Constitutional Law II

What is the closest definition to "unitary" that the Court has given?

Issue: the word "unitary" - some schools have used it to identify a school district that has completely remedied all vestiges of past discrimination. Under that interpretation of the word, a unitary school district is one that has met the mandate of Brown v. Board of Education. Other courts, however, have used "unitary" to describe any school district that has currently desegregated student assignments, whether or not that status is solely the result of a court-imposed desegregation plan. The Court did not define "unitary system" with any specificity. Court simply said that the desegregation decree should be ended if the board has "complied in good faith", and o "the vestiges of past discrimination have been eliminated to the extent practicable" Court said to look at o student assignments o faculty, staff, o transportation, o extra-curriculars, o facilities Unitary - District Court's authority ends, current injunction stops even if it means stopping the injuction will restart the segregation

Explain the right to travel doctrine

Edwards - fundamental right to travel and migrate Shapiro - Nobody gets to tell you "you can't travel" - nearly unconditional right to travel! Saenz v. Rose (1991) pg.1100 - Uses P+I Clause of 14 Amend to protect right to travel. Court declared unconstitutional a California law that restricted a new resident's welfare benefits to the level of the state where the person moved from for the first year of residence, (ex: if you moved from Arizona, then you would only get $275 a month for the first year you are in Cali because that is the Az rate, which is much lower than the $456 a month that are given to California residents) • Right to travel is about motion, ability to move freely • Right to travel = o 1) "protects the right of a citizen of one State to enter and to leave another State" Ex: going through a bridge o 2) right to be treated as a welcome VISITOR rather than an unfriendly alien when temporarily in the state Expressly protected by Article IV §2, which provides that the "citizens of each state shall be entitled to all Privileges and Immunities of Citizens in several States." Thus, by virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey , is entitled to enjoy the Privileges and Immunities of Citizens in several States • ie. Pursuit of a common calling, not to be treated differently o 3) for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. (the right to the same privileges and immunities enjoyed by other citizens of the United States) the person who WAS in motion, but now choses to be come a RESIDENT That right is protected under 14th Amendment (P or I clause): "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." • Does not permit degree of residencies based on prior residencies • Your Intent to stay there makes you a citizen. • If a state gives a right to one of your citizens, you need to give it to all your citizens Court says that this Clause protects the third component of a right to travel o Court looks to 3rd Requirement. o Durational residency requirement looks specifically at length of residency of residents versus nonresidents, and that is why it fails! Durational residency requirement - is where a person must live in the jurisdiction for a specified amount of time in order to receive a benefit. • Supreme Court has recognized that durational residency requirements discourage interstate travel, and especially migration. • The Court, therefore, has said that STRICT SCRUTINY should be applied in this area. (compelling state interest) • The Court has declared unconstitutional a government rule that required a year's residency in the county as condition to receiving non-emergency hospitalization or medical care at the county's expense. • The court has also invalidated and limited the length of durational residency requirements for voting. • One area where the Court has upheld durational residency requirements is for divorces in the States. o Also a 1 year durational residency req was allowed for college in-state tuition

Explain Windsor

Windsor (2013) pg.958 - Holding: DOMA is unconstitutional as a deprivation of the liberty of the person protected by the 5TH Amendment of the Constitution. This is a Substantive Due Process Decision; however informed and enhanced by the Equal Protection Clause (where government cannot draw distinctional lines) 5th Amendment Substantive DPC same analysis and doctrine as 14th Amend. Kennedy says that DOMA is grounded in animus. • The fact that federal government doesn't generally interfere in privacy • DOMA amended the Dictionary Act • Moral Judgment by the Legislature and Value-Infused ***Therefore, It is NOT Rational enough! Government flunks Rationale-Basis Review!! Issue Is the exclusion of a same-sex partner from the definition of "spouse" under the Defense of Marriage Act constitutional? Reasoning • In 1996, as some States were beginning to consider the concept of same-sex marriage, and before any State had acted to permit it, Congress enacted DOMA, which contains two operative sections: Section 2, which has not been challenged here, which allows States to refuse to recognize same-sex marriage performed under the laws of other States and Section 3, which is at issue here. • Section 3: amends the Dictionary Act in Title 1, §7, of the United States Code to provide a federal definition of "marriage" and "spouse." Section 3 of the DOMA provides as follows: • "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. • Windsor did not qualify from the marital exemption from the federal estate tax, which excludes from taxation "any interest in property which passes or has passed from the decedent to his surviving spouse." • HOLDING: DOMA is unconstitutional as a deprivation of the liberty of the person protected by the 5th Amendment of the Constitution. The liberty protected by the 5th Amendment's Due Process Clause contains within the prohibition against denying to any person the equal protection of the laws. • 14TH Amendment makes the 5th Amendment right all the more specific and all the better understood and preserved. • The class to which DOMA directs its restrictions and restraints are those person who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. • It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the 5th Amendment.

Exceptions to State ActionDoctrine

1. Public Functions Exception >>Whether there is a sufficiently close nexus between the State and challenged action of entity that the entity's action may be fairly treated as the State's. I. Public functions exception, which says that a private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government. II. Entanglement exception, which says that a private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct. Marsh v. Alabam - Town was privately owned, but operated just like any other public town, therefore actions under that town are subject to constitutional review. Jackson v. Metropolitan Edison Co. - Business model and private monopoly (although heavily regulated) doesn't mean that it is a state actor. Running a park is public function, because a park is municipal in nature and serves a public domain. - Evans v. Newtown (city cannot avoid desegregating park simply by turning over control to private entity -- if municipality maintains entwined management/control of it then it remains subject to 14th A) Lloyd --> Privately owned shopping centers are NOT public function therefore no state actor. (holding that privately owned shopping center could legally exclude Vietnam War protestors) Hudgens --> Labor union members can be restricted and barred from picketing on private property of shopping center where they worked However, holding primaries and election for government office IS A public function. Terry v. Adams - Private group excluded blacks from primaries and who they wanted to nominate, and the group essentially controlled the county because no black was ever elected into office. Court held that it was immaterial that state doesn't control elective process, still found state action because of public functions exception. ENTANGLEMENT EXCEPTION >>Private, unconstitutional conduct that the government has authorized, encouraged, or facilitated. Either the government must cease involvement with the private actor, or the private entity must comply with the Constitution. Shelly - judicial enforcement of race restrictive property covenant is state action. so courts cannot enforce that agreement. --Government Licensing + Regulation-- >>Government so entangled in lease of public property that it is enough to create a symbiotic relationship. Factors: 1. Whether building is dedicated to public usage in performance of government functions. 2. Whether government pays cost of land acquisition, construction, & upkeep/maintenance. 3. Whether government benefits from lessee's revenues. Burton - Coffee shop, in parking garage refused to serve blacks; building was owned/operated by the state agency. Government was leasing space to shop and other businesses Court held that government was so entangled -- enough to create a symbiotic relationship --> state action. But note: government licensing/regulation on its own isn't enough! Needs other government encouraging/facilitating of conduct - Moose Lodge Entwinement more expansive but left unclear Brentwood Academy - Nonprofit private association regulating interscholastic sport amongst state public schools and private schools Holding - there was state action because of pervasive entwinement of state school officials in Assoc. Factors: 1. Private character of Association entwined with public institution 2. Association is 84% public schools and represented by public school officials 3. State traditionally delegated regulated athletics to Association 4. Most funds come from public schools 5. Most meetings held on govt property (cause in public school)

Economic Rights and Due Process

DUE PROCESS + ECONOMIC RIGHTS LOCHNER - 1905 - Bakery Case, Hours-worked limit case - burden on state to show that the restrictions relate to safety, health, morals, and general welfare of the public. The Right of the Individual to Labor, The POWER of the State Freedom to CONTRACT --VERSUS -- to LEGISLATE In Lochner, Court uses Heightened Scrutiny (Heightened purpose and fit) to shut down law because it interferes with freedom to Contract. 1) The Court in Lochner, and throughout this era, stated that freedom of contract is a basic right protected as liberty and property rights under the due process clause of the 14th Amendment. (Expanded protection under 14A) 2) The Court said that the government could interfere with freedom of contract only to serve a valid police purpose: to protect the public safety, public health, or public morals. 3) The Court said that it was the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose. These 3 themes were followed until 1937. Economic Rights Since 1937 West Coast Hotel v. Parrish (1937) - BREAKTHROUGH case SCOTUS upheld a state law that required a minimum wage for women employees and expressly overruled Adkins v. Children's Hospital and Morehead v. Tipaldo. - Court would not protect freedom of contract anymore (not a substantive Due Process 14A issue anymore) • Made it clear that it was abandoning Lochner • Chief Justice: "What is this freedom of contract? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law..." • Moreover, the Court was emphatic that the government was not limited to regulating only to advance the public safety, public health, or public morals. • Legislature had a right to consider that its minimum wage requirements would be an important aid in carrying out its policy of protection. o This case argues for deference to Legislature - Rational Basis United States v. Carolene Products (1938) - court said that economic regulations should be upheld so long as they are supported by a conceivable rational basis, even if it cannot be proved that it was the legislature's actual intent. Carolene Products Footnote 4 - Court Needs to be More Rigorous when considering 1) Individual Fundamental Rights 2) Political Process Rights 3) Discriminatory against Discrete + Insular = Racial/Religious Minorities ***Court articulated a double standard of review.** Footnote 4: "There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first 10 amendments...It is unnecessary to consider now whether legislation which restricts those political process which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendment....Nor need we enquire....whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." State Farm Mutual Insurance Co. v. Campbell (2003) Rule - Due Process Clause of 14th Amendment prohibits imposition of grossly excessive/arbitrary punishments on tortfeasor. Where grossly excessive = furthers no legit purpose and constitutes arbitrary deprivation of property. Holding - error to reinstate the $145 million punitive damages award; neither reasonable nor proportionate to wrong committed; irrational and arbitrary deprivation of property of Ds 1. Degree of reprehensibility of D's conduct? 2. Ratio of punitive damage award to actual harm suffered by P 3. Comparable misconduct; what are those punishments? Punitive damages are limited to conduct within that State; only to punish for acts committed against Plaintiff himself, not nonparties. Phillip Morris USA v. Williams (2007) - William dies from smoking, wife sues for negligence and deceit against Phillips for manufacturing Marlboro, where Marlboro "knowingly and falsely" led Morris to believe that it was safe to smoke. Rule - DPC forbids a state to use a punitive damages award to punish Defendant for injury that it inflicts upon nonparties or those not directly present. Holding - Court applied wrong constitutional standard; award would amount to taking of property from Defendant without Due Process • Not able to defend themselves against nonparties • Adds near standardless dimension to punitive damages equation • Fundamental DP concerns magnified • Jury cannot use punitive damages to punish Defendant directly on harms alleged to nonparties. Dissenting - constitution doesn't contain the size of punitive damages, argument for federalism (stay out of state affairs!)

Jaycees COMPARED to Boy Scouts of America

FREEDOM OF INTIMATE ASSOCIATION --> Fundamental Liberty versus FREEDOM OF EXPRESSIVE ASSOCIATION --> Strict Scrutiny Roberts v. United States Jaycees (1984) - is the Minnesota Human Rights Act which requires Jaycees to admit women as full voting members violating their First Amendment? Court says NO. • Membership is limited to young men between ages of 18 and 35 • The Court has long recognized that, because the Bill or Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of protection from government interference freedom of intimate association (therefore, fundamental liberty) o Things like relationships Marriage Childbirth Raising and education of children Cohabitation with one's relatives • These types are distinguished by relative smallness and high degree of selectivity and seclusion o Court says that only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Other types like • Large business enterprise, etc. are different freedom of expressive association • FREEDOM TO ASSOCIATE - PRESUPPOSES FREEDOM NOT TO ASSOCIATE o How does a government infringe on this? Penalties for being part of disfavored group Attempt to require disclosure of membership in group seeking anonymity May try to interfere with the internal organization or affairs of the group at issue here • **However, the right to associate for expressive purposes is not absolute, o Infringement on that right through regulations may be justified if Regulations adopted to serve Compelling State Interest - unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. STRICT SCRUTINY • As applied: Act reflects Minnesota's strong interest to eliminating discrimination and assuring its citizens equal access to publicly available goods and services. This goal is unrelated to suppression of ideas Act is not so restrictive of the male members freedom of EXPRESSIVE association o Requires no change in the Jaycees creed to promote the interest of young men o Imposes no restriction on the ability to exclude individuals that don't align with their philosophy o Moreover, Jaycees already invite women as an associate member Boy Scouts of America - (2000) - pg.1685 - whether applying NJ's public accommodations law which requires that the Boy Scouts admit Dale violates the Boy Scouts' First Amendment right of expressive association. court holds that it does. • Forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints. o But the freedom of expressive association is not absolute. • The freedom could be overridden by regulations adopted to o serve compelling state interests, unrelated to the suppression of ideas, o that is LRA • To determine whether a group is protected by the 1st Amendment's expressive associational right, we must determine whether the group engages in expressive association. o General mission of Boy Scouts is clear: to instill values in young people o Given that the Boy Scouts engage in expressive activity, we must determine whether the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scout's ability to advocate public or private viewpoints. o Inquiry necessarily requires us first to explore the nature of the Boy Scout's view of homosexuality. Values the Boy Scouts seek to instill are "based on" those listed in the Scout Oath and Law. positive moral code, list of dos, Boy scouts believe that engaging in homosexual conduct is contrary to being morally straight Dale - being an Eagle Scout and homosexual - his mere presence - would force the organization to send a message to both the youth members and the world that the Boy Scouts accept homosexual conduct as a legitimate form of behavior . Holding: Having determine that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, the NJ's public accommodations law to require that the Boy Scouts accept Dale runs afoul of the Scout's freedom of expressive association.

Explain Court's denial to right to self-suicide?

