CON LAW Final Exam Review

Loving v. Virginia (1967)

FACTS: --In June 1958, a white man, and a black woman, both Virginia residents, were married in the District of Columbia, pursuant to its laws. --Shortly after their marriage, the Lovings returned to Virginia and were indicted for violating the state's law barring interracial marriage. --They pleaded guilty and were sentenced to one year in jail. --The trial judge suspended the sentence for 25 years on the condition that the Lovings leave the state and not return for 25 years. --In 1963, they filed a motion to have the judgment vacated and set aside. --HOLDING AND DECISION: (Warren, C.J.) Yes. A state law which prevents marriages between persons solely on the basis of racial classifications violates the Equal Protection Clause. At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the most rigid scrutiny. If they are ever to be upheld, they must be shown to be necessary to the accomplishment of some legitimate state objective. Here, there is no question that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. The fact that the statute prohibits only interracial marriages involving white persons indicates that its aim is to maintain white supremacy. There is patently no legitimate overriding purpose independent of invidious discrimination which justifies the classification. A statute restricting marriage solely because of race violates the Equal Protection Clause. These statutes also deprive the Lovings of liberty without due process. Since marriage is a basic human civil right, to deny this freedom on so insupportable a basis as racial classifications deprives all the state's citizens of liberty without due process of the law. Reversed. --CONCURRENCE: (Stewart, J.) It is simply not possible for a state law to be valid under the Constitution which makes the criminality of an act depend upon the race of the actor. ANALYSIS In McLaughlin v. Florida, 379 U.S. 184 (1964), a state law banning habitual nighttime cohabitation between whites and blacks not married to each other was held to violate the Equal Protection Clause, since other nonmarried couples were not subject to prosecution for the same acts. Ordinances establishing ghettos in which blacks must reside were found to violate the clause (Buchanan v. Warley, 245 U.S. 60 (1917)), as was judicial enforcement of covenants restricting ownership of land to whites (Shelley v. Kramer, 334 U.S. 1 (1948)). Racial discrimination in the selection of jurors (Patton v. Mississippi, 332 U.S. 463 (1947)), hiring blacks for certain occupations, and establishing racial qualifications for public offices (Anderson v. Martin, 375 U.S. 399 (1964)) have all been held to violate equal protection.

Griswold v. Connecticut (1965)

--FACTS: The Executive Director of the Planned Parenthood League of Connecticut, and Dr. Buxton (D) were convicted under a Connecticut law which made counseling of married persons to take contraceptives a criminal offense. --ISSUE: Is the right to privacy in the marital relationship protected by the Constitution despite the absence of specific language recognizing it? --HOLDING AND DECISION: (Douglas, J.) Yes. The right to privacy in the marital relationship is protected by the Constitution despite the absence of specific language recognizing it. The various guarantees which create penumbras, or zones, of privacy include the First Amendment's right of association, the Third Amendment's prohibition against the peacetime quartering of soldiers, the Fourth Amendment's prohibition against unreasonable searches and seizures, the Fifth Amendment's Self-Incrimination Clause, and the Ninth Amendment's reservation to the people of nonenumerated rights. The Connecticut law, by forbidding the use of contraceptives rather than regulating their manner or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Reversed. --CONCURRENCE: (Goldberg, J.) The Ninth Amendment, while not constituting an independent source of rights, suggests that the list of rights in the first eight amendments is not exhaustive. This right is a "fundamental" one which cannot be infringed on the state's slender justification in protecting marital fidelity. --CONCURRENCE: (Harlan, J.) The Court, instead of focusing on "specific provisions" of the Bill of Rights, should have relied on the Due Process Clause in finding this law violative of basic values "implicit in the concept of ordered liberty." --CONCURRENCE: (White, J.) The Due Process Clause should be the test in determining whether such laws are reasonably necessary for the effectuation of a legitimate and substantial state interest and are not arbitrary or capricious in application. Here, the causal connection between married persons engaging in extramarital sex and contraceptives is too tenuous. --DISSENT: (Black, J.) While the law is offensive, neither the Ninth Amendment nor the Due Process Clause invalidates it. Both lead the Court into imposing its own notions as to what are wise or unwise laws. What constitutes "fundamental" values we are incapable of determining. Keeping the Constitution "in tune with the times" is accomplished only through the amendment process. Similarly, the Due Process Clause is too imprecise and lends itself to subjective interpretation. --DISSENT: (Stewart, J.) The Due Process Clause is not the "guide" because there was no claim here that the statute is unconstitutionally vague, or that the defendants were denied any of the elements of procedural due process at their trial. The Ninth Amendment simply restricts the federal government to a government of express and limited powers. Finally, the Constitution is silent on the "right to privacy." ANALYSIS Although the theory of "substantive due process" has been declined as a means to review state economic regulation— at least since 1937— the Court, as here, has freely applied strict scrutiny of state laws affecting social areas.

United States v. Alvarez (2012)

FACTS: --The Stolen Valor Act made it a crime to falsely claim receipt of military decorations or medals and provided an enhanced penalty if the Congressional Medal of Honor was involved. --, a member of a water district board, falsely stated at a meeting of the board that he had received the Congressional Medal of Honor. --He did not make the misrepresentation for financial gain or to gain tangible benefits. --Alvarez was indicted under the Act. The district court rejected his claim that the statute violated the First Amendment, but the court of appeals reversed. --The Supreme Court granted certiorari. ISSUE: Does a statute that criminalizes the making of false statements regarding military decorations or medals, including the Congressional Medal of Honor, violate the First Amendment as a content-based suppression of pure speech? HOLDING AND DECISION: (Kennedy, J.) Yes. A statute that criminalizes the making of false statements regarding military decorations or medals, including the Congressional Medal of Honor, violates the First Amendment as a content-based suppression of pure speech. Laws enacted to honor the brave must be consistent with the constitutional principles for which they fought. Content-based restrictions on speech have been permitted only for a few historic categories of speech, including incitement, obscenity, defamation, speech integral to criminal conduct, so-called "fighting words," child pornography, fraud, true threats, and speech presenting some grave and imminent threat the government has the power to prevent. The making of false statements is not among these. The Government argues that precedent supports its claim that false statements have no value and hence no First Amendment protection. However, the Government relies on cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement. These prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. The Government's three examples of false-speech regulation that courts generally have found permissible do not establish a principle that all proscriptions of false statements are exempt from rigorous First Amendment scrutiny. The criminal prohibition of a false statement made to government officials in communications concerning official matters, does not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context. As for perjury statutes, perjured statements lack First Amendment protection not simply because they are false, but because perjury undermines the function and province of the law and threatens the integrity of judgments. Finally, there are statutes that prohibit falsely representing that one is speaking on behalf of the government, or prohibit impersonating a government officer. These examples, to the extent that they implicate fraud or speech integral to criminal conduct, are inapplicable here. While there may exist some categories of speech that have been historically unprotected, but that the Court has not yet specifically identified or discussed, the Government has not demonstrated that false statements should constitute a new category. The Act seeks to control and suppress all false statements on this one subject in almost limitless times and settings without regard to whether the lie was made for the purpose of material gain. Permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle, as where the speech is used for material gain, and even the mere threat of such power chills free speech, thought and discourse. Moreover, the governmental interests served by the Act, while not insignificant, do not survive exacting scrutiny. While military medals serve the purposes of expressing public gratitude for acts of heroism and sacrifice, and fostering morale and esprit de corps among military members, the Government has failed to show that lies like those of Alvarez dilute the public's general perception of military awards. The Government also has not shown, and cannot show, why counterspeech, such as the outrage and contempt directed at Alvarez for his lies, would not suffice to achieve its interest. In fact, such counterspeech might reawaken and reinforce the public's respect for the Medal and its recipients. Ultimately, the remedy for speech that is false is speech that is true, and governmental suppression of speech can make the exposure of falsity more difficult, not less so. Even if lies about military awards cannot be publicly refuted, because some military records have been lost or are otherwise unavailable, the Government has failed to demonstrate that unchallenged lies under the public's perception of the military or the integrity of its awards system. In addition, when government seeks to regulate protected speech, the restriction must be the least restrictive means among available, effective alternatives. Here, the Government could likely protect the integrity of the military awards system by creating a database of Medal winners accessible and searchable on the Internet, as some private individuals have already done. Even if most find Alvarez's statements contemptible, his right to make those statements is protected by the First Amendment. Affirmed. CONCURRENCE: (Breyer, J.) Because the Stolen Valor Act works disproportionate constitutional harm, it fails intermediate scrutiny, and thus violates the First Amendment. In determining whether a statute violates the First Amendment, the Court has often found it appropriate to examine the fit between statutory ends and means, taking into account the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provision's countervailing objectives, the extent to which the statute will tend to achieve those objectives, and whether there are other, less restrictive alternatives. "Intermediate scrutiny" describes this approach. Since false factual statements are less likely than true factual statements to make a valuable contribution to the marketplace of ideas, and the government often has good reason to prohibit such false speech, but its regulation can threaten speech-related harm, such an approach should be applied here. Although the Court has frequently said or implied that false factual statements enjoy little First Amendment protection, those statements cannot be read to mean "no protection at all." False factual statements serve useful human objectives in many contexts. Moreover, the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby chilling a kind of speech that lies at the First Amendment's heart. Further, the pervasiveness of false factual statements provides a weapon to a government broadly empowered to prosecute falsity without more. Those who are unpopular may fear that the government will use that weapon selectively against them. Although there are many statutes and common-law doctrines making the utterance of certain kinds of false statements unlawful, they tend to be narrower than the Act, in that they limit the scope of their application in various ways, for example, by requiring proof of specific harm to identifiable victims. The Act lacks any such limiting features, which help to ensure that the statute does not allow its threat of criminal punishment or liability to roam at large. Here, in contrast with such statutes, the Act ranges broadly in numerous contexts, and that breadth means that it creates a significant risk of First Amendment harm. The Act nonetheless has substantial justification. It seeks to protect the interests of those who have sacrificed their health and life for their country by seeking to preserve intact the country's recognition of that sacrifice in the form of military honors. Permitting those who have not earned those honors to claim otherwise dilutes the value of these awards. Accordingly, it must be determined whether the Government's (P) objectives may be achieved in a less constitutionally burdensome way. A much more narrowly tailored statute, perhaps one that requires a showing of specific harm, seems feasible. Although the First Amendment risks flowing from the Act's breadth of coverage could be diminished or eliminated by such a more finely tailored statute, and the Government's (P) interests promoted by a publicly available register of military awards, the Act as currently drafted works disproportionate harm. DISSENT: (Alito, J.) Free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. Congress appropriately responded to an epidemic of false statements about military awards with the Act, which is narrowly tailored and presents no threat to freedom of speech. The Act is limited in five significant respects. First, the Act applies to only a narrow category of false representations about objective facts that can almost always be proved or disproved with near certainty. Second, the Act concerns facts that are squarely within the speaker's personal knowledge. Third, a conviction under the Act requires proof beyond a reasonable doubt that the speaker actually knew that the representation was false. Fourth, the Act applies only to statements that could reasonably be interpreted as communicating actual facts; it does not reach dramatic performances, satire, parody, hyperbole, or the like. Fifth, the Act is strictly viewpoint neutral. Further, the Act is aimed at conduct that inflicts actual harm, much of which is tangible, since many of those who lie about having received military awards do so to obtain financial or other material awards, such as lucrative contracts or government benefits. While the harm to deserving medal recipients and their families is less tangible, it is nevertheless substantial. As with trademark infringement, proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are. Contrary to the plurality's assertion, this harm cannot be remedied by counterspeech, since a database of all actual award recipients would, as a result of practical constraints, be incomplete. Nor would this harm be remedied by a more finely tuned statute that insists on showing actual harm, since much of the damage inflicted by those who lie about having received military honors is inflicted on real award recipients and the system of military awards, without any linkage to any financial or other tangible reward. The Court has repeatedly recognized that, generally, false factual statements have no intrinsic First Amendment value, and has held that many kinds of such statements are not entitled to First Amendment protection, e.g., fraud, defamation, perjury, etc. Even false statements that were neither illegal nor tortious at the time the First Amendment was adopted have been held to fall outside the Amendment's protection, such as false statements that intentionally inflict emotional harm. In line with such holdings, it has long been assumed that prominent criminal statutes with no close common-law analog also do not offend the First Amendment, such as those that criminalize false statements in matters are that properly are within the Government's province. This shows that false statements of fact merit no First Amendment protection in their own right. Because lies about receiving military awards serve no societal purpose, e.g., to prevent harm to innocent victims, or any other valid purpose, they merit no First Amendment protection. Protection to lies has been afforded in those instances where there is a risk that truthful speech will be suppressed by the government as the arbiter of truth— e.g., lies about philosophy, religion, history, and other matters of public concern— and where the truth is served by allowing consensus about a particular matter to be challenged without fear of reprisal. In contrast to these circumstances, the Act poses no risk that valuable speech will be suppressed. The speech punished by the Act is verifiably false and lacks any intrinsic value. Such speech also fails to serve any purpose that the First Amendment might protect. Because the plurality fails to show that any overbreadth from which the Act suffers is substantial relative to its legitimate sweep, the plurality's opinions are not well founded. ANALYSIS The decision in this case was rendered by a fragmented plurality, rather than by a majority, and this reflects the fact that this case did not categorically resolve the question of how the First Amendment should treat factual lies. Justice Kennedy applied a strict scrutiny approach to what he characterized as a content-based restriction. Justice Breyer applied a balancing approach under intermediate scrutiny without even mentioning the content-based nature of the Act. And Justice Alito, who also barely alluded to the content-based nature of the Act, focused on the fact that the statute was limited to knowingly false statements of facts that are directly within the personal knowledge of the speaker. This doctrinal incoherence seems to suggest that, at least for now, and possibly going forward, there may not be a categorical answer to the key issue presented by Alvarez. Instead, it seems that how certain factual lies will be treated under the First Amendment will vary, on a case-by-case basis, depending on the content of the lies, the context in which they are made, and the type of injury they cause.

