Con. Law II Cases

UNENUMERATED FR/SDP/ROP Obergefell v. Hodges (2015) 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.

(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? 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.

EQUAL PROTECTION AND SEXUAL ORIENTATION OBERGEFELL v. HODGES (2015) 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 states' 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 states' 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.

(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? 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.

UNENUMERATED FR/SDP/ROP PLANNED PARENTHOOD v. CASEY (1992) Casey involved a Pennsylvania statute. The statute did not prohibit abortion, but it did contain several regulations of abortion. Those regulations included: (1) an informed consent requirement; (2) minors parental notice; and (3) spousal notification

(1) reaffirmed central holding of Roe mandating elective abortion prior to viability, based on principle of stare decisis (2) overrules certain aspects of Roe's trimester system: specifically holds that previability abortion regulations in the 1st and 2nd trimester can be justified by state's concern with fetal life (3) holds that previability abortion regulations are evaluated under the rational basis test so long as they do not constitute an "undue burden" on the abortion liberty. An undue burden exists where the laws purpose or effect is to place a substantial obstacle in the path of a woman seeking abortion of a previabile fetus. Regulations that are an undue burden trigger strict scrutiny and are unconsitutional. Invalidated spousal notification requirement

UNENUMERATED FR/SDP/ROP ROE v. WADE (1973) Challenge to a state law outlawing abortion

(1) right of privacy includes abortion as fundamental liberty (and by implication, alternative choice of childbirth) (2) the unborn are not constitutional persons for purposes of the 14th amendment (3) the state's interest in unborn/fetal life is legitimate and grows as pregnancy progresses, but does not become compelling until fetal viability (4) trimester system: NO regulation in the 1st trimester (except that abortion may be limited to physicians); MAY regulate in 2nd trimester but only to protect the woman's health/life; elective abortion until fetal viability; once fetus is viable may proscribe abortion but must allow life and health exceptions

1st Am.: Indecent Speech Young v. American Mini Theatres American Mini Theaters opened two theaters that showed adult movies in the city of Detroit. Two city ordinances enacted in 1972 prohibited the opening of adult theaters within 1,000 feet of other buildings with "regulated uses" or within 500 feet of any residential district. American Mini sued city officials challenging the ordinances on two grounds: that the ordinances imposed an undue burden on First Amendment rights and that ordinances violated the Fourteenth Amendment's Equal Protection Clause. A federal district court ruled in favor of the city, a decision that was reversed by the United States Court of Appeals for the Sixth Circuit. The appeals court concluded that the ordinances posed a prior restraint based on content and that the ordinances ran afoul of the Equal Protection Clause.

(1): Did Detroit's 1972 ordinances violate the Due Process Clause of the Fourteenth Amendment? (2): Did the ordinances qualify as a restriction on free speech in violation of the First Amendment? No and no. In a 5-4 opinion, the court reversed the Sixth Circuit and held that Detroit's ordinances were reasonable, and although erotic material could not be completely suppressed, Detroit had adequate reasons to restrict the distribution of such material. Justice John Paul Stevens doubted that Voltaire's observation - "I disapprove of what you say, but I will defend to the death your right to say it" - applied to pornographic films. This prompted a stinging rebuke from Justice Potter Stewart who maintained that the free expression is neither defined nor circumscribed by popular opinion. Relied on the concept that there is a "less vital interest" in free speech of this kind of material

UNENUMERATED FR/SDP/ROP CAREY v. POPULATION SERVICES INTERNATIONAL (1977)— In Carey, the Court declared unconstitutional a New York law that made it a crime to sell or distribute contraceptives to minors under age 16; for anyone other than a licensed pharmacist to distribute contraceptives to persons over age 15; and for anyone to advertise or display contraceptives

. The Court stated that the decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. STRICT SCRUTINY: Thus, strict scrutiny must be met for the government to justify a law restricting access to contraceptives. ANALYSIS: This law failed because it unduly restricted access to birth control and infringed the right to control procreation. It also violated the rights of those under age 16 to have access to contraceptives

UNENUMERATED FR/SDP/ROP LOVING v. VIRGINIA (1967)— Virginia law made it illegal for interracial couples to marry. Mildred Jeter and Richard Loving (an interracial couple) married and were prosecuted. They challenged, citing equal protection and fundamental rights.

. The Fourteenth requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state. FUNDAMENTAL RIGHT: Loving establishes that there is a fundamental right under Due Process to marriage. The state may not infringe upon it unless passes strict scrutiny (necessary to achieve a compelling state interest). MORALITY: Virginia tried to justify their law based on morality. But, morality, while a legitimate state interest, is not a compelling state interest. So, morality is not a sufficient justification to uphold a law in the fundamental rights realm. SMOLIN: So, what happens here? We say that the Constitution contain a right to marriage. But, what does the Constitution mean by "marriage?" The way marriage was defined in 1789, 1791, or shortly after the Civil War? As the term marriage is defined as deeply rooted in American history or tradition? As a particular group defines marriage? They really make a tough question for us. How far does this go, gay marriage? Polygamist marriage?

1st Am.: Intro. to Places, Speech, and Public Forum Analysis TIME, PLACE, AND MANNER RESTRICTIONS— Time, place, and manner restrictions refer to the ability of the government to regulate speech in a public forum in a manner that minimizes disruption of a public place while still protecting freedom of speech.

3 PART TEST FOR TIME, PLACE, AND MANNER RESTRICTIONS: 1. Content neutral; 2. Serve a significant governmental interest; (narrowly tailored) 3. Leave open ample alternative channels for communication of information. --The Time, Place, and Manner restriction test is a form of intermediary scrutiny. --However, where a restriction is content-based or view-point based, it is not a time, place, and manner restriction and strict scrutiny is applied; and the regulation is most likely unconstitutional. A recent important case upholding a time, place, and manner restriction is Hill v. Colorado (2000). The Justices in Hill debated whether it was content-neutral

1st Am.: Schools, Free Speech, Equal Access, Etc. BOARD OF EDUCATION OF WESTSIDE COMMUNITY SCHOOLS v. MERGENS (1990)

Court considered a constitutional challenge to the Federal Equal Access Act. The Act applied to all public schools that received federal financial assistance. The Act said that any such school that opened its facilities to noncurricular student groups may not deny equal access to any students who wish to conduct meetings on similar terms because of their religious, political, philosophical, or other content of their speech. Court upheld the Act as constitutional. Preventing discrimination against speech because of its religious, political, or philosophical content was a legitimate secular purpose under the Lemon test.

1st Am.: Schools, Free Speech, Equal Access, Etc. GOOD NEWS CLUB v. MILFORD CENTRAL SCHOOL (2001)

Court considered the constitutionality of an elementary school's exclusion of a group's using school property after school for religious activities including prayer and Bible study. Two part holding: 1st: Excluding the group violated the Speech Clause of the First Amendment. The school had opened the school up for groups and therefore was a limited public forum. Being a limited public forum, it could not exclude religious groups. 2nd: Allowing the religious group to use the property on the same terms as other community groups would not violate the Establishment Clause.

1st Am.: Vagueness & Overbreadth United States v. Stevens

Court invalidates as unconstitutional a federal law criminalizing the sale, distribution, or possession of depictions of animal cruelty

1st Am.: Indecent Speech Reno v. ACLU Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being enjoined by a District Court from enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno appealed directly to the Supreme Court as provided for by the Act's special review provisions.

Did certain provisions of the 1996 Communications Decency Act violate the First and Fifth Amendments by being overly broad and vague in their definitions of the types of internet communications which they criminalized? Yes. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The Act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact adults), provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive" material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions, protecting only the former, the Act could be saved from facial overbreadth challenges if it dropped the words "or indecent" from its text. The Court refused to address any Fifth Amendment issues.

1st Am.: Indecent Speech City of Renton v. Playtime Theatres, Inc. (1986) The city of Renton, Washington, enacted a zoning ordinance that prohibited adult motion picture theaters from locating with in 1,000 feet of "any residential zone, single-or multiple-family dwelling, church, park, or school." Playtime Theatres, Inc., challenged the ordinance and sought a permanent injunction against its enforcement.

Did the Renton ordinance violate either the First or Fourteenth Amendment? In a 7-to-2 decision, the Court held that the zoning ordinance did not violate the First and Fourteenth Amendments. The Court held that the ordinance was a form of time, place, and manner regulation, not a ban on adult theaters altogether. The Court reasoned that the law was not aimed at the content of the films shown at adult motion picture theaters, "but rather the secondary effects of such theaters on the surrounding community." The Court found that the ordinance was designed to serve a substantial governmental interest in preserving the quality of life and allowed for "reasonable alternative avenues of communication."

EQUAL PROTECTION AND SEXUAL ORIENTATION HOLLISGSWORTH v. PERRY (2013)-- Facts: Challenge brought to California's anti-gay marriage referendum Proposition 8, which would have prohibited gay marriage in California. The State of California refused to defend Proposition 8 when it was challenged in Court. So, a citizen of California stepped in to take up the defense of Proposition 8's constitutionality. The lower courts declared Prop 8 unconstitutional and enjoined its enforcement.

Disposition: The Court did not hear the case regarding the constitutionality of Proposition 8 on its merits, rather it decided that the private citizen did not have standing to argue in support of Proposition 8 when the state decided not to argue in support of Proposition 8's constitutionality.

UNENUMERATED FR/SDP/ROP DOE v. BOLTON Companion case to Roe

Doe was decided the same day as Roe. Note the controversy over the scope of the "health" exception after viability. What does health mean? If we are not careful, health could become an open ended exception that swallows the rule.

1st Am.: Indecent Speech City of Erie v. Pap's A.M. "Kandyland," operated by Pap's A. M. in Erie PA, featured totally nude female erotic dancing. The city council enacted an ordinance making it an offense to knowingly or intentionally appear in public in a "state of nudity," To comply with the ordinance, dancers had to wear, at a minimum, "pasties" and a "G-string." Pap's filed suit against Erie, seeking a permanent injunction against the ordinance's enforcement.

Does Erie, Pennsylvania's public indecency ordinance, as applied to prohibit nude dancing, violate the First Amendment's guarantee of free expression? No. In an opinion delivered by Justice Sandra Day O'Connor, the Court held that Erie's public indecency ordinance did not violate any cognizable First Amendment protections of expressive conduct. In splintered voting that did not yield a majority opinion, Justice O'Connor wrote for the Court that, "[e]ven if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers... are free to perform wearing pasties and G-strings." "The requirement... is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancers' erotic message."

1st Am.: Unconstitutional Conditions US Agency for International Development v. Alliance for an Open Society International (2013) In 2003, Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act ("the Act"). Through the Act, Congress apportioned billions of dollars towards the funding of non-governmental organizations ("NGOs") involved in the fight against HIV/AIDS. NGOs qualify to receive this funding only if they satisfy certain conditions. One of these conditions requires that all federally funded NGOs implement a policy explicitly opposing prostitution.

Does a requirement that non-governmental organizations institute an explicit anti-prostitution policy in order to receive federal funding violate the First Amendment? Yes. The Court held 6-2 that the government may not use funding and the threat of the loss of funding as a method for the regulation of speech and policies of non-governmental organizations. Because the Act's funding provisions represent an ongoing condition on the actions of the group receiving funding, the provisions essentially act as government coercion. The Court held that the funding provisions require the groups to accept the beliefs of the government, which infringes on their First Amendment rights.

1st Am.: Indecent Speech Federal Communications Comm v. Pacifica Foundation (1978) During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves. The station warned listeners that the monologue included "sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son.

Does the First Amendment deny government any power to restrict the public broadcast of indecent language under any circumstances? No. The Court held that limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execration. The words need not be obscene to warrant sanctions. Audience, medium, time of day, and method of transmission are relevant factors in determining whether to invoke sanctions. "[W]hen the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene

1st Am.: Expressive Conduct BUCKLEY v. VALEO (1976)— BACKGROUND: In the wake of Watergate, Congress attempted to stem corruption in political campaigns by restricting financial contributions to candidates. The law set limits on the amount of money an individual could contribute to a single campaign, limited the amount an individual could expend out of personal funds in support of a candidate, limited the amount of money a candidate could expend from their own personal funds, and limited the total expenditures of campaigns.

HELD: 1. The individual contribution limit to particular candidates is constitutional. The restriction on independent expenditures, expenditures by candidates, and total expenditures by campaigns is unconstitutional, because they violate the First Amendment

1st Am.: Obscenity & Child Pornography STANLEY v. GEORGIA (1969)— FACTUAL BACKGROUND: Investigators entered Stanley's residence with a search warrant for alleged bookmaking activities. The investigators found little evidence of bookmaking activities, but did find a pornographic movie. Stanley was charged with possessing a pornographic movie under Georgia's obscenity laws.

HELD: "Mere private possession of obscene matter cannot constitutionally be made a crime." QUOTABLE QUOTE: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." Although Stanley has never been overruled, the Court has consistently been unwilling to extend it. Thus, prosecutions for distribution or receipt of obscene material is constitutional. Smolin: However, the federal government has given up on prosecution obscenity (except child pornography). Why? 1. The community standard element of Miller is hard to manage in the day of internet distribution of pornography and 2. Big Corporations make extraordinary profits off of pornography

1st Am.: Tax Exemptions WALZ v. TAX COMMISSION (1970)

HELD: A state property tax exemption that included religious, educational, or other charitable purposes is constitutional.

1st Am.: Tax Exemptions TEXAS MONTHLY, INC. v. BULLOCK (1989)

HELD: A tax exemption form sales tax only granted to periodicals published or distributed by a religious faith is unconstitutional.

1st Am. ESTABLISHMENT CLAUSE LEMON v. KURTZMAN (1971)— FACTS: Pennsylvania and Rhode Island provided state aid to church-related elementary and secondary schools. Pennsylvania law provided financial support to private schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects. The Rhode Island statue paid private school teachers, directly, as a supplement, 15% of their salary

HELD: Both statutes are unconstitutional under the Establishment Clause. THE LEMON TEST—Three prongs (2nd prong is most important) 1. Statute must have a secular legislative purpose. a. This does not mean that a law can't have a religious purpose; it just must have a secular purpose. Many statues have both a religious and secular purpose, and as long as the secular purpose is present the statute is fine under this prong of the Lemon test. b. The absence of a secular purpose is what invalidates something under this prong, not the presence of a religious purpose. c. SMOLIN: This prong is rarely applied; it is only used to strike down laws that provide for the teaching of creationism in public schools. 2. The principal or primary effect of the statute must neither advance nor inhibit religion. a. SMOLIN: This is the most important part of the test, 98% of the cases hinge on this. b. Under this prong a law with a principal or primary effect of advancing religion is unconstitutional. However, a law with a secondary, incidental, or remote effect of advancing religion is constitutional. c. COMPETING SUBTESTS: This element has been subject to a variety of interpretations. Some of those have added sub-test to this prong. Two notable subtests are the coercion test and the endorsement test. i. O'Connor's ENDORSEMENT TEST—Is the primary effect to endorse a particular religion or religion in general? ii. Kennedy's COERCION TEST—Does the law coerce one into religion? 1. Chief example of the coercion test is the Lee v. Weisman case in which the Court held that a Rabbi's prayer at a graduation ceremony violated the Establishment Clause. 3. Statute must not foster an excessive government entanglement with religion.