No constitutional right to assisted suicide. rational basis Cruzan (1990) pg. 1070 - The State is permitted to make the "error" of helping keep the person alive - even if the patient didn't want to - because the consequences of that are much less severe than if we allow the state to kill her when she may have wanted to be kept alive • Must provide clear and convincing evidence that the person wanted to die. • Valid state interest Washington v. Glucksberg (1997) pg. 1077 - Doctor assisted suicide case claims that DPC encompasses substantive right to die Substantive Due Process-- two primary features 1) First, we have regularly observed that the DPC, specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," and "implicit in the concept of ordered liberty," such that neither liberty nor justice would exist if they were sacrificed. 2) Second, we have required in substantive-due-process case a "careful description" of the asserted fundamental liberty interest. Our Nation's history, legal traditions, and practices provide the crucial "guideposts for responsible decision making," that direct and restrain our exposition of the DPC. • This history of the law's treatment of assisted suicide in this Nation has been and continues to be one of the rejection of nearly all efforts to permit it. • That being the case, our decisions lead us to conclude that the asserted "right" to assistant in committing suicide is not a fundamental liberty interest protected by the DPC. • The Constitution also requires, however, that Washington's assisted-suicide ban be rationally related to legitimate government interests. This requirement in unquestionably met here. As the court below recognized, Washington's assisted-suicide ban implicates a number of state interest. o First, Washington has an "unqualified interest in the preservation of human life." o Secondly, the State has an interest in protecting vulnerable groups - including the poor, the elderly, and disabled persons - from abuse, neglect, and mistakes. o Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The New York Task Force, citing the Dutch experience, observed that the risk of abuse is neither speculative nor distant. Washington, like most other states, reasonably ensures against this risk by banning, rather than regulating assisting suicide. Vacco v. Quill - terminally ill patients in NY - SCOTUS says Cruzan does not apply, EPC argument rejection by SCOTUS, finds that patients have a right to not go through life-saving procedure, not the same as assisted suicide. Leaves it to the political process. • In New York as in most States it is a crime to aid another to commit or attempt suicide, but patients may refuse even lifesaving medical treatment. • The question presented by this case is whether New York's prohibition on assisting suicide therefore violates the EPC of the 14th Amendment. We hold that it does not. • The 2nd Circuit determined that, despite the assisted-suicide ban's general applicability, "New York law does not treat equally all competent persons who are in the final stages of terminal illness and wish to hasten their deaths," because o "those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing their removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs." • New York's statutes outlawing assisting suicide affect and address matters of profound significant to all New Yorkers alike. Their neither infringe fundamental rights nor involve suspect classifications. These laws are therefore entitled to a strong presumption of validity. • Court of Appeals however, concluded that some terminally ill people - those who are on life-support systems - are treated differently from those who are not, in that the former may "hasten death" by ending treatment, but the latter may not "hasten death" through physician-assisted suicide. This conclusion depends on the submission that ending or refusing lifesaving medical treatment "is nothing more nor less than assisted suicide." • Unlike the Court of Appeals, we think the distinction between assisting suicide and withdrawing life-sustaining is both important and logical, and it is certainly rational. • First, when a patient refuses life-sustaining medical treatment, he dies from an underling fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication. • Furthermore, a physician who withdraws, or honor's a patient's refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his wishes, contrast with "intending primarily that the patient be made dead." • Overwhelming majority of state legislatures have drawing a clear line and distinction between the two.

Free Speech - Overbreadth doctrine

Overbreadth • A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated. • A person to whom is not constitutionally injured by the statute can argue that it would be unconstitutional as applied to others. There are thus 2 major aspects to the overbreadth doctrine. 1. First, a law must be substantially overbroad; that is, it must restrict significantly more speech than the Constitution allows to be controlled. a. In subsequent cases, the Court made it clear that the requirement for substantial overbreadth applies in ALL cases, whether the law regulates conduct that communicates or "pure speech" b. City of Houston v. Hill - The Court declared unconstitutional an ordinance that made it unlawful to interrupt police officers in the performance of their duties. An individual was convicted of violating the law for shouting at policer officers to divert their attention; Court declared the law unconstitutional and said that the "ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement." 2. Secondly, a person to whom the law constitutionally may be applied can argue that it would be unconstitutional as applied to others. a. Exception to usual rule of standing i. Munson Co case - A Maryland statute prohibited charitable organizations from soliciting funds unless at least 75 percent of their revenue was used for "charitable purpose." The law was challenged by a professional fundraiser who raised the First Amendment rights of his clients, charities who were not parties to the lawsuit. ii. The Supreme Court permitted the fundraiser standing to argue the constitutional claims of a charitable organization. Schad v. Borough of Mount Ephraim (1981) - adult bookstore case; statute imposes criminal penalties under an ordinance prohibiting all live entertainment • By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the 1st and 14th Amendments. o Entertainment, as well as political and ideological speech is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee. • Because appellant's claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance in the expressive activities of others as well as their own. • Because overbroad laws, like vague ones, deter privileged activities, our cases firmly establish appellant's standing to raise an overbreadth challenge. Packingham v. North Carolina - See Supplement pg.66-74 - Social media and sex offender case. Statute makes it a felony for a registered sex offender "to access a commercial social networking website where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages. • D posted a message "thank God!" on Facebook, and was arrested for violating the statute • D argues that this violates his First Amendment right to free speech • Street park is a quintessential forum for the exercise of First Amendment rights. • Court says "cyberspace" and "social media" are now the "most important places (in a spatial sense) for the exchange of views. Even making the assumption that the statute is Content Neutral therefore Intermediate Scrutiny, the statute cannot stand. Compelling Government Interest? Yes. Protecting children from abuse is a compelling state interest, sexual offenders do use the internet to engage in such abuse and it is entirely legitimate for States to try to stop the abuse before it happens. X Narrowly Tailored? No. Fails because of overbreadth. Its wide sweep precludes access to a large number of website that are most unlikely to facilitate the commission of a sex crime against a child. Ex: Retail website Amazon.com, this website would have been included as prohibited within the meaning of the statute. Amazon allows minors to use its services. • Also news sites, or WebMD = "commercial social networking sites" Denying sex offenders this set of websites prohibits them from receiving or engaging in speech that the 1st Amend. Protects and does not appreciably advance the State's goal of protecting children from sex offenders.

Explain the fundamental right to custody of your children

Parental Rights to Custody of one's Children A "natural parent's desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right." Stanley v. Illinois (1972) - Under Illinois law, the children of unwed fathers become wards of the State upon the death of the mother. Accordingly, upon Joan Stanley's death, Stanley's own children were declared wards of the State and placed with court appointed guardians. o Stanley appealed, claiming that he had never been shown to be an unfit parent and that since married fathers and unwed mothers could not be deprived of their children without such a showing, he had been deprived of the equal protection of the laws guaranteed him by the 14th Amendment. o Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," and "rights fare more precious than property rights." o The integrity of the family unit has found protection in the Due Process Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, and the 9th Amendment. o Court: "we do not question the assertion that neglectful parents may be separated from their children. But we are here not asked to evaluate the legitimacy of the state ends, rather, to determine whether the means used to achieve these ends are constitutionally defensible." ISSUE o What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case? o Court observes that the State registers no gain towards its declare goals when it seperates children from the custody of fit parents. o Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family. HOLDING State's interest in procedural efficiency by presuming that unwed fathers are unfit to raise their children does not justify terminating the rights of a parent to have custody of their children. Government can terminate rights of unmarried biological fathers without providing notice if father is not actively involved in childs life. • An unwed father however that does have a personal commitment does have procedural due process. Michael H. v. Gerald D. - (1989) pg.983 - multiple fatherhood case, guy wants to be the father of the child of another man (same woman) Very SPECIFIC level of abstraction case - "you must adopt the most specific tradition as a reference point" for Traditions of this Country analysis to trigger fundamental rights analysis Issue The instant appeal presents the claim that the presumption of legitimacy of a household infringed upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man, and the claim that it infringes upon the constitutional right of the child to maintain a relationship with her natural father. State may make irrebutable presumption that married woman's nonbiological husband is father of her child even though it negates biological father's right to have custody of his child. o This is because it is not in the tradional notions of our Nation's history of protecting an unmarried father's rights when the child was conceive during an affair. • The Court holds no. Quite to the contrary, our traditions have protected the marital family (Gerald, Carole, and Victoria) against the sort of claim that Michael asserts. • Whatever the merits of the guardian ad litem's belief that such an arrangement can be of great psychological benefit to ta child, the claim that a State must recognize multiple fatherhood has no support in the history or traditions of this country.

RELIGION

RELIGION "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." - Establishment Clause and Free Exercise Clause Complimentary - Establishment and Free Exercise Clauses are complementary in that both protect freedom of religious belief and actions. Many government actions would simultaneously violate both of these provisions. • Ex: mandatory school prayers involve both the government establishing religion and interfering with free exercise of religious beliefs for those who do not believe in prayers. TENSION - For instance, if the government pays for and provides ministers for this in the armed services, it arguably is establishing religion, but if the government refuses to do so on these grounds, it is arguably denying free exercise of religion. Establishment Clause Primary Test - Lemon Test • The government violates the Establishment Clause if the government's purpose is to advance religion, or • If the principal effect is to aid or inhibit religion, or • If there is excessive government entanglement with religion. TENSION - ALSO WITH FREEDOM OF SPEECH - For example, allowing government financial aid to student religious groups or permitting religious groups to use school facilities arguably violates the Establishment Clause; but denying funds or facilities because of the religious content of the expression seems to infringe the First Amendment protection of speech. Court Defining Religion Seeger (1965) - pg.1725 - Selective Service Case, guy is a conscientious objector not because of his belief in God but because of his belief "Devotion to Goodness and Virtue for their own sakes" -i.e. Supreme Reality instead of God) - Court says that this is enough and protects this belief. • Court concludes that Congress, in using the expression "Supreme Being" rather than "God" was merely clarifying the meaning of religious belief so as to embrace ALL religions and to exclude essentially political, sociological, or philosophical views. • The test of belief to a "Supreme Being" - whether a given belief that is sincere and meaningful occupies a place in the life of its possessor Ballard (1944) - "I AM movement" - fraud mail system by supposed miracle workers Court held that the Judiciary can determine ONLY whether the beliefs of a person are sincerely held,, not whether they are true. • 1st Amendment has dual aspect - 1) No forcible compulsion by government to believe something, and 2) freedom to worship anything you want. o So there is a Freedom to believe (unqualified freedom) Freedom to act (qualified) • "Men believe what they cannot prove" o Courts should not try to ascertain whether a person believes in a "true" thing. If one could be sent to jail because a jury in a hostile environment found those teachings false, there would be no religious freedom. J. Jackson - dissents - because he believes that the 1st Amend precludes not just "truthfulness" but even sincerity as well. • If religious liberty includes the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones. • Courts should get out of the business of judicial examining of other people's faith. Thomas v. Review Board - pg.1731 - Court ruled that an individual could claim a religious belief even though it was inconsistent with the doctrines of his own religion. (JW sincerely opposed working at a factor that made military tanks, even though JW doctrine allows it. Court said that is still a sincere belief and protects it) Frazee - Court allowed an individual to claim a religious basis for refusing to work on Sundays even though others of his and similar religions did not believe that. Court held that it doesn't matter what other people believe, the inquiry must be whether a particular individual holds a sincere religious belief. • Dominant views of other people within the faith are helpful BUT NOT DETERMINATIVE. Free Exercise Clause: Smith Department of Human Resources of Oregon v. Smith (1990) -peyote case Holding: Where a law is generally applicable criminal prohibition, its ability to carry out public policy CANNOT depend on measuring the effects of a government action on a religious objector's spiritual development. • J. Scalia says that the Court should NOT apply Sherbert Test - Strict Scrutiny Compelling State Interest analysis because the purpose of CSI in race and in speech for ex, is to produce equality of treatment and unrestricted flow of speech these are constitutional norms o However a if you use CSI here for a general applicable statute that somehow effects a religion, then it will produce a right to ignore generally applicable law This is a constitutional anomaly, not a norm. o Minority religions can use political process for protection Sherbert Test - governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. Concurrence - J. O'Connor - wants to continue to use Sherbert Test • Once it has been shown that a government regulation or criminal prohibition burdens the free exercise of religion, we have consistently asked the government to demonstrate that it has a Compelling State Interest and Least Restrictive Means o It could satisfy that here: CSI - Preventing physical harm cause by the use of peyote is Compelling LRA - only way to prevent this harm is through uniform application of Oregon's criminal prohibition The danger of the Sherbert test is that it risks allowing people to ignore generally applicable laws, "becoming a law unto themselves." J. Scalia therefore argues that we only cut slack for Hybrid claims, i.e. Free Exercise claims that are attached to another constitutional claim, for example, a Free Speech claim. Strict Scrutiny o Therefore if you are only standing on a religious claim Rational Basis applies. However, REMEMBER, the government interest is not as weighty enough when religion comes into play = it must still be viewpoint neutral. • Result is that it provides solid protection for Large Majority religions such as Christianity and Catholicism, but leaves fringe minority religions out to dry. o RFRA was enacted as Legislation, and its effects were that it protects religious minorities from religious discrimination. Trinity Lutheran - A state CANNOT deny a generally available benefit to particular, targeted religion, ----- this is different than a state simply imposing a generally applicable, viewpoint neutral law. ***Distinguish this case with Locke - which holds that a state denying a seminary scholarship is OK (because granting a seminary scholarship amounts to making him a priest, and runs too close to the establishment clause principle). A state law cannot discriminate; it cannot pick and choose based on religious categorizations. Remember, even under Smith, a state cannot target or aim at religion. (Butcher law that prevented animal sacrifices, while the language itself was generally applicable, was targeted at a religious group, and fails on both Smith and Trinity as well).