Roe v. Wade (1973)

FACTS: The Texas abortion laws challenged here were typical of those adopted by most states. The challengers were (P), a single pregnant woman, a childless couple with the wife not pregnant (J and M Doe), and a licensed physician with two criminal charges pending (Halford). Only Roe (P) was found to be entitled to maintain the action. Although her 1970 pregnancy had been terminated, her case was not found moot since pregnancy "truly could be capable of repetition, yet evading review." The Supreme Court granted review not only in this case, but also in a companion case, Doe v. Bolton, 410 U.S. 179 (1973), which involved the constitutionality of procedural requirements contained in a Georgia abortion statute, which was more modern than the Texas abortion law. ISSUE: Does the constitutional right of privacy include a woman's right to choose to terminate her pregnancy? HOLDING AND DECISION: (Blackmun, J.) Yes. While the Constitution does not explicitly mention any right of privacy, such a right has been recognized. This right of privacy, whether founded in the Fourteenth Amendment's concept of personal liberty and restriction upon state action, as this Court feels it is, or in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision to terminate her pregnancy. A statute regulating a fundamental right, such as the right to privacy, may be justified only by a compelling state interest and such statutes must be narrowly drawn. Here, Texas (D) argues that the fetus is a person within the meaning of the Fourteenth Amendment whose right to life is guaranteed by that Amendment. However, there are no decisions indicating such a definition for "fetus." The unborn have never been recognized in the law as persons in the whole sense. Texas (D) may not, by adopting one theory of life, override the rights of the pregnant woman that are at stake. However, neither are the woman's rights to privacy absolute. The state does have a legitimate interest in preserving the health of the pregnant woman and in protecting the potentiality of life. Each of these interests grows in substantiality as the woman approaches term, and, at a point, each becomes compelling. During the first trimester, mortality in abortion is less than mortality in childbirth. After that point, in promoting its interest in the mother's health, the state may regulate the abortion procedure in ways related to maternal health (i.e., licensing of physicians, facilities, etc.). Prior to viability, the physician, in consultation with the pregnant woman, is free to decide that a pregnancy should be terminated without interference by the state. Subsequent to viability, the state, in promoting its interest in the potentiality of life, may regulate, and even proscribe abortion, except where necessary to save the mother's life. Because the Texas (D) statute makes no distinction between abortions performed in early pregnancy and those performed later, it sweeps too broadly and is, therefore, invalid. This decision must be read together with the Court's decision in Doe v. Bolton. DISSENT: (Rehnquist, J.) Contrary to the majority's conclusion, the right of "privacy" is not involved in this case. A medical abortion performed by a physician is not "private" in the ordinary usage of that word, nor is the "privacy" of such an operation related to the freedom from searches and seizures protected by the Fourth Amendment that the majority refers to as including a right to privacy. The majority also ignores the history of the Fourteenth Amendment in using the "compelling state interest" test, which traditionally has been used in Equal Protection cases, in this case, which arises under the Due Process Clause. The result will be even more confusion in this area of the law. The application of this test will require the Court to examine the legislative policies and pass on the wisdom of those policies, tasks better left to the legislature. Additionally, the fact that a majority of the states have had restrictions on abortion for at least a century indicates that the right to an abortion may not be so rooted in the "traditions and conscience" to be deemed fundamental. CONCURRENCE: [in Wade and Bolton]: (Burger, C.J.) Both the Georgia and Texas statutes impermissibly limit the performance of abortions necessary to protect the health of pregnant women. However, it is troubling that the Court has taken judicial notice of various scientific and medical data in reaching its conclusion, although the Court has not exceeded the scope of such notice accepted in other contexts. Because the vast majority of physicians adhere to the standards of their profession, the decision will not have the sweeping consequences the dissenters are afraid of, especially since the decision clearly rejects the notion that the Constitution requires abortion on demand. CONCURRENCE: [in Wade and Bolton]: (Douglas, J.) Some of the liberties guaranteed by the Fourteenth Amendment, even though they are "fundamental" rights, are subject to control by the police power on a showing of a "compelling state interest." Such rights include the freedom to care for one's health and the freedom to make choices about basic life decisions respecting marriage, divorce, procreation, contraception, and the upbringing and education of children. Here, the Georgia statute has struck the balance between the woman and the state's interest entirely in favor of the state. Therefore, the statute is overbroad and is not narrowly drawn to preserve prenatal life, the articulated state interest, because in certain cases it permits destruction of prenatal life. In other instances, it prohibits abortion where the failure to abort can lead to severe mental disorders. The statute is also overbroad because it equates the value of embryonic life right after conception with the value of life just before birth. The high degree of medical supervision imposed by the statute also violates the woman's right of privacy inherent in the choice of her own doctor. DISSENT: [in Wade and Bolton]: (White, J.) This issue, for the most part, should be left with the people. There is nothing in the language or history of the Constitution to support the Court's opinion. "The Texas stature is not constitutionally infirm because it denies abortions to those who seek to serve only their own convenience rather than to protect their life or health."

Craig v. Boren (1976)

Facts: -- A male between 18 and 21 years of age,and and Whitener, a vendor of alcoholic beverages, brought suit challenging the constitutionality of an Oklahoma statute which prohibited the sale of 3.2 percent beer to males 18 to 20 years of age, while allowing the sale to females 18 years and older. ---Craig and Whitener claimed that this was invidious, unconstitutional gender-based discrimination. --A three-judge district court upheld the Oklahoma statute and this appeal followed. By the time the United States Supreme Court noted probable jurisdiction, Craig had turned 21 and the controversy was rendered moot as to him. --The question then arose as to whether Whitener could assert, in addition to her claim as to enforcement of the statute against vendors, the equal protection of males 18 to 20 years of age to establish her claim of the unconstitutionality of the age-sex differential (i.e., did Whitener have jus tertii standing). Procedural history: --What did the Lower courts decide? --Understand how the case goes up to the Supreme Court Issue: --Does the right of a party to assert jus tertii standing arise when the party has established that he has suffered injury in fact sufficient to guarantee concrete adverseness? Holding: Yes. In a 7-to-2 decision, the Court held that the statute made unconstitutional gender classifications. The Court held that the statistics relied on by the state of Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety. Generalities about the drinking habits of aggregate groups did not suffice. The Court also found that the Twenty-first Amendment did not alter the application of the Equal Protection Clause in the case. In striking down the Oklahoma law, the Court established a new standard for review in gender discrimination cases. More demanding than the lowest standard for review -- rational basis -- but less demanding than the highest standard -- strict scrutiny, the majority articulated an in-between standard -- intermediate scrutiny. --(Brennan, J.) Yes. The right of a party to assert jus tertii standing arises when the party has established that he has suffered injury in fact sufficient to guarantee concrete adverseness. [Initially, the Court noted that no other party had objected to Whitener's (P) standing and presumed her to be a proper party in interest as a vendor subject to loss of license for violation of the statute.] Here, Whitener's (P) being subject to punishment for violation of a statute was sufficient threat of injury to meet "case or controversy" requirements. Whitener (P), as a vendor, was entitled to assert those concomitant rights of third parties that would be "diluted or adversely affected" should her constitutional challenge fail and the statute remain in force. Whitener's (P) adherence to statute would result indirectly in violation of third parties' rights (the right of males 18 to 20 to buy 3.2 percent beer). Accordingly, Whitener (P) had standing to raise relevant equal protection arguments. DISSENT: (Burger, C.J.) Whitener (P) did not have standing. There was no barrier whatever to 18- to 20-year-old Oklahoma males from asserting the claims here in an appropriate forum. Craig (P) was eliminated only by advent of his 21st birthday. This Court carefully limited third-party standing to cases "in which the relationship between the claimant and the relevant third party 'was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself.'" Eisenstadt v. Baird, 405 U.S., at 445.

Near v. Minnesota (1931)

Facts: --A publisher of a news periodical which had made charges of extensive corruption and dereliction of duty against several city and county officials, including one member of the grand jury. --According to a statute, any person who published or circulated a malicious, scandalous, and defamatory news periodical was guilty of a nuisance. --The person found to be committing the nuisance could be enjoined perpetually from committing or maintaining the nuisance. --The only defense that could be asserted was that the material was true and was published with good motives and justifiable ends. --Near and his periodical were charged under the statute and were adjudged a nuisance, and an injunction was issued restraining him from further violations of the statute. Issue: --Since some forms of expression have been found not to enjoy the absolute protection of the First Amendment (e.g., libel), may a state be allowed to impose an injunction in the nature of a prior restraint on such expression? Holding: --(Hughes, C.J.) No. Although some forms of expression have been found not to enjoy the absolute protection of the First Amendment (e.g., libel), a state may not be allowed to impose an injunction in the nature of a prior restraint on such expression. Blackstone noted that prior restraints on the right to publish would destroy freedom of the press. In his view, a person should be allowed to publish anything so long as he was prepared to respond in damages for that which was improper, mischievous, or illegal. Only under the most exceptional circumstances will prior restraint of expression be tolerated. Those circumstances are limited to direct threats to national security or in the incitement to acts of violence or overthrow by force of an orderly government. The criticism of public officials for which Near (D) was convicted was exactly the type of press activity which the First Amendment sought to protect. The statutory defense provided for those charged cannot salvage the unconstitutional invasion of basic rights. Truth was not a requirement to qualify for the freedom of the press guarantee. Further, truth alone would not even be a good defense, for the defendant must also show his proper motives and justifiable ends. The subjects of Near's (D) accusations have not been deprived of their rights of action against him. The Minnesota statute operates as a prior restraint on the freedom of the press and cannot stand in the face of the strong fundamental guarantees of the First Amendment. Reversed. DISSENT: (Butler, J.) The majority misinterprets the application of Blackstone's statement. His reference was to administrative licensors previously restraining even the first publication. On the other hand Near had already issued his publication when charges were brought against him. He was subject to a court trial, not an administrative sanction. What was proscribed was not his future acts, but his past ones. He was enjoined from repeating what had been determined to be an impermissible past act. The majority then states that private actions in libel are an effective and permissible alternative to this statute. It is well known that existing libel laws are an inadequate remedy against the evils sought to be suppressed by this statute. ANALYSIS The Court's distaste for prior restraints on expression has remained unchanged as was evidenced by the Daniel Ellsberg— Pentagon Papers Case [New York Times Co. v. United States, 403 U.S. 713 (1971)]. Even more recently, the Burger Court struck down a Tennessee statute that had prevented a presentation of the stage play, "Hair." In the principal case, the majority chose not to discuss another problem area presented by the Minnesota statute. The statute speaks in terms of malicious, scandalous, and defamatory publication. While the term "defamatory" may be sufficiently specific to afford a legal remedy, the other two terms would seem to be so vague as to thwart proper judicial application. In view of Justice Butler's view that libel laws in 1931 were inadequate to protect against defamations, one wonders what his reaction to the Sullivan-Hill-Gertz line of cases would have been. DEFAMATION: An intentional false publication, communicated publicly in either oral or written form, subjecting a person to scorn, hatred or ridicule, or injuring him in relation to his occupation or business. FIRST AMENDMENT: Prohibits Congress from enacting any law respecting an establishment of religion, prohibiting the free exercise of religion, abridging freedom of speech or the press, the right of peaceful assembly and the right to petition for a redress of grievances. INJUNCTION: A court order requiring a person to do, or prohibiting that person from doing, a specific act. LIBEL: A false or malicious publication subjecting a person to scorn, hatred or ridicule, or injuring him or her in relation to his or her occupation or business. PRIOR RESTRAINT: A restriction imposed on speech imposed prior to its communication.

Substantive Due Process

1. States cannot act to affect certain rights. In re Slaughter-House Cases 2. State legislation affecting fundamental rights subject to review similar to strict scrutinyL regulation must be narrowly tailored to meet a compelling state interest. Exception: economic substantive due process legislation that involves governmental regulation of social and economic matters is subject to the rational basis test.

SUBSTANTIVE DUE PROCESS

A constitutional safeguard limiting the power of the state, irrespective of how fair its procedures may be; substantive limits placed on the power of the state.

Fourteenth Amendment

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Bill of Rights

Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

RIGHT OF PRIVACY

An individual's right to be protected against unwarranted interference in his personal affairs, falling into one of four categories: (1) appropriating the individual's likeness or name for commercial benefit; (2) intrusion into the individual's seclusion; (3) public disclosure of private facts regarding the individual; and (4) disclosure of facts placing the individual in a false light.

Thurgood Marshall; An American Revolutionary

Chapter 21—Case of a Century: Chapter 22—No Radical: Chapter 18—Direct Attack: Chapter 20—Planning a Revolt: Chapter 14—Jim Crow Buster: Chapter 15—Groveland: Chapter 13—Lynch Mob for a Lawyer: Chapter 9—69th Fifth Avenue: Chapter 7—Getting Started: Marshall kept fighting for equal rights for blacks and so he did what he wanted to do for a long time and that was to sue the Maryland of Maryland because of their discriminatory admissions procedures. He managed to win the case and the law school had to accept his black client. Then, Marshall proceeded to fight to get an all-black high school in the city of Baltimore because the nearest one was 10 miles away. He lost this case because the judge said there wasn't enough cause to make a case about that. The NAACP was still proud of marshall accomplishments and they wanted him to keep working on cases for them. Marshall's law practice was not going very well so he ended up being recruited to work full time for the NAACP and he moved to new york and closed his practice. He had a hard time leaving baltimore and his family behind but he had to do it in order to keep fightin for equality for blacks that was his dream. Chapter 6—His Own Man: Marshall had a hard time becoming a successful attorney since there were very few black lawyers. Soon enough he began to get more recognition and he became friends with all of the judges. He handled discrimination cases. Where blacks were no allowed to go to shopping malls so he fought for the rights of blacks. He was still on a journey to finding the case that would make him known and bring him more success.

DUE PROCESS CLAUSE

Clauses, found in the Fifth and Fourteenth Amendments to the United States Constitution, providing that no person shall be deprived of "life, liberty, or property, without due process of law."

Skinner v. Oklahoma (1942)

Facts. Oklahoma defined a "habitual criminal" as a person who, "having been convicted two or more times for crimes 'amounting to felonies involving moral turpitude' either in Oklahoma or another State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in a Oklahoma penal institution." Such habitual criminals could be subject to forced sterilization. The Petitioner had been twice arrested for theft offenses before being arrested and confined for armed robbery. During his third incarceration, the Act was passed and proceedings were instituted against him. Issue. May the State sterilize an individual against his will for being convicted of three felonies involving moral turpitude? --Held. No. Supreme Court of Oklahoma ruling reversed. Justice William Douglas (J. Douglas) notes that sterilization of habitual offenders in no way guarantees that new offenders will not be born. Furthermore, there is no guarantee that habitual offenders would spawn offenders themselves. J. Douglas cannot justify the distinction between larceny (involving moral turpitude) and embezzlement (not involving moral turpitude) in the eyes of the statute. This is clear discrimination in J. Douglas's view. In terms of fines and imprisonment, the crimes are identical to the State. Only when it comes to sterilization do the crimes differ. As such, equal protection is violated. --Concurrence. Chief Justice Harlan Stone (J. Stone) concurs in the judgment, but rests his decision on due process grounds, arguing that the invasion of personal liberty is too great. --Analysis. Skinner represents the Supreme Court of the United States' growing awareness of the right to reproductive autonomy. Unlike later cases that focus on due process and a right to privacy, the majority in Skinner holds that sterilization in the present situation violates equal protection principles.

Zablocki v. Redial (1978)

Facts: --A Wisconsin statute provides that members of a certain class of Wisconsin residents may not marry, within the state or elsewhere, without first obtaining a court order granting permission to marry. --The class is defined by the statute to include any Wisconsin resident having minor issue not in his custody and which he is under an obligation to support by any court order or judgment. --Redhail is a Wisconsin resident who, under the terms of the statute, is unable to enter into a lawful marriage because he has not satisfied his support obligations to his illegitimate child. After Zablocki, the County Clerk of Milwaukee County, denied Redhail's marriage application on the ground that he had not received court permission to marry, Redhail brought this class action seeking declaratory and injunctive relief. --Redhail contended that the statute violates the Equal Protection Clause of the Fourteenth Amendment. --A three-judge federal district court concluded that strict scrutiny was required because the classification created by the statute infringed upon the fundamental right to marry. --The court then held the statute invalid and enjoined the county clerks from enforcing it. An appeal was made to the Supreme Court. Issue: --Can a statutory classification which significantly interferes with a fundamental right be upheld if it is unsupported by sufficiently important state interests? Holding: --(Marshall, J.) No. When a statutory classification significantly interferes with the exercise of a fundamental right, such as the right to marry, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Zablocki (D) asserts that two interests are served by the challenged statute: the permission-to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the out-of-custody children is protected. The court may accept that these are legitimate and substantial interests but, since the means selected by the state for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained. First, the statute merely prevents the applicant from getting married without any provision for counseling without delivering any money into the hands of the children. More importantly, the state already has numerous other means for exacting compliance with support obligations and yet which do not impinge upon the right. RULE OF LAW: When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. CONCURRENCE: (Stewart, J.) The Equal Protection Clause deals not with substantive rights, such as the right to marry, but with invidiously discriminatory classifications. Furthermore, there is no right to marry in the constitutional sense. CONCURRENCE: (Powell, J.) Analysis must start from the recognition of domestic relations as an area that has long been regarded as a virtually exclusive province of the states. It does not follow that a state may never condition the right to marry on satisfaction of existing support obligations. However, the additional requirement that one demonstrate that the child will not become a public charge is not validly justified. CONCURRENCE: (Stevens, J.) Under this statute, a person's economic status, his ability to pay support obligations, may determine his eligibility to marry. This type of statutory discrimination is inconsistent with our tradition of administering justice equally. DISSENT: (Rehnquist, J.) Under the Equal Protection Clause, the statute need pass only the rational basis test, and under the Due Process Clause, it need be shown to bear only a rational relation to a constitutionally permissible objection. The statute so viewed is a permissible exercise of the state's power to regulate family life. ANALYSIS In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court held that the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. More recent decisions have established that the right to marry is part of the fundamental rights of privacy implicit in the Fourteenth Amendment's Due Process Clause. However, the Court reiterates in the Redhail decision that, by reaffirming the fundamental character of the right to marry, it does not mean to suggest that every state regulation which relates in any way to the incidents of, or prerequisites for, marriage must be subjected to rigorous scrutiny.