1st Am.: Obscenity & Child Pornography ASHCROFT v. FREE SPEECH COALITION (2002)— A challenge to the constitutionality of the federal Child Pornography Prevention Act of 1996 (CPPA). The CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. Two situations are reached by this: (i) where an adult who appears to be a minor is filmed and (ii) where computer imaging language is used to make it look like a child.

HELD: CPPA is invalidated as unconstitutionally infringing on the First Amendment's Freedom of Speech/Expression. REASONING: No actual child is filmed, so you don't have the harm that the usual prohibition of child pornography is meant to prevent. The prohibition here goes well beyond what Ferber allows to be prohibited. So, the things prohibited here, since the involve no live child being filmed/photographed/abused, are not child pornography nor obscenity under Miller, so they unreasonably infringe on the freedom of speech. The statue was struck down on overbreadth grounds.

1st Am.: The Right of Association ROBERTS v. UNITED STATES JAYCEES (1984)— BACKGROUND: The Jaycees have a policy of only admitting men, they refuse to admit women. The state had an anti-discrimination law that it used to attempt to force the Jaycees to admit women. The Jaycees challenged, claiming that it violated Freedom of Association.

HELD: Constitutional, it is not a violation of the 1st Amendment to force a large, non-selective organization to admit women. REASONING: The Court reaffirms the right of association as a fundamental right, however the Court makes it clear that the right of association is not absolute. The Court focused on the fact that the Jaycees were a large group, whose membership was not selective (they would take almost any male who attempted to join). If they had been a smaller, more intimate group, the Court may have come to a different result. SELECTIVITY/SIZE: Selectivity and size are factors to consider. A group who is small (intimate) and very selective with its membership is likely to have a greater right to association than a group that is large and non-selective. The Court has recognized that freedom of association would protect a right to discriminate in limited circumstances— a. When the activity is "intimate association"—i.e. a small private gathering. b. When discrimination is integral to the expressive activity. TEST: Infringement on the right of association can be justified if: (1) Compelling state interest (2) Unrelated to the suppression of ideas Cannot be accomplished through means significantly less restrictive of associational freedoms

EQUAL PROTECTION CALIFANO v. WEBSTER (1977)— Under the Social Security Act, females were allowed to exclude three years of lower wages in computation of their retirement benefits (which males were not allowed to exclude) which resulted in slightly higher benefits for women than men. An Equal Protection, gender discrimination challenge was brought against the law.

HELD: Constitutional, this does not violate equal protection. ANALYSIS: Gender classifications garner intermediary scrutiny: they must serve important governmental objectives and be substantially related to achievement of those objectives. There has been a long history of economic discrimination against women. The government used this to justify the gender classification. The Court accepted reduction of the disparity in economic condition between men and women caused by the history of discrimination as an important governmental objective. The Court accepted the premise that the difference in treatment between the genders was substantially related to redressing the discriminatory treatment of women. Therefore, the law was able to withstand an equal protection challenge. AFFIRMATIVE ACTION: This is affirmative action in the gender context, the program is being used to remedy past gender discrimination.

EQUAL PROTECTION AND ALIENAGE FOLEY v. CONNELIE (1978)— Foley applied for employment as a New York State Trooper. He was denied employment due to a New York Statute which provided: "No person shall be appointed to the New York state police force unless he shall be a citizen of the United States." Foley brought this challenge alleging that the statute violated Equal Protection.

HELD: Constitutional, this does not violate equal protection. LEVEL OF SCRUTINY: The general rule for alienage classifications is strict scrutiny. However, not all limitations on aliens are suspect. It would be inappropriate to require every statute relating to aliens to pass strict scrutiny, because that would eliminate the historic values of citizenship. So, when the classification deals with self-government or the democratic process, the classification need only pass the rational basis test. ANALYSIS: Citizenship may be a relevant qualification for fulfilling "important nonelective executive, legislative, and judicial positions" held by "officers who participate directly in the formulation, execution, or review of broad public policy." Police officers are given and exercise great discretion in carrying out and enforcing the laws, thus they have a great affect on the lives of their neighbors. So, the requirement that a police officer be a citizen represents "the choice, and right, of the people to be governed by their citizen peers." So, citizenship bears a rational relationship to the special demands of the law enforcement occupation. Therefore, the State of N.Y. may constitutionally confine the public responsibility of police duty to citizens of the United States.

UNENUMERATED FR/SDP/ROP BOWERS v. HARDWICK (1986)— A Georgia law prohibited oral-genital or anal-genital contact. The law applied to both heterosexuals and homosexuals, however the Court viewed it solely from the perspective of prohibiting homosexual activity. The Court first analyzed whether the Constitution protected a right to engage in private consensual homosexual activity. The Court found that no such right existed because it was not supported by the Constitution's text, the farmers' intent, or tradition. After finding no fundamental right, the Court applied the rational basis test and upheld the statute.

HELD: Constitutional, upheld the statute. SMOLIN: The majority opinion illustrates the "family privacy" doctrine by using the history and traditions test to hold that adult consensual homosexual acts in the privacy of the home is not a fundamental right. In his dissent, Justice Blackmun wrote from a "sexual autonomy" theory of privacy.

1st Am.: Obscenity & Child Pornography UNITED STATES v. WILLIAMS (2008)— After the Ashcroft decision, Congress adopted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT ACT). The Act provided for criminal punishment for those who solicit or offer material reasonably believing that it is child pornography even if it is not.

HELD: Constitutional.

EQUAL PROTECTION WASHINGTON v. DAVIS (1976)— The District of Columbia administered a written examination for those seeking to become police officers. The test excluded a disproportionately high number of Blacks from the police force. A challenge was brought under Equal Protection. No claim of intentional discrimination was made, rather the claim was based on a theory of discriminatory impact.

HELD: Constitutional. EQUAL PROTECTION AND DISCRIMINATORY IMPACT: "The central purpose of the Equal Protection Clause of the 14th Amendment is the prevention of official conduct discriminating on the basis of race. . . A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. . . Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations. Analysis: The test was neutral on its face and rationally serves a purpose that the Government is constitutionally empowered to pursue, i.e. an educated police force. No evidence of a discriminatory intent here. Smolin: This case comes down to proof of intent. Can you prove that they intended to make a law that had a racially discriminatory impact? Here, we found no intent, so we are under rational basis and not strict scrutiny. Where we see no explicit racial classification and no proof of intent, we only apply rational basis

UNENUMERATED FR/SDP/ROP WHALEN v. ROE (1977)— New York State has a list of proscribed substances. Some of the drugs on the list have both legitimate medical uses and illegitimate uses. In order to assure that those drugs are not getting into the wrong hands, the State kept a database of everyone that was prescribed these drugs for legitimate medical use. The database was secure and available only to a small number of state employees, who faced criminal charges if they accessed the database without permission or distributed the information in the database.

HELD: Constitutional. REASONING: The scheme the state had set up did not pose a serious threat to the privacy of the individuals. SMOLIN: This case really didn't tell us much, but there probably isn't a right of informational privacy. The Court did not elaborate generally on any right to informational privacy, because they determined in a conclusory fashion that this statute was constitutionally sound. There is a lot of Federal Statutory law on this issue, so that is probably more significant than the Constitution in litigating this issue.

1st Am.: Gov. "aid" to religious elem. & secondary schools MULLER v. ALLEN (1983)— FACTS: Tax credits for education were made available to parents of students at both public and private schools.

HELD: Constitutional. SMOLIN OUTLINE: Mueller upheld state tax credits available to the parents of students at both public and religious schools

1st Am.: Obscenity & Child Pornography NEW YORK v. FERBER (1982)— Background: New York statute prohibits persons from knowingly promoting sexual performances by children by distributing pornographic material depicting such performances. The statue does not require that the material be obscene to be criminally prosecuted.

HELD: Constitutional. Child Pornography is unprotected speech. The Government may prohibit the exhibition, sale, or distribution of child pornography even if it does not meet the test for obscenity. SMOLIN: Child Porn is unprotected speech. The rational is that the child filmed is harmed. The fact that it has been filmed/pictured means that it will never go away, a reminder of that abuse will always be floating around out there.

EQUAL PROTECTION MCCLESKEY v. KEMP (1987)— McCleskey was convicted of armed robbery and murder in a Georgia state court. McClesky, a black man, was convicted or robbing a furniture store, and killing a white police officer during the robbery. For the murder, McCleskey was sentenced to the death penalty. However, McCleskey challenged his death sentence, on the basis of a study indicating that the death penalty was applied in a discriminatory manner. The study showed that when blacks killed whites, they were much more likely to get the death penalty than in any other situation. This study served as the basis for McCleskey's Equal Protection Claim. He specifically made two racial arguments: (1) people who murder whites are more likely to get the death penalty (identity of victim based racial discrimination) and (2) Black murderers are more likely to get the death penalty (identity of culprit based racial discrimination).

HELD: Constitutional. Court rejected the Equal Protection Challenge. Analysis: D who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." When a law is facially neutral, the defendant must prove that decision makers acted with a discriminatory purpose. The term "discriminatory purpose" means more than an awareness of potential racial consequences. It implies that the decision maker, selected or reaffirmed a particular course of action, at least in part 'because of' not merely 'in spite of' its adverse effects upon an identifiable group. Here, McCleskey brought no evidence that race was used against him specifically. He only brought a systematic attack. McCleskey failed to prove any discriminatory intent. Therefore, because the law was facially neutral and discriminatory intent was not proven, the law was reviewed under the rational basis test. The State of Georgia had a legitimate interest in punishing and deterring crime and the death penalty was rationally related to that interest, so the Court upheld Georgia's application of the death penalty here.

1st Am.: Gov. "aid" to religious elem. & secondary schools AGOSTINI v. FELTON (1997)—overruled Aguilar v. Felton (1985). FACTS: The state had a policy of having public school remedial education teachers provide remedial private instruction in private religious schools.

HELD: Constitutional. It is constitutional for public employees to provide remedial education services in religious schools, at least under the circumstances of this program and case. RATIONALE :O'Connor gets 5 votes to overturn Aguilar and enunciated that the program does not violate any of the three criteria currently used to evaluate whether government aid advances religion: ⎫ It does not result in government indoctrination. ⎫ It does not define its recipients by reference to religion. ⎫ It does not create an excessive entanglement.

EQUAL PROTECTION NGUYEN v. INS (2001)— A male American Citizen (father) has a son with a Vietnamese woman (mother) while in Vietnam. The father brings the child to the U.S. when the child is 6, the father raises the child. When the child was 22, the child plead guilty to sexual assault on a minor. The child is incarcerated. Because the child is not a U.S. citizen ,the Federal Government attempts to have the child deported. So, the child attempts to get U.S. citizenship to avoid deportation. However, he is unable to do so under 8 U.S.C. § 1409. Section 1409 imposes different requirements for a child's acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Where the mother is a citizen and has previously been present in the U.S. for one year, the child is a citizen. Where the father is a citizen, the father must prove the child is his by one of three formal means of proof. However, in the case of this child, because he is 22, it is too late for the father to legitimate his paternity under the formal means, so the child will not become a citizen and will be deported. The child brings an Equal Protection challenge based on the differing treatment of males and females under the statue.

HELD: Constitutional. The Court upholds the gender classification. ANALYSIS: Governmental Interests: (1) Assuring that a biological parent-child relationship exists and (2) ensuring that the child and the citizen parent demonstrated opportunity or potential to develop a connection. The statute is substantially related to the interest, because fathers and mothers are not similarly situated in regards to proof of biological parenthood. SMOLIN: The case seems to turn on the biological differences between men and women. A man can seemingly leave an oversees child without breaking any ties, while a female inherently has a tie with the child. IMMIGRATION: The Court may have given more deference to Congress because the fact that this is a federal law, and in particular a federal law involving Immigration, for which the federal governments role is unique. THIS CASE MAKES SMOLIN UNHAPPY: Smolin says that this result seems to let American men (particularly servicemen) go overseas and engage in intercourse with foreign women, creating a child, and allows those men to completely skip out on any responsibility for the child.

1st Am.: Schools and Speech MORSE v. FEDERICK (2007)— FACTS: In 2002, the Olympic Torch relay was passing through Juneau, Alaska. The torch was to pass directly in front of Juneau-Douglas High School. The school principal allowed the students to go to the streets and watch the relay. A group of students unfurled a 14-foot banner which read "BONG HiTS 4 JESUS." The school punished the students based on a policy against advocacy of use of illegal drugs.

HELD: Constitutional. The First Amendment permits a principal to restrict student speech at a school event, when the speech is reasonably viewed as promoting illegal drug use. REASONING: Students have a right to free speech in school, but it is not absolute. Here, the school viewed the speech as promoting the use of illegal drugs. The school has an interest in assuring that its students do not participate or partake in the use of illegal drugs. The school may prohibit the advocacy of illegal drugs on its property.

1st Am.: Obscenity & Child Pornography OSBORNE v. OHIO (1990)— BACKGROUND: Osborne was convicted and sentenced for possession of child pornography. He challenged his conviction, arguing that under Stanley the government could not criminalize mere possession of obscene material.

HELD: Conviction is upheld. The government can criminalize the mere possession of child pornography. REASONING: The state's interest here is not regulating what Osborne views, but in protecting the child (who is the victim of child pornography). The State criminalizes child pornography hoping to destroy the market for child pornography. So, the rule in Stanley does not extend to child pornography.

1st Am.: Fighting Words CHAPLINSKY v. NEW HAMPSHIRE (1942)— A Jehovah's Witness was distributing pamphlets in New Hampshire. There were complaints from passers-by to police officers about the Jehovah's Witnesses conduct. The police approached the Witness, who responded by stating that "You're a G-- D--- racketeer," and "a damn fascist, the whole government of Rochester are fascists or agents of fascists." He was prosecuted under a state law which stated: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name."