Explain the right to Vote doctrine

RIGHT TO VOTE is located under substantive EPC --> strict scrutiny **Some durational requirement is allowed. • Not in constitution, however, there are limits to government restricting the right to vote see 19th Amend. and 26th Amend (18 year old voting) • However, right to vote is located under Substantive Equal Protection Clause o Generally Right to Vote protected under EPC because it undermines the democratic process. o Therefore, Strict Scrutiny applies Government interest compelling enough? + Tight Fit? Harper • Held that poll taxes are unconstitutional as a denial of equal protection for all other elections. • Court concludes that a State violates the EPC of the 14h Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. • Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. • Our cases demonstrate that the EPC of the 14th Amendment restrains the States from fixing voter qualifications which invidiously discriminate. • We have long been mindful that where fundamental rights and liberties are asserted under the EPC, classifications which might invade or restrain them must be closely scrutinized and carefully confined. Those principles apply here. • For to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned. However, State's can permanently allow a right to vote to felons. Crawford v. Marion County Election Board - (2008) pg.1116 - voter ID law, is it constitutional? Reasoning • Yes. • State has imposed several state interest that arguably justify the burdens that SEA 483 imposes on voters and potential voters. 1) State's interest in deterring and detecting voter fraud. The State has a valid interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient. 2) The State also argues that it has a particular interest in preventing voter fraud in response to a problem that is in part the product of its own maladministration—namely, that Indiana's voter registration rolls include a large number of names of persons who are either deceased or no longer live in Indiana. 3) Finally, the State relies on its interest in safeguarding voter confidence. • The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. • There is no question about the legitimacy or importance of the State's interest in counting only the votes of eligible voters. • Moreover, the interest in orderly administration and accurate recordkeeping provides sufficient justification for carefully identifying all voters participating in the election process. • While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear. • Finally the State contends that it has an interest in protecting public confidence "in the integrity and legitimacy of representative government." While that interest is closely related to the State's interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process. • The burdens that are relevant to the issue before us as those imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirements of SEA 483. • For most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting. • However, there is a burden on a limited number of persons: elderly persons born out of state, poor persons who would have trouble securing their documents, homeless persons, etc. • The severity of that burden is of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted. • Petitioner's ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State's broad interests in protecting election integrity. o The evidence in the record does not provide us with the number of registered voters without photo identification: much of the expert's report was "utterly incredible and unreliable." Much of the argument about the numbers of such voters come from extrarecord, postjudgment studies, the accuracy of which has not been tested in trial court. Record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed. • In sum on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes "excessively burdensome requirements," on any class of voters. o When we consider only the statute's broad application to all Indiana voters, we conclude that it "imposes only a limited burden on voter's rights." o The "precise interests" advanced by the State are therefore sufficient to defeat petitioner's facial challenge to SEA 483. Hallmark of 14th Amend EPC realm is "Purposeful Discrimination" but what about "disparate impact" incidents? o Was Indiana doing this purposefully to screw over people? • Effects alone are only implicated in substantive Rights (like 1st Amendment) - Here, effects are NOT taken into consideration. Purposeful discrimination is what is Required for EPC violation. • Here Court is striking a balance, between Governmental interest compared to minor "burden," no unduly burdensome. o But why balance at all? If voting is a fundamental right, should it be strict scrutiny and no balancing? • This case is good law. Concurrence - Justice Scalia, with Thomas and Alito joining The 14th Amendment does not regard neutral laws as invidious ones, even when their burdens purportedly fall disproportionately on a protected class." Arlington Heights - court clearly does an analysis to see if there is an invidious purpose, good case for methodology 3 Factors to show that there was Discriminatory purpose: i. Statistical disparity that can only be explained by the discriminatory purpose ii. Legislative History (statements made, meetings, etc) iii. Historical background of government's action if it reveals a series Needs to be Strong Evidence. Needs to be strong showing. Arlington Heights standard: "Once discrimination is shown to have been "a substantial or 'motivating' factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor."

Incorporation Doctrine

Slaughterhouse Cases - The Privileges and Immunities Clause of the 14th Amendment only protects the privileges and immunities guaranteed by the United States and not by the individual states. - 14 Amendment was meant to protect blacks after Dred Scott - This case claims that the 14th Amendment P+I rights are different than Article IV P+I clause rights. See list on page 546 (middle) - Also states that 14th Amendment P+I Clause to only be applicable to national rights (bill of rights) Denial of Incorporation - NO new substantive doctrine INCORPORATION Gitlow - Court for the first time said that the First Amendment's protection of freedom of speech applies to the states through it incorporation into the Due Process Clause of the 14th Amendment. What are some rights that are swallowed up by the 14th Amendment? - 1A, 2A, 4A, Powell v. Alabama (1932) - the Court found that a state's denial of counsel in a capital case denied due process, thereby in essence applying the 6th Amendment to the states in capital cases. SCOTUS concluded that the Due Process Clause of the Fourteenth Amendment protects fundamental rights from state interference and that this can include Bill of Rights provisions. BUT, the Court held that "if this is so, it is not because those rights are enumerated in the first eight Amendments, but because those rights are of such nature that they are included in the "conception of due process of law."" TOTAL versus SELECTIVE incorporation Palko v. Connecticut (1937) o Argument is that whatever is forbidden by the Fifth Amendment is forbidden by the Fourteenth also. o Fifth Amendment is only directed to Fed govt which states No person shall be "subject for the same offense to be twice put in jeopardy of life or limb." o The Fourteenth Amendment states "nor shall any State deprive any person of life, liberty, or property, without due process of law." It is argued that to retry a D subjects him to double jeopardy in violation of the 5th Amendment if done by a state court Standard - "There is no such general rule. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Adamson v. California (1947) o "It is settled law that the clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is NOT made effective by the Fourteenth Amendment as a protection against state action on the ground that freedom from testimonial compulsion is a right of national citizenship, or because it is a personal privilege or immunity secured by the Federal Constitution as one of the rights of man that are listed in the Bill of Rights." The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government and its provisions were inapplicable to similar actions done by the states. "The purpose of due process is not to protect an accused against a proper conviction but against an unfair conviction. When evidence is before a jury that threatens conviction, it does not seem unfair to require him to choose between leaving the adverse evidence unexplained and subjecting himself to impeachment through disclosure of former crimes." Selective Incorporation prevailed! Duncan v. Louisiana (1968) pg. 556 INCORPORATED RIGHTS THUS FAR; Due Process clause now protects the right to: • Compensation for property taken by the State • Rights of speech, press, and religion covered by the First Amendment, • Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized. • The right guaranteed by the Fifth Amendment to be free of compelled self-incrimination • Sixth Amendment rights to counsel • Right to a speedy and public trial • Right to a confrontation of opposing witnesses, • And right to compulsory process for obtaining witnesses Reasoning o STANDARDS USED to determine if the right extended by Fifth and Sixth Amendment are also protected against state action by the Fourteenth Amendment: 1) "fundamental principles of American liberty and justice which lie at the base of all our civil and political institutions" - Powell 2) Is right "basic in our system of jurisprudence?" - In re Oliver 3) Is right "a fundamental right, essential to a fair trial?" - Gideon v. Wainwright Holding Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which - were they to be tried in a federal court - would come within the Sixth Amendment's guarantee. Why? o A right to a jury trial is granted to criminal Ds in order to prevent oppression by the Government. o Jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen of one judge or to a group of judges. o "The deep commitment of the Nation to a right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States." HYPO: Imagine if N.Y.S. passes a law that puts age-floor for blogging at 30? Sounds like First Amendment free speech violation, but it's not, it's a 14TH Amendment Free Speech issue. (**Has to go through incorporation!) NOT incorporated: 1) 3rd Amend right to not have soldiers quartered in a home - most likely can be incorporated 2) Bail Clause; prohibition of excessive fines - 8th Amendment 3) 12 Person Trial Jury (States don't need to have 12 persons) 4) 5th amendment right to Grandy Jury Indictment Clause

What are the only 2 compelling state interests that a Court recognizes when a state discriminates on the basis of race?

o Only 2 compelling state interests that Court recognizes , 1) Compelling interest of remedying the effects of past intentional discrimination a. I.e. achieving "unitary" status b. Court emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that "the Constitution is not violated by racial imbalance in the schools, without more." 2) Interest in diversity in higher education upheld in Grutter - student body diversity in context of higher education, not focused on race alone but encompassed "all factors that may contribute to student body diversity" a. Holistic, not just race

What case held that Equal Protection is reverse incorporated to the Federal Government? which clause in the Constitution?

Bolling v. Sharpe (1954), the Court held that equal protection applies to the federal government through the Due Process Clause of the 5th Amendment. reverse incorporation

Discuss Califano v. Webster

Califano v. Webster (1977) - social security act which allows women to have a higher wage "Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as such an important governmental objective." Here, the Court upheld §215 of the Social Security Act, which allowed women to have a slightly higher "average monthly wage" and a correspondingly higher level of monthly old-age benefits for the retired female wage earner Important governmental objective - reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women Courts, have recognized this as valid objective More favorable treatment of the female wage earner enacted here was not a result of "archaic and overbroad generalizations" about women, or of the "roletyping society has long imposed" upon women Substantially related - allowing women who as such have been unfairly hindered from earning as much as men, to eliminate additional low-earning years from the calculation of their retirement benefit works directly to remedy some part of the effect of past discrimination.

Discrimination based on sexual orientation - analysis

Discrimination Based on Sexual Orientation Rational Basis review Court used rational basis review in Romer v. Evans (1996), which is leading case (Colorado Amendment 2 removing protection only from homosexuals, SCOTUS invalidated under Rational Basis review) HOWEVER, LEANING TOWARDS INTERMEDIATE SCRUTINY • Romer - "Homosexuals, by state decree, are put in solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws rom homosexuals, but not others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies." • Court said that Amendment 2 failed even rational basis review. o "Amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and invalid form of legislation." • Romer is significant because it is the first time the Court invalidated discrimination based on sexual orientation. Although the Court used just rational basis review, the decision indicates judicial willingness to protect gays, lesbians, and bisexuals from discrimination. • Romer established that animus, even for a "moral" purpose, is not enough to pass rational basis review Lawrence v. Texas (2003) - Court, relying on due process, struck down a state law prohibiting private consensual homosexual activity.

Rostker v. Goldberg

Issue. May the federal government require only males to register with the Selective Service? Held. Yes. Justice William Rehnquist (J. Rehnquist) writes for the majority, noting that the primary objective for the MSSA is to provide a supply of combat troops in times when a military draft is necessary, clearly an important government interest. As to the means, J. Rehnquist notes that only men (as a group) are eligible for combat duty. Because of this, registering all women is a substantial administrative inconvenience for a small degree of payoff. Men and women are thus differently situated for purposes of a draft. Furthermore, most non-combat positions are filled by combat-ready troops that are rotated with other troops, further diminishing the payoff from the registration of women. Upheld.

Obscenities Carve Out

Obscenities Carve out still exists, but not really used. What is obscenities? Speech about - 1) Sex; depictions that appeal to the prurient interest - national standard 2) Patently offensive - national standard a. Determined by community (national) standards - i.e. Georgie versus NYC have different community standards b. Nudity alone is not patently offense c. Examples include offensive depictions of masturbation, excretory functions, etc. 3) Lack of serious literary, political, social value a. national standard - film movie book critics, etc. b. "Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by regulating state law" - Miller

Free Speech case (viewpoint based, government speech, etc)

Reed v. Town of Gibert - (2015) pg. 1245 - Town of Gilbert Code imposes more stringent restriction on these signs than it does on signs conveying other messages (like political or directional signs) Court holds that that these provisions are content-based regulations of speech that do not survive strict scrutiny (the regulations were made based entirely on viewpoint, i.e. the expressive communicative content) • Town treats most favorable Ideological Signs > Political Signs > Temporary Directional Signs Reasoning • The 1st Amendment, applicable to the States through the 14th Amendment, prohibits the enactment of laws "abridging the freedom of speech," • Under that clause, a government, including a municipal government vested with state authority, "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Content-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. strict scrutiny • If a sign informs its reader of the time and place a book club will discuss John Locke's Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke's followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke's theory of government. • Court holds that "We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. o A law that is content based on its fact is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of "animus toward the ideas contained" in the regulated speech. Only 2 Governmental interest were offered: (1) preserving the Town's aesthetic appeal and (2) traffic safety o Starting with the preservation of aesthetics, temporary directional signs are "no greater an eyesore," then ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the size and duration of smaller directional ones. o Secondly, the Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting. **Court assures that ¬content neutral signs are instead subject to lesser scrutiny (signs which content does not differentiate how it is regulated) o On public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. Pleasant Grove City, Utah v. Summum - (2009) pg.1273 - Court affirms difference between government regulating speech and government itself making speech. Choosing which types of statutes it wants on its government property is government making speech and expressing itself. Free Speech clause does NOT regulate government speech. • The parties' fundamental disagreement thus centers on the nature of petitioner's (City Gov') conduct when they permitted privately donate monuments to be erected in Pioneer Park. Were petitioners engaging in their own expressive conduct? Or where they providing a forum for private speech? • If petitioners were engaging in their own expressive conduct, then the Free Speech Clause has NO application. o The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech • This does not mean that there are no restraints on government speech. o For example, government speech must comport with the Establishment Clause. o The involvement of public officials in advocacy may be limited by law, regulation, or practice. o Also Political Process can hold govt officials accountable • Governments have long used monuments to speak to the public. o Just as government-commissioned and government financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land. Holding: It is clear that the monuments in Pleasant Grove's Pioneer Park represent government speech. Although many of the monuments were not designed or built by the City and were donated in completed form by private entities, the City decided to accept those donations and to display them in the Park. o Additional point: public parks can accommodate only a limited number of permanent monuments. If government entities must maintain viewpoint neutrality in their selection of donated monuments, they must either "brace themselves for an influx of clutter" or face the pressure to remove longstanding and cherished monuments. Walker v. Texas Division, Sons of Confederate Veterans - (2015) pg.1277 - In this case, Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag. The Board rejected the proposal. Court concludes that rejection DOES NOT violate the Free Speech clause. Reasoning • When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says - Pleasant Grove City v. Summum • Thus government statutes (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. o Ex) How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary. We have therefore refused "to hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals." 1) First, the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the state. 2) Texas license plate designs "are often closely identified in the public mind with the [State]" 3) Third, Texas maintains direct control over the messages conveyed on its specialty plates. • Our determination that Texas's specialty license plate designs are government speech does not mean that the designs do not also implicate the free speech rights private persons. • We have acknowledged that drivers who display a State's selected license plate designs convey the messages communicated through those designs. ¬¬ - Wooley • However, here, compelled private speech is not at issue. • And just as Texas cannot require SCV to convey "the State's ideological message," SCV cannot force Texas to include a Confederate battle flag on its specialty license plates. Matal v. Tam (2017) - the "Slants" case. Trademark of name was not given by PTO Government agency because of disparagement clause which prohibits the registration of a trademark "which may disparage persons living or dead..." Court held that the disparagement clause was unconstitutional. I. Are trademarks Government speech or Private speech? • CAUTION If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. o PTO does not dream up these marks or create them o An examiner does not reject a mark based on viewpoint except if it disparages Indeed, if the mark meets (viewpoint-neutral) regulations, then registration is MANDATORY o Therefore, this is not government speech, but private. So free speech clause does apply. II. Are trademarks a form of government subsidy? • Court has held that Government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even if he has not entitlement to that benefit. o But at the same time, Govt is not required to subsidize activities that it does not wish to promote. • Cases that are used by Govt are distinguished because they all rely on cash subsidies. Here, there is no cash subsidy: o PTO does not pay $$ to any parties seeking registration of a mark • Govt also argues that registration provides valuable benefits besides $ that are directly traceable to fed govt, • But just about every govt service requires the expenditure of govt funds. III. "Government-Program" Doctrine? • No. Gov'ts 3rd argument simply merges out government speech cases and the previously discussed subsidy cases in an attempt to construct a broader doctrine that can be applied to the registration of trademarks. Court holds that "giving offense" IS A VIEWPOINT, and you cannot discriminate based on that viewpoint. IV. Is trademark a commercial speech? Court does not resolve because even if tds were commercial speech, government doesn't even survive intermediate scrutiny! • Commercial speech Central Hudson test Intermediate Scrutiny = a restriction of commercial speech must serve a "substantial interest" and it must be "narrowly drawn" (getting closer to S.S.) • this means among other things, that the regulatory technique may extend only as far as the interest it serves. • 1) interest of government is in preventing speech expressing ideas that offend ("demeaning messages" Court affirms that "HATE SPEECH" is not protected speech - speech that demeans others on the basis of race, gender, religion, etc. is still protected under 1A because 1A free speech jurisprudence protects "the thought we hate." o Therefore not substantial interest. • 2) interest asserted is to protect the orderly flow of commerce. o Court holds that the means (disparagement clause) is not narrowly drawn , it goes much further than necessary to serve the interest asserted because it reaches any trademark that disparages ANY group, person, or institution. Is commerce going to be disrupted by a trademark saying "down with racists? Racists are bad." No.