City of Cleburne v. Cleburne Living Center, Inc. (1985)

Facts: --A city enacted an ordinance requiring homes for the mentally retarded to obtain an annual use permit. --CLC applied for the permit, which was not required for other care facilities. --The permit was denied, and CLC sued, contending the ordinance requiring the permit violated equal protection. --The district court, applying the rational relation test, upheld the ordinance. --The court of appeals held that mental retardation was a quasi-suspect classification, and thus the ordinance had to be substantially related to an important state interest. --The Supreme Court granted a hearing. Issue: --Must social or economic legislation relating to the mentally retarded be rationally related to a legitimate state interest? Holding: --(White, J.) Yes. Social or economic legislation relating to the mentally retarded must be rationally related to a legitimate state interest. There are discernible differences in attributes between retarded and non retarded individuals. These differences could give rise to a legitimate need to pass legislation which in some way discriminates against or in favor of the retarded. Thus, it cannot be held to be a suspect classification. Because of this, a lesser level of scrutiny is required. However, because other care facilities are not required to obtain special use permits, this legislation does not relate to a legitimate state interest and thus, violates equal protection principles. Affirmed. CONCURRENCE: (Stevens, J.) The ordinance in this case is unconstitutionally discriminatory. CONCURRENCE AND DISSENT: (Marshall, J.) The judgment invalidating the ordinance was correct, yet the standard of review should be that used by the court of appeals. ANALYSIS In the area of equal protection, the Court has recognized few suspect classifications. As explained in this and many other cases, social and economic legislation relating to classifications based on race, alienage, or national origin are rarely aimed at any legitimate goal. Thus, strict scrutiny is applied. In other areas, classifications may be justified and a lower standard of review applies.

Eisenstadt v. Baird (1972)

Facts: --A college professor gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and overpopulation. --Massachusetts charged the professor with a felony, to distribute contraceptives to unmarried men or women. --Under the law, only married couples could obtain contraceptives; only registered doctors or pharmacists could provide them. -- He was not an authorized distributor of contraceptives. --Under a Massachusetts statute, it is a crime to give away "any drug, medicine, instrument or article whatever for the prevention of conception," with the exception of a registered physician providing such items to married couples for the purpose of preventing pregnancy. --William Baird (defendant) was convicted of violating the statute after he exhibited contraceptive articles in the course of delivering a lecture on contraception to a group of students at Boston University, and after he gave a young woman a package of Emko vaginal foam at the close of his address. --Baird challenged his convictions in Massachusetts state court against Eisenstadt (plaintiff), a Massachusetts sheriff responsible for enforcing the statute. The trial court partially overturned Baird's conviction. --The court of appeals reversed and remanded. Eisenstadt appealed to the United States Supreme Court. Issue: --Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state intrusion by the Fourteenth Amendment? Holding: --In a 6-to-1 decision, the Court struck down the Massachusetts law but not on privacy grounds. The Court held that the law's distinction between single and married individuals failed to satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause. Married couples were entitled to contraception under the Court's Griswold decision. Withholding that right to single persons without a rational basis proved the fatal flaw. Thus, the Court did not have to rely on Griswold to invalidate the Massachusetts statute. "If the right of privacy means anything, wrote Justice William J. Brennan, Jr. for the majority, "it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." DISSENT: (Burger, C.J.) The law is a justified exercise of the State's police power because of the hazards of introducing a foreign substance into the human body. Discussion. The right of privacy is the right of the individual, married or single, to be free from unwarranted government intrusion. *Search more info about concurrence and dissent...

Stanley v. Illinois (1972)

Facts: --A man had three children with his wife. The couple had never married, but lived together off and on for 18 years. --When the wife died, the State of Illinois took the children. --Under Illinois law, unwed fathers were presumed unfit parents regardless of their actual fitness and their children became wards of the state. --Peter appealed the decision, arguing that the Illinois law violated the Equal Protection Clause of the Fourteenth Amendment because unwed mothers were not deprived of their children without a showing that they were actually unfit parents. --The Illinois Supreme Court rejected Stanley's Equal Protection claim, holding that his actual fitness as a parent was irrelevant because he and the children's mother were unmarried. Issue: --Does the Illinois statutory scheme that assumes unwed fathers are unfit parents violate the Equal Protection Clause? Holding: --Yes. Justice Byron R. White, writing for a 5-2 majority, reversed and remanded. The Supreme Court held that it could consider the constitutionality of the Illinois law even though Peter might have regained custody of his children through adoption or guardianship proceedings. The Illinois law violated the Due Process clause because an unwed father was stripped of his parental rights without a hearing. Justice William O. Douglas joined in this part of the opinion. A four justice plurality went on to write that the Illinois law also violated the Equal Protection Clause because it denied a fitness hearing to certain parents, while granting one to others. Chief Justice Warren E. Burger dissented, arguing that the majority exceeded its authority by raising the Due Process issue when the lower court had not. The Equal Protection question was the only one properly before the court, and it was not violated because the state was merely recognizing the legal relationships of fathers whether through marriage or adoption. Justice Harry A. Blackmun joined in the dissent. Justice Lewis F. Powell and Justice William H. Rehnquist did not participate.

Boos v. Barry (1988)

Facts: --A provision in the District of Columbia Code prohibited the display of signs within 500 feet of a foreign embassy which tended to "bring that government into public odium or public disrepute." --Congregations of three or more persons within the 500 feet limit were prohibited as well. --Boos and others were denied permission to display signs criticizing the Soviet Union in front of that country's embassy. --Washington, D.C. has a code that prohibits people from displaying signs within 500 feet of a foreign embassy if the signs will bring the foreign government into "public odium" or "public disrepute". --The Petitioner wants to display a sign in front of the Soviet embassy that reads, "RELEASE SAKHOROV." Issue: --Did the District of Columbia Code violate the First Amendment of the Constitution? --Does this restriction violate the First Amendment constitutional right to free speech? Holding: --The Court found that the Code's restriction on sign displays violated the First Amendment while the ban on congregations did not. First, Justice O'Connor argued that the prohibition on signs failed to meet the high standards that the Court uses when evaluating the content-based regulation of political speech in a public forum. The "dignity" standard that the Code used was similar to the "outrageousness" standard which the Court found unconstitutional in Hustler Magazine v. Falwell (1988) because it was too subjective. Second, O'Connor reasoned that since the language of the ban on congregations was narrowly drawn and could only be acted upon by the police in situations where a threat to security or peace were present, it did not prohibit peaceful gatherings. --Yes. The display statute regulates speech based on it potential impact. It prohibits political speech and is clearly content-based. Protecting foreign dignitaries from insults is not a compelling governmental interest in support of a content-based regulation. Rule of Law. Content-based restriction on political speech in a public forum is subjected to strict scrutiny. To be constitutional, the regulation must be necessary to serve a compelling state interest that is narrowly drawn to achieve that end. Analysis. This regulation focuses on what a picket card would say. It discriminates between the types of speech because a picket sign regarding employment disputes would be allowed while political opinions that are negative are prohibited.

Dred Scott v. Sanford (1857)

Facts: --A slave in Missouri From 1833 to 1843, he resided in Illinois (a free state) and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. --After returning to Missouri, Scott sued unsuccessfully in the Missouri courts for his freedom, claiming that his residence in free territory made him a free man. Scott then brought a new suit in federal court. --Scott's master maintained that no pure-blooded Negro of African descent and the descendant of slaves could be a citizen in the sense of Article III of the Constitution. --Dred Scott (Plaintiff) was a slave living in the slave state of Missouri. His owner took him to Illinois and then to Minnesota, which were both free states under the Missouri Compromise. --Plaintiff and his owner returned to Missouri, and Plaintiff was sold to Sanford (Defendant). --Plaintiff sued Defendant for his freedom, claiming to be a citizen of Missouri, based on having obtained freedom by domicile for a long period in a free state. Issue: --Was Dred Scott free or slave? --Can a slave be considered a citizen and as such become entitled to all the rights, privileges and immunities granted to citizens under the United States Constitution? Holding: --No. Slaves were not intended to be included under the word 'citizens' in the Constitution. At the time the Constitution was written, slaves were considered an inferior and subordinate class. No state can introduce a new member into the political community created by the Constitution. The Declaration of Independence clearly never intended to include slaves. The Constitution never intended to confer on slaves or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen. Plaintiff is clearly not a citizen and not entitled to sue. An act of Congress, which deprives a citizen of his property merely because he brought his property into a particular part of the United States does not comport with due process of law. The right of property in a slave is distinctly and expressly affirmed in the Constitution. An act of Congress, which prohibits a citizen from owning slaves in any territory in the United States is void. So, Plaintiff did not become free by going into a state, which prohibited slavery. --Dred Scott was a slave. Under Articles III and IV, argued Taney, no one but a citizen of the United States could be a citizen of a state, and that only Congress could confer national citizenship. Taney reached the conclusion that no person descended from an American slave had ever been a citizen for Article III purposes. The Court then held the Missouri Compromise unconstitutional, hoping to end the slavery question once and for all. (Note: While the Supreme Court's official recording of the case name spells the respondent's name as "Sandford," his name was actually "Sanford." Therefore, we have reflected both the Court's documentation and the correct spelling as accurately as possible.) Discussion. This case is remembered for the decision that blacks were not citizens, but merely property. It is also remembered for voiding the Missouri Compromise.

Plessy v. Ferguson (1896)

Facts: --A white person was denied a seat in an all white railroad car. --When he resisted, he was arrested for violating a state law which provided for segregated "separate but equal" railroad accommodations. --Plessy appealed the conviction on the basis that separation of the races stigmatized blacks and stamped them with the badge of inferiority. --Plessy claimed that segregation violated the Thirteenth and Fourteenth Amendments. --The trial court found Plessy guilty on the basis that the law was a reasonable exercise of the state's police powers based upon custom, usage, and tradition in the state. Issue: --May the state segregate the races in "separate but equal" facilities or accommodations? HOLDING AND DECISION: (Brown, J.) Yes. The state may segregate the races in "separate but equal" facilities or accommodations. This is a valid exercise of the state's police power. Where this has been the established custom, usage or tradition in the state, it may continue to require such segregation as is reasonable to preserve order and the public peace. Such decisions have been continuously upheld. This is not a badge of "slavery" under the Thirteenth Amendment and it violates no provision of the Fourteenth Amendment. The enforced separation of the races is not a badge of servitude or inferiority regardless of how Plessy and other blacks deem to treat it. The conviction is sustained. DISSENT: (Harlan, J.) The statute interferes with the personal freedom of individuals to freely associate with others. The Constitution is color-blind. All citizens should and must be treated alike. Blacks are not subordinate or inferior things. They are citizens and are entitled to all of the privileges which this entails. Enforced separation is an impermissible burden on these privileges and freedoms. The conviction should be overturned. ANALYSIS Plessy is of importance only for its historical perspective. Later cases borrowed the "separate but equal" phraseology and turned it around 180 degrees. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court, 58 years after Plessy, held that separate could never be considered equal. It thus expressly overruled Plessy.

Planned Parenthood v. Danforth (1976)

Facts: --About a year after the Supreme Court decided Roe v. Wade, the State of Missouri passed a law regulating abortions in the state. --Planned Parenthood of Missouri and two doctors who supervised abortions at Planned Parenthood sued to prevent enforcement of certain parts of the law. --The challenged parts of the law: define "viability" as the "stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life support systems" --Require a women submitting to an abortion during the first 12 weeks of pregnancy to sign a consent form certifying that she was not coerced --Require written consent from the woman's spouse during the first 12 weeks of pregnancy, unless the abortion will save the mother's life --Require parental consent if the woman is younger than 18. --Require physicians to exercise professional care in preserving a fetus life or risk being charged with manslaughter; declare an infant who survives an abortion attempt as a ward of the state, depriving mother and father of parental rights --Prohibit saline amniocentesis after the first 12 weeks of pregnancy; and require reporting and record keeping for facilities and physicians that perform abortions. --The district court upheld all of the provisions except 4, holding that it was overbroad because it did not exclude the stage of pregnancy before the fetus is viable. --The Supreme Court head this case on direct appeal. Issue: --Are the challenged provisions of the Missouri law regulating abortion unconstitutional? Holding: --Yes in part. Justice Harry A. Blackmun delivered the majority opinion, reversing in part and remanding. The Court followed the three-trimester framework laid out in Roe v. Wade. The Supreme Court held that provisions 1, 2 and 8 were constitutional. Provisions 3 and 4 were unconstitutional because the state cannot delegate the authority to prevent an abortion to anyone but the physician and the woman during the first trimester of pregnancy. Provision 5 was unconstitutional because it required physicians to preserve the life of the fetus at any stage of pregnancy. Provision 7 was unconstitutional because it failed to regulate in reference to the mother's health, and instead was designed to prohibit most abortions after 12 weeks. The Court refused to consider provision 6. Justice Potter Stewart concurred, expressing that the mother's consent provision was constitutional because not prevents a state from ensuring that the abortion decision is made knowingly and voluntarily. The parental consent provision was unconstitutional places a potential prohibition on abortion for women under 18. The spousal consent provision was also unconstitutional because the woman's right to make the decision outweighed a father's right to associate with his offspring. Justice Lewis F. Powell joined in the concurrence. Justice Byron R. White concurred in part and dissented in part, arguing that the physician care provision was constitutional because the state can require a physician to preserve the life of a fetus once it is viable. Chief Justice Warren E. Burger joined in Justice White's opinion. Justice John Paul Stevens concurred in part and dissented in part, arguing that prohibiting saline amniocenteses was unconstitutional because it essentially prohibited abortions after the first trimester. The parental consent provision was constitutional because the state has an interest in protecting the welfare of its young citizens. CONCURRING AND DISSENTING OPINIONS: Justice Stewart, joined by Justice Powell, joined in the Court's opinion, but wrote separately to express his understanding of the issues raised in the litigation. The definition of viability, in Justice Stewart's opinion, had little legal significance because it merely required physicians "to certify that the fetus to be aborted is not viable." Danforth, 428 U.S. at 89 (Stewart, J., concurring) (emphasis in original). It provided no punishment for a physician's erroneous conclusion that the fetus was not viable. Id. Justice Stewart agreed that the parental consent requirement, § 3(4), was unconstitutional, but principally because it imposed "an absolute limitation on the minor's right to abortion." Id. at 90. He added that "a materially different constitutional issue would be presented under a provision requiring parental consent or consultation in most cases but providing for prompt judicial resolution of any disagreement between the parent and the minor, or judicial determination that the minor is mature enough to give an informed consent without parental concurrence or that abortion in any event is in the minor's best interest." Id. at 90-91. "Such a provision," he said, "would not impose parental approval as an absolute condition upon the minor's right but would assure in most instances consultation between the parent and child." Id. at 91. Justice Stewart articulated the reasons for his conclusion that parents should be involved in their pregnant minor's abortion decision: There can be little doubt that the State further a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.