HELD: Conviction was upheld as constitutional. REASONING: Fighting words are not protected under the First Amendment. This statute prohibits the face to face utterance of words which are plainly likely to cause a breach of the peace. DEFINITION OF FIGHTING WORDS: "Those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace." POLICY BEHIND FIGHTING WORDS EXCEPTION: "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." SMOLIN ON "FACE-TO-FACE": Smolin says to note the language in the opinion that says that the statute in question "does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee." Smolin adds that since Chaplinksy, the Court has picked up on the "face-to-face" language as an important limitation on the doctrine

1st Am.: Expressive Conduct UNITED STATES v. O'BRIEN (1968)— FACTS: O'Brien burned his draft card on the steps of a Courthouse. He was charged under a Federal law which prohibited the burning of draft cards. O'Brien argues that his conviction violates the First Amendment.

HELD: His conviction is upheld. TEST: The government regulation of expressive conduct is sufficiently justified if it is: 1. Within the constitutional power of the government. 2. Furthers an important or substantial governmental interest (WEIGHT); 3. If the governmental interest is unrelated to the suppression of free expression. 4. If the incidental restriction on alleged First Amendment freedom is no greater than essential to the furtherance of that interest. (FIT) REASONING: The Court found that the statue passed the O'Brien test will flying colors. SMOLIN: This case seems wrong. It looks like the Supreme Court misapplied the O'Brien Test in O'Brien. How paradoxical is that? The government was seemingly attempting to suppress anti-draft speech. But, the Court said that this was fine.

UNENUMERATED FR/SDP/ROP MICHAEL H. v. GERALD D. (1989)— Carole D. (international supermodel) married Gerald D. (a French Oil Exec.). During the marriage, Carole had an adulterous affair with Michael H. (neighbor). Carole got pregnant. The child was born into the marriage between Gerald and Carole and treated as a child of the marriage. Carole told Michael that the child was probably his. Gerald moved to NYC for business and Carole lived for a short while with Michael who treated the child as his daughter. But, eventually Carole got back together with Gerald. Michael wished to play a part in the child's life so he sued for visitation rights. This brought us to the constitutional issue of whether he has a constitutionally protected right in his relationship with the child. In other words, is an adulterous natural father a constitutional father?

HELD: It's complicated. We get a 4-1-4 decision. The Court upheld the court action which did not give Michael any custody or relationship with the child. --4 JUSTICES say that there is no fundamental right here. --1 JUSTICE: Justice Stevens says that if he were to rule on the matter he would rule that there is a fundamental right. However, he did not have to rule on that because he said that the right was honored by the California judicial system because the procedure California afforded him recognized the right. In Stevens view, Michael had a right, but he just lost on the merits of his case. --4 JUSTICES DISSENT: they say there is a fundamental right. SMOLIN: We really don't know the precedential value of this case. But, this case had broadly been interpreted to be about abortion. We need to look at Scalia's footnote 6. Justice Kennedy and Justice O'Connor joined Scalia's opinion in everything except footnote 6. Footnote 6 said that in defining a right under the history and tradition approach, you must define the right in the most specific way it was defined in 1868 when the 14th Amendment was ratified. This was Scalia trying to put a logical strait jacket on the Court, which would have required them to overturn Roe v. Wade if they were going to be consistent. NOTE: Adding the votes of the dissenters & the concurring opinion, 5 Justices would have been willing to find a parental right for an adulterous natural father

1st Am.: The Right of Association BOYS SCOUTS OF AMERICA v. DALE (2000)— FACTS: The Boys Scouts, a private not-for profit, revoked the membership of a gay rights activist, under the Boy Scouts policy of not allowing membership for homosexuals, as homosexuality is inconsistent with the values of the Boy Scouts. New Jersey had an anti-discrimination law. The expelled scout claimed that the anti-discrimination law prevented the scouts to expel him due to his sexual orientation.

HELD: N.J. law is unconstitutional as applied. The Scouts have a right to exclude the gay. REASONING: Although the Boy Scouts are a large, non-selective group (so they do not fit into the "intimate association" area) they may discriminate here. The Boy Scouts had an expressive message (their value statement—which was opposed to homosexuality) and so exclusion was essential to their message. This case shows that a groups message may be crucial in determining whether or not it falls within the area protected by the right/freedom of association.

UNENUMERATED FR/SDP/ROP VACCO v. QUILL (1997)— New York law made it a crime to aid or assist a suicide, but a patient may refuse lifesaving medical treatment. So, someone on life-support may legally hasten their death by asking for their life support to be removed. However, someone with a terminal illness who was not on life-support could not lawfully hasten their death by having a physician assisted suicide. An equal protection challenge was brought, claiming that the difference in treatment between someone on life support and not on life support, denied those not on life support of equal protection of the laws.

HELD: No equal protection violation. SMOLIN SYNTHESIS OF CRUZAN, GLUCKSBERG, & VACCO— 1. There is a fundamental right of a competent adult to refuse life-saving medical treatment (Cruzan). 2. There is no fundamental right to physician-assisted suicide. (Glucksberg).

EQUAL PROTECTION PERSONNEL ADMINISTRATOR OF MASSACHUSETTS v. FEENEY (1979)— Massachusetts gave preference to veterans in hiring people to be state employees. Because most veterans were male, this operated to favor males and burden females in the hiring process. A challenge was brought alleging that the hiring scheme discriminated against women in violation of the Equal Protection Clause of the 14th Amendment.

HELD: No violation of Equal Protection. REASONING: Clearly, the choice to grant preference to veterans was an "intentional"choice, in that the legislature positively enacted that requirement. However, "discriminatory purpose" is more than an awareness of consequences. It implies that the decision maker, selected or reaffirmed a course of action at least in part because of not merely in spite of the course of action's adverse effects on an identifiable group. However, here nothing indicated that the preference was enacted to accomplish the goal of keeping women in a stereotypic or predefined place in the Massachusetts Civil Service. The provision would benefit anyone who was a veteran, regardless of gender. It just so happened that most veterans were males. The preference therefore, was a preference for veterans of either sex over nonveterans of either sex, not for men over women.

1st Am.: Expressive Conduct CITIZENS UNITED v. FEC (2010)— FACTUAL CONTEXT: Federal statue prohibited corporations from directly donating to candidates. There were some avenues to allow for PACs, but they were restricted. The net effect was to prohibit corporations from spending general revenue funds/ operating money on political campaigns. Citizens United was a non-profit that made a movie about Hillary Clinton. ISSUE: Can the Federal Govt. prohibit Citizens United from expending funds to promote their anti-Hillary movie?

HELD: No. That would be unconstitutional under the 1st Amendment. The Fed. Govt. can't prohibit a corporation from expending funds to support/oppose a candidate. LIMITATION: This case was about independent expenditures, not about campaign contributions. The Federal Government retains authority to restrict direct campaign contributions. SMOLIN'S OUTLINE ON CITIZENS UNITED: The Court invalidated federal law which prohibited "corporations and unions from using their general treasury funds to make independent expenditures for 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate." Hence, corporations and labor unions have a freedom of speech right to spend unlimited amounts of money on such independent expenditures (called independent because they are NOT contributions to campaigns, but rather instances in which the corporations and unions in essence buy their own advertisements regarding a political campaign.)

EQUAL PROTECTION CITY OF MOBILE v. BOLDEN (1980)— A challenge was brought against Mobile's use of an at-large system in municipal elections. Mobile employed a system of election, in which voters voted for 3 city-council members who represented the city at-large, instead of representing specific districts. The result of this was that no black members were ever elected. This was challenged under the 15th Amendment. The district court and Court of Appeal found a discriminatory purpose

HELD: Not a violation of the 15th Amendment. No discriminatory purpose was found. Analysis: A law, neutral on its face, violates the 15th Amendment only if discriminatory purpose/intent is proven. Here, the district court and Court of Appeals found a discriminatory purpose, in part based on the fact of Alabama's past history of discrimination. However, the Court stated that "past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. The P failed to do so here.

STATE ACTION DOCTRINE REITMAN v. MULKEY (1967)— California voters amended their Constitution through a referendum vote to authorize private discrimination in real estate. A California State Court found that this unconstitutionally involved the state in private discrimination, which transformed the private discrimination into State Action.

HELD: STATE ACTION. ANALYSIS: the state could have repealed the law to return to a neutral position on private discrimination, however, here by repealing the law the state was not returning to a neutral position, rather it was engaging in discrimination.

STATE ACTION DOCTRINE NORWOOD v. HARRISON (1973)— Mississippi had a statutory program under which it purchased textbooks and lent them to students in both public and private schools. The program applied whether or not the private school had racially discriminatory policies.

HELD: STATE ACTION. REASONING: "Racial discrimination in state-operated schools is barred by the Constitution and it is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."

1st Am.: Schools and Speech TINKER v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969)— FACTS: Tinker was suspended from school for wearing a black armband in protest of the Vietnam War. Tinker challenged the suspension, claiming that it was a violation of the First Amendment Freedom of Speech rights.

HELD: School's action violated the First Amendment. FAMOUS QUOTE: "First Amendment rights . . . are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. REASONING/ANALYSIS: Students don't shed their constitutional rights at the school house door. Thus, the First Amendment protects student speech at school. The restriction seemed to be content based, restricting content that protested the Vietnam War, but not for instance an armband with a Nazi swastika. Furthermore there was no indication that the "speech" was disruptive. In the absence of a constitutionally valid reason to regulate their speech, students are entitled to freedom of expression of their views. SMOLIN: Pro-free speech rhetoric and result.

EQUAL PROTECTION AND SEXUAL ORIENTATION UNITED STATES v. WINDSOR (2013)--Challenge to DOMA. Facts: Section 3 of DOMA (the Federal Defense of Marriage Act) states that for the purposes of federal law, the words "marriage" and "spouse" refer to legal unions between one man and one woman. Here, Edith Windsor is the widow (this was a Canadian homosexual marriage, which was recognized by N.Y. law) and sole executor of the estate of her spouse Thea Clara Spyer. Spyer left substantially her entire estate to Windsor. Because Federal law does not recognize same-sex marriage, the estate did not qualify for a martial exemption under the federal estate tax and the IRS imposed $363,000 in taxes. If the marriage was recognized by federal law, the estate would have qualified for the unlimited marital deduction and the entire amount of the estate would have passed to Windsor without the imposition of any tax. Windsor brings a challenge as to the constitutionality of DOMA.

HELD: Section 3 of DOMA is unconstitutional as a violation of the Equal Protection Clause of the Fifth Amendment. REASONING: Marriage (and all of the realm of Domestic Relations for that matter) has historically been the province of the state governments. The definition of marriage, who may be married, and what rights and duties the institution of marriage have on the individuals is a decision for the policy makers and the people of the states. Here, by denying recognition of the marriages of same-sex couples who are validly married, federal law discriminated against the same sex couples. The Court found the gays to be singled out by DOMA--i.e. no other class of validly married people were denied the benefit of their state-law marriage by DOMA except for the gays. -Note: Only Section 3 of DOMA was declared unconstitutional, not the whole thing.

1st Am.: Reputation, Defamation, Libel, & Freedom of Speech NEW YORK TIMES CO. v. SULLIVAN (1964)— BACKGROUND: Public official (Montgomery, AL city commissioner) alleges libel in a newspaper advertisement regarding the civil rights movement. Some of the statements in the advertisement were not accurate (a few minor factual errors). The lower court found that libel had occurred. Under Alabama Law false statements were considered libel per se and damages were presumed, thus actual damages or injury to reputation did not have to be proven. The New York Times challenged on First Amendment grounds.

HELD: The Alabama defamation/libel per se law was unconstitutional. REASONING: The 1st Amendment limits the government's ability to impose civil liability for speech. There is a need to balance freedom of expression and protecting reputation. Here, the advertisement involved political speech, which is at the core of the speech protected by the 1st Amendment. Providing truth as a defense is not enough, because a law that requires every statement to be completely accurate could have the effect of chilling speech that is critical of the government. LAW ON PUBLIC OFFICIALS: The New York Times v. Sullivan rule limits libel law as applied to public officials: (1) Public official or running for office (2) P must prove case with clear and convincing evidence. (3) P must prove falsity of the statement. (4) P must prove actual malice—that D knew the statement was false or acted with reckless disregard. Presumed or Punitive Damages are unconstitutionalActual damages must be proven. =This case seems to make it easier to criticize public officials. Perhaps, by allowing more freedom to reporters, the case makes the leaders more accountable to the public. Although the case deals with public officials, the case was later extended to public figures in matters of public concern.

1st Am. FREE EXERCISE CLAUSE WISCONSIN v. YODER (1972)— FACTS: The State of Wisconsin had a compulsory school attendance requirement that all school age children attend school until age 16. The Amish took their children out of school beginning at age 14 to begin "vocational" training. The Amish asked for an exemption to the law (not to overturn it).

HELD: The Amish are entitled to an exemption from the law. REASONING: The Amish pass the three part test used in stage 2. The Amish have a sincerely held religious belief. The school law burdens them substantially (the Court seemed to indicate that the two extra years of high school work to undermine the Amish faith and way of life). Then the measure was subjected to strict scrutiny: there was a compelling interest in education to support the compulsory school law, but it was not necessary to send the Amish kids to school for the extra two years.

1st Am. FREE EXERCISE CLAUSE SHERBERT v. VERNER (1963)— BACKGROUND: A member of the Seventh-day Adventist Church was fired for refusing to work on Saturdays, the Seventh-day Adventists's Sabbath. She signed up for unemployment benefits, but the State denied her application because she could have worked, but refused to do so.

HELD: The Court granted a religious exemption to this law of general application. Because she had a valid religious reason to not take the employment she could not be refused the benefit.

UNENUMERATED FR/SDP/ROP Death and Dying CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH (1990)— Nancy Cruzan was rendered incompetent as a result of extremely severe injuries suffered in an automobile accident. Nancy's life was sustained by artificial feeding and hydration equipment. Once it became clear that Nancy would not recover, her parents petitioned to have the equipment removed. The Supreme Court of Missouri held that because there was no clear and convincing evidence of Nancy's desire to have life-sustaining treatment withdrawn under such circumstances, her parents lacked authority to effectuate such a request. So, the Missouri Supreme Court denied the parents request to remove the tubes.