State Action Doctrine

STATE ACTION The Constitution's protection of individual liberties and its requirements for equal protection apply only to the government. Private conduct generally does not have to comply with the Constitution. The Constitution applies to government at all levels - federal, state, and local. The Constitution, however, does not apply to private entities or actors. Civil Rights Cases first case to change that Civil Rights Cases Issue: Does Congress have constitutional power to make such a law? No, because the first section of the 14th Amendment is prohibitory in its character upon the states. It is state action of a particular character that is prohibited. 1) Individual invasion of individual rights is not the subject-matter of the amendment. 2) The last section of the 14th Amendment was mean to enforce the first part of the amendment (the prohibition against state action, not individual action). 3) "It does no authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment." Holding: Until some state law has been passed, or some state action through its officer or agents has been taken, adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against state laws and acts done under state authority. Pros of State Action requirement: Preserves a zone of private autonomy and that it advances federalism. SCOTUS has explained that the state action requirement "preserves an area of individual freedom by limiting the reach of federal law and federal judicial power." Cons of State Action: Absent statutory restrictions, private conduct can infringe or trample even the most basic rights. Freedom of speech, privacy, and equality, can be violated without any redress in the courts. Rule above is Qualified in these regards - 1) Thirteenth Amendment to the Constitution is the one provision that directly regulates private conduct. 2) Second, statues, both federal and state, can apply constitutional norms to private conduct. The state action doctrine provides that the Constitution only applies to the government. But the government can enact laws that require that private conduct meet the same standards that the Constitution requires of the government. Actions, of course, are brought directly under such statutes and are governed by the terms of the laws; the Constitution still does not apply. (Commerce Clause authority) 3) Finally, there are exceptions to the state action requirement; situations where private conduct has to comply with the Constitution. EXCEPTIONS to State Action Doctrine I. Public functions exception, which says that a private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government. * or whether private owner , for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. - Marsh v. Alabama II. Entanglement exception, which says that a private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct. **A review of decisions indicate that SCOTUS has been much more likely to apply the exceptions in cases involving race discrimination than in cases involving other constitutional claims. Indeed US Court of Appeals for the Second Circuit expressly held that the scope of the exceptions to the state action doctrine turns on whether it is a claim of race discrimination or another constitutional right. Public Functions Exception Important areas where used: private property / club used for elections - controlling political process Marsh v. Alabama (1946) pg.572 Issue: Can a State, consistently with the 1st and 14th Amendments, impost criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town's management? Facts: Company owned town, policeman was paid by Co. Town is just like any other American town. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short, the town and its shopping district are accessible to and from any other town and shopping center except for the fact that the title of the land belongs to a private corporation. Appellant is a Jehovah's witness and was arrested for distributing religious writings and evangelizing on private owned property. Reasoning: Ownership does not mean absolute dominion. Just because the company owns title to the property doesn't mean that it can completely curtail the constitutional rights of the inhabitants. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. The public has an interest to live in a place, whether owned by a corporation or municipality where the lines of communication. Many people in the United States live in company-owned towns. These people, just as residents of municipalities, are free citizens of their State and Country. BALANCING TEST - the Constitutional rights of owners of property Versus those of the people to enjoy freedom of press and religion, latter wins! o THIS CASE EXPANDS STATE ACTION DOCTRINE Jackson v. Metropolitan Edison Co. (1974) pg.574 Metropolitan Edison Co. is a privately owned and operated Pennsylvania corporation which holds a certificate of public convenience issued by the Pennsylvania Public Utility Commission empowering it to deliver electricity to a service area which includes the city of York. Jackson argues that under Due Process Clause of the 14th Amendment, she cannot be deprived of the entitlement to utility service without adequate notice and a hearing before an impartial body; until these are completed, her service must continue. Issue is whether the particular conduct in question is "private" or "state action." Here, the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. All of petitioner's arguments taken together show no more than that Metropolitan was a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory and that it elected to terminate service to petitioner in a manner with the Penn Comm. found permissible under state law. We conclude that the State of Penn is not sufficiently connected with respondent's action in terminating petitioner's service so as to make respondent's conduct in so doing attributable to the State for purposes of the 14th Amend. ***THIS IS NOT A TRADITIONAL GOVERNMENT FUNCTION!** o Providing a utility is not a public service, even if it affects the public interest Hudgens - acts of shopping centers are not a traditional government function (uses narrower approach) Entanglements Exception -says that a private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct. Shelly v. Kraemer (1948) - Restrictive Covenants, All Neighbors in this area signed this racist agreement. SCOTUS held that the State Court is the only one that can enforce this covenant; therefore there IS state action. (judicial remedies are state action) Moose Lodge - Is inaction, "action?" No. Argument doesn't succeed , discriminatory member picking is done by racist Moose Lodge (a private club), licensing is done by licensing board - therefore no hand of state action. • State had NO say in discriminatory policy Burton - private party so entangled in a lease of public property enough to create a "symbiotic relationship' • Whether building is dedicated to usage for public (i.e. public parking) for government function • Whether gov't pays cost for maintenance or construction of land • Whether govt benefitted from that lease Brentwood Academy - "Entwinement" - There was valid state action Factors: 1. Private character of Association entwined with public institution 2. Association is 84% public schools and represented by public school officials 3. State traditionally delegated regulated athletics to Association 4. Most funds come from public schools 5. Most meetings held on govt property (cause in public school)

Establishment Clause - FourTests

To robust an understanding of either establishment clause versus free exercise clause, will obstruct the other. Needs to be a balance. Town of Greece - J. Scalia wants to abandon the Lemon Test Attorney's job: Run through all the tests and then present to the Court • Paradigm cases of Establishment clause - "state church", state establishing religion bright lines • Beyond that there is great disagreement o What about state sponsorship? o State approval? o Subsidy? • This makes sense in terms of National gov't, should not be Incorporated into States J.Thomas view in Town of Greece concurrence o Textual argument (14A only applies to Congress + historical argument) • Argument is that Anti-establishing allows 14A Free Exercise of religion (1A incorporated) Three level of Tests: 1) Strict Separationism --> Highest [1. a ] Lemon Test less than Strict Total Separationist, but higher than Neutrality (Essentially the most demanding test because a society could not function with total separation of government and religion as proposed in Strict Separationism) 2) Neutrality a. Non-endorsement b. Non-preferential 3) Accommodation a. Non-coercion For a state law to be valid and not violating the establishment clause Lemon Test - pg.1770 1) A secular purpose by the State actual purpose, not conceivable a. Does it matter that there may be ulterior motivations (acquire votes, etc.)? No. i. If the purpose was in the past and not secularist attacking - then it was ok to put 10 commandments ii. But now, because we are in culture wars, putting the 10 commandments up is a purely religious purpose and not secular. 2) Whose Primary effect does not advance or inhibit religion 3) And that it doesn't lead to excessive entanglement a. Some entanglement is not a problem, excessive is. i. Where government Administration and Oversight of its funds does not make it to "entangled' with religious party 1. Also don't want religious party to not be burdened by government oversight free exercise • State reimburses chemistry teacher's costs for textbooks, supplies, etc. - teachers however, is from a Catholic school o What's the purpose behind State reimbursing the teacher's salary? "Pay less, Get less" • State - if you want the secular subjects to be taught well, then fund the teachers, including the teachers teaching secular subjects in catholic schools This is a secular purpose. J. Ginsburg, Sotomayor, Kagan, Breyer, Seuter - concrend with irreligious and fringe minority groups Neutrality Government is neutral between faiths and neutral between religion and non-religion (atheist). • However, how do you really stay neutral with religion and non-religion? o Ex: if you give out equal amount of reimbursements with Christian schools, Muslims, Catholic schools, but what about the "atheist" school, where there is none? You are still favoring religion in the above example. • Is there a disparaging message to the atheist? Question to ask. J. O'Conner - uses this because concerned about fairness, and looks from perspective of "outsiders" (Ex: government can solve the problem of the manger in the Christmas tree by "cluttering" and adding Rudolph the reindeer, etc.) Accommodation Most lenient test, if there is not a criminal penalty or civil penalty, then the government should be allowed to accommodate religion. Government may "suggest" religion but never up to the point of COERCION. J. Scalia, Thomas, AMK - concerned with big major religions; i.e. Christian AMK - is concerned about "subtle coercion" as well, like peer persuasion, etc.

Explain Obergefell

Obergefell (2015) pg.967 - same sex marriage is granted - denying Due Process Uses Rational Basis review PLUS, to strike down law Issue Whether a State can prohibit gay marriage and not violate the Due Process Clause or Equal Protection Clause of the 14th Amendment. Reasoning • No. The Court has long held that the right to marry is protected by the Constitution. • The Court applied this principle in Loving v. Virginia (1967), which invalidated bans on interracial union, holding that marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men." • Court reaffirmed this holding in Zablocki v. Redhail (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. • Court again applied this principle in Turner v. Safley (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. • Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause "life, liberty, and property." • Court concludes that same-sex couples may exercises the right to marry. Bases this on 4 principles o 1) A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Indeed, the Court has noted it would be contradictory "to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." o 2) A second principle in this Court's jurisprudence is that he right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Point was central to Griswold v. Connecticut, which held that the Constitution protects the right of married couples to use contraception. o 3) A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing procreation, and education. o 4) Fourth and finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order. • Furthermore, this violates Equal Protection Clause marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. • Especially, against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them Holding These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the 14th Amendment couples of the same-sex may not be deprived of that right and that liberty. SCOTUS uses BOTH Court now holds that the same-sex couples may exercise the fundamental right to marry. **something to think about; J. Kennedy says that homosexuality is immutable (Carolene products 4), what about gender?

Alienage Classification

Strict scrutiny - lack of political process, therefore strict scrutiny Graham v. Richardson (1971) - alien = person = protected under EPC Issue: Whether the EPC of the 14th Amendment prevents a State from conditioning welfare benefits either (a) upon the beneficiary's possession of United States citizenship, or (b) if the beneficiary is an alien, upon his having resided in this country for a specified number of years. COURT STRIKES IT DOWN --- But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens...The saving of welfare costs cannot justify an otherwise invidious classification. • Since an alien as well as a citizen is a "person" for equal protection purposes, a concern for fiscal integrity is no more compelling a justification for the questioned classification in these cases than it was in Shapiro. Foley v. Connelie (1978) - alien applied for a trooper position. Pursuant to a New York statute, state authorities refused to allow Foley to take the examination. Statute provides: "No person shall be appointed to the New York state police force unless he shall be a citizen of the United States." o SCOTUS has carved an important exception: only rational basis review is used for alienage classifications related to self-government and the democratic process. • Serve on juries • Executive/judicial roles • Etc. Issue: whether a State refusing an alien to fill a law-enforcement position violates the EPC • Practical consequence of this theory is that "our scrutiny will not be so demanding where we deal with matters firmly within a State's constitutional prerogatives." (political process) o State only needs rational basis review o Therefore, a State may deny the aliens: Right to vote, Run for elective office, To serve on juries Deny "important, non-elective executive, legislative, and judicial positions" held by "officers who participate directly in the formulation, execution, or review of broad public policy." Ambach v. Norwick (1979) - Whether teaching in public schools constitutes a governmental function which would allow a rational basis review of the State's denial of aliens for that position Holding: Yes. • Therefore, teachers qualify as within the "governmental function" principle recognized in Foley. **Matthews v. Diaz (1976) - the Supreme Court unanimously ruled that the federal government's plenary power to control immigration requires judicial deference and that therefore only rational basis review is used if Congress has created the alienage classification or if it is the result of a presidential order. (upholding a federal statute that denied Medicaid benefits to aliens unless they have been admitted for permanent residence and have resided for at least 5 years in the US) *Therefore, there is a distinction between federal government and state government alienage classification. PRESIDENT / CONGRESS Rational Basis Administrative Agency Strict Scrutiny. Plyler v. Doe (1982) - Texas statute which withheld funds for the education of children of illegal aliens. Court uses rational basis and STILL shuts it down! • Illegals versus Aliens • On what textual basis are the plaintiffs suing for a constitutional right to education? - Substantive Due Process and Equal Protection Clause • Court shuts down Substantive DPC arg • Court refuses to punish children of illegal aliens for their parents decision • Public education is not a "right" per se, but it not just a "benefit" either (1) "The important of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction." education is important! (2) Denial of education to some isolate group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit (3) By depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. **In Plyler v. Doe, Court uses "rational basis" review because of Government's Plenary Power in Immigration, unlike in Graham v. Richardson - where there was invidious discrimination, and not based government executive power over illegal immigration. [however, reality in Graham was there was a push towards intermediate scrutiny.]