Brown v. Bd. of Education (1954)

Facts: --Black children had been denied admission to public schools attended by white children under laws requiring or permitting segregation according to race. It was found that the black children's schools and the white children's schools had been or were being equalized with respect to buildings, curricula, qualifications, and salaries of teachers. Issue: --Does segregation of children in public schools solely on the basis of race, even though the physical facilities are equal, deprive the children of the minority group of equal protection of the law? HOLDING AND DECISION: (Warren, C.J.) Yes. Segregation of children in public schools solely on the basis of race, even though the physical facilities are equal, deprives the children of the minority group of equal protection of the law. First of all, intangible as well as tangible factors may be considered. Hence, the fact that the facilities and other tangible factors in the schools have been equalized is not controlling. Segregation of white and black children in public schools has a detrimental effect on the black children because the policy of separating the races is usually interpreted as denoting the inferiority of the black children. A sense of inferiority affects children's motivation to learn. Segregation tends to deprive black children of some of the benefits they would receive in an integrated school. Any language in Plessy v. Ferguson, 163 U.S. 537 (1896), contrary to this is rejected. The "separate but equal" doctrine has no place in the field of education. Separate facilities are inherently unequal. Such facilities deprive black children of their right to equal protection of the laws. ANALYSIS In Plessy v. Ferguson the Court sustained a Louisiana statute requiring "equal, but separate accommodations" for black and white railway passengers. The "separate but equal" doctrine was born and under it a long line of statutes providing separate but equal facilities were upheld. Justice Harlan was the only dissenter in Plessy. He stated, "The arbitrary separation of citizens, on the basis of race, while they are on a public highway... cannot be justified upon any legal grounds. The thin disguise of equal accommodations for passengers in railway cars will not mislead anyone, nor atone for the wrong done this day." After the 1954 decision in Brown v. Board of Education, the Court found segregation unconstitutional in other public facilities as well. Despite the emphasis on the school context in Brown, the later cases resulted in per curiam orders simply citing Brown. Facilities which

Brown v. Entertainment Merchants Ass'n (2011)

Facts: --California enacted a statute that prohibited the sale or rental to minors of violent video games and that required their packaging to be labeled "18." --The statute covered games "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted" in a manner that "[ a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors," that is "patently offensive to prevailing standards in the community as to what is suitable for minors," and that "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors." --Violation of the statute carried a civil penalty of up to $ 1000. A video game association brought suit challenging the statute as violative of the First Amendment. --California claimed, inter alia, that the statute was justified in aid of parental authority, by ensuring that only parent could decide what games were appropriate for their children. --The district court, finding the statute violated the First Amendment, issued a permanent injunction enjoining the enforcement of the statute, and the court of appeals affirmed. The Supreme Court granted certiorari. Issue: --Does a statute that purports to prohibit the rental or sale to minors of violent video games violate the First Amendment as being both underinclusive and overinclusive? Holding: -- (Scalia, J.) Yes. A statute that purports to prohibit the rental or sale to minors of violent video games violates the First Amendment as being both underinclusive and overinclusive. Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium, and the basic principles of freedom of speech do not vary with a new and different communication medium. Unless the content of speech falls into a category of historically unprotected speech, a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. Violent speech is not obscenity, and precedent is clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking; instead, the exception covers only certain types of depictions of sexual conduct. California's statute does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. Instead, California wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken. While a state may protect children from harm, its power to do so does not include a free-floating power to restrict the ideas to which children are exposed. This country has no tradition of specially restricting children's access to depictions of violence; in fact, children's books contain depictions of violence, as do books read in school through high school. California's claim that "interactive" video games present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive since all literature is interactive to some degree. Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest. California cannot meet that standard. It concedes it cannot show a direct causal link between violent video games and harm to minors. Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, or violent comic books, its video-game regulation is underinclusive. The regulation is also underinclusive because it permits allegedly dangerous materials to stay in the hands of children provided a parent or other guardian approves. California also cannot show that the statute's restrictions meet the alleged substantial need of parents who wish to restrict their children's access to violent videos. The video-game industry's voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents, the statute is greatly overinclusive, since not all of the children who are prohibited from purchasing violent video games have parents who disapprove of their doing so. Accordingly, because the statute is both underinclusive and overinclusive, it cannot satisfy strict scrutiny. [Affirmed.] CONCURRENCE: (Alito, J.) The statute at issue, although well intentioned, does not define "violent video games" with the precision that the Constitution demands, so it violates the First Amendment by being vague and failing to provide fair notice. That analysis should be the end of the question in this case. The heightened threshold limitation required of obscenity statutes, which serves as a notice function, is absent from California's statute. The nation has long regarded many depictions of killing and maiming as suitable aspects of entertainment for adults and minors, so that categorizing a video as violent if it contains killing, maiming, dismembering or sexually assaulting is insufficiently narrow to provide fair notice of what is proscribed "violence." Instead of applying its own standard for what is acceptable, the California legislature relied on community standards and the identification of generally acceptable standards as to the suitability of violent entertainment for minors. This differs markedly from using community standards regarding obscenity, since there has historically been a great deal of experience in this country regarding obscenity which has shaped generally accepted norms concerning expression related to sex. However, there is no similar history regarding sex. However, there is no similar history regarding the expression of violence. Because violence is a part of even great literature and children's stories, reasonable persons could disagree about which depictions might excite "deviant" or "morbid" impulses. This lack of clarity regarding community standards is exacerbated by the statute's lumping together of all minors— young children as well as those minors nearing majority. For these reasons, the statute fails to provide fair notice. In addition, the majority errs in saying that the holding in United States v. Stevens, 130 S. Ct. 1577 (2010), controls this case. The statute at issue in Stevens applied to all persons and swept more broadly than the statute at issue here. Moreover, Stevens left open the possibility that the statute in that case could comply with the First Amendment if it were drawn more narrowly, whereas the majority's sweeping opinion here leaves very little room for any regulation of minors' access to video games to be constitutional. California's regulation also reinforces parental decisionmaking, and is similar to other statutes the Court has upheld that prevent minors from purchasing certain materials but permit parents to supply the minors with those materials if the parents so wish. Finally, the majority's approach in reaching its decision is also flawed because it hastily dismisses the judgment of legislators, who may be in a better position than the Court to assess the implications of new technology. There are reasons to suspect that the experience of playing violent video games might be very different from reading a book, listening to the radio, or watching a movie or a television show— even if the latter contain elements of violence. The degree of violence in some video games is astounding, and players of these games have an unprecedented ability to participate in the events that are created by the games' virtual worlds. The majority acted prematurely in silencing legislative efforts to deal with what seems to be a developing social problem, and, therefore, the Court should not have expressed its views as to whether a properly drawn statute would or would not survive constitutional scrutiny. DISSENT: (Thomas, J.) The majority's decision does not comport with the original understanding of the First Amendment. That understanding did not encompass rights of adults to speak to minors or of minors to access speech absent approval from parents or guardians. Therefore, the statute at issue is not facially unconstitutional, because the only speech affected (assuming that video games are speech) is speech that bypasses a minor's parent or guardian; such speech does not fall within "the freedom of speech" as originally understood. This comports with evidence showing that the Founders' believed that parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. DISSENT: (Breyer, J.) The statute on its face should be upheld under traditional First Amendment scrutiny. A facial challenge to a statute can succeed only if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep. It is also more difficult to mount a facial First Amendment attack on a statute that seeks to regulate activity that involves action as well as speech. The video games targeted by California's statute combines action with speech in the form of virtual killings and target practice. Applying the Court's "vagueness" precedents and a strict form of First Amendment scrutiny, the relevant category is not (as the majority claims) the category of "depictions of violence," but rather the category of "protection of children." Further, depictions of violence, while not within the automatically excluded categories of protection, such as obscenity, also do not automatically fall outside the First Amendment's protective scope. The statute also does not suffer from vagueness problems, and it provides "fair notice of what is prohibited." There is nothing vague about the terms "kill," "maim," and "dismember." It will be easy to identify those games at which the statute is aimed, and the statute protects any game that has serious literary, artistic, political, or scientific value. In fact, the industry itself has promulgated standards and created a review process in which adults who typically have experience with children assess what games are inappropriate for minors, thus making it especially straightforward to separate those games that are covered from those that are not. Regarding obscenity, the Court used "community standards" precisely because of the difficulty of articulating accepted norms about depictions of sex, and those "community standards" would suffice in determining the suitability of depictions of violence. Accordingly, there is no meaningful difference, for vagueness purposes, between a statute prohibiting the display of "nudity" to minors (upheld in Ginsberg v. New York, 390 U.S. 629 (1968)) and the statute at bar; and, in any event, if there remain any vagueness problems the state courts can cure them through interpretation. Further, the statute meets the requirement that it be "narrowly tailored" to further a "compelling interest," without there being a "less restrictive" alternative that would be "at least as effective." First, the statute only imposes a modest restriction on expression, as it only prevents a child or adolescent from buying, without a parent's assistance, a gruesomely violent video game of a kind that the industry itself has indicated should be kept out of the hands of those under the age of 17. Second, the statute would not create a precedent applicable to other media, since video games are interactive and most other media are not. Third, the state's interest is compelling, consisting of (1) the "basic" parental claim to authority in their own household to direct the rearing of their children; and (2) the state's independent interest in the well-being of its youth. By promoting these interests, the statute is not underinclusive. Moreover, there is considerable evidence, in the form of scientific studies, that the statute furthers the state's compelling interest, given that video games have been shown to be excellent teaching tools. Although some of the scientific evidence is debated, associations of public health professionals have reviewed many of the studies and found a significant risk that violent video games, when compared with more passive media, are particularly likely to cause children to become more aggressive, and to cause them harm. In addition, there is no less restrictive alternative to the mechanism found in the statute, because a voluntary, industry-based rating system has serious enforcement gaps. For these reasons, the statute is facially constitutional. By holding otherwise, the majority creates an anomaly in First Amendment law; it permits a state to prohibit the sale to minors of depictions of nudity, but it forbids the state to prohibit the sale to minors of the most violent interactive video games. This anomaly disappears once one recognizes that extreme violence, where interactive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity— and the record here is more than adequate to support such a view. ANALYSIS With this decision, the Court affirmed its holding in United States v. Stevens, 130 S. Ct. 1577 (2010), where it held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. In Stevens, the Court emphatically rejected the government's argument that lack of a historical warrant did not matter, and that it could create new categories of unprotected speech by applying a "simple balancing test" that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. In both Stevens and this case, the majority emphasized that, based on longstanding tradition and history, obscenity is not protected speech, but non-obscene speech is protected. The Court indicated that because speech about violence is not obscene, it is protected. However, it is arguable that such a rigid, history-based approach will never permit First Amendment law to reflect changing community attitudes about speech that is not obscenity. Accordingly, Justice Breyer in his dissent asks "what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman— bound, gagged, tortured, and killed— is also topless?" The answer, according to the majority, is that regardless of the result, precedent must be adhered to, with no room for new categories of unprotected speech. FIRST AMENDMENT Prohibits Congress from enacting any law respecting an establishment of religion, prohibiting the free exercise of religion, abridging freedom of speech or the press, the right of peaceful assembly and the right to petition for a redress of grievances.

Washington v. Davis (1976)

Facts: --FACTS: In order to be accepted in the District of Columbia Metropolitan Police Department, all applicants must receive a grade of at least 40 on "Test 21." --This test was developed by the Civil Service Commission for use throughout the federal service to test "verbal ability, vocabulary, reading and comprehension." --After failing this test, several African American applicants brought an action against the Commissioners of the United States Civil Service Commission for a declaratory judgment that "Test 21" was unconstitutional. --In this action, the African American applicants claimed that "Test 21" was unlawfully discriminatory against African Americans, and, therefore, was in violation of the Fifth Amendment Due Process Clause. After the test was invalidated by the court of appeals, the Commissioners appealed to this court. Issue: --Does a law or official governmental practice constitute "invidious discrimination" merely because it affects a greater proportion of one race than another? Holding: --HOLDING AND DECISION: (White, J.) No. A law or official governmental practice must have a "discriminatory purpose," not merely a disproportionate effect on one race, in order to constitute "invidious discrimination" under the Fifth Amendment Due Process Clause or the Fourteenth Amendment Equal Protection Clause. Of course, a disproportionate impact may be relevant as "evidence" of a "discriminatory purpose." However, such impact "is not the sole touchstone of invidious racial discrimination forbidden by the Constitution," and, standing alone, "it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny." Here, "Test 21" is racially "neutral" on its face (i.e., it is designed to disqualify anyone who cannot meet the requirements of the police training program). As such, it is valid even though it has a disproportionate effect on African Americans. Reversed. CONCURRENCE: (Stevens, J.) There is no "purposeful discrimination" here, since "Test 21" serves "the neutral and legitimate purpose of requiring all applicants to meet a uniform minimum standard of literacy." DISSENT: (Brennan, J.) At a minimum, the Commissioners (D) "should have been required to prove that the police training examinations either measure job-related skills or predict job performance." ANALYSIS Generally, classifications based upon race are considered "suspect" and, therefore, are subjected to "strict scrutiny" under the Equal Protection Clause or the Due Process Clause (i.e., such classifications must be justified by a "compelling state interest"). However, as this case illustrates, such "strict scrutiny" is only applied when there is "purposeful discrimination." As such, the Court (as here) can avoid applying "strict scrutiny" by finding that any discriminatory impact is merely incidental. Note that here the Court also avoided applying the strict standard in Title VII of the Civil Rights Act of 1964 (by saying that only the constitutional issue was raised). Under Title VII, whenever hiring and promotion practices disqualify disproportionate numbers of blacks, they must be justified by more than a rational basis (i.e., must be validated in terms of job performance) even if no discriminatory purpose is shown.

Obergefell v. Hodges (2015)

Facts: --Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages. --The plaintiffs in each case argued that the state's' statutes violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under the Civil Rights Act. --In all the cases, the trial court found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the state's' bans on same-sex marriage and refusal to recognize marriages performed in other states did not violate the couples' Fourteenth Amendment rights to equal protection and due process. Issue: --(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? --(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state? Holding: --Yes, yes. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Judicial precedent has held that the right to marry is a fundamental liberty because it is inherent to the concept of individual autonomy, it protects the most intimate association between two people, it safeguards children and families by according legal recognition to building a home and raising children, and it has historically been recognized as the keystone of social order. Because there are no differences between a same-sex union and an opposite-sex union with respect to these principles, the exclusion of same-sex couples from the right to marry violates the Due Process Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law. Marriage rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the fundamental right of same-sex couples to marry. The Court also held that the First Amendment protects the rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples. Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, while same-sex marriage might be good and fair policy, the Constitution does not address it, and therefore it is beyond the purview of the Court to decide whether states have to recognize or license such unions. Instead, this issue should be decided by individual state legislatures based on the will of their electorates. The Constitution and judicial precedent clearly protect a right to marry and require states to apply laws regarding marriage equally, but the Court cannot overstep its bounds and engage in judicial policymaking. The precedents regarding the right to marry only strike down unconstitutional limitations on marriage as it has been traditionally defined and government intrusions, and therefore there is no precedential support for making a state alter its definition of marriage. Chief Justice Roberts also argued that the majority opinion relied on an overly expansive reading of the Due Process and Equal Protection Clauses of the Fourteenth Amendment without engaging with the judicial analysis traditionally applied to such claims and while disregarding the proper role of the courts in the democratic process. Justice Antonin Scalia and Justice Clarence Thomas joined in the dissent. In his separate dissent, Justice Scalia wrote that the majority opinion overstepped the bounds of the Court's authority both by exercising the legislative, rather than judicial, power and by doing so in a realm that the Constitution reserves for the states. Justice Scalia argued that the question of whether same-sex marriage should be recognized is one for the state legislatures, and that for the issue to be decided by unelected judges goes against one of the most basic precepts of the Constitution: that political change should occur through the votes of elected representatives. In taking on this policymaking role, the majority opinion departed from established Fourteenth Amendment jurisprudence to create a right where none exists in the Constitution. Justice Thomas joined in the dissent. Justice Thomas also wrote a separate dissent in which he argued that the majority opinion stretched the doctrine of substantive due process rights found in the Fourteenth Amendment too far and in doing so distorted the democratic process by taking power from the legislature and putting it in the hands of the judiciary. Additionally, the legislative history of the Due Process Clause in both the Fifth and Fourteenth Amendments indicates that they were meant to protect people from physical restraint and from government intervention, but they do not grant them rights to government entitlements. Justice Thomas also argued that the majority opinion impermissibly infringed on religious freedom by legislating from the bench rather than allowing the state legislature to determine how best to address the competing rights and interests at stake. Justice Scalia joined in the dissent. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the Constitution does not address the right of same-sex couples to marry, and therefore the issue is reserved to the states to decide whether to depart from the traditional definition of marriage. By allowing a majority of the Court to create a new right, the majority opinion dangerously strayed from the democratic process and greatly expanded the power of the judiciary beyond what the Constitution allows. Justice Scalia and Justice Thomas joined in the dissent.