HELD: The Supreme Court affirmed the Missouri Supreme Court's denial of the parents request. "[A] State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state." Technically, Cruzan is primarily a procedural due process case, and concerns a liberty interest primarily in the procedural due process sense. So, it is not really, at least in its immediate context, a fundamental rights case. It is constitutional for the state to require the proponents of withdrawal of life-sustaining artificial nutrition and hydration from a person in a "persistent vegetative state" to prove by clear and convincing evidence that this was consistent with the intent of the patient. On remand, the trial court found sufficient evidence to meet the clear and convincing evidence standard, the feeding tube was withdrawn, and Cruzan died.

1st Am.: The Right of Association CHRISTIAN LEGAL SOCIETY OF THE UNIVERSITY OF CALIFORNIA, HASTINGS COLLEGE OF LAW v. MARTINEZ (2010)— BACKGROUND: U.C. Hastings Law School recognized various student groups. However, the Law School had an "all comers" policy, whereby it only recognized groups that were open to "all comers," which required all recognized organizations to allow students to participate regardless of the student's status or beliefs. The Christian Legal Society (CLS) required an affirmation of faith and to refrain from homosexual activity. CLS would not allow gays or people who advocated for the homosexual agenda to become members. Based, on this, as a violation of the "all comers" policy, UC Hastings denied recognition to CLS. CLS sued arguing that the "all comers" policy violated the group's right to discriminate against non-Christian and homosexual students.

HELD: The UC Hastings policy is constitutional. CLS can constitutionally be denied official recognition under these circumstances. SMOLIN: This case is troubling. Look at Boy Scouts, there expressive message allowed them to discriminate, but in CLS that argument didn't work. The Justices seem enamored by the gay rights cause. They accept a non-discrimination policy as a valid reason to infringe on the right of association here.

1st Am.: Commercial Speech VIRGINIA STATE BOARD OF PHARMACY (1976)— FACTS: A Virginia law prohibited pharmacists to advertise prescription drug prices. The law was challenged as infringing on the pharmacists First Amendment Rights.

HELD: The ban was held unconstitutional. REASONING: Just because it is an advertisement, speech does not lose its First Amendment protection. The advertisement here considered was purely factual matter of public interest, as such it has protection under the Constitution. Advertising of prices should be allowed to enter the "market place of ideas." REGULATION OF COMMERCIAL SPEECH: "In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulation are surely permissible . . . The First Amendment, as we construe it today does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely." This is talking about false and deceptive advertising, etc.

1st Am.: Advocacy/Enticement of Illegal Conduct SCHENCK v. UNITED STATES (1919)— During WWI, Schenck distributed leaflets that were critical of the draft. The leaflets that Schenck distributed contained the first section of the 13th Amendment and argued that the draft/conscription violated the principles of the 13th Amendment. The leaflet further read: "Do not submit to intimidation" and "Assert Your Rights." For distributing the leaflet Schenck was charged with a criminal violation under the Espionage Act of 1917, which made interferences with the draft a crime. He was convicted. He challenges his conviction

HELD: The conviction was upheld as constitutional. REASONING: The First Amendment protects freedom of speech. However, that freedom is not absolute or unlimited. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent. It is a question of proximity and degree. Here, the document would not have been distributed unless it was intended to have some effect, and the only effect that it was logical to have was that it would influence those subject to the draft to obstruct the draft. This is an evil Congress is permitted to prevent, so the conviction had to be upheld. This analysis focuses on the speakers intent and the circumstances. JUSTICE HOLMES FAMOUS FIRE IN A THEATRE QUOTE: "[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." NOTE: THE CLEAR AND PRESENT DANGER TEST USED IN THIS CASE IS NO LONGER THE LAW.

UNENUMERATED FR/SDP/ROP WASHINGTON v. GLUCKSBERG (1997)— Washington statute prohibited any individual from causing or aiding a suicide. This suit was brought, claiming that the prohibition offends the Fourteenth Amendment.

HELD: The statute does not offend the 14th Amendment. There is no fundamental right to physician assisted suicide.

RIGHT TO VOTE/ELECTIONS REYNOLDS v. SIMS (1964)— Background: The Alabama Constitution apportioned representation in the Alabama Legislature by County based on the 1900 federal census data. Between 1900 and 1960 the population in various areas of the state changed dramatically. For instance, Mobile County with 314,301 people was given only 3 seats in the Alabama House; while Bullock County with a population of 13,462 was given 2 seats.

HELD: This is unconstitutional, it is a violation of the principle of one man, one vote. The Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. It is impossible to make all of the districts identical, that is too much to ask. But, the State must make "an honest and good faith effort" to get the districts as closely aligned as possible based on population. The Constitution expressly provides for each state to get 2 Senators so this is ok.

UNENUMERATED FR/SDP/ROP SAENZ v. ROE (1999)— California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limited the amount of welfare benefits payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family's prior residence. California adopted this provision because the state is quite generous as far as welfare benefits are concerned, so people were drawn to move to California to get better benefits. This statute was designed to make that alternative less attractive. A challenge was brought, claiming that it violated the right to travel.

HELD: This statute is unconstitutional, it violates the right to travel

UNENUMERATED FR/SDP/ROP STANLEY v. ILLINOIS (1972)— Illinois state statute automatically declared the children of unwed fathers become wards of the state upon the death of the mother. Essentially, the statute operated as an unrebuttable presumption that all unwed fathers are unfit parents. Peter Stanley lived with and cohabited with Joan for 18 years, during which time they managed to have three children. The two never married. Joan died, and per the statute the children were automatically declared wards of the state. Stanley sued, claiming that his 14th Amendment rights were violated. He insisted that the State would have needed to make a showing that he was unfit before he could be deprived of his children.

HELD: This violated his parental rights. For purposes of substantive and procedural due process, non-marital fathers are constitutional fathers. ANALYSIS: Family/Parental rights are clearly fundamental rights that are protected by the Constitution. Stanley is "family" is every sense of the constitutional word. He was the biological father and he lived with and raised the children. So, he had a protectable interest in his relationship with the children. The state also had an interest in ensuring that children were not stuck living with unfit parents. But, the means the state chose to ensure these rights were not narrowly tailored

1st Am.: Commercial Speech BOLGERS v. YOUNGS DRUG PRODUCTS CORP. (1983)— BACKGROUND: Title 39 U.S.C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. Young's was involved in the business of producing and distributing contraceptives. Young's used mass mailings to advertise its products. Young's challenges Title 39 U.S.C. § 3001(e)(2) as violating its First Amendment Rights.

HELD: Title 39 U.S.C. § 3001(e)(2) is unconstitutional to the extent that it prohibits truthful and accurate advertising about contraceptives. REASONING: Taken alone, the facts that the speech was labeled an advertisement, referred to a product, and involve an economic interest do not conclusively establish that this is commercial speech. However, the three taken together strongly indicate that this is commercial speech. (Thus, commercial speech is likely to be defined by these three characteristics). The Court concluded that the speech was commercial speech and therefore was protected by the First Amendment (albeit less protected). The government's justification for regulating was not strong enough, so the regulation could not stand

1st Am.: Commercial Speech CENTRAL HUDSON GAS & ELECTRIC CORP. v. PUBLIC SERVICE COMMN. OF NEW YORK (1980)— FACTS: Public Service Commission ordered electrical utilities to cease advertising that promoted the use of electricity. They justified the regulation on the need to drive down demand in light of energy shortages

HELD: Unconstitutional, because it is more extensive than necessary to accomplish the state's goal. HUDSON TEST: (1) Does the speech advertise illegal activities or constitute false or deceptive advertising that is unprotected by the First Amendment? (2) Is the government's restriction justified by a substantial government interest? (3) Does the law directly advance the government's interest? (4) Is the regulation of speech no more extensive than necessary to achieve the government's interest? APPLYING HUDSON TEST TO THIS CASE: (1). The speech does not contain false or deceptive advertising. (2). Energy conservation is a substantial government interest. (3). The ban on energy company advertisment directly advances the government's interest. (4). BUT, the restriction is more extensive than necessary to further the State interest in energy conservation, it reaches all promotional advertising. So, it reaches advertising that would not cause a net increase in total energy use. Therefore, the Court found that it was not the least restrictive means.

UNENUMERATED FR/SDP/ROP MEYER v. NEBRASKA (1923)— A Nebraska statute forbid the teaching of foreign languages in schools until after students had successfully completed the 8th grade. Meyer was accused and convicted of teaching the German language to a 10 year old student.

HELD: Unconstitutional, it violates the right of parents to direct the education and upbringing of their children. The parent has a right of control of his/her children. Corresponding to the right of control is a natural duty to give the children an education. "[Meyer's] right to teach and the right of parents to engage him so to instruct their children . . . are within the liberty of the [14th] amendment." -Besides violating the parental rights, the Court also indicated that it felt the law was silly: "[P]roficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child." This case comes out of the WWI era when Germany was the enemy. We feared the "enemy within." Smolin thinks of this as a "cultural genocide case." The Nebraska legislature was trying to "destroy" a people group by stopping the people from passing on their culture to their children. So, Smolin sees Meyer as about the right of the German-American people to teach their children the German language.

UNENUMERATED FR/SDP/ROP TROXEL v. GRANVILLE (2000)— A Washington Statute allowed "any person" to petition a state court for visitation rights (with a child) "at any time," and authorizes the court to grant visitation "whenever visitation may serve the best interests of the child." The Troxels were the children's grandparents. Granville was the children's mother. Granville decided to significantly restrict the amount of visitation that the Troxels could have with the children. Thereafter, the Troxels commenced an action for visitation rights under the Washington statute. The Washington trial judge ordered visitation, because he felt it was in the best interest of the child. The mother challenged, claiming her fundamental parental rights were violated

HELD: Unconstitutional, the "best interest of the child" standard that was used in the legislation did not afford any deference to the parents decision. The statute unconstitutionally infringes on the fundamental parental right as applied. NOTICE: There is no majority opinion here. And Scalia even advocates a "no privacy position." SMOLIN: So, from Troxel we can see that the most extreme of grandparent visitation statutes, those that give no deference to parental decisions and place no weight upon parental rights, are unconstitutional. But, this opinion does not leave us with a clear picture of what types of third-party visitation statutes would be constitutional. All that is certain is that there must be at least some deference given to and weight placed upon parental rights.

UNENUMERATED FR/SDP/ROP MOORE v. CITY OF EAST CLEVELAND (1977)—GRANDPARENT RIGHTS? Mrs. Inez Moore was a resident of East Cleveland, Ohio. She lived in a home with her son Dale Moore, Sr. and her grandsons Dale, Jr. (Dale, Sr.'s son) and John Moore, Jr.. Dale, Jr. and John, Jr. were first cousins. East Cleveland had an ordinance that restricted those individuals who could live together in a single household to the nuclear family. When John, Jr. moved in, they fell out of compliance with this ordinance and received a notice of violation stating that John, Jr. would have to move out. They did not comply with the notice and the city pressed criminal charges. Moore appeals, claiming that the ordinance was invalid on its face.

HELD: Unconstitutional, the ordinance was invalid on its face. Essentially, there is a right to keep the extended family together under one roof. However, can we extend this to mean even more? Can we interpret this as a grandparents rights case? Do grandparents have fundamental rights in their relationships with grandchildren? Possibly, but the Court has never held that, and the holding can be easily limited to the facts.

EQUAL PROTECTION MISSISSIPPI UNIVERSITY FOR WOMEN v. HOGAN (1982)— The State of Mississippi operates the Mississippi University for Women as a publicly funded state university. Enrollment in the university is limited to women only. Hogan was a male nurse who did not hold a baccalaureate degree in nursing. To improve his career, Hogan sought to receive a baccalaureate degree in nursing from MUW. Although he was otherwise qualified for admission, unfortunately for him, he was a dude, so he was denied admission on the basis that he was a member of the male sex. He brought a challenge, alleging that by excluding men from enrolling in a state-supported professional nursing school the State of Mississippi violated the Equal Protection Clause of the 14th Amendment.

HELD: Unconstitutional, violation of equal protection. REASONING: Explicit, gender classification, so it gets intermediary scrutiny. The Court uses the VMI language of "exceedingly persuasive justification" to invalidate the program of single-sex higher education. Where the purpose of a policy is to exclude or "protect" the members of a gender because they are presumed to suffer from an inherent handicap, or assumed to be superiorly fit or stereotyped for a certain profession (i.e. women as nurses) the objective itself is illegitimate, so it is not going to be able to withstand intermediary scrutiny. SMOLIN: This opinion was written by O'Connor. This is significant here. O'Connor has an extreme dislike for gender role stereotyping. Here, the stereotype was that women should be nurses, because that's "women's work." When we see a law or policy perpetuate a stereotype, the Court is likely to strike it down.

1st Am.: Expressive Conduct UNITED STATES v. EICHMAN (1990) (striking down Congress's Flag Protection Act of 1989)— BACKGROUND: The Texas v. Johnson flag burning case was very controversial. In response to the case, Congress promulgated the Flag Protection Act of 1989 that made it a crime for any person to knowingly mutilate, deface, defile, burn, or trample upon any flag. Unlike the Texas statute, the Flag Protection Act was not limited to situations where the conduct would offend others.

HELD: Unconstitutional. REASONING: The law had "the same fundamental flaw" as the Texas law that had been invalidated in Texas v. Johnson. The law's primary purpose was to keep the flag form being used to communicate protest or dissent. The Court said that this was a purpose directly focused on the message and that strict scrutiny was therefore the appropriate test.

1st Am.: Gov. "aid" to religious elem. & secondary schools AGUILAR v. FELTON (1985)—overruled by Agostini v. Felton (1997) FACTS: The state had a policy of having public school remedial education teachers provide remedial private instruction in private religious schools.

HELD: Unconstitutional. RATIONALE: The Court saw no way that this could ever be constitutional. If the aid was provided without monitoring, it would have been unconstitutional for failure to monitor (failure to monitor would run the risk of advancing religion under the second Prong of Lemon). If the state did monitor to make sure that the teachers were not involved in religious instruction, there would be "excessive entanglement" under the third prong of the Lemon test. This was a catch-22 that would have totally prevented the program from ever being constitutional.

1st Am. ESTABLISHMENT CLAUSE (School prayer/Bible reading) ABINGTON SCHOOL DISTRICT v. SCHEMPP (1963)— BACKGROUND: Law required Bible reading and a recitation of the Lord's Prayer to begin each school day.

HELD: Unconstitutional. REASONING: The Court emphasized that these religious exercises were prescribed as part of the curricular activities of students, conducted in school buildings, and supervised by teachers. An opt-out did not save the law. SMOLIN: School sponsored Bible Reading like this is unconstitutional in public schools. Not even an opt out will save the law. But, it would be permissible to study the Bible in a literature or comparative religions class.