Carolene Products Footnote 4 said what?

That (a) fundamental rights should get heightened scrutiny, and (b) discrete and insular minority / lack of political process should get heightened scrutiny.

What Constitutes an infringement on Free Speech?

What Constitutes an Infringement on Freedom of Speech? • Often it is clear that a law infringes freedom of speech and is susceptible to First Amendment challenges. o For example, a statute that prohibits speech and authorizes criminal punishments obviously has to meet constitutional scrutiny. o prior restraints, are infringements of expression and must meet First Amendment standards. o Court orders preventing speech and licensing systems precluding speech without a permit also subject to constitutional review • But what types of government laws or actions trigger First Amendment analysis? • Laws that significantly burden speech are ones that: o allow civil liability for expression; o that prevent compensation for speech; o that compel expression; o that condition a benefit on a person's foregoing speech o and that pressure individuals not to speak. Barnette - pledge of allegiance case • "It is now common place that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish." • The 14th Amendment as now applied to the States, protects the citizen against the State itself and all of its creatures - Boards of Education not excepted. • The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitude of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. o One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. • If there is any fixed star in our constitution, it is that no official, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. The government cannot have an orthodoxy and COMPEL private citizens to follow that orthodoxy. Rumsfield - (2006) pg.1327 - military recruiters at law school • When law schools began restricting the access of military recruiters to their students because of disagreement with the Government's policy on homosexuals in the military, Congress responded by enacting the Solomon Amendment. • Provision specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds. Court holds that • As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law school must do - afford equal access to military recruiters - not what they may or may not say. • Unlike Barnette (pledge of allegiance) and Wooley (license plate, live free or die), the Solomon Amendment does not dictate the content of the speech at all, which is only "compelled" if, and to the extent the school provides such speech for other recruiters. • There is nothing in this case approaching a government-mandated pledge or motto that the school must endorse. Solomon Amendment is upheld because it is not COMPELLING speech, just allowing it.

What did Brown v. Board of Education concerning the remedial efforts?

"With all Deliberate Speed" o Court states that Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Holding: Court can invalidate the law, or go further and prohibit the offending conduct through an INJUNCTION.*** o Factors to consider: To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems

Government Designated Public Forums

*Court has held that if the public schools and universities open their property for use by student and community groups, they cannot exclude religious groups. Widmar v. Vincent (1981) - the Court ruled that a university that allowed student groups to use school buildings could not exclude religious student groups from access. Lamb's Chapel - Court held that once a school district allowed community groups to use facilities during the evenings and weekends, religious groups could not be excluded. These school facilities were unlikely to be held a public forum on their own, but once the government chose to open these places to speech, it had to comply with all the same rules as in public form (refrain from discrimination)

Affirmative Action doctrine

1) Adarand (1995) holds that strict scrunity applies to all government classifications based on race. 2) Bakke - simple Quota Systems are unconstitutional; 3) What are the only 2 Compelling State Interests sufficient enough to satisfy S.S.? A) Compelling interest of remedying the effects of past intentional discrimination a. I.e. achieving "unitary" status b. Court emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that "the Constitution is not violated by racial imbalance in the schools, without more." B) Interest in diversity in higher education upheld in Grutter - student body diversity in context of higher education, not focused on race alone but encompassed "all factors that may contribute to student body diversity" a. Holistic, not just race 4) Fisher v. University of Texas ---> Court DEFERS to Educational Academic Judgment (critical mass) • Majority says that because UT didn't specify a number you can't put them at fault. • Court holds that the new Plan (Top 10 + PTAI score) IS NARROWLY TAILORED, even though the top ten plan before without ptai score led to diversity increase, because of deference to education administration

What are the 2 instances where procedural due process triggers with regard to LIFE?

1) Going to War 2) Capital punishment > You have a right to life and pursuant to 5th and 14th Amendment, Government may not deprive without due process of law.

Article P+I Clause Process

1) Is the right that is being denied to the out-of-state non-resident Fundamental? a. Livelihood b. Pursuit of happiness c. Acquire and possess property of any kind d. Enjoyment of life + liberty e. Protection by the government (includes access to the courts) 2) Is denying this right Constitutional? <-- STRICT SCRUTINY!!! a. Substantial Interest? b. Substantial Fit/Relationship

List the fundamental rights that the Court has found that are protected under substantive due process? What are the other two rights that we have looked at?

1) Right to Marry - Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. - Loving v. Virginia 2) Parental rights to custody of one's children - 3) Right to keep one's family together 4) Parental right to Raise their children 5) Right to Procreation and to reproduce (under more abstract right to privacy) 6) Right to abortion - qualified A) Right to Vote - EPC B) Right to Travel - EPC, Article IV P+I , or 14th Amendment P or I (depending on facts)

List the Carve-Outs, that is, the non-protected speech under the 1st Amendment. For, all other speech that is protected, what is the starting point legal analysis?

1. Libel/Slander 2. Fighting Words 3. Incitement 4. Child Pornography 5. Obscenities 6. Perjury 7. True Threats 8. Fraud 1A protected: If statute aims at Communicative Content / Viewpoint --> triggers Strict Scrutiny = compelling state interest, narrowly tailored If statute is content Neutral --> Intermediate Scrutiny = "substantial interest" and it must be "narrowly drawn" * Conduct falls outside 1A protection. (a state may regulate conduct) Supreme Court frequently has declared that the very core of the 1st Amendment is that the government cannot regulate speech based on its content. o "Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content." Court has declared that "content-based regulations are presumptively invalid." o Court therefore uses content based versus content-neutral distinction as basis for its decisions.

What are the 3 general types of gender classifications ?

3 Types of Gender Classifications 1) Based on Role Stereotypes - generally will NOT be allowed even if they benefit women 2) Benefitting women to designed to remedy past discrimination and differences in opportunity generally WILL be allowed 3) Based on Biological Differences between men and women generally WILL be allowed.

What is the significance of Romer v. Evans?

ANIMUS is not a valid rational purpose. • Court holds that the "breadth of the Amendment 2 (homosexual provision) is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that A2 is directed to any identifiable legitimate purpose or discrete objective."

Birth Classification

Birth Classifications (nonmarital children, etc) Intermediate Scrutiny Immutable - a child can't do anything to change their status o is now clearly established that intermediate scrutiny is applied in evaluating laws that discriminate against nonmarital children - that is, children whose parents were not married. o In applying intermediate scrutiny in this area: o 1) laws that provide a benefit to all marital children, but no nonmarital children, always are declared unconstitutional o 2) Laws that provide a benefit to some nonmarital children, while denying the benefit to other nonmarital children, are evaluated on a case-by-case basis under intermediate scrutiny. • Supreme Court consistently has invalidated laws that deny a benefit to all nonmarital children that is accorded to all marital children. In Levy v. Louisiana, 391 U.S.68 (1968), the Supreme Court declared unconstitutional a state law that prevented a nonmarital children from suing under a wrongful death statute for losses because of a mother's death. • Glona v. American Guarantee & Liability Insurance Co. (1968) - SCOTUS declared unconstitutional a state law that prevented parents from suing for the wrongful death of their nonmarital children. • New Jersey Welfare Rights Organization v. Cahill (1973) - the Supreme Court ruled unconstitutional a state law that discriminated against non-marital children in receiving public assistance. • Gomez v. Perez (1973) - SCOTUS ruled unconstitutional a Texas law that created a legal obligation for fathers to support their marital children, but no similar duty with regard to nonmarital children • Trimble v. Gordon (1977) - the Supreme Court deemed unconstitutional a law that prevented nonmarital children from inheriting from fathers who died intestate (without a will). HOWEVER, statutes that provide a benefit to some nonmarital children that it denies to other nonmarital children --> Intermediate Scrutiny Lalli v. Lalli (1978) - the Supreme Court upheld a state law that provided that a nonmarital child could inherit from his or her father only if the paternity was established during the father's lifetime o Court said that the sate had an important interest in preventing fraud and that requiring paternity to be established during the father's lifetime was substantially related to that outcome Labine v. Vincent (1971) - SCOTUS upheld a state law that denied inheritance from a nonmarital father unless the child had been formally acknowledged by the father during the father's life. Matthews v. Lucas (1976) - SCOTUS sustained a provision of the Social Security Act that allowed children to receive survivors' benefits only if they could establish both paternity and that the father was providing financial support. NOTE: Jiminez v. Weinberger (1974) - the Supreme Court invalidated a provision of the Social Security Act that allowed intestate inheritance of disability benefits by all marital children and by nonmarital children who had been "legitimated." Other nonmarital children could inherit benefits only if they proved that they were living with or being supported by the father at the time the disability began. In other words, nonmarital children who were neither living with the father nor being supported by him when the disability arose could not get benefits. Supreme Court said that this was unconstitutional (did not pass Intermediate Scrutiny)

What did Carhart II do?

Carhart II (2003) - J. Kennedy - Federal Partial-Birth Abortion Ban is upheld! - Act lacks a health exception and seems broader than what the Court said it would uphold in Carhart I. Crucial difference is that in this case, Justice Alito replaced Justice O'Connor in the bench. >>> So long as Woman has option to abort, then State regulation is valid if not unduly burdensome; where unduly burdensome means generally, NOT specifically o Court held that there was a solid reason for taking partial-birth abortion ban off the table (psychological harms) --> rational basis plus o This means that States can take options out of the table!!

Which case agreed on intermediate scrutiny for gender?

Craig v. Boren - agreed on intermediate scrutiny as the appropriate level of review for gender classifications. "To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." • In this case, making a differentiation for age prohibition of alcohol to young adults simply because of gender failed to meet the intermediate scrutiny standard. The rationale that because .18% of females and 2% of males in the 18-20 year old age group were arrested for alcohol-related driving offenses, and therefore the men should not be allowed alcohol until a later age, was not enough. HOWEVER --> VMI --> Gender-based classifications of the government can be defended only by "EXCEEDINGLY PERSUASIVE JUSTIFICATION." • Intermediate Scrutiny = The State must show that its classification serves IMPORTANT governmental objectives and that the means employed are SUBSTANTIALLY related to those objectives. • The justification must be STATED, not hypothesized. And it must not rely on overbroad generalizations about the differences between males and females.

Procedural Due Process cases and analysis

Daniels v. Williams (1986) pg.1187 - government negligence does NOT equal procedural due process violation • We conclude that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property. • In this action, petitioner seeks to recover damages for back and ankle injuries, allegedly sustained when he fell on a prison stairway. • He claims that, while an inmate at the city jail in Richmond, Virginia, he slipped on a pillow negligently left on the stairs by respondent, a correctional deputy stationed at the jail. • Respondent's negligence, the argument runs, "deprived" petitioner of his interest in freedom from bodily injury; because respondent maintains that he is entitled to the defense of sovereign immunity in a state tort suit, petitioner is without an "adequate" state remedy. Accordingly, the deprivation of liberty was without "due process of law." • The DPC of the 14th Amendment provides: "Nor shall and State deprive any person of life, liberty, or property, without due process of law." • Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. • By requiring the government to follow appropriate procedures when its agents decide to "deprive any person of life, liberty, or property," the Due Process Clause promotes fairness in such decisions. • And by barring certain government actions regardless of the fairness of the procedures used to implement them, it serves to prevent governmental power from being "used for purposes of oppression." • We think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmate's property, are quite remote from the concerns just discussed. • Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. County of Sacramento v. Lewis (1998) pg.1188 • The issue in this case is whether a police officer violates the 14th Amendment's guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed motorcycle chase aimed at apprehending a suspected offender. • We answer NO, and hold that in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation. • We have accordingly rejected the lowest common denominator of customary tort liability as any mark sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. See Daniel v. Williams • It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. • To recognize a substantive due process violation in these circumstances when only mid-level fault has been shown would be to forget that liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. • But when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates "the large concerns of the governors and the governed." DeShaney (1989) pg.1191 - Court considered government's duty under procedural DPC to protect boy from being abused by his father, and whether failure of Social services violates DPC. NOT DEPRIVATION , no state action o SCOTUS broadly held that the government generally has NO duty to protect individuals from privately inflicted harms. o Guardians of a 4 year old child sued Social Services for its failure to protect a child from beatings by his father which inflicted irreversible brain damage o Maintain that the department was informed of the abuse over 26 month period but failed to act o SCOTUS held that here was no constitutional violation because the child was not in the custody of the government and because the abuse occurred in the hands of a private party. o Court expansively declared that as a "general matter...a State's failure to protect an individual against private violence simply does not constitute a violation of the DPC" Court recognized 2 narrow situations where the government has a duty to provide protection from privately inflicted harms: 1. Where the government has limited the ability of a person to protect himself or herself, such as when there is incarceration or institutionalization. 2. The other is where there is a special relationship between the government and the injured individual, such as when the government took an affirmative step to place the person in danger. Goldberg v. Kelly (1970) pg.1198 - Supreme Court held that individuals receiving welfare have a property interest in continued receipt of benefits and the government must provide due process before it terminates benefits. deprivation of "property" Board of Regents of State Colleges v. Roth (1972) pg.1203 - non-tenured professor was subject to 1 year employment term and then was not rehired; sued under procedural DPC, claiming that decision not to rehire him constitutes a deprivation of "property". SCOTUS rejects this argument! (Don't want too much expansion) Matthews v. Eldridge (1976) pg.1220 - issue is whether termination of Social Security benefit payments require an evidentiary hearing to be consistent with the DPC of the 5th Amendment (procedural) • Court held that when the government terminates Social Security benefits, it need provide only a post-termination hearing. Matthews Balancing Test (government versus private interest): 1) Private interest that will be affected by the official action 2) Risk of an erroneous deprivation of such interest through procedure used 3) Government's interests including fiscal and administrative burden that additional procedures would demand

Carve Out - Fighting Words

Fighting Words Chaplinsky v. New Hampshire - pg.1385 - 1942 - appellant was a member of JW sect, and said the words "You are a ********ed racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Court held that nonprotected speech include speech that is lewd and obscene, profane, libelous, and the insulting or fighting words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. o Court found that the words appellant said constituted fighting words and upheld his conviction for this speech.