Schad v. Borough of Mt. Ephraim (1981)

Facts: --In 1973, a man (defendant) opened an adult bookstore in a Borough (plaintiff). In 1976, Schad installed coin-operated devices allowing customers to watch live nude dancing. The live entertainment services were deemed to be in violation of the commercial zoning ordinance. The ordinance contains an exhaustive list of permissible commercial uses and did not include live entertainment. The Municipal Court found Schad guilty of violating the ordinance. Schad appealed to the Appellate Division of the Superior Court of New Jersey, which affirmed. Schad petitioned the United States Supreme Court for certiorari, which was granted. --"In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, NJ. The store sold adult books, magazines, and films. Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film. In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel. Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated 99-15B of Mount Ephraim's zoning ordinance... Appellants were found guilty in the Municipal Court and fines were imposed. Appeal was taken to the Camden County Court, where a trial de novo was held on the record made in the Municipal Court and appellants were again found guilty. The County Court first rejected appellants' claim that the ordinance was being selectively and improperly enforced against them because other establishments offering live entertainment were permitted in the commercial zones. Those establishments, the court held, were permitted, nonconforming uses that had existed prior to the passage of the ordinance. In response to appellants' defense based on the First and Fourteenth Amendments, the court recognized that 'live nude dancing is protected by the First Amendment' but was of the view that 'First Amendment guarantees are not involved' since the case 'involves solely a zoning ordinance' under which '[l]ive entertainment is simply not a permitted use in any establishment' whether the entertainment is a nude dance or some other form of live presentation... The Appellate Division of the Superior Court of New Jersey affirmed appellants' convictions in a per curiam opinion... The Supreme Court of New Jersey denied further review." Issue: --Does the imposition of criminal penalties under an ordinance prohibiting all live entertainment, including non obscene, nude dancing, violate the rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution? Holding: --Appellant's' convictions are invalid under the First and Fourteenth Amendments for appellee failed to justify the exclusion of live entertainment from the broad range of commercial uses permitted in the borough. Pp. 65-77. (a) The ordinance in question, as construed by the New Jersey courts to exclude live entertainment, including nude dancing, throughout the borough, prohibits a wide range of expression that has long been held to be within the protection of the First and Fourteenth Amendments. An entertainment program may not be prohibited solely because it displays a nude human figure, and nude dancing is not without its First Amendment protection from official regulation. Pp. 65-66. (b) The First Amendment requires sufficient justification for the exclusion of a broad category of protected expression from the permitted commercial uses, and none of appellee's asserted justifications withstands scrutiny. Its asserted justification that permitting live entertainment would conflict with its plan to create a commercial area catering only to the residents' "immediate needs," is patently insufficient. As to its asserted justification that live entertainment may be selectively excluded from the permitted commercial uses to avoid problems associated with live entertainment, such as parking, trash, police protection, [452 U.S. 61, 62] and medical facilities, appellee has presented no evidence that live entertainment poses problems of this nature more significant than those associated with various permitted uses, or that its interests could not be met by restrictions that are less intrusive on protected forms of expression. And as to the claimed justification that the ordinance in question is a reasonable "time, place, and manner" restriction, appellee does not identify its interests making it reasonable to exclude all live entertainment but to allow a variety of other commercial uses, and has presented no evidence that live entertainment is incompatible with the permitted uses. Pp. 67-77. Reversed and remanded. -- WHITE, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 77. POWELL, J., filed a concurring opinion, in which STEWART, J., joined, post, p. 79. STEVENS, J., filed an opinion concurring in the judgment, post, p. 79. BURGER, C. J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 85. --"The power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities. But the zoning power is not infinite and unchallengeable; it 'must be exercised within constitutional limits...' --Mount Ephraim has not adequately justified its substantial restriction of protected activity. None of the justifications asserted in this Court was articulated by the state courts and none of them withstands scrutiny. First, the Borough contends that permitting live entertainment would conflict with its plan to create a commercial area that caters only to the 'immediate needs' of its residents and that would enable them to purchase at local stores the few items they occasionally forgot to buy outside the Borough. No evidence was introduced below to support this assertion, and it is difficult to reconcile this characterization of the Borough's commercial zones with the provisions of the ordinance... --Second, Mount Ephraim contends that it may selectively exclude commercial live entertainment from the broad range of commercial uses permitted in the Borough for reasons normally associated with zoning in commercial districts, that is, to avoid the problems that may be associated with live entertainment, such as parking, trash, police protection, and medical facilities. The Borough has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems of this nature more significant than those associated with various permitted uses... The Borough also suggests that 99-15B is a reasonable 'time, place, and manner' restriction; yet it does not identify the municipal interests making it reasonable to exclude all commercial live entertainment but to allow a variety of other commercial uses in the Borough... --Accordingly, the convictions of these appellants are infirm, and the judgment of the Appellate Division of the Superior Court of New Jersey is reversed and the case is remanded for further proceedings not inconsistent with this opinion." The US Supreme Court reversed and remanded the judgment of the Supreme Court of New Jersey.

Cruzan v. Director, Mississippi Dept. of Health (1990)

Facts: --In 1983, a woman was involved in an automobile accident which left her in a "persistent vegetative state." --She was sustained for several weeks by artificial feedings through an implanted gastronomy tube. When her parents attempted to terminate the life-support system, state hospital officials refused to do so without court approval. --The Missouri Supreme Court ruled in favor of the state's policy over her right to refuse treatment. --Missouri denied the withdrawal of treatment request because her parents could not establish her wishes regarding such withdrawal by clear and convincing evidence. --The girl had a discussion with a friend who testified in court that she said she would not want to be on life support, but this was the only evidence of her personal wishes. Issue: --Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf? --Does Missouri have a legitimate state interest in tempering the liberty interests of incompetent patients? Holding: --In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements. Dissent: Justice William Brennan (J. Brennan) dissents, arguing that the State interest cannot outweigh Ms. Cruzan's liberty interest in having treatment withheld. Concurrence: Justice Sandra Day O'Connor (J. O'Connor) concurs, emphasizing that the Supreme Court of the United States (Supreme Court) did not have to decide whether a State must abide by the decisions of a medical surrogate. Justice Antonin Scalia (J. Scalis) concurs, but writes separately to state his opinion that the federal courts have no place making substantive decisions in this area, that this police power has always been afforded to the States. Discussion. While the Supreme Court decides there is a liberty interest in requesting to withdraw treatment, the Ms. Cruzan's family is not afforded the remedy they hoped for, as the Supreme Court also ruled that Missouri has a state interest in determining how that liberty interest is to be applied in the case of an incompetent.

Romer v. Evans (1996)

Facts: --In 1992, Colorado amended its state constitution by a statewide referendum. --Amendment 2, as it was designated, provided that the state and local branches of government were forbidden from enacting any laws or regulations that would protect homosexuals from discrimination. --Amendment 2 was challenged in court as unconstitutional for violating the Equal Protection Clause. --Colorado responded that Amendment 2 simply denied homosexuals any special rights given to protected classes, such as minorities. --The trial court enjoined enactment of Amendment 2, the Colorado Supreme Court affirmed, and the United States Supreme Court granted certiorari to decide the issue. Procedural history: --What did the Lower courts decide? --Understand how the case goes up to the Supreme Court Issue: --Does Colorado's Amendment 2 violated the Equal Protection Clause because it singles out a class of citizens, homosexuals, for disfavored legal status? Holding: --(Kennedy, J.) Yes. Colorado's Amendment 2 violates the Equal Protection Clause because it singles out a class of citizens, homosexuals, for disfavored legal status. The Colorado Supreme Court's construction of Amendment 2 found that its objective was to repeal existing antidiscrimination ordinances. Thus, Amendment 2 is far-reaching in that it places homosexuals in a solitary class, withdrawing legal protection for discrimination and forbidding reinstatement of these policies except by constitutional amendment. Thus it imposes a special disability on homosexuals, who can now only change the law by amending the constitution, no matter how local the harm. Generally, legislative classifications are constitutional if they bear a rational relation to a legitimate end. However, Amendment 2 identifies persons by a single trait and denies them protection across the board. Therefore, it violates the principle the government remain open on impartial terms to all who seek its assistance. Finally, equal protection means that the desire to harm a politically unpopular group is not a legitimate government interest. Amendment 2 is extraordinary and explainable only by animosity toward homosexuals. Accordingly, Amendment 2 violates the Equal Protection Clause and is unconstitutional. Affirmed. DISSENT: (Scalia, J.) Amendment 2 only prohibits the special treatment of homosexuals in that they may not obtain preferential treatment without amending the state constitution. Surely, Colorado (D) has the right to be hostile toward homosexuals just as they may have animosity toward murderers or polygamists. In fact, laws against polygamy are the best analogy and have been ignored by the majority. Also, since homosexuals are segregated in certain communities they possess political power much greater than their numbers. Amendment 2 seeks to counter this disproportionate political power. The majority has taken the side of the elites in this culture law. ANALYSIS Justice Scalia's dissenting opinion is astonishing for its not-at-all disguised animus toward homosexuals, who will no doubt be surprised to find that they are politically powerful. The dissent is also remarkable for its tone of disgust toward the majority. At the heart of the majority decision is the recognition that homosexuality is more of an immutable characteristic (like sex, race, or ethnicity) than conduct or lifestyle.

McCullen v. Coakley (2014)

Facts: --In 2009, the Massachusetts state legislature created a 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics. The petitioners, individuals who routinely engage in "pro-life counseling" outside of state abortion clinics, sued in federal district court and argued that the law violated the First Amendment protection of free speech. The district court held that, although the law placed a restriction on the time, place, and manner of speech, the law was constitutional because it was content-neutral and still left adequate, if not perfect, alternative means of communications. The U.S. Court of Appeals for the First Circuit affirmed and held that the Supreme Court, in Hill v. Colorado had already affirmed a similar statute in Colorado that prohibited certain activities within 100 feet of abortion clinics. Issue: --Did the First Circuit err in upholding the Massachusetts law under the First Amendment, as applied to the states through the Fourteenth Amendment? --If the Supreme Court's ruling in Hill v. Colorado applies, should that ruling be limited or overruled? Holding: --Yes, unanswered. Chief Justice John G. Roberts, Jr. delivered the opinion for the 9-0 majority. The Court held that the Massachusetts law was content-neutral on its face because a violation depends not on the speech itself but on the location of the speech, and therefore does not need to be analyzed under strict scrutiny. However, the Court also held that the law is still not sufficiently narrowly tailored to serve a significant government interest because it places too great a burden on the petitioners' First Amendment Rights. By denying the petitioners the ability to engage in conversation and leafleting on public streets and sidewalks, the law prevents the petitioners from engaging in exactly the transmission of ideas the First Amendment is meant to protect. The Court also held that, in enacting the law, Massachusetts overlooked other options that could serve the same interests without placing an undue burden on historical avenues of speech and debate. In his opinion concurring in the judgment, Justice Antonin Scalia wrote that the law is content-based and therefore must be examined under strict scrutiny. A blanket prohibition of speech in areas where only one type of politically charged speech is likely to occur cannot be content-neutral. Justice Scalia also pointed out that the majority opinion did not address the question of whether Hill v. Colorado should be limited or overruled. Because Justice Scalia argued that the law was content-based and therefore subject to strict scrutiny, he wrote that Hillshould be overruled because it contradicts First Amendment jurisprudence. Justice Anthony M. Kennedy and Justice Clarence Thomas joined in the opinion concurring in judgment. Justice Samuel A. Alito, Jr. wrote a separate opinion concurring in judgment in which he argued that the law's exemption for clinic employees and volunteers constitutes viewpoint discrimination because it silences abortion opponents while allowing clinic workers and supporters to express their views.

Whole Woman's Health v. Hellerstedt (2016)