RIGHT TO VOTE/ELECTIONS WESBERRY v. SANDERS (1964)— The Georgia Congressional Districts were malapportioned.

HELD: Unconstitutional. REASONING: The Court extended the principle of one-man, one-vote to elections for representatives in the United States House of Representatives.

1st Am.: Intro. to Places, Speech, and Public Forum Analysis CITY OF CHICAGO v. MOSLEY (1972)— FACTS: The City of Chicago had a general prohibition on picketing next to schools. However, the City made an exception for peaceful labor picketing

HELD: Unconstitutional. REASONING: The exception that allows peaceful labor picketing makes the restriction a content-based restriction. The statute describes permissible picketing in terms of its subject matter (labor). Peaceful picketing on one subject matter is permissible, but all other peaceful picketing is prohibited. Once a forum is open as a public forum, content-based restrictions on speech are subjected to strict scrutiny. This fails the strict scrutiny analysis.

1st Am.: Compelled Speech WOOLEY v. MAYNARD (1977)— Citizen of New Hampshire blocked out the "Live Free or Die" slogan on his license plate. He was prosecuted for doing this

HELD: Unconstitutional. REASONING: The message on the license plate was speech. By restricting the citizens ability to cover the motto, the State was compelling speech.

1st Am.: Advocacy/Enticement of Illegal Conduct BRANDENBURG v. OHIO (1969)— A Ku Klux Klan (KKK) member telephoned a TV reporter and indicated that there would be a Klan rally, which was to include the burning of a cross. The TV crew filmed the KKK rally. The Klan leader was charged under Ohio's Criminal Syndicalism statute for burning a cross during his anti-Jewish/Black speech

HELD: Unconstitutional. TEST: The constitutional guarantees of free speech and free expression do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except when such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. REASONING: The Statute cannot stand constitutionally. It punishes the mere advocacy/teaching of violence as a means of accomplishing reform. The State cannot punish mere advocacy, without proof that it is directed to incite or produce imminent lawless action or is likely to incite or produce lawless action. THE BRANDENBURG TEST—THE CURRENT LAW: Advocacy of illegal activity can be punished only if: (1) Such advocacy is directed (intended) to inciting or producing imminent lawless action (2) Such advocacy is likely to incite or produce such action.

EQUAL PROTECTION AND AA PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DIST. NO. 1 (2007)— This case appears in both school segregation remedies and affirmative action sections of this outline. Challenges brought to plans employed by two school districts in order to achieve racial balance. One system was in Seattle, Washington. The other system was in Jefferson County, Kentucky. THE SEATTLE PLAN: Seattle had a plan under which incoming 9th graders could rank the school they wished to attend in order of preference. They would then be assigned to schools. Certain tie-breakers were employed to determine who went to what school. Race was one tie-breaker. If a minority student would help bring the school into compliance, then they would win in a tie-breaker. The plan was employed in order to combat the effects of race based housing patterns. The district classified into two categories "Whites" and "Non-Whites." Seattle never ran a segregated school system. THE KENTUCKY PLAN: In 1975, a Federal District Court ordered desegregation in the Jefferson County schools system. In 2000, the decree was dissolved. In 2001, JeffCo adopted a voluntary student assignment plan. Under the plan, all non-magnet schools were required to maintain a black enrollment of 15-50%. Students were assigned to schools based on geographic proximity and race. The Jefferson County plan classified "Black" & "Other."

HELD: Unconstitutional. Racial balancing is not a compelling governmental interest. REASONING: The Court applied strict scrutiny. They found that the use of racial classifications under the plan were not "narrowly tailored" to achieve a "compelling" government interest. The Court noted that in previous race cases it had found two compelling interest that justify the use of racial classifications: (1) remedying the effects of past intentional discrimination & (2) diversity in higher education. The Court found that the plans in question were aimed at neither of these goals, there was no intentional discrimination to remedy and this was primary, not higher, education. The Court stated that "working backward[s] to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under the existing precedent." The Court stated that "[r]acial balance is not to be achieved for its own sake." The Court held that racial balancing is not a compelling interest. "If you want to stop discriminating based on race, you need to stop discriminating based on race." I.e. a race based remedy is not the appropriate remedy, because it unnecessarily continues the use of race and the negative stigmas and stereotypes there involved.

1st Am. ESTABLISHMENT CLAUSE (School prayer/Bible reading) SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE (2000)— BACKGROUND: A public high school had a student led prayer before a football game. The prayer was conducted by a student and broadcast over the loud speaker.

HELD: Unconstitutional. Student-led prayer at public high school football game is unconstitutional. REASONING: The school was "coercing" the attendees to listen to the prayer. The use of the public address system and the role that school officials played was crucial to the Court's decision of unconstitutionality here. SMOLIN: The Doe case does NOT mean that all student prayers are unconstitutional. The use of the public address system and the role of the school officials are critical here. Students have a right to pray in school as long as they are not disruptive. The school just cannot sponsor prayer.

1st Am.: Compelled Speech WEST VIRGINIA STATE BD. OF EDUC. V. BARNETTE (1943)— Board of Education adopted a flag salute requirement. The children were required to both: (1) say the pledge of allegiance (speech) and (2) salute the flag (action). One child in the school system was a Jehovah's Witness. Jehovah's Witness's regard the pledge of allegiance as idolatry. So, the parents challenged the regulation.

HELD: Unconstitutional. The Court invalidated the forced recitation of the pledge. ANALYSIS: The problem here was that the children were forced to recite the pledge, there was no opt-out. The Govt. cannot compel a citizen to speak. QUOTABLE QUOTE: "If there is any fixed star in our constitutional constellation, it is that no official high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." DISSENT: Smolin says to take note of Justice Frankfurter's dissenting opinion in Barnette. Frankfurter would have held that the "liberty" secured by the Due Process Clause does not prevent the State of West Virginia from attaining its legitimate interest in promoting good citizenship by requiring the pledge of allegiance to be recited.

1st Am.: Vagueness & Overbreadth COATES v. CITY OF CINCINNATI (1971)— A Cincinnati ordinance made it a crime for "three or more person to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by." This is challenged as being unconstitutionally vague.

HELD: Unconstitutional. The law is unconstitutionally vague. REASONING: The law does not provide a standard for its enforcement. No particular conduct is proscribed, it is unclear what is legal and illegal under the law OVERBREADTH— The overbreadth doctrine is a special rule for 1st Amendment facial challenges. Generally, a law is not struck down in a facial challenge unless substantially all of its applications are unconstitutional. But, this rule is changed in 1st Amendment facial challenges under the overbreadth doctrine. If a substantial # of the uses/applications of the statute are unconstitutional, then it is struck down on its face. A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated and a person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others. To the extent that a law goes substantially beyond what it can prohibit constitutionally, it is struck down on its face. Test: Substantial Overbreadth (Broadrick v. Oklahoma).

EQUAL PROTECTION AND AA RICHMOND v. J.A. CROSON CO. (1989)—Strict Scrutiny for Affirmative Action. In 1983 the Richmond City Council adopted a Minority Business Utilization Plan for Richmond, VA. The Plan required prime contractors who the city awarded contracts to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprise (MBE). An MBE was defined as a business at least 51% owned by a minority or minorities. The plan was put in place, at least in part based on a study that indicated that while Richmond was 50% black, only 0.67% of the city's construction contracts had been awarded to minority businesses between 1978 and 1983.

HELD: Unconstitutional. We review this under STRICT SCRUTINY and this does not pass the test. ANALYSIS: It is clear that a state or local jurisdiction has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction. However, this authority must be exercised within the constraints of § 1 of the 14th Amendment. It is clear that a state or municipality has a compelling interest in making sure that the tax public funds drawn from taxpayer contributions of its citizens do not serve to finance the evil of private prejudice. But, racial classifications are suspect. So, we apply strict scrutiny.

UNENUMERATED FR/SDP/ROP PIERCE v. SOCIETY OF SISTERS (1925)— The Oregon Compulsory Education Act required all children to be enrolled in public school. The children's parents could be held criminally liable (a misdemeanor) if the children were not so enrolled. The Society of Sisters, who run a private, Catholic school, sued.

HELD: Violates the fundamental right of parents to direct the education and upbringing of their children. "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power to standardize its children by forcing them to accept instruction from public teachers only. The child is not a mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations

1st. Am.: Religious Displays/Ceremonies COUNTY OF ALLEGHENY v. ACLU (1989)— FACTS: City had two recurring holiday displays located on public property. One was a crèche scene (nativity scene: little baby Jesus lying in the manger with wisemen and donkeys and all that) which was placed on the Grand Staircase of the Allegheny County Courthouse. The other was a Chanukah menorah placed just outside the City-County Building, next to a Christmas Tree and a sign saluting liberty.

HOLDING: 1. The crèche scene was unconstitutional. (5-4) 2. The menorah surrounded by other images was constitutional. (6-3) 3 justices strict separation, 4 justices accommodation, 2 justices neutrality. NOTE: That most of the Justices would have either said they are both constitutional or they are both unconstitutional. But a minority that split the issue won the day.

1st. Am.: Religious Displays/Ceremonies VAN ORDEN v. PERRY (2005) Monument inscribed with 10 Commandments

HOLDING: A monument inscribed with the Ten Commandments on the Texas State Capital grounds is constitutional.

1st. Am.: Religious Displays/Ceremonies STONE v. GRAHAM (1980) State law requiring posting of 10 Commandments in every classroom

HOLDING: A state law requiring the posting of the Ten Commandments in every public school classroom is unconstitutional.

1st Am.: Intro. to Places, Speech, and Public Forum Analysis HAGUE v. COMMITTEE FOR INDUSTRIAL ORGANIZATION (1939)— BACKGROUND: Mayor attempted to prevent CIO unions from organizing in the city by way of an ordinance requiring permits for public meetings.

HOLDING: City ordinance unconstitutional. ROBERTS QUOTE: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public . . . [such use] has been a part of privileges, immunities, rights, and liberties of citizens . . . to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." RATIONAL: The streets and parks belong to the people. The government has title, but they are trustees, we are the beneficiaries. We have a right to speak in a public forum. However, the Court left room for reasonable, content-neutral, time, place, and manner regulations.

1st Am. ESTABLISHMENT CLAUSE (School prayer/Bible reading) LEE v. WEISMAN (1992)— FACTS: A rabbi was invited to give a prayer at a public middle school graduation.

HOLDING: Clergy-delivered prayer at public school graduation is unconstitutional. REASONING: This is a prime example of Justice Kennedy's coercion test. This was found to be coercion, even though attendance is not required at graduation, it is an important event and students feel pressured to attend. So, the State is seen as coercively "forcing" religion on the graduation attendees.

1st Am.: Intro. to Places, Speech, and Public Forum Analysis HILL v. COLORADO (2000)— FACTS AND BACKGROUND: In 1993 Colorado enacted a statute that regulates speech-related conduct within 100 feet of the entrance to any health care facility

HOLDING: Constitutional content-neutral restriction on time, place, and manner. The Majority found that the restriction was a time, place, and manner restriction because: (a) It was not a restriction on speech (just a restriction on where the speech could occur) (b) It treated all viewpoints equally (c) State's interest in providing guidelines to police and protecting privacy/access to medical clinics was unrelated to the suppression of speech. DISSENT: The dissenter's argued that the regulation was not content-neutral, that it was clearly targeted at anti-abortion speech. SMOLIN: The majority here are being typical liberals. They support free speech as long as they agree with it. Here, the speech is anti-abortion speech, the liberals don't like anti-abortion speech, so they uphold this law that restricts anti-abortion speech.

1st Am.: Schools and Speech BETHEL SCHOOL DISTRICT NO. 403 v. FRASER (1986)— BACKGROUND: Fraser, a student at Bethel High School, gave a speech in front of a school assembly nominating his friend for student elective office. The speech was deemed to be inappropriate by school officials, the speech containing a measure of sexual innuendo. Fraser was punished for his speech under a school policy that prohibited the use of obscene language in school. First Amendment challenge.

HOLDING: Constitutional, the school's action did not violate the First Amendment. It was permissible for the school to impose sanctions on the student in response to his offensively lewd and indecent speech. REASONING: The penalty imposed here was unrelated to the students viewpoint, unlike the restrictions in Tinker. The First Amendment does not prohibit a school form determining that a vulgar and lewd speech would undermine the school's basic educational mission. The audience of teenagers in the auditorium that day were unsuspecting youths and could be protected from such language by the school.

1st Am.: Schools and Speech HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER (1988)— BACKGROUND: Hazelwood East High School had a student written school newspaper. The principal was given a copy of the newspaper before it was published, so he could approve publication. Two controversial articles were included in the newspaper: (a) a teen pregnancy article and (b) an article concerning divorce. The principal decided that in order to protect the identity of the students and parents which the articles concerned it was best to leave the articles out of the newspaper. So, the principal made the executive decision that the articles should be left out. The students brought a First Amendment challenge, claiming that the principals actions constituted a Prior Restraint.

HOLDING: Constitutional. RATIONALE: The Court did not apply strict scrutiny like it does for most prior restraints. Instead, the Court only applied the rational basis test. The Court noted that while students don't shed their constitutional rights simply by entering the school house doors, their First Amendment rights were not necessarily as extensive of those of adults, given the special environment that exists within the school. The school could censor speech that was inconsistent with the basic educational mission of the school. The Court concluded that in light of the circumstances, the school's censorship of the student publication was not unreasonable.

1st Am. ESTABLISHMENT CLAUSE (Schools and "Release Time") ZORACH v. CLAUSON (1952)— SCHOOL POLICY: School board allowed students to be released during the school day, for religious instruction outside of the school.

HOLDING: Constitutional. REASONING: Release time, so long as it is off of the public schools campus, is constitutional. The Court distinguished McCollum. By having the religious instruction off of campus, the children will realize that the religious instruction is separate from the school (thereby reducing the risk of the school appearing to endorse religion). QUOTABLE QUOTE: "We are religious people whose institutions presuppose a Supreme Being."

1st Am.: Legislative Prayer MARSH v. CHAMBERS (1983)— FACTS: A state legislature employed a Presbyterian minister for 18 years to begin each session of the legislature with a prayer.

HOLDING: Constitutional. It is constitutional for a state legislature to employ a minister to open each session with prayer. REASONING: The Court bases their holding on history, and says that he can even be paid with public funds. In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening each legislative session with prayer has become part of the fabric of our society.