Carve Out - Group Libel

Group Libel Beauharnais - Supreme Court upheld a state law that prohibited any publication that "portrayed, depravity, criminality, ... lack of virtue of a class of citizens, of any race, color, or creed....to contempt, derision." However, this decision is not really good law, because while at a formal level it was never overruled, Skokie says hate speech IS protected. The Skokie controversy- pg.1403 - 7TH Circuit says Beauharnais is no longer relevant, Nazi parade case where Court upheld the ability of Nazis to stage a march in the predominately Jewish suburb of Skokie, Illinois. Expression of hate is protected. o Government may not outlaw symbols of hate such as swastikas. o Moreover, Government cannot suppress a speaker because of the reaction of the audience. Skokie town was not allowed to stop the Nazis even though it would deeply offend, or might even provoked a violent response. Virginia v. Black - pg.1404 - Court holds that while a State, consistent with the 1ST Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form. • RAV - Court declared unconstitutional a very narrow fighting words Minnesota law that stated prohibited placing "on public or private property symbols, objects, characterizations including but not limited, to, a burning cross or Nazi swastika. This law was unconstitutional because while it was trying to regulate conduct, but based on viewpoint; i.e. race, gender, and hate. Hate = is a valid viewpoint! • Here, the court analyzes this in a new way, stating that: >>>>>>>>What you cannot do over in 1A territory, you CAN do in NON 1-A territory = meaning that you can uphold the statute that regulates unprotected speech BASED ON VIEWPOINTS that are carve outs. Therefore, the 1st Amendment allows Virginia to outlaw cross burning with intent to intimidate (outlying free expression based on viewpoint) because intimidation fighting words Category that is not protected because of carve out! o However, the statute was still struck down because it was OVERBROAD: It does not distinguish between cross burning meant to intimidate, or cross burning simply meant to create anger. (i.e. cross burning should still be allowed in a movie, etc) • Prima facie evidence presumption itself in the statute is why it is struck down. Upshots: A government can regulate unprotected speech, even based on viewpoints, that are inside a non-1A carveout; however remember HATE speech is not a carve out. o Make sure that the statute is NOT too broad and over regulates speech that is protected.

Difference between Grutter and Gratz

Grutter (2003)- Michigan Law School Case - affirmative action OK under certain conditions • In this regard, the official admission policy noted by enrolling a "critical mass" of underrepresented minority students. • Defendant sought "to ensure their ability to make unique contributions to the character of the Law School." Compelling State Interest - Diverse Student Body is OK o Universities can consider race or ethnicity more flexibly as a "plus" factor in the context of individualized consideration of each and every applicant. o Law school's defendant goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. The evidence indicated that the Defendant engaged in a highly individualized, HOLISTIC review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. • Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. It also does not require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. o Here, there was a narrow tailoring: using a lottery instead of the diversity boost would make that kind of nuance judgment impossible, and simply lowering admission standards for all students would require the Law School to become a much different institution and sacrifice vital component of its educational mission • Affirmed Gratz (2003) - Michigan College Case Court shuts it down because NOT HOLISTIC - 20 points makes race factor decisive o It is now well established that "all racial classifications reviewable under the EPC must be strictly scrutinized. o Standard of review is not dependent on the race of those burdened or benefited by a particular classification. o To withstand our strict scrutiny analysis, respondents must demonstrate that the University's use of race in its current admission program employs "narrowly tailored measures that further compelling governmental interests." o We find that the University's policy, which automatically distributes 20 points, or 1/5 of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program

What did Hogan hold?

Hogan (1982) - male nurse denied entry in nursing program Issue: Does the operation of a female only nursing school by a State violate Equal Protection? Held. Yes. Appeals Court ruling affirmed. Applying intermediate scrutiny, Justice Sandra Day O'Connor (J. O'Connor) notes that the State of Mississippi has not advanced an important state interest for operating a single sex nursing school. In particular, she notes that women did not lack opportunities to be trained as nurses in Mississippi without the presence of MUW.

Commercial Speech Doctrine

INTERMEDIATE SCRUTINY +1 Central Hudson - establishes 4 part test to determine whether this is "commercial speech" that is protected under 1A intermediate scrutiny 1) Does the speech advertise illegal activities or constitute false or deceptive advertising that is unprotected by the First Amendment? a. If so, then NOT protected. 2) Is the government's restriction justified by a SUBSTANTIAL government interest? 3) Does the law DIRECTLY advance the government's interest? 4) Is the regulation of speech no more extensive than necessary to achieve the government's interest? a. Narrow Tailoring - Does not mean LRA! Just means Narrow Tailoring; pushes it up from simple I.S. (weasel rule, not exactly LRA for S.S., but not rationale means) >>>>>The Court ruled that the State regulation that completely bans an electric utility from advertising to promote the use of electricity violates the First and Fourteenth Amendments. Ex: In Virginia Pharmacy Board; Court concluded that a State advertising ban could not be imposed to protect the ethical or performance standards of a profession. The regulatory arm of the State may extend only as far as the interest serves narrowly tailored. State cannot regulate speech that poses no danger to the asserted state interest, nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. There is a 'commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.

Expressive Conduct

INTERMEDIATE SCRUTINY +1 applies Why? Because implication that "conduct" can save from deregulation and decriminalizing. O'Brein - protesters burned their Selective Service certificates on the steps of the South Boston Connecticut. O'Brien was convicted under a statute that said that willful burning of a Registration card is a crime. Will Court protect conduct that at its CORE is meant to express something? >>>We think it is clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 4-Part test: 1) Does the Government have power to regulate? 2) Is there a substantial government interest? 3) Is that interest unrelated to the suppression of free expression? 4) Is the incidental restriction no greater? a. Is this a LRA test? No. b. Court doesn't answer, but most likely No because Court sees more value in this type of speech (it is expressive conduct, not just conduct alone) i. Therefore, NARROWLY TAILORED , but NOT LRA In our case Government has power to classify and conscript manpower for military service, and to regulate Selective Service cert. Substantial government interest does exist by Gov't: o The issuance of SS cards indicating the registration and eligibility classifications of individuals is a legitimate and substantial administrative aid in the functioning of this system. o And legislation to insure the continuing availability of issued certs serves a substantial purpose Interest is unrelated to free expression Court does not really answer, but assume yes Therefore, Government can regulate this type of expressive conduct

What is the significance of Korematsu?

In Korematsu Court uses the name Strict Scrutiny, but goes lower, "1 STEP" closer to Intermediate Scrutiny Korematsu v. United States (1944) - First case where SCOTUS declares the specifically "odious" nature of race Strict Scrutiny, HOWEVER, Court still upholds statute, therefore Strict Scrutiny is not automatically fatal. **This case is Good Law. • Only case where Court expressly upheld under Equal Protection racial classifications burdening minorities: the rulings affirming the constitutionality of the evacuation of Japanese Americans during WWII. • Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. • Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. o But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. • Court states that it is unfair to cast this case into outlines of racial prejudice, because there is a very real military danger which warrants such extreme action. o More deference than normal because in time of WAR Over inclusiveness ok

What did the court hold in Matthews?

In Mathews, the plaintiff accused the federal government of terminating his Social Security disability benefits without anevidentiary hearing prior to termination. The claim was that the administrative procedures in place by the government violatedhis constitutional right to due process. The Court acknowledged that the receipt of benefits was an important private interest,which satisfies the first part of the test focusing on whether or not a private interest is at stake. Later court decisions haveshown that this part of the test is subjective, calling on courts to make judgment calls on the relative merit of the interest atstake. Government agencies also may reduce the risk of erroneous deprivation by ensuring that regulations are not Arbitrary or discriminatory, and by defining reasonable classifications. >>In Mathews, the Court ruled that administrative procedures that were in place DID NOT violate procedural due process rights; the plaintiff was offered several methods to address the termination of benefits, but did not choose to employthem.The final part of the test deals with the government's interest. The Mathews court, however, made it clear that inaddition to interest, administrative burdens also must be factored into the analysis. If the need for enhanced due process ismerited by the need to assure individuals that administrative actions are just, then administrative costs should not beconsidered. However, if the costs of the additional procedures outweigh the benefits, then the government should not berequired to use additional resources. Matthews Balancing Test (government versus private interest): 1) Private interest that will be affected by the official action 2) Risk of an erroneous deprivation of such interest through procedure used 3) Government's interests including fiscal and administrative burden that additional procedures would demand

What is the significance of the Civil Rights Cases?

In the Civil Rights cases in 1883, Court held that the Civil Rights Act of 1875 was unconstitutional because the 14th Amendment only applies to government action, not private conduct, and that therefore Congress acting under Section 5 of the 14th Amendment can regulate only government actions.

Carve Out - Incitement

Incitement Clear and Present Danger Test - Does the speech pose a threat to public safety, health, life, etc.? (1) Likelihood of (2) Imminent and (3) Significant harm? Classic example = "shouting fire in a crowded movie theater" invokes a situation where speech obviously poses a great likelihood of imminent, substantial harm. Debs v. United States - Court affirmed the conviction of Socialist Party leader Eugene Debs, who had been sentenced to jail for 10 years for violating the 1917 Espionage Act; which made it a crime when the nation was at war for any person willfully to "make or convey false reports or false statements with intent to interfere" with the military success or "to promote the success of its enemies." • Debs speech, which primarily was advocacy of socialism, included some mild criticism of the draft. • At one point in a long speech, Debs remarked that he had to be "prudent" and not say all that he thought, but that o "you need to know that you are fit for something better than slavery and cannon fodder." Court found it irrelevant that this was a small part of the speech. • J. Holmes said that the speech was not protected if "one purpose of the speech, whether incidental or not does not matter, was to oppose this war and if, in all circumstances, that would be its probable effect." Where is there clear and present danger where the speech is merely one of ideas, albeit communist ideas? o Even if doomed, the idea itself was sufficiently evil. >>>>>By the mid-1960s, the Court appeared to be much more protective of speech: Brandenburg v. Ohio - A leader of KKK group was convicted under Ohio criminal syndicalism law, evidence of his incitement was a film of the events at a rally, which included racist and anti-Semitic speech, and several guns that appeared in the film. Brandenburg Test: more current test 1) Intending to Incite illegal activities that are physically violent, and 2) Imminent Violence will result if message of speaker is implemented Court held that the constitutional guarantees of free speech do not permit a State to forbit or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. o Court strikes down Ohio's law because it doesn't distinguish from mere advocacy to illegal and imminent incitement The fact that some violence may have later happened, doesn't mean that the violence was "imminent" at the time of the speaker's message.

Limited Public Forums

LIMITED Public Forums Christian Legal Society v. Martinez (2010) pg.1618 - SCOTUS said that "governmental entities establish limited public forums by: o opening property 'limited to use by certain groups or dedicated solely to the discussion of certain subjects'." • In such a forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint-neutral. • In this case, the Court upheld the constitutionality of a public school (law school) requiring student student groups to accept all members and denying recognition to student groups that discriminated based on religion and sexual orientation. university created a (1) limited public forum and (2) regulation was allowed because it was reasonable AND viewpoint neutral - therefore rational basis analysis: RATIONAL BASIS ANALYSIS • Was the School's open access policy "reasonable" and "viewpoint neutral"? (the policy that did not allow CLS to preclude gays from their org.) • REASONABLE: o "just as Hastings does not allow its profs to host classes only to those students with a certain status or belief, so the Law School may decide, reasonably in our view, that the education experience is best promoted when all participants in the forum must provide equal access to all students o It is also hard to police the written terms of the nondiscrimination policy without inquiring into motivation, therefore it is reasonable to make a blanket "all -comers" policy If Male Superiority Club barred a female from becoming president, how could the Law School tell if the group rejected her bid because of her sex (which is not allowed) or because by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy? o Law School reasonably adheres to the view that an "all-comers" policy, to the extent it brings together individuals with diverse backgrounds and beliefs, encourages tolerance and cooperation o Fourth, Hasting's Policy conveys the law school's decision to decline to subsidize with public monies and benefits conduct of which the people of California disapprove • VIEWPOINT NEUTRAL? o When access barriers are viewpoint neutral, our decisions have counted it significant that other available avenues for the group to exercise its First Amendment rights to lessen the burden created by those barriers Social media, etc were available >>>Court shuts CLS's argument down, because Regulation was "Generally Applicable" therefore, Rational Basis review. (Court held the law as not about viewpoint)

Article IV P+I cases

McBernie v. Young - does not allow access public records to out of staters - court upholds, but what about livelihood? Camden case - municipal ordinance in NJ which requires that at least 40% of the employees of contractors and subcontractors working on city construction projects by Camden residents. • Court holds that even those this was a municipality ordinance - that is still the "action of the State" Holds that this ordinance does discriminate on the basis of state citizenship even though non-Camden resident NJ residents will also be discriminated in the same manner because NJ residents have at least a chance to remedy their situation through the political process, whereas there is no similar opportunity for out of state citizens Analysis 1) Is this sufficient fundamental right that is being denied? a. Yes. The pursuit of a common calling and work is sufficiently fundamental 2) Is there a substantial interest for the difference in treatment? a. No. LEFT to remand Court rejects the argument that "living off Camden without living in Camden" is substantial enough interest? i. Case is remanded Baldwin - Issue is whether the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause. 1) Whether an out-of-state resident interest ______ is sufficiently fundamental to the promotion of interstate harmony so as to fall within the purview of the P+I clause. a. In this case, the answer is no. Elk hunting by non-residents in Montana is recreation and not sufficiently fundamental (like livelihood) 2) Is denying this right constitutional? Meaning is there a substantial reason for the difference in treatment and substantial relationship? a. There is a substantial reason for the difference in treatment, because the elk supply is finite and must be carefully tended in order to be persevered. b. The elk supply has been entrusted to the care of the State of the people of Montana. Piper - Rules of NH bar admission only to state residents; does this violate the P+I clause • First prong = is it fundamental? = yes, court finds that a lawyer's role is a noncommercial role and its duties fall within the purview of the P+I clause, sometimes representation from non-resident counsel is needed • Second prong requires: (1) substantial reason, and (2) substantial relationship • Court holds that New Hampshire does not give enough substantial reasons for why there is a difference in treatment One way to analyze substantial relationship / fit is to ask is there a LESS restrictive alternative? (NOT LEAST)

Explain the fundamental right to raise your children

Meyer v. Nebraska - (1923) pg.994 - holding that there is an absolute right to "liberty" - 10 year old German, and liberty includes the right to raise your children. (the right of parents to engage the german teacher to instruct their children is protected) Pierce v. Society of the Sisters (1925) - pg.995 • The challenged State of Oregon Act requires every parent or guardian, to send his or her child to a "public school for the period of time a public school shall be held during the current year" in the district where the child resides; and failure to do so is declared a misdemeanor. • This would destroy all of appellee's primary schools, and all other private primary schools within the State of Oregon • Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. • As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. • The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. Yoder - Amish case - court also upholds Balancing process when state's interest impinges on parent's right to raise their child. DEFERENCE TO Child's health. Hybrid claim - Substantive Due Process Troxel v. Granville (200) - pg.997 - mother preventing grandparents from visiting her children (visitation rights case) • The liberty interest of parents in the care, custody and control of their children is perhaps the oldest fundamental liberty interests recognized by this Court • No court found that Granville was an unfit parent. There is a presumption that fit parents act in the best interests of their children. • So long as the parent is fit, there will normally be no reason for the State to interject into the private realm of the family to question the ability of that parent to make the best decisions concerning the rearing of that child.