Facts: --In 2013, the Texas Legislature passed House Bill 2 (H.B. 2), which contained several provisions related to abortions. --One such provision required that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed, and another provision required that all abortion clinics comply with standards for ambulatory surgical centers. --The petitioners are a group of abortion providers who sued the State of Texas seeking to invalidate those provisions in H.B. 2 as they relate to facilities in McAllen and El Paso. --The petitioners argued that H.B. 2 denied equal protection, unlawfully delegated lawmaking authority, and constituted arbitrary and unreasonable state action. --The district court dismissed the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and granted declaratory and injunctive relief against the enforcement of the two contested provisions of H.B. 2. --The U.S. Court of Appeals for the Fifth Circuit affirmed the district court's dismissal of the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and partially reversed the injunctions because the plaintiffs failed to show that they placed a substantial burden in the path of a woman seeking an abortion. Issue: --Should a court's "substantial burden" analysis take into account the extent to which laws that restrict access to abortion services actually serve the government's stated interest in promoting health? Holding: --In applying the substantial burden test, courts must weigh the extent to which the laws in question actually serve the stated government interest against the burden they impose. Justice Stephen G. Breyer delivered the opinion for the 5-3 majority, which held that the provisions of H.B. 2 at issue do not confer medical benefits that are sufficient to justify the burdens they impose on women seeking to exercise their constitutional right to an abortion. Therefore, the provisions unconstitutionally impose an undue burden. The Court held that the judicial review of such statutes need not be wholly deferential to the legislative fact-finding, especially when the factual record before the district court contradicted it. In this case, the evidence presented before the district court showed that the admitting privileges requirement of H.B. 2 did not advance the state's interest in protecting women's health but did place a substantial burden in the path of a woman seeking an abortion by forcing about half of the state's abortion clinics to close. This additional layer of regulation provided no further protections than those already in place. Similarly, the requirement that abortion clinics meet the standards for ambulatory surgical centers did not appreciably lower the risks of abortions compared to those performed in non-surgical centers. These requirements were so tangentially related to the actual procedures involved in an abortion that they were essentially arbitrary. If these requirements took effect, only seven or eight facilities in the entire state would be able to function, which is in and of itself a substantial burden on women seeking abortions because those remaining facilities would not be able to meet the demand. The Court also held that the petitioners were not precluded from challenging the provisions as they were applied despite previous litigation on whether the provisions were unconstitutional on their face, especially given the evidence about how their enforcement had actually affected abortion access across the state. In her concurrence, Justice Ruth Bader Ginsburg wrote that modern abortions are so safe relative to other medical procedures, including childbirth itself, that any law that made accessing abortions more difficult in the name of safety could not pass judicial review. Justice Clarence Thomas wrote a dissent in which he argued that the majority opinion bent the rules of judicial scrutiny and misinterpreted precedent to reach its conclusion. He argued that this case should never have made it to the Supreme Court because the Court normally did not allow suits by third parties to vindicate the rights of others. Additionally, the majority opinion misconstrued the undue burden test as requiring courts to apply a standard of review similar to strict scrutiny in assessing laws that regulate abortions, despite the fact that there was no precedential support for that level of scrutiny in these cases. By adding further tiers to the levels of judicial scrutiny, the majority created a test that was a "meaningless formalism" and that provided little guidance to lower courts because the result is based on whether a right is favored instead of being actually enumerated in the Constitution. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the Court should not have reached the substantive issues of this case because the claims should have been barred as already litigated based on the outcome of the facial challenges to the provisions, which arose from the same set of operative facts. If the lower court's decision was wrong as a matter of law, the petitioners could have appealed on that basis, but the strategic decision not to do so had consequences, and the majority opinion should have properly applied the well-established doctrine of claim preclusion. Even if the claims were not precluded, the petitioners did not meet their burden to show that the provisions in question affect a large fraction of Texan women. The fact that some clinics closed is evidence of a correlation with the provisions, not causation. Additionally, the petitioners did not prove that the closure of some clinics would actually affect the number of women able to access abortions, especially since many abortion clinics operated below capacity. Even if those provisions were problematic, the majority erred in declaring them completely unconstitutional when they could and should be upheld in any area in which they did not impose an undue burden. Chief Justice John G. Roberts, Jr. and Justice Thomas joined in the dissent. DISSENT: Justice Thomas, dissenting. Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court's troubling tendency "to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue." Stenberg v. Carhart, 530 U. S. 914, 954 (2000) (Scalia, J., dissenting). As Justice Alito observes, see post (dissenting opinion), today's decision creates an abortion exception to ordinary rules of res judicata, ignores compelling evidence that Texas' law imposes no unconstitutional burden, and disregards basic principles of the severability doctrine. I write separately to emphasize how today's decision perpetuates the Court's habit of apply-ing different rules to different constitutional rights—especially the putative right to abortion. To begin, the very existence of this suit is a jurisprudential oddity. Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions. This case also underscores the Court's increasingly common practice of invoking a given level of scrutiny—here, the abortion-specific undue burden standard—while applying a different standard of review entirely. What-ever scrutiny the majority applies to Texas' law, it bears little resemblance to the undue-burden test the Court articulated in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , and its successors. Instead, the majority eviscerates important features of that test to return to a regime like the one that Casey repudiated. Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predict-ability nor the promise of a judiciary bound by the rule of law. I This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them—a woman's right to abortion. The Court's third-party standing jurisprudence is no model of clarity. See Kowalski v. Tesmer, 543 U. S. 125, 135 (2004) (Thomas, J., concurring). Driving this doctrinal confusion, the Court has shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake. And this case reveals a deeper flaw in straying from our normal rules: when the wrong party litigates a case, we end up resolving disputes that make for bad law. For most of our Nation's history, plaintiffs could not challenge a statute by asserting someone else's constitutional rights. See ibid. This Court would "not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it." Clark v. Kansas City, 176 U. S. 114, 118 (1900) (internal quotation marks omitted). And for good reason: "[C]ourts are not roving commissions assigned to pass judgment on the validity of the Nation's laws." Broadrick v. Oklahoma, 413 U. S. 601-611 (1973). In the 20th century, the Court began relaxing that rule. But even as the Court started to recognize exceptions for certain types of challenges, it stressed the strict limits of those exceptions. A plaintiff could assert a third party's rights, the Court said, but only if the plaintiff had a "close relation to the third party" and the third party faced a formidable "hindrance" to asserting his own rights. Powers v. Ohio, 499 U. S. 400, 411 (1991) ; accord, Kowalski, supra, at 130-133 (similar). Those limits broke down, however, because the Court has been "quite forgiving" in applying these standards to certain claims. Id., at 130. Some constitutional rights remained "personal rights which . . . may not be vicari-ously asserted." Alderman v. United States, 394 U. S. 165, 174 (1969) ( Fourth Amendment rights are purely per-sonal); see Rakas v. Illinois, 439 U. S. 128, 140, n. 8 (1978) (so is the Fifth Amendment right against self-incrimination). But the Court has abandoned such limitations on other rights, producing serious anomalies across similar factual scenarios. Lawyers cannot vicariously assert potential clients' Sixth Amendment rights because they lack any current, close relationship. Kowalski, supra, at 130-131. Yet litigants can assert potential jurors' rights against race or sex discrimination in jury selection even when the litigants have never met potential jurors and do not share their race or sex. Powers, supra, at 410-416; J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127,129 (1994) . And vendors can sue to invalidate state regulations implicating potential customers' equal protection rights against sex discrimination. Craig v. Boren, 429 U. S. 190-197 (1976) (striking down sex-based age restrictions on purchasing beer). Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child. In Singleton v. Wulff, 428 U. S. 106 (1976) , a plurality of this Court fashioned a blanket rule allowing third-party standing in abortion cases. Id., at 118. "[I]t generally is appropriate," said the Court, "to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision." Ibid. Yet the plural-ity conceded that the traditional criteria for an exception tothe third-party standing rule were not met. There are no "insurmountable" obstacles stopping women seeking abortions from asserting their own rights, the plurality admitted. Nor are there jurisdictional barriers. Roe v. Wade, 410 U. S. 113 (1973) , held that women seeking abortions fell into the mootness exception for cases " 'capable of repetition, yet seeking review,' " enabling them to sue after they terminated their pregnancies without showing that they intended to become pregnant and seek an abortion again. Id., at 125. Yet, since Singleton, the Court has unquestioningly accepted doctors' and clinics' vicarious assertion of the constitutional rights of hypothetical patients, even as women seeking abortions have successfully and repeatedly asserted their own rights before this Court.1 Here too, the Court does not question whether doctors and clinics should be allowed to sue on behalf of Texas women seeking abortions as a matter of course. They should not. The central question under the Court's abortion precedents is whether there is an undue burden on a woman's access to abortion. See Casey, 505 U. S., at 877 (plurality opinion); see Part II, infra. But the Court's permissive approach to third-party standing encourages litigation that deprives us of the information needed to resolve that issue. Our precedents encourage abortion providers to sue—and our cases then relieve them of any obligation to prove what burdens women actually face. I find it astonishing that the majority can discover an "undue burden" on women's access to abortion for "those [women] for whom [Texas' law] is an actual rather than an irrelevant restriction," ante, at 39 (internal quotation marks omitted), without identifying how many women fit this description; their proximity to open clinics; or their preferences as to where they obtain abortions, and from whom. "[C]ommonsense inference[s]" that such a burden exists, ante,at 36, are no substitute for actual evidence. There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it "involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy," Casey, supra, at 851 (majority opinion), the Court has created special rules that cede its enforcement to others. II Today's opinion also reimagines the undue-burden standard used to assess the constitutionality of abortion restrictions. Nearly 25 years ago, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, a plurality of this Court invented the "undue burden" standard as a special test for gauging the permissibility of abortion restrictions. Casey held that a law is unconstitutional if it imposes an "undue burden" on a woman's ability to choose to have an abortion, meaning that it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id.,at 877. Casey thus instructed courts to look to whether a law substantially impedes women's access to abortion, and whether it is reasonably related to legitimate state interests. As the Court explained, "[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power" to regulate aspects of abortion procedures, "all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." Gonzales v. Carhart, 550 U. S. 124, 158 (2007) . I remain fundamentally opposed to the Court's abortion jurisprudence. E.g., id., at 168-169 (Thomas, J., concurring); Stenberg, 530 U. S., at 980, 982 (Thomas, J., dissenting). Even taking Casey as the baseline, however, the majority radically rewrites the undue-burden test in three ways. First, today's decision requires courts to "consider the burdens a law imposes on abortion access together with the benefits those laws confer." Ante, at 19. Second, today's opinion tells the courts that, when the law's justifications are medically uncertain, they need not defer to the legislature, and must instead assess medical justifications for abortion restrictions by scrutinizing the record themselves. Ibid. Finally, even if a law imposes no "substantial obstacle" to women's access to abortions, the law now must have more than a "reasonabl[e] relat[ion] to . . . a legitimate state interest." Ibid. (internal quotation marks omitted). These precepts are nowhere to be found in Casey or its successors, and transform the undue-burden test to something much more akin to strict scrutiny. First, the majority's free-form balancing test is contrary to Casey. When assessing Pennsylvania's recordkeeping requirements for abortion providers, for instance, Casey did not weigh its benefits and burdens. Rather, Casey held that the law had a legitimate purpose because data collection advances medical research, "so it cannot be said that the requirements serve no purpose other than to make abortions more difficult." 505 U. S., at 901 ( joint opinion of O'Connor, Kennedy, and Souter, JJ.). The opinion then asked whether the recordkeeping requirements imposed a "substantial obstacle," and found none. Ibid. Contrary to the majority's statements, see ante, at 19, Casey did not balance the benefits and burdens of Pennsylvania's spousal and parental notification provisions, either. Pennsylvania's spousal notification requirement, the plurality said, imposed an undue burden because findings established that the requirement would "likely . . . prevent a significant number of women from obtaining an abortion"—not because these burdens outweighed its benefits. 505 U. S., at 893 (majority opinion); see id., at 887-894. And Casey summarily upheld parental notification provisions because even pre-Casey decisions had done so. Id., at 899-900 (joint opinion). Decisions in Casey's wake further refute the majority's benefits-and-burdens balancing test. The Court in Mazurek v. Armstrong, 520 U. S. 968 (1997) (per curiam), had no difficulty upholding a Montana law authorizing only physicians to perform abortions—even though no legislative findings supported the law, and the challengers claimed that "all health evidence contradict[ed] the claim that there is any health basis for the law." Id., at 973 (internal quotation marks omitted). Mazurek also deemed objections to the law's lack of benefits "squarely foreclosed by Casey itself." Ibid. Instead, the Court explained, " 'the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others.' " Ibid. (quoting Casey, supra, at 885; emphasis in original); see Gonzales, supra, at 164 (relying on Mazurek). Second, by rejecting the notion that "legislatures, and not courts, must resolve questions of medical uncertainty," ante, at 20, the majority discards another core element of the Casey framework. Before today, this Court had "given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." Gonzales, 550 U. S., at 163. This Court emphasized that this "traditional rule" of deference "is consistent with Casey." Ibid. This Court underscored that legislatures should not be hamstrung "if some part of the medical community were disinclined to follow the proscription." Id., at 166. And this Court concluded that "[c]onsiderations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends." Ibid.; see Stenberg, supra, at 971 (Kennedy, J., dissenting) ("the right of the legislature to resolve matters on which physicians disagreed" is "establish[ed] beyond doubt"). This Court could not have been clearer: When-ever medical justifications for an abortion restriction are debatable, that "provides a sufficient basis to conclude in [a] facial attack that the [law] does not impose an undue burden." Gonzales, 550 U. S., at 164. Otherwise, legislatures would face "too exacting" a standard. Id., at 166. Today, however, the majority refuses to leave disputed medical science to the legislature because past cases "placed considerable weight upon the evidence and argument presented in judicial proceedings." Ante, at 20. But while Casey relied on record evidence to uphold Pennsylvania's spousal-notification requirement, that requirement had nothing to do with debated medical science. 505 U. S., at 888-894 (majority opinion). And while Gonzales observed that courts need not blindly accept all legislative findings, see ante, at 20,that does not help the majority. Gonzales refused to accept Congress' finding of "a medical consensus that the prohibited procedure is never medically necessary" because the procedure's necessity was debated within the medical community. 550 U. S., at 165-166. Having identified medical uncertainty, Gonzales explained how courts should resolve conflicting positions: by respecting the legislature's judgment. See id.,at 164. Finally, the majority overrules another central aspect of Casey by requiring laws to have more than a rational basis even if they do not substantially impede access to abortion. Ante,at 19-20. "Where [the State] has a rational basis to act and it does not impose an undue burden," this Court previously held, "the State may use its regulatory power" to impose regulations "in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." Gonzales, supra, at 158 (emphasis added); see Casey, supra, at 878 (plurality opinion) (similar). No longer. Though the majority declines to say how substantial a State's interest must be, ante, at 20, one thing is clear: The State's burden has been ratcheted to a level that has not applied for a quarter century. Today's opinion does resemble Casey in one respect: After disregarding significant aspects of the Court's prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come. As in Casey, today's opinion "simply . . . highlight[s] certain facts in the record that apparently strike the . . . Justices as particularly significant in establishing (or refuting) the existence of an undue burden." 505 U. S., at 991 (Scalia, J., concurring in judgment in part and dissenting in part); see ante, at 23-24, 31-34. As in Casey, "the opinion then simply announces that the provision either does or does not impose a 'substantial obstacle' or an 'undue burden.' " 505 U. S., at 991 (opinion of Scalia, J); see ante, at 26, 36. And still "[w]e do not know whether the same conclusions could have been reached on a different record, or in what respects the record would have had to differ before an opposite conclusion would have been appropriate." 505 U. S., at 991 (opinion of Scalia, J.); cf. ante, at 26, 31-32. All we know is that an undue burden now has little to do with whether the law, in a "real sense, deprive[s] women of the ultimate decision," Casey, supra, at 875, and more to do with the loss of "individualized attention, serious conversation, and emotional support," ante, at 36. The majority's undue-burden test looks far less like our post-Casey precedents and far more like the strict-scrutiny standard that Casey rejected, under which only the most compelling rationales justified restrictions on abortion. See Casey, supra, at 871, 874-875 (plurality opinion). One searches the majority opinion in vain for any acknowledgment of the "premise central" to Casey's rejection of strict scrutiny: "that the government has a legitimate and substantial interest in preserving and promoting fetal life" from conception, not just in regulating medical procedures. Gonzales,supra, at 145 (internal quotation marks omitted); see Casey, supra, at 846 (majority opinion), 871 (plurality opinion). Meanwhile, the majority's undue-burden balancing approach risks ruling out even minor, previously valid infringements on access to abortion. Moreover, by second-guessing medical evidence and making its own assessments of "quality of care" issues, ante, at 23-24, 30-31, 36, the majority reappoints this Court as "the country's ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States." Gonzales, supra, at 164 (internal quotation marks omitted). And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster and what "commonsense inferences" of an undue burden this Court will identify next. III The majority's furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court's tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it "rational basis," intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat. Though the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960's did the Court begin in earnest to speak of "strict scrutiny" versus reviewing legislation for mere rationality, and to develop the contours of these tests. See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274, 1284-1285 (2007). In short order, the Court adopted strict scrutiny as the standard for reviewing everything from race-based classifications under the Equal Protection Clause to restrictions on constitutionally protected speech. Id., at 1275-1283. Roe v. Wade, 410 U. S. 113, then applied strict scrutiny to a purportedly "fundamental" substantive due process right for the first time. Id., at 162-164; see Fallon, supra, at 1283; accord, Casey, supra, at 871 (plurality opinion) (noting that post-Roe cases interpreted Roe to demand "strict scrutiny"). Then the tiers of scrutiny proliferated into ever more gradations. See, e.g., Craig, 429 U. S., at 197-198 (intermediate scrutiny for sex-based classifications); Lawrence v. Texas, 539 U. S. 558, 580 (2003) (O'Connor, J., concurring in judgment) ("a more searching form of rational basis review" applies to laws reflecting "a desire to harm a politically unpopular group"); Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per cu-riam) (applying " 'closest scrutiny' " to campaign-financecontribution limits). Casey's undue-burden test added yet another right-specific test on the spectrum betweenrational-basis and strict-scrutiny review. The illegitimacy of using "made-up tests" to "displace longstanding national traditions as the primary determinant of what the Constitution means" has long been apparent. United States v. Virginia, 518 U. S. 515, 570(1996) (Scalia, J., dissenting). The Constitution does not prescribe tiers of scrutiny. The three basic tiers—"rational basis," intermediate, and strict scrutiny—"are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case." Id., at 567; see also Craig, supra, at 217-221 (Rehnquist, J., dissenting). But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. All the State apparently needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the "cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry") and a "reasoned, principled explanation" for why it is pursuing them—then this Court defers. Fisher v. University of Tex. at Austin, ante, at 7, 12 (internal quotation marks omitted). Yet the same State gets no deference under the undue-burden test, despite producing evidence that abortion safety, one rationale for Texas' law, is medically debated. See Whole Woman's Health v. Lakey, 46 F. Supp. 3d 673, 684 (WD Tex. 2014) (noting conflict in expert testimony about abortion safety). Likewise, it is now easier for the government to restrict judicial candidates' campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yuleev. Florida Bar, 575 U. S. ___, ___-___ (2015) (slip op., at 8-9), with United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 20). These more recent decisions reflect the Court's tendency to relax purportedly higher standards of review for less-preferred rights. E.g., Nixonv. Shrink Missouri Government PAC, 528 U. S. 377, 421 (2000) (Thomas, J., dissenting) ("The Court makes no effort to justify its deviation from the tests we traditionally employ in free speech cases" to review caps on political contributions). Meanwhile, the Court selectively applies rational-basis review—under which the question is supposed to be whether "any state of facts reasonably may be conceived to justify" the law, McGowan v. Maryland, 366 U. S. 420, 426 (1961) —with formidable toughness. E.g., Lawrence, 539 U. S., at 580 (O'Connor, J., concurring in judgment) (at least in equal protection cases, the Court is "most likely" to find no rational basis for a law if "the challenged legislation inhibits personal relationships"); see id., at 586 (Scalia, J., dissenting) (faulting the Court for applying "an unheard-of form of rational-basis review"). These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its "doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied." Williams-Yulee, supra,at ___ (slip op., at 1) (Breyer, J., concurring). The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case. IV It is tempting to identify the Court's invention of a constitutional right to abortion in Roe v. Wade, 410 U. S. 113, as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications. But those roots run deeper, to the very notion that some constitutional rights demand preferential treatment. During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law. See Lochner v. New York, 198 U. S. 45 (1905) . The Court in 1937 repudiated Lochner's foundations. See West Coast Hotel Co. v. Parrish, 300 U. S. 379-387, 400 (1937). But the Court then created a new taxonomy of preferred rights. In 1938, seven Justices heard a constitutional challenge to a federal ban on shipping adulterated milk in interstate commerce. Without economic substantive due process, the ban clearly invaded no constitutional right. See United States v. Carolene Products Co., 304 U. S. 144-153 (1938). Within Justice Stone's opinion for the Court, however, was a footnote that just three other Justices joined—the famous Carolene Products Footnote 4. See ibid., n. 4; Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093, 1097 (1982). The footnote's first paragraph suggested that the presumption of constitutionality that ordinarily attaches to legislation might be "narrower . . . when legislation appears on its face to be within a specific prohibition of the Constitution." 304 U. S., at 152-153, n. 4. Its second paragraph appeared to question "whether legislation which restricts those political processes, 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 than are most other types of legislation." Ibid. And its third and most familiar paragraph raised the question "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." Ibid. Though the footnote was pure dicta, the Court seized upon it to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race—but also rights not enumerated in the Constitution.2 As the Court identified which rights deserved special protection, it developed the tiers of scrutiny as part of its equal protection (and, later, due process) jurisprudence as a way to demand extra justifications for encroachments on these rights. See Fallon, 54 UCLA L. Rev., at 1270-1273, 1281-1285. And, having created a new category of fundamental rights, the Court loosened the reins to recognize even putative rights like abortion, see Roe, 410 U. S., at 162-164, which hardly implicate "discrete and insular minorities." The Court also seized upon the rationale of the Carolene Products footnote to justify exceptions to third-party standing doctrine. The Court suggested that it was tilting the analysis to favor rights involving actual or perceived minorities—then seemingly counted the right to contraception as such a right. According to the Court, what matters is the "relationship between one who acted to protect the rights of a minority and the minority itself"—which, the Court suggested, includes the relationship "between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so." Eisenstadt v. Baird, 405 U. S. 438, 445 (1972) (citing Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L. J. 599, 631 (1962)). Eighty years on, the Court has come full circle. The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear. * * * Today's decision will prompt some to claim victory, just as it will stiffen opponent's' will to object. But the entire Nation has lost something essential. The majority's embrace of a jurisprudence of rights-specific exceptions and balancing tests is "a regrettable concession of defeat—an acknowledgement that we have passed the point where 'law,' properly speaking, has any further application." Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.