1st Am.: Legislative Prayer TOWN OF GREECE v. GALLOWAY (2014)-- FACTS: Meeting in the town of Greece, NY routinely opened with a prayer, the prayer was explicitly Christian in nature. A challenge was brought to the constitutionality of the prayer.

HOLDING: Constitutional. It is constitutional for a town meeting to open with a prayer. REASONING: The majority stated that the prayer "must be evaluated against the backdrop of historical practices." The Court noted that legislative prayer was a practice that had long endured in the United States (in fact going back to the very first Congress) and that "legislative prayer has become part of our heritage and tradition." Furthermore, the majority found it relevant that the intended audience of the prayer was the lawmakers themselves, and not the public. Justice Kennedy writing for the majority stated that "[t]he inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce non-believers."

1st Am.: Gov. "aid" to religious elem. & secondary schools ZELMAN v. SIMMONS-HARRIS (2002)— FACTS: Cleveland, Ohio established a pilot voucher program designed to provide educational choices to families with children in Cleveland City Schools. The parents were free to use their vouchers at any school, including religious schools.

HOLDING: Constitutional. The Ohio voucher program is constitutional. REASONING: Voucher programs are generally constitutional, even if the schools are religious. Where it is the parent that directs the money to the religious school, it is permissible (Parental Choice Principle). SMOLIN OUTLINE: Zelman upheld a voucher or educational choice program in the Cleveland, Ohio City School District, which included religious as well as non-religious schools.

1st. Am.: Religious Displays/Ceremonies MCCREARY COUNTY v. ACLU OF KENTUCKY (2005) Cty. courthouse display of 10 Commandments

HOLDING: County courthouse display of the Ten Commandments is unconstitutional, at least in part due to an evaluation of the purpose of the display under the first prong of the Lemon Test.

1st Am. Aid to Religious Colleges and Universities TILTON v. RICHARDSON (1971)

HOLDING: Federal grants to religious colleges for the "construction of facilities that would not be used for religious purposes" is upheld as constitutional.

1st Am. FREE EXERCISE CLAUSE EMPLOYMENT DIVISION v. SMITH (1990)— FACTS: Employee at drug rehab center was fired for using illegal drugs, in particular "peyote,' a hallucinogen. The employee was a Native American. His tribe viewed peyote use as sacramental and a necessary religious ceremony. After being fired for drug use, he applied for unemployment benefits from the State of Oregon. The State denied his benefits because he was fired for the use of illegal drugs. The employee sought a religious exemption from the law

HOLDING: No religious exemption. Overturns the 3 part test of Stage 2. This is constitutional, the Free Exercise Clause cannot be used to challenge facially-neutral laws of general applicability. This reduce the rule to basically rational basis. REASONING: The Court overturns it prior case law on religious exemptions. The Court will not apply strict scrutiny when an individual wants a religious exemption from a law of general application, it only gets rational basis. The Government cannot intentionally discriminate to single out a particular group. However, discriminatory effects are not enough to trigger strict scrutiny when the law is neutral and of general applicability. SMOLIN: This is one of the rare cases where Scalia wins in a 5 vote revolution. After Smith, the Free Exercise Clause is seemingly nothing more than a non-discrimination provision. HYBRID RIGHTS—Even though the three part test is overruled, Yoder remains good law because the Court differentiated the case. An exception may still be granted in cases involving "hybrid" rights (i.e., free exercise combined with freedom of speech or parental privacy rights). LEGISLATIVE EXEMPTIONS: The opinion also speaks encouragingly of legislative exemptions. While the Constitution does not mandate exemptions to be given, the Court says that it is permissible for the legislature to place a religious exemption in a law of general applicability.

1st Am.: Reputation, Defamation, Libel, & Freedom of Speech GERTZ v. WELCH (1974)— FACTS: Mr. Gertz was a lawyer who represented a family in a civil suit, involving the death of their child who had been shot by a police officer. The American Opinion magazine (a publication of the John Birch Society) printed an article charging Mr. Gertz with being a "Communist," "Leninist," and "Marxist." The article also indicated that Mr. Getz may have been behind framing the police officer for the killing. Mr. Gertz sued the magazine for libel.

HOLDING: Proof of actual malice is NOT required to recover compensatory damages in a defamation suit brought by a PRIVATE FIGURE plaintiff. However, there cannot be liability without fault—but, negligence is enough. REASONING: Mr. Gertz is not a public official or figure. The Court distinguishes between public officials/figures and private figures. Public officials have greater access to the channels of communication to rectify falsehoods state about them, they also assume the risk of damage to reputation because of their lifestyle. So, public officials do not need as much protection as private figures. A public figure is someone who thrusts themselves into the vortex of a public issue. Mr. Gertz does not qualify as a public figure, rather he is a private figure in a matter or public concern. GERTZ RULE FOR PRIVATE FIGURES IN MATTERS OF PUBLIC CONCERN: 1. P must prove that the statement was false. 2. P was prove some level of fault on the part of the D—no liability without fault (but negligence may be enough). 3. No Presumed or Punitive Damages without proof of actual malice. SMOLIN: Gertz sets up the test for cases involving a plaintiff who is a "private figure" where "the matter is of public concern." Essentially, Gertz is a prohibition of strict liability and limitation regarding presumed/punitive damages.

EQUAL PROTECTION AND AA FISHER v. UNIVERSITY OF TEXAS AT AUSTIN (2013)— Facts: Case brought by Abagail Fisher, a white female, challenging the University of Texas's admission policies. The plan called for the admission of any student from a high school in Texas who graduated within the top ten percent of their class-this portion of the plan, the "Top 10" plan, did not take race into consideration as a factor, it was simply based on the numeric of falling within the top 10 percent of the class. Applicants who did not fall within the top 10 percent of their high school class could still gain admission, albeit they went through a different admissions process--which evaluated the applicants talents, leadership qualities, family circumstances and race.

HOLDING: Remanded for further proceedings in which strict scrutiny is to be applied. REASONING: The Fifth Circuit applied an incorrect standard in reviewing the lower court's decision. The correct standard for reviews of racial classifications in strict scrutiny. The burden should lie with the University "to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." Because the Fifth Circuit failed to apply strict scrutiny, the S.Ct. remanded to the Fifth Circuit so they could apply strict scrutiny to the plan. ANALYSIS: Essentially, the Supreme Court made clear that strict scrutiny is actually to be applied--the lower courts are not just to rubber stamp a Universities affirmative action program. A mere assertion that the program is necessary for diversity is not good enough--under strict scrutiny, the University must actually show that its use of race as a factor is necessary, i.e. that there is no other realistic or reasonable alternative that would create as diverse a student body. SCALIA AND THOMAS: Scalia and Thomas both wrote concurring opinions which make clear that they would completely overrule Grutter and prohibit the use of race in admissions at state sponsored institutions of higher education On remand, the court found that the admission process did NOT violate the EP clause and SCOTUS affirmed this in 2016

1st Am.: The Right of Association HURLEY v. IRISH-AMERICAN GAY, LESBIAN, & BISEXUAL GROUP OF BOSTON (1995)— FACTUAL BACKDROP: A private organization put on an annual St. Patrick's Day Parade in Boston, Massachusetts. The private organization had a permit from the city to put on the parade. A group of the gays formed a group to ride in the St. Patrick's Day Parade. The private group that ran the parade denied the group a spot in the parade. The gay group claimed that their exclusion violated the Constitution and Massachusetts anti-discrimination public accommodation law. The Council responded that requiring them to give a parade spot to the gays infringed on their freedom of association by forcing them to associate with gays/promote the homosexual agenda through the parade.

HOLDING: The Massachusetts anti-discrimination law is unconstitutional as applied. The private parade organizers do not have to let the gay group participate. REASONING: Organizing a private parade is inherently expressive activity and it violates the 1st Amendment to require organizers to include a message that they did not agree with. The focus was on the message. The organizers could not be forced to support the homosexual agenda by giving them a spot in the parade.

1st Am.: Expressive Conduct TEXAS v. JOHNSON (1989)(overturning conviction for flag burning under Texas Statute)— FACTUAL MATERIAL: During the Republican National Convention in Dallas, Texas, Johnson burned an American Flag. While the flag was burning, he and other protesters chanted: "America, the red, white, and blue, we spit on you." Johnson was charged under a Texas Statute which outlawed "desecration of a venerated object." The Texas law made it a crime to desecrate a flag when the actor knows that it will offend others.

HOLDING: The Texas flag burning statue is unconstitutional. The government's regulation was not unrelated to the suppression of the message, so it was subjected to strict scrutiny and failed strict scrutiny. REASONING: We start by looking at this under the O'Brien test. However, the purpose of the statute was to suppress this type of protest because the message (it was only applicable to "offensive" messages, and government can't regulate speech just because the government finds speech offensive). So, it fails prong 3 of the O'Brien test. Thus, it exited the O'Brien test and was subjected to strict scrutiny. The state justified the restriction on the basis of preventing/stopping riots. However, there was never any danger of a riot, so the statute did not "fit" the purpose/state interest. Fails strict scrutiny, declared unconstitutional. SMOLIN: While the government said that their interest was in public order, the Court found the true intention to be suppressing Anti-American speech. So, it was really a regulation that targeted content. So, the Court exited O'Brien's intermediary scrutiny and went to strict scrutiny.

1st Am.: Gov. "aid" to religious elem. & secondary schools MITCHELL v. HELMS (2000)— FACTS: As part of a school aid program, the federal government distributes funds to state and local government agencies, which in turn lend educational materials and equipment to public and private schools. The program was challenged as violating the Establishment Clause because some of the schools receiving aid were religiously affiliated

HOLDING: The program is constitutional. The government can give instructional equipment to religiously affiliated schools so long as it is not used for religious purposes and all religions are treated equally. SMOLIN OUTLINE ON MITCHELL: In Mitchell v. Helms, the Court upheld loans to religious schools of instructional materials, including audiovisual equipment. The plurality opinion essentially said such aid was constitutional so long as it was offered on a neutral basis (i.e. the aid went to both religious and non-religious schools), and the aid was secular in content.

1st Am.: Schools, Free Speech, Equal Access, Etc. ROSENBERGER v. RECTOR & VISITORS OF THE UNIVERSITY OF VIRGINIA (1995) FACTS: UVA refused to give funds to a student-run Christian magazine, claiming that religious groups were excluded from receiving funds from the "activities fund."

HOLDING: The refusal violated the First Amendment. REASONING: Where government creates a designated/limited public forum it cannot exclude a religious group based on its views. The government is permitted to subsidize costs of religious publications when it is distributing money equally. (i.e. it did not violate the establishment clause).

1st Am. ESTABLISHMENT CLAUSE (School prayer/Bible reading) ENGEL v. VITALE (1962)— FACTS: The school board directed the principal to have students to recite a non-denominational prayer in school every morning.

HOLDING: The school policy requiring students to recite a prayer each morning was unconstitutional. REASONING: The fact that participation was voluntary and that the prayer was non-denominational did NOT save its constitutionality because it still promoted religion and was coercive. FOR FINAL: Daily school sponsored prayer is unconstitutional

1st Am. ESTABLISHMENT CLAUSE (Schools and "Release Time") MCCOLLUM v. BOARD OF EDUCATION (1948)— SCHOOL POLICY: The school system had a policy of allowing students to be released, with parental permission, to attend religious instruction classes conducted during regular school hours in the school building by outside teachers.

HOLDING: Unconstitutional. REASONING: Release time for religious instruction at the public school is unconstitutional. The Court noted that this was an attempt to provide funding and support to religion through compulsory school attendance laws. This policy ran afoul of the idea of a wall of separation between church and state.

1st Am. FREE EXERCISE CLAUSE CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH (1993)— BACKGROUND: The City of Hialeah passed an ordinance outlawing animal killing in ritual ceremonies. The Santeria faith has a ritual animal sacrifice as a central aspect. The law didn't specifically say that it targeted the Santeria faith, but it outlaws specifically the conduct that they do during their worship and no other conduct.

HOLDING: Unconstitutional. The Court applied strict scrutiny because the law has a discriminatory motive and found the law to be unconstitutional because it was intentional discrimination directed against a certain religious group. REASONING: Because this was not a law of general applicability (it intentionally discriminated against one group), it was subjected to strict scrutiny. It failed the strict scrutiny analysis.

1st Am.: Indecent Speech COHEN v. CALIFORNIA (1971): Cohen wore a jacket that said "F*ck the Draft."

Held: Absent a compelling reason the government cannot criminalize the mere display of an expletive.

UNENUMERATED FR/SDP/ROP GRISWOLD v. CONNECTICUT (1965)— A Connecticut Statute made it illegal the use or provision of contraceptive devices. This case was a planned test case to overturn the law.

Held: Connecticut anti-contraceptive statute was struck down on fundamental rights grounds. FAMOUS QUOTE ON MARRIAGE: "We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." THE COURT DISCUSSED WHERE FUNDAMENTAL UNENUMERATED RIGHTS CAME FROM: The Court began its analysis by recognizing that "guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," and that "[v]arious guarantees create zones of privacy." The Court then turned to the Ninth Amendment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The pneumbras/emanations rationale was later abandoned

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS UNITED STATES v. CAROLENE PRODUCTS CO. (1938)— Facts: Congress passed the "Filled Milk Act" which prohibited the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream. Carolene was indicted for shipping skimmed milk made with coconut oil. Carolene products challenged the act, claiming that it infringed on their Fifth Amendment rights.

Held: Constitutional, it does not violate the Fifth Amendment. Reasoning: Congress gets great deference in its legislative judgments. Congress, after study decided that skimmed milk compounded with fat or oil was a danger to the public welfare, that was sufficient for constitutionality

UNENUMERATED FR/SDP/ROP GONZALES v. CARHART (2007)— Gonzales involved a challenge to the Federal Partial-Birth Abortion Ban Act of 2003. The Federal Act, like the act in Stenberg had no health exception. However, the federal act did have make it clear that only D&X abortions were prohibited (so it did not prohibit D&E abortions).

Held: Constitutional, the Federal Ban is upheld against a facial challenge. However, the Court stated that the an As-Applied challenge could still be brought later. • The Court found the ban constitutional because it did not impose an undue burden on a woman's right to access an abortion Analysis: The Court differentiated Gonzales from Stenberg. This is a facial challenge, seeking as a remedy to have the law completely invalidated. The normal rule in facial challenges is that a statute is only unconstitutional if substantially all of its applications are unconstitutional. But, most of the time there is no medical necessity for a D&X abortion, so the facial challenge fails. -It was important to the Court that the federal statute made it clear that it was only D&X that was banned, not D&E.