What is the holding of Michael M?

Michael M. v. Superior Court of Sonoma County (1981) - Statute makes men alone criminally liable for the act of sexual intercourse statutory rape law. UPHELD. • Important Objective? "exceedingly persuasive justification" - The justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. UPHELD BY COURT • SUBSTANTIALLY RELATED - Court holds that such a statute is sufficiently related to the State's objectives to pass constitutional muster, because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. o "...young man and young women are not similarly situated with respect to the problems and risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity." o Statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe o It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. o Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanction deter males.

Explain the fundamental right to keep the family together

Moore v. City of East Cleveland, Ohio - (1997) pg.990 - grandmother lives with her grandsons case Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. o THIS INCLUDES THE EXTENDED FAMILY. The Court has emphasized that individuals must be related to one another to be considered a family. o For example, in Moore¸the Court distinguished the earlier decision in Belle Terre, where it only involved "unrelated individuals" and in fact, the zoning ordinance there had an exception for "all who were related by 'blood, adoption, or marriage.'" o However the Court also saw key differences between biological parents and foster parents. The Court said that "whatever emotional ties may develop between foster parent and child have their origins in an arrangement in which the State has been a partner from the outset." o Also, the Court stressed that protecting a liberty interest for foster parents often would be at the expense of the liberty of natural parents

Morse v. Frederick

Morse v. Frederick (2007) pg.1653 - Bong Hits for Jesus case - Court holds that SCHOOLS may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use. • First - Frederick cannot stand in the midst of his fellow students, during school hours, at a school sanctioned event and claim that he is not at School. • Distinguishes from Tinker (case where students wore black armbands to protest Vietnam war, Court protected this form of speech) o Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will materially and substantially disrupt the work and discipline of the school. o Fraser - student gave speech with explicit sexual metaphor < Court differentiated this case and deferred to administration to decide what kind of speech if appropriate o HOLDING: Constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings • Had he gave the speech outside of school it would be protected This case DID NOT USE the substantial disruption of Tinker • Tinker - warned that schools may not prohibit speech because of fear of disturbance or because a desire to avoid discomfort of unpopular viewpoint However, the DANGER here is far more serious: • Deterring drug use by school children is an "important - indeed, perhaps compelling" interest/ • Drug use can cause severe and permanent damage to health of young people. Holding: - Court holds that schools may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use. In schools, in spite of strict scrutiny analysis because the school discriminated the speech based on the viewpoint of drugs, the court found that preventing young people from permanent drug use is a valid enough interest to justify the discrimination.

What is the significance of Nguyen?

Nguyen v. Immigration & Naturalization Service (2001) - guy born in Vietnam, issue is whether the statute imposing different requirements for the child's citizenship depending upon whether the citizen parent is the mother or the father is constitutional under the EPC Reasoning • For gender-based classification to withstand equal protection scrutiny, it must be established "at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." United States v. Virginia TWO SEPARATE, IMPORTANT GOVERNMENTAL INTERESTS: 1) First governmental interest to be served is the important of assuring that a biological parent-child relationship exists. In the case of the mother, the relation is verifiable from the birth itself. a. In the case of the father, however, the uncontestable fact is that he need not be present at the birth. b. Section 1409(a)(4)'s provision of 3 options for a father seeking to establish paternity - legitimation, paternity oath, and court order of paternity - is designed to ensure an acceptable documentation of paternity. c. The req of §1409(a)(4) represents a reasonable conclusion by the legislature that the satisfaction of one of several alternatives will suffice to establish the blood link between father and child as required as a predicate to the child's acquisition of citizenship. 2) Second, important governmental interest furthered in a substantial manner by Section 1409(a)(4) is the determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States. a. Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the other will be sure of the father's identity. b. Congress is well within its authority in refusing, absent proof of at least the opportunity for the development of a relationship between citizen parent and child, to commit this country to embracing a child as a citizen entitled as of birth to the full protection of the United States, to the absolute right to enter its borders, and to full participation in the political process. Dissent tries to use "exceedingly persuasive justification"

If a state's law is purposefully burdening two races, can it make the argument that it is burdening each race equally, and therefore not in violation of EPC?

No. Loving v. Virginia - o Thus the State contends that, because its statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. Court REJECTS this argument • Just because a statute punishes two groups equally, doesn't mean it doesn't violate the EPC

Discrimination based on Disability

Only Rational Basis Review Supreme Court has ruled that only Rational Basis Review should be used for discrimination based on disability. - Cleburne (1985) o In Cleburne, SCOTUS used rational basis test to declare unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled. o The Court declared that "to withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose." • Heller v. Doe (1993) - the Supreme Court upheld a state law that allowed mentally retarded individuals to be civilly committed if there was clear and convincing evidence justifying institutionalization but required that there be proof beyond a reasonable doubt before an individual could be committed because of mental illness.

Discrimination based on Age / Elderly - analysis

Only Rational Basis Review Massachusetts Board of Retirement v. Murgia (1976) • Case is about the mandatory retirement of Massachusetts police officers at the age of 50. • Appellee Murgia had passed such an examination four months before he was retired, and there is no dispute that, when he retired, his excellent physical and mental health still rendered him capable of performing the duties of a uniformed officer. HOLDING: "While the treatment of the aged in this Nation has not been wholly free of discrimination, such person, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a "history of purposeful unequal treatment" or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." Old age does not define a "discrete and insular" group [United States v. Carolene Products Co.], in need of "extraordinary protection from the majoritarian political process." Therefore, Court uses rational basis, and in this case it passes: Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police. Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age.

What is the distinction between Orr v. Orr and Gedulding ?

Orr v. Orr was regarding alimony obligations that were different for men and women (men had to pay alimony, women didn't) - unconstitutional because based on gender stereotype that women are economically dependent on men Whereas in Gedulding, the facts (where a state did not include in its disability benefits program certain pregnancy related disabilities because of the high expense) did meet intermediate scrutiny because "is evident that a totally comprehensive program would be substantially more costly than the present program and would inevitably require state subsidy, a higher rate of employee contribution, a lower scale of benefits for those suffering insured disabilities, or some combination of these measures. • The State has a legitimate interest in maintaining the self-supporting nature of its insurance program. "

What did Pavan v. Smith hold?

Pavan v. Smith - (After Obergefell) statute mandates that the male spouse be listed, regardless of whether he is biological father or not (required man and woman in certificate) having chosen to make its birth certificates more than mere markers of biological relationships and to use them to give married parents a form of legal recognition that is not available to unmarried parents, Arkansas may not, consistent with Obergefell v. Hodges, deny married same-sex couples that recognition. • Court grants summary reversal- it is saying that "hey! This is already settled law, this shouldn't even be an issue." o But this is a little odd because the Court is split, and summary dispositions are often per curiam • Implications of Windsor (DOMA), to the extent that States have definitions which makes a distinction between man-woman marriage v. same sex marriage o Comes into play during State Action • "Same-sex" - J. Kennedy describes it as an immutable characteristic of life. ***Prof says that if you had a statute that mandated that everyone have biological parents listed in birth certificate, then that's ok.** However, if the Legislature were to enact this statute in response to the previous Court decision, you can make the argument that this was done animus.

Peremptory Challenge Doctrine

Peremptory Challenges: the ability of attorneys to exclude prospective jurors without having to prove cause for excusing them, supposed to be facially neutral. But peremptory challenges based on race or gender are motivated by a discriminatory intent and have a discriminatory impact. Thus, the Court has held that race-or gender-based peremptory challenges deny equal protection whether exercised by a prosecutor, a criminal defendant, or a civil litigant. Batson - court held that the discriminatory use of peremptory challenges by a prosecutor denies equal protection. This case sets forth a 3-step process for determining whether there is impermissible discrimination in jury selection. victim needs to be part of a protected class 1) First, the criminal defendant must set forth a prima facie case of discrimination by the prosecutor (to show that he removed a juror because of their race) 2) Second, once the defendant has presented a prima facie case of discrimination, the burden shifts to the prosecutor to offer a race-neutral explanation for the peremptory challenges. 3) In the third step, the trial court must decide whether the race-neutral explanation is persuasive or whether the "defendant has established purposeful discrimination." a. Jury speaking Spanish was enough for prosecutor i. Mustache and beard was also enough

Traditional Public Forums doctrine

Police Department of the City of Chicago v. Mosley (1972) - pg.1595 - City exempts peaceful labor picketing from its general prohibition on picketing next to a school. Issue is whether this selective exclusion from a public place is permitted. Court says NO. • D would picket at the public sidewalk next to the school with a sign that said "Jones HS practices black discrimination." He was always by himself and was peaceful, orderly, and quiet. sign was not about labor or employment issues. **Because City treats some picketing differently than others, Court analyzes this ordinance in terms of the EPC of the 14th A. (intertwined with 1st Amend interests) The central problem with Chicago's ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school's labor-management dispute is permitted, but all other peaceful picketing is prohibited. o Operative distinction is the message of a picket sign. • Court states that the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Holding: ***Under 1st Amend and EPC, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. **Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. >>>>>>>>Doesn't mean that all picketing must always be allowed, court recognizes "reasonable time, place, and manner" restrictions ---> must meet be narrowly tailored to an important government interest) Frisby v. Schultz - Court upheld an ordinance that prohibited picketing "before or about" any residence; Court upheld law because content-neutral. (Even though law was in response to targeted picketing by anti-abortion protestors of a doctor's home!) This was a substantial and justifiable interest for the State and is a constitutional reasonable time, place, and manner restriction of speech so long as the nature and scope of the ban is narrowly tailored and the ordinance leaves ample alternative channels of communication and is content neutral.

Prior Restraint Doctrine

Prior Restraint SCOTUS has declared that "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights." "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. - The clearest definition of prior restraint is an administrative system or a judicial order that prevents speech from occurring. New York Times Co. v. United States - Court held that the Government failed to meet the requisite burden of proof needed to justify a prior restraint of expression when attempting to enjoin the New York Times and Washington Post from publishing contents of a classified study. Pentagon Papers case. • Pentagon Papers had demonstrated, among other things, that the Johnson Administration "systematically lied, not only to the public but also to Congress". • More specifically, the papers revealed that the U.S. had secretly enlarged the scope of its actions in the Vietnam War with the bombings of nearby Cambodia and Laos, coastal raids on North Vietnam, and Marine Corps attacks, none of which were reported in the mainstream media. Issue: Whether the United States met the heavy burden of showing justification for the enforcement of such a restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study? Holding: per curium holding, with various concurring opinions • J. Black and J. Douglas - joint concurring opinions - in which they condemned the government's actions, calling it a "flagrant, indefensible, and continuing violation of the First Amendment." • Black and Douglas stated that the language of the First Amendment is clear and supports the view that "the press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints." • They further concluded that to give the President the power to withhold certain articles from the press would "wipe out the First Amendment and destroy the fundamental liberty and security of the very people the government hopes to make secure." • Lastly, Black and Douglas discussed the issue of governmental secrecy, calling it anti-democratic, and noted that, "open debate and discussion of public issues are vital to our nation's health." • J. White and J. Stewart - "alert, aware, and free" press most critically serves the purpose of the First Amendment. they reasoned that in the absence of an informed and free press, there cannot be "enlightened" people. • , Stewart and White argued that while a need for secrecy exists in many national defense issues "the responsibility must be where the power is." < -- Executive Branch is to blame for failure to keep things secret • Since the Executive is given a large, unshared power in foreign affairs and national security, its duty must be to "determine and preserve the degree of internal security necessary to exercise that power successfully." • J. Brennan - concurring - in which he argued for the use of strict scrutiny for prior restraints. Only time prior restraint may be appropriate is at times of war. Requires inevitable and immediate impact on safety American forces to justify. The majority clearly frowned on the actions of the Executive. The six concurring Justices in this case agreed that issuing an injunction, a prior restraint, would be a harsh violation of the First Amendment regardless of the "secret" nature of the proposed publishings. The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint."

What is the 4 step process in analyzing a substantive Due Process claim?