Republican Party of Minnesota v. White (2002)

Facts: --Minnesota's Constitution provides for the selection of all state judges by popular election. The announcement clause of the Minnesota Supreme Court's canon of judicial conduct prohibits a candidate from announcing his or her views on disputed legal or political issues. While running for associate justice of the Minnesota Supreme Court, Gregory Wersal filed suit, seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. --Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. The District Court found that the announcement clause did not violate the First Amendment. The Court of Appeals affirmed. --The Minnesota State Constitution provides for the selection of all state judges by popular election. Since 1974, these elections have been subject to a legal restriction which states that a "candidate for a judicial office, including an incumbent judge," shall not "announce his or her views on disputed legal or political issues." --This law was known as the "announce clause" in the Constitution and judicial candidates were subject to severe penalties for violating the clause. In 1996, Gregory Wersel, a lawyer member of the Republican Party of Minnesota (plaintiff), ran for associate justice of the Minnesota Supreme Court. --His campaign distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion. A complaint was filed against him with the Minnesota Lawyers Professional Responsibility Board, which dismissed the complaint. Wersel nevertheless withdrew from the race, but ran again for the same office in 1998. He sought an advisory opinion from the Lawyers Board as to whether it would enforce the announce clause. --The Board doubted that the clause was constitutional, but said it could not answer this question because it did not know the list of announcements Wersel wished to make. Wersel then filed suit in district court against White (defendant), a Minnesota official, seeking a declaration that the announce clause violated the First Amendment to the United States Constitution and an injunction against its enforcement. --The district court granted White's motion for summary judgment, and the court of appeals affirmed. Issue: --Does the First Amendment permit the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues? Holding: --No. In a 5-4 opinion delivered by Justice Antonin Scalia, the Court held that the announce clause violates the First Amendment. The Court reasoned that the announce clause prohibits speech based on its content and burdens a category of speech that is at the core of First Amendment freedoms - speech about the qualifications of candidates for public office. Moreover, the Court concluded that the clause did not serve to preserve the state judiciary's impartiality, it's argued compelling state interest. "There is an obvious tension between the article of Minnesota's popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court's announce clause which places most subjects of interest to the voters off limits," wrote Justice Scalia.

Korematsu v. U.S. (1944)

Facts: --President of the United States Franklin Roosevelt (President Roosevelt) issued an executive order authorizing military commanders to prescribe military areas from which any or all persons may be excluded. --Thereupon, a military commander ordered all persons of Japanese descent, whether or not they were United States citizens, to leave their homes on the West Coast and to report to "Assembly Centers." --The Petitioner, a United States citizen of unchallenged loyalty, but of Japanese descent, was convicted under a federal law making it an offense to fail to comply with such military orders. During World War II, Presidential Executive Order 9066 and congressional statutes gave the military authority to exclude citizens of Japanese ancestry from areas deemed critical to national defense and potentially vulnerable to espionage. --Korematsu remained in San Leandro, California and violated Civilian Exclusion Order No. 34 of the U.S. Army. Issue: --Was it within the power of Congress and the Executive to exclude persons of Japanese ancestry from the West Coast at the time that they were excluded? --Did the President and Congress go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent? Holding: --Yes. At the time the exclusion was ordered, it was justified. Justice Hugo Black stated that although the exclusion order imposed hardships upon a large number of American citizens, hardships are part of war. When, under conditions of warfare, our shores are threatened by hostile forces, the power to protect them must be commensurate with the threatened danger. The Court sided with the government and held that the need to protect against espionage outweighed Korematsu's rights. Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril." Rule of Law. Legal restrictions that curtail the civil rights of a single racial group are subject to the most rigid scrutiny. But, pressing public necessity may sometimes justify such restrictions. Dissent: Justice Frank Murphy (J. Murphy) argued that the exclusion at issue here goes over the brink of constitutional power and falls into the abyss of racism. Although we must extend great deference to the judgments of the military, it is essential that there be definite limits to military discretion. Moreover, the military order is not reasonably related to the dangers it seeks to prevent. Dissent: Justice Robert Jackson (J. Jackson) stated he would not distort the United States Constitution (Constitution) to approve everything the military may deem expedient. Analysis. Ironically, this case establishes the "strict scrutiny" standard of review, thereby leading to the invalidation of much race-based discrimination in the future.

Turner Broadcasting System, Inv. v. FCC (1994)

Facts: --The 1992 Cable Television Consumer Protection and Competition Act required cable television systems to set aside some of their channels for local broadcast television. In 1994, the Supreme Court held that these must-carry provisions pass constitutional muster. --The Court then remanded the case to determine whether Congress had adequate factual support for its conclusion that the must-carry provision is necessary. --A special three-judge district court held that there was sufficient evidence that the must-carry provision furthered important governmental objectives and that the provision was narrowly tailored to promote those interests. The broadcasters appealed directly to the Supreme Court. --The Act included provisions that required cable companies to carry local television stations. These "must-carry" provisions were controversial, in that Petitioners argued they were an abrogation of their First Amendment rights, not to subscribe to other viewpoints. ---The District Court granted summary judgment for the Respondent, the FCC (Respondent), noting that the governmental interest in including the "must-carry" outweighed the infringement on Petitioner's' speech. --The Supreme Court of the United States (Supreme Court) granted certiorari. Issue: --Is the 1992 "must carry" law an unconstitutional intrusion on cable operators' editorial autonomy, a form of Government-compelled speech that violates the First Amendment? --The issue at hand is whether cable companies can be compelled to carry other stations, in violation of their First Amendment constitutional rights. Holding: --No. In a 5-to-4 decision, the Court held that Congress "has an independent interest in preserving a multiplicity of broadcasters." The outcome supported Congress's right to judge what approach would best insure a competitive communications marketplace. --Affirmed. In reaching its holding, the Supreme Court turned to the O'Brien test for determining whether the governmental interest in maintaining the "must-carry" provisions outweighed the any negative impact upon Petitioners' First Amendment rights. The Supreme Court found three substantial governmental interests: (1) the preservation of free local broadcast television; (2) the promotion of widespread dissemination of information from multiple sources (thus allowing the consumer to choose his source of information, rather than be held to the choices of the cable company) and (3) promotion of fair competition. In considering the governmental interests, the Supreme Court found their benefit outweighed the negligible impact on the cable companies. Rule of Law. The rule enunciated by this case is that broadcasters are to be afforded First Amendment rights in freedom of speech, but they cannot abrogate the rights of other broadcasters, or force them out of the market. Dissent. Justice Sandra Day O'Connor (J. O'Connor) dissented, maintaining that "must-carry" provisions were actually a guise for content regulation, in the inclusion of local programming. Concurrence. Justice John Paul Stevens (J. Stevens) concurs, noting there would have been a greatly different if the statute was found to regulate content, rather than competition. Analysis. While a broadcast company is to be afforded all First Amendment protections, it cannot invoke those protections in abrogating the rights of other broadcast

New York Times Co. v. U.S. (1971)

Facts: --The Government sought to enjoin New York Times Co. and the Washington Post from publishing the contents of a classified study entitled, "History of U.S. Decision-Making Process on Vietnam Policy" (The Pentagon Papers). --The United States sought to enjoin the New York Times and Washington Post from publishing contents of a confidential study about the Government's decision making with regards to Vietnam policy. --The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint. Issue: --Must one seeking a prior restraint on expression meet a heavy burden of showing justification for imposition of the restraint? Holding: --(Per curiam) Yes. Any system of prior restraints of expression comes to the court bearing a heavy presumption against its constitutional validity. Here, the Government (P) carried a heavy burden of showing justification for the enforcement of such a restraint. It did not meet that burden. The denial of injunctive relief is affirmed. CONCURRENCE: (Black, J.) The cases should have been dismissed and relief denied when they were first presented to the court. Every moment's continuance of the injunctions against the newspapers amounts to a flagrant, indefensible violation of the First Amendment. To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment. CONCURRENCE: (Douglas, J.) The First Amendment leaves no room for government restraint on the press. Its dominant purpose was to prohibit the widespread practice of governmental suppression of embarrassing information. CONCURRENCE: (Brennan, J.) The error that has pervaded these cases was the granting of any injunctive relief whatsoever since the entire thrust of the Government (P) claim was that publication of the material "could" or "might" or "may" prejudice the national interest. Only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea, can support even the issuance of an interim restraining order. CONCURRENCE: (Stewart, J.) Under the Constitution, the Executive has enormous power in the areas of national defense and international relations, and the only effective restraint on this power in these areas is an enlightened citizenry, which cannot exist without a free press. The need for a free press is balanced against the need for secrecy and confidentiality in the conduct of international affairs and in maintaining an effective national defense. The answer to this "dilemma" is that the "responsibility must be where the power is"— that the Executive is charged with promulgating and enforcing executive regulations to protect the confidentiality required in these areas. The role of Congress is to enact criminal (or civil) laws to protect government property and secrets, and it is the responsibility of the courts to decide the applicability of such laws. But here, the Court is not being asked to construe specific executive regulations or to apply specific laws.Instead, the Court is being asked to perform a function that belongs to the Executive. Because, with regard to the material the Executive is seeking to suppress, it cannot be said that publication of the material will definitely result in direct, immediate, and irreparable damage to the nation, the relief sought must be denied. CONCURRENCE: (White, J.) Terminating the injunction does not mean that the law requires or invites the publication of these relatively few, sensitive documents. It also does not mean that publishers will be immune from criminal liability if they do. Congress has passed legislation regulating unauthorized disclosure of information that could potentially threaten the national security, but Congress has not authorized the injunctive remedy against threatened publication. CONCURRENCE: (Marshall, J.) The issue is whether the Executive Branch is permitted to invoke the equity jurisdiction of the courts to protect what it believes is the national security. It would be utterly inconsistent with the concept of separation of powers for the Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit. DISSENT: (Harlan, J.) In the name of the presumption against prior restraints, the Court has been almost irresponsibly feverish in dealing with these cases. The doctrine of prior restraints does not prevent the courts from maintaining the status quo long enough to act responsibly. The separation of powers requires that the judicial function in passing upon the activities of the executive in foreign affairs be narrowly restricted. Even if there is some room for the judiciary to override executive determinations of the probable impact of disclosure on national security, the scope of review must be very narrow. ANALYSIS On June 13, 1971, the New York Times (D) began publishing parts of the Pentagon Papers. On June 18, the Washington Post (D) also began publishing parts of the papers. The Government (P) brought an action to restrain publication. Between June 15 and June 28, two district courts and two courts of appeal considered the case. On June 25, the Supreme Court granted certiorari. Restraining orders were continued in effect pending decision, which was handed down on June 30. Four justices, Brennan, Marshall, Douglas, and Black, dissented from the grants of certiorari, urging summary action and stating that they would not continue the restraint on the newspapers.

Burwell v. Hobby Lobby Stores, Inc. (2014)

Facts: --The Green family owns and operates Hobby Lobby Stores, Inc., a national arts and crafts chain with over 500 stores and over 13,000 employees. --The Green family has organized the business around the principles of the Christian faith and has explicitly expressed the desire to run the company according to Biblical precepts, one of which is the belief that the use of contraception is immoral. --Under the Patient Protection and Affordable Care Act (ACA), employment-based group health care plans must provide certain types of preventative care, such as FDA-approved contraceptive methods. While there are exemptions available for religious employers and non-profit religious institutions, there are no exemptions available for for-profit institutions such as Hobby Lobby Stores, Inc. --On September 12, 2012, the Greens, as representatives of Hobby Lobby Stores, Inc., sued Kathleen Sebelius, the Secretary of the Department of Health and Human Services, and challenged the contraception requirement. --The plaintiffs argued that the requirement that the employment-based group health care plan cover contraception violated the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA). --The plaintiffs sought a preliminary injunction to prevent the enforcement of tax penalties, which the district court denied and a two-judge panel of the U.S. Court of Appeals for the Tenth Circuit affirmed. --The Supreme Court also denied relief, and the plaintiffs filed for an en banc hearing of the Court of Appeals. --The en banc panel of the Court of Appeals reversed and held that corporations were "persons" for the purposes of RFRA and had protected rights under the Free Exercise Clause of the First Amendment. Procedural history: --What did the Lower courts decide? --Understand how the case goes up to the Supreme Court Issue: --Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company's owners? Holding: --Yes. Justice Samuel A. Alito, Jr. delivered the opinion for the 5-4 majority. The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends. Because the contraception requirement forces religious corporations to fund what they consider abortion, which goes against their stated religious principles, or face significant fines, it creates a substantial burden that is not the least restrictive method of satisfying the government's interests. In fact, a less restrictive method exists in the form of the Department of Health and Human Services' exemption for non-profit religious organizations, which the Court held can and should be applied to for-profit corporations such as Hobby Lobby. Additionally, the Court held that this ruling only applies to the contraceptive mandate in question rather than to all possible objections to the Affordable Care Act on religious grounds, as the principal dissent fears. In his concurrence, Justice Anthony M. Kennedy wrote that the government had not met its burden to show that there was a meaningful difference between non-profit religious institutions and for-profit religious corporations under the RFRA. Because the contraception requirement accommodates the former while imposing a more restrictive requirement on the later without showing proper cause, the requirement violates the RFRA. Justice Ruth Bader Ginsburg wrote a dissent in which she argued that the majority's decision was precluded by the Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith in which the Court held that there is no violation of the freedom of religion when an infringement on that right is merely an incidental consequence of an otherwise valid statute. Additionally, judicial precedent states that religious beliefs or observances must not impinge on the rights of third parties, as the sought-after exemption would do to women seeking contraception in this case. Justice Ginsburg also wrote that the majority opinion misconstrued the RFRA as a bold legislative statement with sweeping consequences. Because for-profit corporations cannot be considered religious entities, the burden the respondents claim is not substantial, and the government has shown a sufficiently compelling interest, Justice Ginsburg argued that the contraception mandate does not violate the RFRA. Justice Sonia Sotomayor, Justice Stephen G. Breyer, and Justice Elena Kagan joined in the dissent. In their separate dissent, Justice Breyer and Justice Kagan wrote that the Court need not decide whether for-profit corporations or their owners may sue under the RFRA.

