seeking a declaration that it violates the Establishment Clause and an
injunction requiring its removal.
○ Majority (Rehnquist, joined by Scalia, Kennedy and Thomas): Recognizes two faces of the
Establishment Clause, 1) that the Nation’s history is rooted in recognition of religion and a
God, and 2) that government interference in religious matters can endanger religious
freedom.
○ They think the E.C. is non-preferential, but allows government to express a general belief
in God (but can’t specify which God). The non-preferential perspective allows for a
general type of civic religion.
 Lemon Test: The Court says that the Lemon test is not useful in dealing with a
passive monument on the Capitol grounds. Instead, the Court’s analysis is driven
by the nature of the monument and by our Nation’s history.
• History: There is a long unbroken history by all 3 branches of government of
the role of religion in American life from at least 1789. “The history of man is
inseparable from the history of religion.” Which has led to hold that the
Establishment Clause permits a chaplain to open a state legislature’s daily
session with a prayer. (Marsh v. Chambers). The same reasoning allowed
laws to be upheld which prohibit the sale of merchandise on Sunday
(originates from the 10 commandments).

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 ○ The Court also noted that the 10 Commandments have been displayed
on various other governmental properties – including the US Supreme
Courtroom!
○ Simply having religious content or promoting a message consistent
with a religious doctrine does not run afoul of the Establishment
Clause. Ex. Moses is a religious figure, but he was also a lawgiver.
 But, this has limits. If the religious message is used solely for
religious purposes, then it does violate the E.C. (See Stone – KY
school case which invalidated a law that required 10
commandments be posted in every classroom).
• Monument: The monument itself is much more passive than posting the 10
commandments in every classroom (where they confronted students every
day). The Capitol grounds monuments represent the several strands of the
State’s political and legal history, which includes the 10 Commandments both
from a religious and governmental perspective.
 Scalia (concurring): He concurs with the judgment because he thinks it accurately
reflects the current Establishment Clause jurisprudence. But, he would prefer to
develop a rule that can be consistently applied – in which the central feature is that
there is nothing unconstitutional in a State’s favoring religion generally in a
nonproselytizing manner.
 Thomas (concurring): He thinks we should re-examine the original meaning of
“establishment” – something that involves actual legal coercion. Here, the
monument in no way compels Van Orden to do anything. The mere presence of the
monument along his path involves no coercion and thus doesn’t violate the
Establishment Clause.
 Breyer (concurring in judgment): He uses the endorsement test. The E.C. doesn’t
compel the government to purge all religion from the public sphere, and to do so
would tend to promote the kind of social conflict that the E.C. seeks to avoid. These
cases are so fact specific that no exact formula can be consistently applied. Each
case requires a fact-intensive analysis. Here, there is secular content along with the
religious content (thou shalt not kill, etc.), all of which have become an important
part of anglo-american law. It’s in a large park among multiple other monuments
and markers. To deem this monument unconstitutional would open up the way for
the defacing of hundreds of government buildings, etc., and would essentially go
against the purpose of the E.C. (it would lead the law to exhibit a hostility toward
religion). This conclusion is not as easy as the 4 other justices say – everything has
to be looked at in a case-by-case situation, but when you have a mixed message
situation along with a context that doesn’t influence an observer, and there has
been a lack of controversy for 5 decades. Also, the opposite may encourage
hostility towards religion.
○ Minority (Ginsburg, Stevens, Souter & O’Connor dissenting): The sole purpose of the
monument is to display the full text of the 10 Commandments. Viewed on its face, the
monument has no connected to God’s role in the formation of Texas or the founding of our
Nation. Thus, the effect is that the State endorses the divine code of the “Judeo-Christian”
God. The majority ignores the separationist ideals that also surrounded the adoption of
the E.C. We need to interpret the E.C. in light of modern times – the text displayed would
make a non-christian feel like an outsider.

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  While the Constitution requires neutrality as a general rule, the 10 Commandments
send a strong religious statements. If an explanation accompanied the monument,
then it would probably be constitutional.
 Stone should be applied here. Nothing in Stone reads to confine its holding to
school cases.