Question Method 1) Is there a fundamental right? 2) Is the right infringed? 3) Is the government's action justified by a sufficient purpose? 4) Are the means sufficiently related to the goal sought? 1 --- Is there a Fundamental Right? --- some have been established before. Others are "deeply rooted in our nature's history" but have not been declared before (general and high abstraction versus ground-level analysis) o Ex: right to marriage is bird's eye view abstraction versus right to gay marriage is ground level analysis * Talk about how declaring something to be a fundamental right by judiciary takes away from the political process. By declaring gay marriage a fundamental right, then you take that debate away from the political process and infringe on the democratic process. Federalism If it is Strict Scrutiny (because of Carolene Products - court will defer to legislature unless there is discrimination against a "discrete and insular" minority OR infringement of a fundamental right) If it is not Rational Basis 2 --- Is the right infringed? --- The Supreme Court never has said that in evaluating whether there is a violation of a right it considers "[t]he directness and substantiality of the interference." But there has been surprisingly little discussion of what constitutes a direct and substantial interference with a right. 3 --- Is there a sufficient justification for the government's infringement of a right? --- SCOTUS never has articulated criteria for determining whether a claimed purpose is to be deemed "compelling," The most that can be said is that the government has the burden of persuading the Court that a truly vital interest is served by the law in question. For example, the Court has recognized as "compelling" interest such as winning a war and assuring that children receive adequate care . 4 --- Is the means sufficiently related to the purpose? --- Under strict scrutiny, it is not enough for the government to prove a compelling purpose behind a law; the government also must show that the law is necessary to achieve the objective. This requires that the government prove that it could not attain the goal through any means less restrictive of the right. (LEAST RESTRICTIVE ALTERNATIVE)

Discrimination based on Wealth - analysis

Rational Basis Review. (You can move out of poverty class, therefore not immutable.) • In Dandridge v. Williams (1970) - the Supreme Court upheld a state law that put a cap on welfare benefits to families regardless of their size. Children in larger families therefore received less per person than those in smaller families. SCOTUS said that rational basis review was appropriate because the law related to "economics and social welfare." • Court thus accepted the state's interest in allocating scare public benefits as sufficient to justify the law. • Rodriguez (1973) - involved a challenge to Texas's system or relying heavily on local property taxes to pay for public education. Result was that poor areas taxed at high rates but still had little to spend on education. o SCOTUS held that discrimination against the poor does not warrant heightened scrutiny. • Maher v. Roe (1977) - SCOTUS rejected an argument that the government violated equal protection when it refused to fund abortions, even though it was paying for childbirth and other medical care costs.

What was the problem with Richmond v. J.A. Croson?

Richmond v. J.A. Croson (1989) - Construction minority business plan, Plan required prime contractors to whom the city awarded contracts to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises Strict Scrutiny - Compelling Interest? - O' Conner establishing that if there was past discrimination or if the city / nonminority businesses were passive participant in racial past discrimination, that is allowed (but allowed only by past actors that actually did the discriminating and only to the effects that it effected the area that was discriminated). Strict Scrutiny - Compelling Interest? - Yes. Beyond dispute that any public entity has a compelling interest in assuring that public dollars drawn from the tax contribution of all citizens, do not serve to finance the evil of private prejudice. However, NO NARROW TAILORING Strict Scrutiny requires Narrow Tailoring, there is no narrow tailoring here: 1) There does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting. a. They could have just lowered the amount of financing power required to apply, would reduce minority obstruction across the board 2) The 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. It rests upon the "completely unrealistic" assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population. "If a 30% set-aside was "narrowly" tailored to compensate black contractors for past discrimination, one may legitimately ask why they are forced to share this 'remedial relief' with an Aleuit citizen who moves to Richmond tomorrow? The gross OVERINCLUSIVENESS of racial preference strongly impugns the claim"

Right to Sex doctrine

Right to Sex Lawrence v. Texas (2003) pg.1085 --> Rational Basis Plus applied! Still shut down - State cannot prohibit two private individuals from engaging in sex. LEVEL OF ABSTRACTION Analysis Relationships are entitled to Protection should be closer Strict Scrutiny - versus - Homosexual Sex is Not a Tradition of our nation's history, more specific • Court here decides whether Bowers (which criminalizes sodomy for everyone) should be overruled - it concludes that it does. • The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. • It does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. • The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. • Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. • Right to intimacy + relationship (think of contraceptives)

What is the abortion doctrine framework

Roe v. Wade - hold that woman has right to abortion, however it is qualified Planned Parenthood v. Casey (1992) - Core holding that upholds Roe - Woman has the absolute right of Abortion before VIABILITY --Trimester framework in Roe is abandoned, now uses viability-- Before VIABILITY- a. Women has absolute right to abortion, but State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. i. These measures must not be an UNDUE BURDEN on the right, where undue burden = "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." i. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right, and are NOT allowed. State Requirement that she notify her husband may cause her to be deterred (because of violence, or abuse, etc) = undue burden • Impact of modification requirement will hinder and interfere with her choice, instead of informing *waiting period is not an undue burden Whole Woman's Health = o The first provision is that "admitting-privileges requirement" - which says that [a] physician performing or inducing an abortion...must on the date the abortion is performed or induced, have active admitting privileges at a hospital that....is located no further than 30 miles from the location at which the abortion is performed or induced." o Second provision is the surgical-center requirement - which says that "the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers." • We conclude that neither of these provisions confers medical benefits sufficient to justify the burdens upon access that each imposes. • Each is an UNDUE BURDEN, which places a substantial obstacle in the path of woman seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Constitution. POST VIABILITY- State may restrict / regulate / and closely limit abortion as long as the women's health is not in danger. State has compelling interest in the life of the UNBORN. > Post-viability, the state's interest in potential life becomes compelling, and the state may choose to regulate abortions except where necessary to protect the life or health of the mother. "We also reaffirm Roe's holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." >> note: possibility of a loophole.

What is the significance of PICS?

Seattle school district classifies children as white or nonwhite, Jefferson County school district as "black" or other. In Seattle this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson, it is used to make certain elementary school assignments. SCOTUS strikes plan down under EPC **high school case, what is the goal? Desegregation or integration between races? Desegregation. Race Standard is Strict Scrutiny Plan/Policy must be "narrowly tailored" to achieve a "compelling state interest" Simply using QUOTAS is not allowed, especially if it is not used to remedy past segregation In design and operation the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate PLURALITY - There is No compelling interest here DISSENT - It is a compelling interest CONCURRENCE - leaves room for schools in the future to use race, but only holistically

What is the Matthews Balancing Test?

Shifts analysis from "are governmental benefits a property?" question in Goldberg (Court concede it) towards how much can the government can do before we take away their benefit? Matthews Balancing Test - 3 Factors that are to be looked at: 1) Is this an important, Private interest that will be affected by the action? 2) Risk of an erroneous deprivation of such interest through procedure used a. The second part of the test assesses the risk of the possibility that a person will be mistakenly deprived of the interestbecause of the need for additional or different procedural safeguards. b. If the risk of error is minimal, then the need foradditional procedures declines. If the risk is high then additional procedures would be merited. 3) Government's interests including fiscal and administrative burden that additional procedures would demand

Explain the right to reproduction + contraception

Skinner (1942) - sterilization proposal of habitual criminals. Court holds that the right to procreation are fundamental. o Involuntary sterilization must meet Strict Scrutiny. Griswold v. Connecticut (1965) pg.1005 - State law that criminalized the provision and use of contraceptive devices. Court strikes law down. Right to Privacy is a fundamental right. • State's purpose to keep and deter people from engaging in extra-marital affairs. > • 3 Approaches - o J. Douglas - Yes there is DPC, but it is only through incorporation of Bill of Rights, and "privacy" is the "sum of all enumenations" "penumbra" argument o J. Harlan - concurring opinion - There is Independent 14 Amendment Substantive rights outside of Bill of Rights this view wins in the end! o J. Goldberg - 9th Amendment view, this view not considered anymore • Contraceptives are about intimacy and privacy, "would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" Right to Privacy is a fundamental right. Eisenstadt Right to Privacy is a fundamental right. Cannot restrict contraceptive access to either married or unmarried people, doesn't matter. o Strict Scrutiny.

What are the 4 major theories as to why freedom of speech should be regarded as a fundamental right?

Speech = about expressing your ideas, it is about your creative content, what makes you human. about EXPRESSION. Free Speech Theory = the idea that Good idea > Bad ideas in free speech Why is Freedom of Speech a fundamental right? 4 Theories 4 major theories as to why freedom of speech should be regarded as a fundamental right: 1) Freedom of speech is protected to further self-governance 2) To aid the discovery of truth via the marketplace of ideas 3) To promote autonomy 4) To foster tolerance

What are 4 practical ways a school can achieve unitary status?

Swann - bus and race, transportation case; says bussing students 1) Mathematical ratios to determine race discrepancy is OK. 2) One race schools - Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantely of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. 3) Affirmative action in the form of remedial altering of attendance zones may be proper to achieve truly nondiscriminatory assignments - cant just simply rely on "neutral" plans if those plans don't work. 4) TRANSPORTATION: The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record. Thus the remedial techniques used in the District Court's order were within that court's power to provide equitable relief; and implementation of the decree is well within the capacity of the school authority. o Decree provided that the buses use to implement the plan would operate on direct routes. Students were to be picked up at schools near their homes and transported to the schools they were to attend. COURT SAYS THIS IS OK

What if someone is bringing an EPC claim but the law, while having a discriminatory effect, is facially neutral?

THERE MUST BE PROOF OF DISCRIMINATORY PURPOSE TO TRIGGER EPC claim. - Washington v. Davis Absent proof of purpose, EPC doesn't care and rational basis applies How to find purpose? Either explicit congressional purpose, or: Arlington Heights Standard 3 Factors to show that there was Discriminatory purpose: 1) Statistical disparity that can only be explained by the discriminatory purpose 2) Legislative History (statements made, meetings, etc) 3) Historical background of government's action if it reveals a series > Needs to be Strong Evidence. **NOT enough to simply show that the legislature knew that this statute will discriminate. In Feeney, legislature knew that 95% of veterans were male. Rogers v. Lodge (1982) - Involved a challenge to an at-large election scheme for a large rural county in Georgia. - The Court found that the "at-large system in Burke County was being maintained for the invidious purpose of diluting the voting strength of the black population." o No black was ever elected, blacks excluded from participating in political process "Finding that blacks have always made up a substantial majority of the county's population but that they are a minority of the registered voters, that there had been bloc voting along racial lines, and that past discrimination had restricted the present opportunity of blacks to participate effectively in the political process, the District Court held that although the state policy behind the at-large electoral system was "neutral in origin," the policy was being maintained for invidious purposes in violation of plaintiffs' Fourteenth and Fifteenth Amendment rights."

What is the overall 3 step process in analyzing an EPC claim?

Three Step Process (1) What is the Classification? (2) What is the appropriate level of Scrutiny? (3) Does the Government action meet the level of scrutiny? First: Purposeful Classification? A. Facially Discriminatory - classification exists on the fact of the law OR B. Discriminatory Impact - law is facially neutral, but there is a discriminatory impact to the law or discriminatory effect from its administration a. Ex: a law that requires that all police officers be at least 5'10" tall and 150lbs - on its face is only a height and weight classification, but discriminates against women because only 2% will meet this req b. However, for claim to be successful here, women must show that the government's purpose was to discriminate based on gender. c. SCOTUS has made it clear that discriminatory impact is insufficient to prove a racial or gender classification. Second: IF IT IS Purposeful Discrimination, Appropriate level of Scrutiny? Strict Scrutiny - Discrimination based on RACE, NATIONAL ORIGIN, ALIENS -----> Compelling Government Purpose and Least Restrictive Means (presumption of invalidity, usually fatal) [government has the burden] Intermediate Scrutiny - Discrimination based on GENDER and against NON-MARITAL CHILDREN -----> Important Government Purpose and Substantially Related to Government Purpose [government has the burden] Rational Basis review - ELDER, WEALTH, GAYS, DISABILITY - a law will be upheld if it's rationally related to a legitimate government purpose and rational means (challenger has the burden of proof under rational basis review) [government need not be the stated or actual purpose, a conceivable purpose is sufficient! Only some thought purposes suffice] • Traditional state police powers are example of rational purpose What warrants higher scrutiny? Factors to look at - 1) Deprivation of Fundamental Rights 2) Discrete / Insular Minority 3) Lack of Political Process 4) Immutable Characteristics 5) History of Discrimination 6) ANIMUS Third: Government Action A law is underinclusive if it does not apply to individuals who are similar to those to whom the law applies. A law is overinclusive if it applies to those who need not be included in order for the government to achieve its purpose. A law can be both underinclusive and overinclusive.

Speech Forums general overview

Three Types of Public Property Recognized: 1) Traditional Public Forums: i.e, public streets, parks, etc. - any restriction based on the viewpoint / content of the speech must satisfy Strict Scrutiny a. Must be narrowly tailored to server a compelling government interest (however, doesn't need to be Least Restrictive Alternative, just a "tight fit") 2) Government designated Public Forums --> also strict scrutiny, same as above. 3) Limited Public Forum a. If based on viewpoint --> Strict Scrutiny b. If viewpoint neutral --> Rational Basis

T or F: if a law neither burdens a fundamental right nor targets a constitutionally labeled suspect class, then rational basis applies

True

Lemon Test

Used to determine if a state law is valid and not violating the establishment clause: 1) A secular purpose by the State actual purpose, not conceivable a. Does it matter that there may be ulterior motivations (acquire votes, etc.)? No. i. If the purpose was in the past and not secularist attacking - then it was ok to put 10 commandments ii. But now, because we are in culture wars, putting the 10 commandments up is a purely religious purpose and not secular. 2) Whose Primary effect does not advance or inhibit religion 3) And that it doesn't lead to excessive entanglement a. Some entanglement is not a problem, excessive is. i. Where government Administration and Oversight of its funds does not make it to "entangled' with religious party 1. Also don't want religious party to not be burdened by government oversight free exercise

Free Speech Vagueness

Vagueness • A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. It is important to emphasize that unduly vague laws violate due process whether or not speech is regulated. • About (1) fairness / notice, and (2) don't want arbitrary and selective prosecution Coates v. City of Cincinnati - Ordinance - makes criminal offense for "3 or more persons to assemble...on any of the sidewalks....and there conduct themselves in a manner annoying to persons passing by..." • Is this statute constitutional? • The facts indicate that the appellant Coates was a student involved in a demonstration and the other appellants were pickets involved in a labor dispute. • Holding: In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct. • Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that non standard of conduct is specified at all. Baggett v. Bullitt - Court declared unconstitutional a state's loyalty oath that, among other things, prevented any "subversive person" from being employed in the state and required a person to swear that he or she was not such an individual or a part of any subversive organization. • The Court stressed that the ambiguities inherent in the term "subversive" and in the language of the statute gave individuals little guidance as to what speech and associational activities were proscribed