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS NEBBIA v. NEW YORK (1934)— The State of New York established a Milk Control Board that was given general power to fix maximum and minimum prices for milk. A constitutional challenge was brought against the Board based on Economic Substantive Due Process. It was established that the Board provided certain economic benefits vis a vis price stability

Held: Constitutional. Analysis: A state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare and to enforce that policy by legislation adapted to its purpose. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS WEST COAST HOTEL CO. v. PARRISH (1937)—overruled Adkins Facts: The State of Washington enacted a minimum wage law for women and minors.

Held: Constitutional. Analysis: This case overruled Adkins. This case also established a great deference to Legislatures in their policy decisions. Smolin: From this point forward ESDP and Liberty of Contract are effectively dead. The Court also expressed the fact that it would give significant deference to the policy choices of Legislatures (no more second guessing.)

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS WILLIAMSON v. LEE OPTICAL (1955) Facts: Oklahoma instituted regulations that allowed only ophthalmologists and optometrists to fit lenses, except upon written prescription. This regulation prevented optician's from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist. Opticians challenged the law on Due Process Grounds. The state promulgated the law on grounds that it would enhance public health and safety. However, there was some question as to whether it really enhanced public health or safety

Held: Constitutional. Test: Rational Basis. "[T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." Deference to the Legislature: The Court reiterated the principle that the legislature was due great deference in its choices of legislative enactments. "[A] law may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the [law's] requirements."

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS MULLER v. OREGON (1908)— Oregon had a statute which prescribed maximum hours of employment for women. The state justified the law on the basis that it was necessary for womens health, due to the unique "physical organization" of women and "her maternal functions." The theory was that women were too delicate to work too many hours. The future S. Ct. Justice Brandies filed an influential brief outlining the women's health argument

Held: Constitutional. It was found to be necessary for women's health.

STATE ACTION DOCTRINE BLUM v. YARETSKY (1982)— Nursing homes, which were funded by Medicaid, discharged and transferred patients because their care was no longer medically necessary. The nursing homes were required to make such assessments under Medicaid. The patients however, argued that because they were moved without notice they were deprived of their right to due process of law.

Held: NO STATE ACTION Analysis: The mere fact that a business is subject to state regulation does not, without more, convert its action into that of the State for the purposes of the 14th Amendment. Here, the state did not coerce the nursing homes into acting in this way. Neither was the nursing home exercising a power that was "traditionally the exclusive prerogative of the State."

STATE ACTION DOCTRINE RENDELL-BAKER v. KOHN (1982)— New Prospectives School was a private, nonprofit school in Brookline, MA. The school was located on private property and run by private directors. When students were referred by Brookline or Boston, the state paid part of the costs. In fact, in years leading up to the litigation, 90 to 99% of the funding for the school came from some government entity. To be eligible for the funds, the school had to comply with various regulations concerning matters which ranged from recordkeeping to student-teacher ratio. -Rendell-Baker was a teacher at New Prospectives. In 1978 she was fired as a result of a dispute over the role of a student-staff council in making decisions relating to hiring.

Held: NO STATE ACTION. Analysis: In this case, the decision to fire Rendell-Baker was a completely internal, policy decision, it was not compelled or even influenced by any state regulation. NOTE: "[Just because] a private entity performs a function which serves the public does not make its acts state action."

STATE ACTION DOCTRINE HUDGENS v. NATIONAL LABOR RELATIONS BOARD (1976)— Facts:overrules Logan Valley. Labor protest in a large shopping mall. Union members were picketing in front of a store in the mall. They were told to leave or face arrest for trespassing.

Held: NO STATE ACTION. No right to protest on private property. Overrules Logan Valley SMOLIN: So, at the end of this series of cases, the 1st Amendment does not apply at Brookwood or the Galleria

STATE ACTION DOCTRINE LLOYD CORP. v. TANNER (1972)— Facts: Lloyd Center was an indoor shopping mall in Portland, OR. Tanner was distributing "hand bills" protesting the Vietnam War inside the confines of the mall. Security guards forced the men to stop distributing the hand bills and threatened to call the police if they did not leave.

Held: NO STATE ACTION. The Court differentiated from Marsh & Logan Valley. Reasoning: (1) What they were protesting was not intrinsically connected with the location they were protesting in. a. The mall and the Vietnam War had no connection, whereas in Logan Valley the supermarket and the labor dispute were connected. b. Smolin: "No need to handbill about 'NAM' in a shopping mall." A shopping mall is different than a shopping center. The mall is enclosed, the shopping center is open air. When you enter the mall, you pass through a door, you realize you are not on public property anymore.

STATE ACTION DOCTRINE MOOSE LODGE NO. 107 v. IRVIS (1972)— Moose Lodge No. 107 is a private club in Pennsylvania. Moose Lodge held a liquor license from the State of Pennsylvania. Moose Lodge refused to serve Irvis, because Irvis was black. Irvis sued, claiming that the Moose Lodge's refusal to serve him constituted State Action due to the Pennsylvania Liquor Authority's issuance of a liquor license to the Lodge.

Held: NO STATE ACTION. This was a private club, which just so happened to have a license from the state. NOTE: If the Court had found State Action, the exceptions to the State Action doctrine would have swallowed the rule. Almost every private business has some sort of a license from the government, even if it is just a building permit or business license. Therefore, if a license from the government was all it took, then the 14th Amendment's State Action Requirement would effectively be destroyed

EQUAL PROTECTION VILLAGE OF ARLINGTON HEIGHTS v. METROPOLITAN HOUSING DEVELOPMENT CORP. (1977)— The Housing Development Corp. applied to the city to rezone a 15-acre parcel of land to multi-family classification in order to build a low-income townhouse. The city denied that request. The Housing Development Corp. brought suit alleging that the denial was racially discriminatory in violation of the Equal Protection Clause of the 14th Amendment.

Held: No violation. Failed to prove a discriminatory purpose motivated the denial.

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS ALLGEYER v. LOUISIANA (1897)— The State of Louisiana placed limits on out of state insurance companies doing business within the State of Louisiana. The State of Louisiana attempted to apply this law to an insurance company in NewYork who mailed a letter of notification to a client in Louisiana. The actual insurance contract was made outside of Louisiana, it was made and was to be performed in the State of New York, and the premiums were to be paid in New York.

Held: No. "We think the statute is a violation of the 14th amendment of the federal constitution, in that it deprives the defendants of their liberty without due process of law. LIBERTY: "The 'liberty' mentioned in [the 14th Amendment] means, not only the right of the citizen, to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to carrying out to a successful conclusion the purposes above mentioned." Analysis: The NY Insurance firm had not done any business within the confines of Louisiana, any law purporting to prevent it from sending a letter of notification to its customer in Louisiana would violate the fundamental right to contract.

STATE ACTION DOCTRINE SHELLEY v. KRAEMER (1948)— Facts: St. Louis homeowners association had a race based restrictive covenant. A lawsuit was brought and the Missouri state court enforced the covenant.

Held: STATE ACTION, the court's enforcement of the covenant equaled state action. Other Constitutionally Significant Result—Renders racially restrictive covenants null & void. Smolin: This case has never been overruled, but it is usually not followed. Smolin describes this case as an aberration. If you read this case too broadly, it would swallow the state action rule. Smolin on the Smell Test of Constitutional Law—This case is an example of the smell test of constitutional law. The judges may have had a negative gut reaction to the facts.

STATE ACTION DOCTRINE TERRY v. ADAMS (1953)— Facts: The Jay Bird Party was a private organization that endorsed candidates for the Democratic Primary in a certain Texas County. The Jay Bird Party acted outside the structure of the Democratic Party. Every white voter in the county was automatically included in the Jay Bird Party. In practice, whoever won the Jay Bird primary won the Democratic Primary, and subsequently the general election. The group was organized to circumvent the 15th Amendment right to vote.

Held: STATE ACTION. Analysis: It did not matter that the state did not control the portion of the election it left to the Jaybird Party. The Jay Bird primary was an integral part, in fact the only effective part, of the elective process which determined who ruled and governed. The group was arranged to circumvent the 15th Amendment, hijacking the primary and in essence, hijacking the election.

STATE ACTION DOCTRINE EDMONDSON v. LEESVILLE CONCRETE CO. (1991)— Facts:Edmondson was a construction worker. While working on a project at Fort Polk, LA, he was injured when a Leesville truck rolled backwards and pinned him against some construction equipment. He sued in Federal Court. Leesville used two of its three preemptory challenges to exclude black people from the jury (Edmondson was black). Edmondson asked the District Court to require Leesville to provide a race neutral reason for the challenges, but the District Court refused, ruling that Batson's prohibition against racially based preemptory challenges only applied in criminal cases. This was a civil trial with private attorneys and private litigants.

Held: STATE ACTION. Analysis: The cases have found state action when private parties make extensive use of state procedures with "the overt, significant assistance of state officials." Here, without the overt, significant participation of the government, the peremptory challenge system, as well as the jury trial system of which it is part, simply could not exist. TWO PART TEST: 1. Ask whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority. 2. Ask whether the private party charged with the deprivation could be described in all fairness as a state actor. RESULT: You can't use preemptory challenges in a discriminatory manner

STATE ACTION DOCTRINE LUGAR v. EDMONDSON OIL CO. (1982)— Facts:Lugar was indebted to Edmondson Oil Co. Edmondson sued in Virginia State Court. Pursuant to Virginia law, Edmondson sought prejudgment attachment. The state court clerk issued a writ of attachment and the County Sheriff executed the writ. This had the effect of sequestering Lugar's property, although the property was left in Lugar's possession. The attachment action was eventually dismissed, after which Lugar brought suit against the State and Edmondson for depriving him of his property without due process of law.

Held: STATE ACTION. Test: Conduct causing the deprivation of a federal right must be fairly attributable to the State. 1. The deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible. 2. The party charged with the deprivation must be a person who may fairly be said to be a state actor. Analysis: A private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the 14th Amendment. Cf.(Compare)—Compare Lugar with the earlier case of Flagg Brothers. In Flagg Brothers the Supreme Court held that a private creditor's self-help repossession did not constitute state action and thus due process was not required prior to the sale of her belongings. ***The key difference between Lugar and Flagg Brothers was the direct involvement of a state officer, the sheriff, in Lugar, while Flagg Brothers involved a self-help repossession.

STATE ACTION DOCTRINE BURTON v. WILMINGTON PARKING AUTHORITY (1961)— Facts:The City of Wilmington, Delaware built a municipal parking structure (aka a parking garage). Part of the structure had business space to lease to private businesses. The city leased some of the space to the Eagle Coffee Shoppe. Eagle had a policy of not accommodating black customers (they wouldn't serve black people).

Held: STATE ACTION. "When a state leases public property [in the manner done in this case] the proscriptions of the 14th Amendment must be complied with by the lessee." Analysis: The land and building are publicly owned. The cost of the acquisition of the land and construction of the building were financed with public funds. The coffee shop derived benefit from being located inside the municipal parking garage.

STATE ACTION DOCTRINE AMALGAMATED FOOD EMPLOYEES UNION LOCAL 590 v. LOGAN VALLEY PLAZA, INC. (1968)— Facts: The Logan Valley shopping center was an open, strip-mall like shopping center near Altoona, PA. A Weis Supremarket was located in the shopping center. Union members picketed the labor practices of Weis at the shopping center in the parcel pickup and the parking lot near the pickup area. Logan Valley attempted to use state trespass laws against the picketers.

Held: STATE ACTION. Logan Valley Mall is the functional equivalent of a "business block" and for First Amendment purposes must be treated in substantially the same manner. Analysis: The shopping center is the functional equivalent of the business district in Marsh v. Alabama. "Ownership does not always mean absolute dominion."

STATE ACTION DOCTRINE EVANS v. NEWTON (1966)— Facts: A Southern Senator provided for a segregated Park in his will. The will called for the park to go to the City of Macon, GA for so long as the city operated the park for the pleasure of white people only. The city operated the park as a segregated park for 50+ years. However, after Brown v. Board of Education struck down segregation this became illegal. So, the city resigned as trustee and turned the park over to private trustees who operated the park as a private, segregated park. Other than going from public to private control, nothing changed about the park. The park continued to function like a public city park.

Held: STATE ACTION. The public character of the park required that the Court treat it as a public institution subject to the command of the 14th Amendment, regardless of who had title under state law. SMOLIN: Don't read this case too broadly: Private golf courses and dining clubs are not state actors.

UNENUMERATED FR/SDP/ROP ZABLOCKI v. REDHAIL (1978— The Wisconsin Constitution provided that "dead-beat dads" could not marry without obtaining a court order granting them permission to marry. In order to get judicial permission, a father who was under obligation to pay child support had to prove compliance with the child support order and demonstrate that the children were not likely to become "public charges." Wisconsin justified this on the basis that if a man was not currently making child support payments, he would be even less likely to do so with another household to support.

Held: Struck down as violating the right to marry. Method: 1st—What Level of Scrutiny? The right to marry is of fundamental importance and the classification at issue significantly interferes with (trigger) the exercise of that right strict scrutiny must be used. TRIGGER: Strict Scrutiny is only triggered when a statute significantly interferes with the right to marry. Thus, not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. Reasonable regulations that do not significantly interfere with decision to enter into the marital relationship may legitimately be imposed. Reasonable regulations that do not significantly interfere with the right to marry only get rational basis test. 2nd—What are the State Interests? 1. The system furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations. 2. The system protects the welfare of the children who are to be benefited by child support payments. 3rd—Is it Narrowly Tailored? No. There are alternatives. This statute is not narrowly tailored to protect the best interest of the child. There are other means of getting compliance with the child support laws that do not interfere with the right to marry. It may not even be effective, consider this: Even if the individuals can't get married, they can conceive a new child out of wedlock, and that would bring about the result the state is trying to avoid (another mouth to feed out of the same income). SO: The Court struck down the statute as an impermissible violation of the right to marry.

STATE ACTION DOCTRINE THE CIVIL RIGHTS CASES: UNITED STATES v. STANLEY (1883) Facts: In 1875, Congress passed the Civil Rights Act. This legislation sought to eliminate private discrimination. This case came from the consolidation of several cases in which several owners of private accommodations which were held open to the public were fined for excluding blacks from their establishments.

Held: The Civil Rights Act was unconstitutional, it went beyond Congress's power to enact legislation under the 14th Amendment, because it went to privately owned businesses, and under the 14th Amendment you need State Action. Note: It does not violate the Constitution for a private business to discriminate. However, under current case law, i.e. Stage 4 of the Commerce Clause, Congress could attack private discrimination under the Commerce Clause.