Rejecting 10 Commandments at Kentucky Court Houses:

McCreary County, Kentucky v. ACLU of KY (2005 - plurality) 2 KY Counties put up large
gold-framed copies of the King James version of the 10 Commandments in their courthouses.
For McCreary County, the county legislative body issued an order requiring “the display to be
posted in a very high traffic area of the courthouse.” For Pulaski County, the Commandments
were hung in a ceremony presided over by the county Judge-Executive who was accompanied
by the pastor of his church. They called them good rules to live by, a creed of ethics, and told
a story of an astronaut who became convinced that there must be a divine god. The issues are
whether we consider the counties’ purposes behind exhibiting the 10 commandments in
deciding if it violates the E.C. (yes), and whether our evaluation should include the manner in
which the counties decided to exhibit the displays (yes).
• Proc Hx: November 1999, the ACLU sued the Counties in Federal District Court seeking a
preliminary injunction against maintaining the displays b/c they were violations of the
E.C. Within a month (and before the court responded) each County’s legislative body
authorized a second display which still included the Commandments but with an
resolution reciting that the6 are “the precedent legal code upon which the civil and
criminal codes of KY are founded.” The displays also included 8 other documents all of
which either had a religious theme or element within them (Preamble of the KY
Constitution, the national motto “In God We Trust,” etc.). On May 5, 2000, the D/C
entered a preliminary injunction ordering that the displays be removed immediately,
applying the 3-part Lemon test (see p. 17 for elements). The Counties then installed
new displays (although not thru legislative resolution), which consisted of 9 framed
documents of equal size, one of them setting out the 10 Commandments (the others
were the Magna Carta, The Declaration of Independence, the Bill of Rights, etc.), the
collection is entitled “The Foundations of American Law and Government Display.” Each
document has a statement about its historical and legal significance. The ACLU then
sought to supplement the injunction to enjoin the 3rd display, which the D/C did (because
based on the manner in which the 3 displays had been erected, it was clear that the
purpose was to display a religious document rather than educating). The Court of
Appeals for the 6th Circuit affirmed, and the Supreme Court granted cert to review.
Affirmed.
• Majority (Souter, joined by O’Connor): Ever since Lemon, we’ve considered whether the
government action has a secular legislative purpose. The Counties argue that this
approach shouldn’t be used because the official purpose is unknowable, and thus they
want the Court to limit the purpose enquiry so that any trivial rationalization would
suffice (by only looking at the context surrounding the last incident in a series of
incidents). But, the purpose analysis is necessary to uphold the principle that the First
Amendment mandates governmental neutrality between religions and between religion
and nonreligion. Furthermore, the cases thus far have shown that the purpose analysis
is straightforward – government action is held unconstitutional because openly available
data supports a commonsense conclusion that a religious objective permeated the

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 action (see p. 19 for cases). The religious objective can be drawn from the entire
context surrounding the action – “reasonable observers have reasonable memories.”
○ Lemon’s purpose element is an important part of analyzing whether the action is
neutral to religion – and the purpose should be taken from the whole context
surrounding the action (including the history).
○ Stone didn’t purport to decide the constitutionality of every possible government
action concerning the 10 Commandments. Each case is context/fact specific. The
question is what viewers may fairly understand to be the purpose of the display.
Purpose is important and should not be ignored (the first prong of Lemon is now
its own approach)!
 Here, the 1st display violates E.C. because it set out the text of the 10
Commandments, with no other statements/other context to suggest a
message beyond the religious message. When the government initiates an
effort to place this text alone in public view, a religious object is
unmistakable.
 2nd display also violates E.C. because the display’s focus was on religious
passages found in government documents, all of which highlighted
references to God as their sole common element.
 The 3rd display violates E.C. because the changes made to the display were
clearly for litigation purposes. The display’s past taints any possible secular
purpose, and a reasonable observer would not take away a secular
message (a cross-over with the endorsement perspective). The legislative
bodies had not authorized these actions, and in fact had not repealed the
2nd orders. Also, the selected material accompanying the display were odd
and didn’t accurately reflect how the 10 commandments had influenced our
law (it ignored the Constitution and the 14th Amendment, but included the
national anthem and quotations for the 1215 Magna Carta). It is obvious
that the Counties were simply reaching for any way to keep religious
documents on the walls of the courthouses.
• Minority dissenting (Scalia, Rehnquist, Thomas, and Kennedy): The historical roots of the
Nation do not indicate that the neutrality principle applies to religion versus non-religion
(in fact, it only applies to neutrality between religions). For neutrality between religions,
our historical practices does not require neutrality between monotheists or polytheists.
The American population is overwhelmingly monotheistic – with the 3 most popular
religions all believing that the 10 commandments were given to Moses from God. Even if
we were to apply Lemon, the displays did not emphasize the 10 Commandments more
than the other documents. This type of display is passive. Scalia would reverse the
lower courts.

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