Planned Parenthood v. Casey (1992)

Facts: --The Pennsylvania Abortion Control Act required a doctor to provide a woman seeking an abortion with information designed to persuade her against abortion and required a waiting period of at least 24 hours between provision of the information and the abortion. --A minor to obtain consent of one parent or a judge's order before having an abortion --A married woman to sign a statement averring that her husband had been notified, her husband was not the father, her husband forcibly had impregnated her, or that she would be physically harmed if she notified her husband --A public report on every abortion, including detailed information on the facility, physician, patient, and steps taken to comply with the Act. --It provided the first three provisions would not apply in a "medical emergency." --The name of the patient was confidential. --Five clinics, including Planned Parenthood of Southeastern Pennsylvania, and five doctors sued Pennsylvania, including Governor Casey, claiming the Act was unconstitutional on its face. --The district court held the entire Act unconstitutional under Roe v. Wade, 410 U.S. 113 (1973). --The court of appeals reversed, upholding the entire Act except the husband-notification requirement. Planned Parenthood et al. appealed. Issue: --Is a law unconstitutional as an undue burden on a woman's right to an abortion before fetal viability, if it places a substantial obstacle in the path of a woman's exercise of her right? Holding: --(O'Connor, J.) Yes. A law is unconstitutional as an undue burden on a woman's right to an abortion before fetal viability if it places a substantial obstacle in the path of a woman seeking to exercise her right. For two decades people have organized their lives in reliance on the availability of abortion. Rarely does the Court resolve a controversy as intensely divisive as in Roe. Such a decision only should be overturned on the basis of new information which renders the decision unjustified in the present. The Court and the nation would be seriously damaged if the Court were to overturn such a decision simply on the basis of a philosophical disagreement with prior members of the Court, or as surrender to political pressure. The liberty rights of women and the personal and intimate nature of child bearing sharply limit state power to insist a woman carry a child to term or accept the state's vision of her role in society. Thus, the integrity of the Court, stare decisis, and substantive due process require the central principle of Roe to be reaffirmed: a state may not prevent a woman from making the ultimate decision to terminate her pregnancy before viability. Roe also recognized the state's interest in maternal health and in protection of potential life. Application of the trimester framework of Roe often ignored these interests and led to the striking down of abortion regulations which in no real sense deprived women of the ultimate decision. Therefore, the trimester framework must be rejected and undue burden analysis put in its place. Here, the information requirement is not an undue burden. Truthful, non misleading information on the nature of abortion procedure, health risks, and consequences to the fetus is reasonable to ensure informed choice, one which might cause a woman to choose childbirth. The 24-hour waiting period does not create a health risk and reasonably furthers the state interest in protecting the unborn. A waiting period may increase cost and risk of delay, but it does not amount to a substantial obstacle. Prior cases establish that a state may require parental consent before abortions by minors, provided there is a judicial bypass procedure. On its face, the statute's definition of "medical emergency" is not too narrow. The reporting requirement is reasonably directed to the preservation of maternal health, providing a vital element of medical research, and the statute protects patient confidentiality. The husband-notification requirement imposes an undue burden on abortion rights of abused women who fear for their safety and the safety of their children and who are likely to be deterred from procuring an abortion as surely as if the state outlawed abortion. A husband has a strong interest in his wife's pregnancy, but before birth it is a biological fact that regulation of the fetus has a far greater impact on the woman. The husband-notification requirement is unconstitutional and the rest of the statute is valid. Affirmed. CONCURRENCE AND DISSENT: (Stevens, J.) A burden is "undue" if it is too severe or lacks legitimate justification. The information, waiting period, and parental consent requirements, as well as the husband-notification requirement, are invalid. The Court's opinion implicitly reaffirms Roe's holding that a fetus is not a "person" within the meaning of the Fourteenth Amendment. The state interest in protecting potential life is legitimate but not grounded in the Constitution. A woman has constitutional liberty rights to bodily integrity and to decide personal and private matters. So, the state may promote a preference for childbirth, but decisional autonomy must limit the state's power to interject into a woman's most personal deliberations its own views of what is best. Pennsylvania's law goes too far by requiring a doctor to provide information designed to persuade a woman to opt against abortion, just as she is weighing her personal choice. In contrast, the requirement of informing a woman of the nature and risks of abortion and childbirth enhances decision-making. The 24-hour waiting period illegitimately rests on assumptions that a decision to terminate pregnancy is wrong, and that a woman is unable to make decisions. There is no legitimate reason to require a woman who has agonized over her decision to leave the hospital and return another day. CONCURRENCE AND DISSENT: (Blackmun, J.) The Court correctly reaffirms a woman's right to abortion. However, that right should remain fundamental, and any state-imposed burden upon it should be subjected to the strictest judicial scrutiny. Categorizing a woman's right to abortion as merely a "liberty interest" is not sufficient. In striking down the husband-notification requirement the Court sets up a framework for evaluating abortion regulations in the social context of women facing issues of reproductive choice. The Court failed to strike down the information, waiting period, parental consent, and reporting requirements on their face, but the Court's standard at least allows future courts to hold that in practice such regulations are undue burdens. The reporting requirement does not further maternal health. Fearing harassment, many doctors will stop performing abortions if their names appear on public reports. However, none of these requirements would survive under the strict-scrutiny standard of review. The trimester framework should be maintained. No other approach better protects a woman's fundamental right while accommodating legitimate state interests. The Court's cases do not create a list of personal liberties: they are a principled account of how these rights are grounded in a general right of privacy. CONCURRENCE AND DISSENT: (Rehnquist, C.J.) Roe was wrongly decided, has led to a confusing body of law, and should be overturned. The Court's decision, replacing Roe's strict scrutiny standard and trimester framework with a new, unworkable undue burden test, cannot be justified by stare decisis. Authentic principles of stare decisis do not require erroneous decisions to be maintained. The Court's integrity is enhanced when it repudiates wrong decisions. Americans have grown accustomed to Roe, but that should not prevent the Court from correcting a wrong decision. The Fourteenth Amendment concept of liberty does not incorporate any all-encompassing right of privacy. Unlike marriage, procreation, and contraception, abortion terminates potential life and must be analyzed differently. Historic traditions of the American people, critical to an understanding of fundamental rights, do not support a right to abortion. A woman's interest in having an abortion is a form of liberty protected by due process, but states may regulate abortion in ways rationally related to a legitimate state interest. All provisions of the Pennsylvania law do so and are constitutional. The husband-notification requirement is reasonably related to promoting state interests in protecting the husband's interests, potential life, and the integrity of marriage. CONCURRENCE AND DISSENT: (Scalia, J.) The limits on abortion should be decided democratically. The Constitution is silent on abortion, and American traditions have allowed it to be proscribed. Applying the rational basis test, the Pennsylvania law should be upheld in its entirety. Roe was wrongly decided. It begged the question by assuming a fetus is merely potential human life. The whole argument of abortion opponents is that the state seeks to protect human life. Roe also failed to produce a settled body of law. Roe did not resolve the deeply divisive issue of abortion. It made compromise impossible and elevated the issue to a national level where it has proven infinitely more difficult to resolve. Here, the Court claims to rely on stare decisis but throws out Roe's trimester framework. The new undue burden standard is meaningless in application, giving a district judge freedom to strike down almost any abortion restriction he does not like. The Court's suggestion public opposition to an erroneous decision mitigates against overturning it is appalling. ANALYSIS: The Court also affirmed Roe's holding that after viability the state may regulate, or even proscribe, abortion, except where it is necessary to preserve the life or health of the mother. This is only the second time in modern Supreme Court jurisprudence that an opinion has been jointly authored. J. Kennedy's portion of the opinion addresses the importance of public faith in and acceptance of the Court's work by opening with the statement: "Liberty finds no refuge in a jurisprudence of doubt." J. O'Connor expounds on the essential nature of a woman's right to an abortion, while J. Souter performs the stare decisis analysis, concluding that there is no reason to reverse the essential holding of Roe. It appears that the instant case marks the first time the Court has downgraded a fundamental right to a protected liberty and by so doing removed from the usual strict scrutiny standard of review.

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017)

Facts: --This case concerns the application of the First Amendment to a state statute that bars discrimination in places of public accommodation on the basis of several protected characteristics. --The United States has a substantial interest in the preservation of constitutional rights of free expression. It also has a substantial interest in the application of such rights in the context of the state statute here, which shares certain features with federal public accommodations laws. --The First Amendment's Free Speech Clause bars the application of Colorado's public accommodations law to petitioners in this case. --A public accommodations law receives heightened scrutiny where it compels both creation of expression and participation in an expressive event. --Public accommodations laws ordinarily do not require First Amendment scrutiny. --A content-neutral law triggers heightened scrutiny where it compels both expression and participation in an expressive event --Few potential applications of public accommodations laws compel protected expression --As applied to petitioners in this case, Colorado's public accommodations law is subject to, and fails to satisfy, heightened First Amendment scrutiny. --The application of Colorado's public accommodations law to petitioners triggers heightened scrutiny --The application of Colorado's public accommodations law in this case does not satisfy heightened scrutiny. Issue: --Whether Colorado's public accommodations law, Colo. Rev. Stat. § 24-34-601(2)(a) (2016), violates the First Amendment as applied to an individual who de- clines to design and create custom wedding cakes for same-sex wedding celebrations that violate his sincerely held religious beliefs. Holding: --The majority decision (vote) --The rule of law established by this case --The answer to the question in the issue --The vote is sometimes important --What is the reasoning of the majority--What is the Court's explanation for their decision? (Concurring or Dissenting opinion) Concurring opinion- agree but for different reasons Dissenting opinion- disagrees

Coates v. Cincinnati (1971)

Facts: --a man was convicted of violating an ordinance of the city of Cincinnati, which made it a criminal offense for "three or more persons to assemble... on any of the sidewalks... and there conduct themselves in a manner annoying to persons passing by." --At the time of his conviction, he was a student involved in a demonstration and it is his contention that the ordinance on its face violates the First and Fourteenth Amendments to the Constitution. --Appellant was a student involved in a demonstration and the other Appellants were pickets involved in a labor dispute. --They were later convicted of violating a Cincinnati, Ohio, ordinance that makes it a criminal offense for three or more people to assemble on any of the sidewalks of the city and there conduct themselves in a manner annoying to passers by. --The Ohio Supreme Court upheld Appellants' convictions. Issue: --Is an ordinance which makes a crime out of conduct which may be lawful and constitutionally protected void as being vague and overbroad? Holding: --(Stewart, J.) Yes. An ordinance is unconstitutionally vague where it subjects the exercise of the right of assembly to an unascertainable standard and is unconstitutionally broad where it authorizes the punishment of constitutionally protected conduct. Due process requires that every law be narrowly drafted to avoid any "chilling effect" on the exercise of other rights. The ordinance here fails in this regard since the very purpose of such constitutionally protected speech is to create an effect which adversaries will inevitably find annoying. It is well established, however, that "mere public intolerance or animosity cannot be the basis for abridgement of... constitutional freedoms." Judgment reversed. DISSENT: (White, J.) When a criminal charge is based on conduct constitutionally subject to proscription and clearly forbidden by statute, it is no defense that the law would be unconstitutionally vague if applied to other constitutionally protected behavior. Here, the ordinance was not vague on its face since reasonable men would realize that the annoying conduct proscribed therein refers to constitutionally proscribable conduct. DISSENT: (Black, J.) The record below is insufficient to determine whether this ordinance was unconstitutional as applied here (e.g., whether Coates (P) was involved in protected or proscribable conduct). The case should be remanded. ANALYSIS "Breach of the peace" type statutes such as the one in this case have traditionally provided the vehicle for vagueness decisions. Note the relationship between vagueness and First Amendment rights, in Coates (i.e., the chilling effect concept). The determination of whether a statute has an unconstitutionally "chilling effect" on freedom of expression is, of course, a question of degree since it can be argued that all statutes have some chilling effect on potential conduct and expression. To make this determination, the court balances the public interest against the individual's interest. Of course, in First Amendment cases, only a compelling state interest will justify government intrusions.

Meyer v. Nebraska (1923)

Facts: --a state, along with other states, prohibited the teaching of modern foreign languages to grade school children. Meyer, who taught German in a Lutheran school, was convicted under this law. --Under the law, it was a crime for any individual or teacher in any private, parochial, or public school to teach any subject to any person in any language other than English. --Foreign languages could be taught as languages to students only after completion of the eighth grade. Meyer (defendant), a teacher in a parochial school in the State of Nebraska (plaintiff), was convicted of violating the Nebraska statute by teaching German to Raymond Parpart, a ten-year-old child. --The Supreme Court of Nebraska affirmed the conviction, and the Supreme Court of the United States granted certiorari. Procedural history: --NE Supreme Court affirmed conviction. --SCOTUS reversed conviction, found law unconstitutional. Issue: --Does the Nebraska statute violate the Fourteenth Amendment's Due Process clause? --Does the statute as construed and applied unreasonably infringe on the liberty guaranteed by the Fourteenth Amendment? Holding: --Yes, the Nebraska law is unconstitutional. Nebraska violated the liberty protected by due process of the Fourteenth Amendment. Liberty means more than freedom from bodily restraint. State regulation of liberty must be reasonably related to a proper state objective. The legislature's view of reasonableness was subject to supervision by the courts. The legislative purpose of the law was to promote assimilation and civic development. But these purposes were not adequate to justify interfering with Meyer's liberty to teach or the liberty of parents to employ him during a "time of peace and domestic tranquillity." Liberty denotes not only freedom from bodily restraint but also the right... To contract To engage in any occupation of his choosing To acquire useful knowledge To marry To establish a home and bring up children To worship God according to the dictates of his own conscience This liberty may not be interfered with under the guise of protecting the public interest. It is the natural duty of the parent to give his children education suitable to their station in life, and nearly all states make education of children compulsory. Mere knowledge of the German language cannot reasonably be regarded as harmful. Before the War, it was looked upon as helpful and desirable. D had the right to teach, and the parents of the child had the right to engage him so to instruct their child. These actions are within the liberty of the DPC of the 14th Amendment. The right is clearly infringed upon. The state says their interest is to foster a homogenous people with American ideals prepared readily to understand current discussions of civic matters. The means adopted exceed the limitations upon the power of the state. Proficiency is a foreign language seldom comes to one not instructed at an early age, and experience shows that it is not injurious to the health, morals, or understanding of an ordinary child. Rule of Law: The Fourteenth Amendment prohibits states from creating legislation that restricts liberty interests when the legislation is not reasonably related to an acceptable state objective.

Webster v. Reproductive Health Services (1989)

Facts: In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The statute's preamble indicated that "[t]he life of each human being begins at conception," and the law codified the following restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions. Issue: Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment? Holding: In a controversial and highly fractured decision, the Court held that none of the challenged provisions of the Missouri legislation were unconstitutional. First, the Court held that the preamble had not been applied in any concrete manner for the purposes of restricting abortions, and thus did not present a constitutional question. Second, the Court held that the Due Process Clause did not require states to enter into the business of abortion, and did not create an affirmative right to governmental aid in the pursuit of constitutional rights. Third, the Court found that no case or controversy existed in relation to the counseling provisions of the law. Finally, the Court upheld the viability testing requirements, arguing that the State's interest in protecting potential life could come into existence before the point of viability. The Court emphasized that it was not revisiting the essential portions of the holding in Roe v. Wade.

Procedural Due Process

No taking of life, liberty, or property without adequate procedures. What procedure are appropriate? To determine "adequate procedures", examine several factors that must be balanced against each other: 1. what private interest is affected? the more important the affected interest, the more careful the applied procedures must be. 2. What risk of error is inherent int he procedure? The higher the risk, the more careful and specific the applied procedures must be. 3. Weigh interest of government against alternatives? the greater the government interest, the greater likelihood of using a procedure that ill achieve government aims and reduce administrative costs. Interests protected by procedural due process: a. Life-criminal procedure for death penalty cases. b. Liberty- liberties contained int he Bill of Rights: right to privacy, family relationships, and unlawful incarceration. c. Property- usually any property interest.

NINTH AMENDMENT

The Ninth Amendment to the United States Constitution provides that the enumeration of any rights contained therein are not to be construed as denying or disparaging other rights retained by the people.