STATE ACTION DOCTRINE JACKSON v. METROPOLITAN EDISON CO. (1974)— Facts: Metropolitan Edison is a privately owned power company that has a government sponsored monopoly over the provision of electric power in York, PA. As a consequence of its monopoly it stands in a regulated industry position, subject to substantial government regulation. Metropolitan Edison discontinued Jackson's power service after a purported delinquency in payment. Jackson argues that her service was cut off without proper notice, contrary to "due process of law." Jackson argued that all businesses "affected with the public interest" are state actors.

Held: The Court rejected the "affected with the public interest" argument and found that there was no state action. Significant: The provision of electrical service is not a traditional state function. Here, the powers exercised were not delegated to the company by the state. The industry had an obligation to provide power, the state was under no such obligation. Pennsylvania was not sufficiently connected with the actions of Metropolitan Edison to hold that there was State Action. Allowing the "affected with the public interest" argument would have swallowed the state action doctrine.

EQUAL PROTECTION DRED SCOTT v. SANDFORD (1857)— Overturned by the 14th Amendment. A slave master brought his slave into free soil territory. The slave claimed that since he was brought to free territory he was free

Held: The Court rejected the argument. The Court held that Black Slaves were not "citizens" as the word was used in the Federal Constitution. Rather, they were an inferior and subordinate race, who was subjugated to the control of a dominant race, and whether free or slave have no rights other than those the White government chooses to grant them. Therefore Blacks are not U.S. Citizens, and have no standing to sue for freedom as a constitutional right. The Court also invalidated the Missouri Compromise. Smolin: What the Court says here is that the "All Men Are Created Equal" which we find in the Declaration of Independence does not include Blacks. Slavery is a right guaranteed in the Constitution and the descendants of a slave can never be a citizen of the United States. Historical Point: Some historical scholars credit Dred Scott v. Standford's invalidation of the Missouri Compromise as a factor contributing to the Civil War.

EQUAL PROTECTION BROWN v. BOARD OF EDUCATION (1954)—"BROWN I" Equal Protection challenge brought to school segregation in Kansas, South Carolina, Virginia, and Delaware. In each case, Black children were seeking to be admitted into segregated "white" public schools.

Held: The Court stated that Plessy v. Ferguson and the doctrine of separate but equal has no application in the field of public education. Segregated public education is unconstitutional. SMOLIN ON THE EFFECT OF BROWN: The holding in Brown limited itself to the field of public education. However, in later opinions the Court treated Brown as though it completely overruled Plessy. So, the effect of Brown was to fully overrule Plessy and signal the demise of the doctrine of separate but equal

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS LOCHNER v. N.Y. (1905)—Epitomizes ESDP New York had established a maximum hour law for bakeries. N.Y. argued that it was a health law

Held: The Court struck down the maximum hour law as a violation of the Due Process Clause of the 14th Amendment. The Court rejected the health argument, it really wasn't necessary for health. The Liberty of Contract outweighed other considerations here. The Court felt that this was a labor regulation and not a health regulation. The majority found an implied liberty of contract. THREE PRINCIPLES OF LOCHNER: 1. Freedom of Contract is a right protected by the Due Process Clause of the 5th and 14th Amendments. 2. The Government could interfere with the freedom of contract only to serve a valid police purpose of protecting public health, public safety, or public morals. 3. The Judiciary would carefully scrutinize legislation to ensure that it truly served a valid police purpose.

EQUAL PROTECTION PLESSY v. FERGUSON (1896)—overruled by Brown v. Bd. of Educ. (1954). Louisiana statute called for segregated street cars. A man, who was 7/8 white and 1/8 black who "could pass for white" was asked to move to the Black portion of the streetcar. Claims he was denied equal protection of the laws under the 14th Amendment.

Held: The Court upheld segregation while propagating the doctrine of separate but equal. Analysis: The Court declares separate but equal to be constitutional. Smolin: Note the language that Justice Brown uses when talking about the argument that enforced segregation places a badge of inferiority on blacks. Justice Brown attacked this by stating "[i]f this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it." It is almost like he is twisting reality, blaming the feeling of inferiority on the "incorrect way" the Blacks interpreted segregation legislation. Plessy as Precedent: Plessy and separate but equal remained the law from 1896-1954, when it was overruled by Brown v. Bd. of Educ

UNENUMERATED FR/SDP/ROP BUCK v. BELL (1927)— A Virginia statute allowed for the sterilization of the mentally "defective." Sterilization of females would occur by the removal of the fallopian tubes. Carrie Buck was a "feeble-minded white woman" who was committed to a State mental institution. Her mother was "feeble-minded" and in the same institution. Furthermore, Carrie had born a "feeble-minded" daughter. When Carrie was 18, the State initiated proceedings to sterilize her. A judge ordered her to be sterilized based on the fact that "she was the probable potential parent of socially inadequate offspring." Thereafter, Carrie appealed, contending that the judgment ordering her sterilization was void under the Fourteenth Amendment because it denied her due process and equal protection

Held: The Court upheld the Court order of sterilization. Buck v. Bell rejects any fundamental right to procreation. JUSTICE HOLMES: "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough." SMOLIN: This is a Justice Holmes opinion which upholds the forced sterilization of a "mentally retarded" 18 year old girl. This is universally considered to be the worst opinion by Justice Holmes. This case is based on the idea of eugenics—an ideology of selective breeding to maximize the good qualities. Eugenics was very popular within the "Progressive" Movement of the first half of the 20th Century, until the Nazi's Holocaust shed it in a bad light. In fact, Nazis on trial after WWII for the atrocities committed during the Holocaust cited Buck v. Bell in their defense. NEVER EXPLICITLY OVERRULED: Buck v. Bell has never been explicitly overruled. However, Skinner v. Oklahoma probably implicitly overrules it.

EQUAL PROTECTION KOREMATSU v. U.S. (1944)— During WWII the U.S. government put people of Japanese origin in containment camps. Those placed in the camps included both resident aliens and American citizens of Japanese origin. Korematsu was convicted of being outside the containment camps in areas that were off limits to Japanese. He brought an equal protection challenge.

Held: The Court upheld the Japanese containment camps as justified for national security purposes. STRICT SCRUTINY: The Court set out strict scrutiny as the appropriate test for racial classifications. The Court stated: "[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. . . [C]ourts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." Analysis: Under Strict Scrutiny we look for a compelling governmental interest. The government claims this law is necessary to prevent espionage, i.e. win the war. Then we ask if the law is narrowly tailored to effectuate the compelling interest. The Court found that exclusion from a threatened area has a definite and close relationship to the prevention of espionage and sabotage. So, the Japanese Internment passed muster under Strict Scrutiny. Smolin: Korematsu is generally regarded as an unfortunate decision showing the Court's extreme deference to national security concerns during war.

APPLICATION (OR INCORPORATION) OF THE BILL OF RIGHTS TO THE STATES: DEVELOPMENT OF THE DOCTRINE OF SELECTIVE INCORPORATION BARRON v. BALTIMORE (1833) Facts: Barron contended that the City of Baltimore ruined his wharf by diverting streams, thereby making the water too shallow for boats. He claimed that this was a Taking, for which the 5th Amendment required the paying of "just compensation."

Held: The Supreme Court held that the just compensation clause of the 5th Amendement did not apply to a city, but its rationale was that the Bill of Rights generally limited only the national (federal) government, and thus did not apply to state or local governments. -- In his opinion, CJ Marshall made clear that the Bill of Rights was only intended to apply to the federal government. He stated "The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states." --The Broad Holding of Barron is that the provisions of the Bill of Rights do not apply to the States, but rather, only to the federal government. Smolin: There are two holdings: 1. Broad Holding: Bill of Rights doesn't limit State and Local Governments. 2. Narrow Holding: Takings Clause doesn't apply to states.

APPLICATION (OR INCORPORATION) OF THE BILL OF RIGHTS TO THE STATES: DEVELOPMENT OF THE DOCTRINE OF SELECTIVE INCORPORATION SLAUGHTER-HOUSE CASES: Facts: Louisiana granted a monopoly to a Slaughter House. Other butchers weren't able to practice successfully because of the monopoly. They argued that the monopoly was taking away their livelihood.

Held: The Supreme Court rejects the claim. The Court stated that the 14th Amendments Privileges and Immunities Clause does not protect "state privileges and immunities" but only Federal Privileges and Immunities. The Big Point: Bill of Rights are not included in P&I of the 14th Amendment. This prevents incorporation of the Bill of Rights. Rejects Total Incorporation: The Court rejected the idea of total incorporation. STILL GOOD LAW—The Slaughter House Cases have never been overruled as to the meaning of the P&I Clause. Smolin: The "Slaughter House Cases slaughtered the Privileges Clause of the 14th Amendment." The Slaughter House Cases renders the 14th Amendment's Privileges and Immunities Clause virtually meaningless. Under this case, Privileges and Immunities does not mean the rights protected in the Bill of Rights.

STATE ACTION DOCTRINE MARSH v. ALABAMA (1946)— Facts: Chickasaw, Alabama was a company owned town. The town had a "business block" on which business places were situated. The business block was laid out and looked like any small-town downtown business district. The business block had a side walk. A Jehovah's Witness was using the sidewalk to distribute religious literature. The town had signs in the stores stating that the area was private property and that anyone soliciting in the street without permission was trespassing. The Jehovah's witness was asked to leave the sidewalk, however she refused to do so. A sheriff's deputy was summoned, who arrested the Jehonvah's witness, who was charged with criminal trespass.

Held: The sidewalk is private property, but the Court said the private company is performing a public function and is treated as a state actor under such circumstances. Running a city is a public function, and therefore it must be done in compliance with the Constitution, whether by the government or a private entity. Analysis: The private company was doing all the things that a municipality would do, and as such is treated as if it were a municipality.

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS WEAVER v. PALMER BROS. CO. (1926)— A state law prohibited the use of certain materials in the production of bedding. The purported justification for the law was health and safety grounds. However, no evidence existed suggesting that there had ever been any health or safety issues relating to the particular material.

Held: Unconstitutional

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS COPPAGE v. KANSAS (1915)— Kansas's Legislature passed legislation making it unlawful to "require, demand, or influence any person or persons to enter into any agreement, either written or verbal, not to join or become or remain a member of any labor organization or association, as a condition of such person or persons securing employment, or continuing in employment of such individual, firm, or corporation."

Held: Unconstitutional as a violation of ESDP. Analysis: To ask a man to agree, in advance, to refrain from affiliation with the union while retaining a certain position of employment, is not to ask him to give up any part of his constitutional freedom. He is free to decline the employment on those terms, just as the employer may decline to offer employment on any other; for "it takes two to make a bargain."

EQUAL PROTECTION AND DISABILITY CITY OF CLEBURNE, TEXAS v. CLEBURNE LIVING CENTER, INC. (1985)— Facts: Cleburne, Texas's zoning ordinance required permits to be issued in order for one to operate a group home for the mentally retarded. Cleburne denied Cleburne Living Center, Inc. a special use permit to operate such a home. Suit was brought. The 5th Circuit Court of Appeal found that the mentally retarded were a "quasi-suspect" classification and that the zoning ordinance was unconstitutional.

Held: Unconstitutional as applied. But, rational basis and not heightened scrutiny is the appropriate standard. Analysis: Here, the Court declared the city ordinance unconstitutional under rational basis. The Court found animus in the law protecting home values but only burdening/limiting the rights of the mentally handicapped. Smolin: The Court applied rational basis with a "bite." Look at it under R.B. Normally, risk to neighbors and a decline in the property value would be legitimate interests under Rational Basis testing and this seems rationally related to those ends. But, the Court doesn't uphold it, it strikes it down under rational basis, in an opinion that reads as if it were under heightened scrutiny. DISABILITY DISCRIMINATION: The Court made clear that only rational basis review applies, no heightened scrutiny. The Court declared "to withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to the legitimate governmental purpose."

EQUAL PROTECTION CITY OF CLEBURNE, TEXAS v. CLEBURNE LIVING CENTER, INC. (1985)— Facts: Cleburne, Texas's zoning ordinance required permits to be issued in order for one to operate a group home for the mentally retarded. Cleburne denied Cleburne Living Center, Inc. a special use permit to operate such a home. Suit was brought. The 5th Circuit Court of Appeal found that the mentally retarded were a "quasi-suspect" classification and that the zoning ordinance was unconstitutional.

Held: Unconstitutional as applied. But, rational basis and not heightened scrutiny is the appropriate test. Analysis: Here, the Court declared the city ordinance unconstitutional under rational basis. The Court found animus in the law protecting home values but only burdening/limiting the rights of the mentally handicapped. Smolin: The Court applied rational basis with a "bite." Look at it under R.B. Normally, risk to neighbors and a decline in the property value would be legitimate interests under Rational Basis testing and this seems rationally related to those ends. But, the Court doesn't uphold it, it strikes it down under rational basis, in an opinion that reads as if it were under heightened scrutiny.

1st Am.: Fighting Words R.A.V. v. CITY OF ST. PAUL, MINNESOTA (1992)— Background: A group of teenagers made a home-made cross and trespassed onto a black-family's property and burned a cross on their yard. The City of St. Paul prosecuted the teenagers under St. Paul's Bias-Motivated Crime Ordinance which states: "Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor." The teenagers challenged the ordinance as an impermissible content based restriction.

Held: Unconstitutional content based restriction. "The First Amendment does not prohibit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects." Analysis: The expression here falls within the fighting word exception. The city could have prosecuted the teenagers under the trespass laws or the laws against threats, but the city decided to use its motive-based crime statute. The motive-based crime statute restricts some fighting words, but allows others, simply based on the content of those fighting words (only prohibits fighting words that relate to race, gender, etc.) The Court concluded that even though fighting words are unprotected speech, content-based restrictions between fighting words (banning some fighting words, but not others, solely based on the content of the fighting words) is unconstitutional. The Court stated that the government may not regulate use of fighting words based on hostility or favoritism towards the underlying message expressed. Smolin: Here, the ordinance restricts only fighting words that insult or provoke violence on the basis of race, color, creed, religion, or gender. But, fighting words to express hostility on the basis of political affiliation would never be targeted. This difference is held unconstitutional here.

EQUAL PROTECTION PALMORE v. SIDOTI (1984)— Appeal from a state child custody decision. The Father and Mother are white, as is the child. The mother is cohabiting with a black person. The Father brought a state court custody action to get the child out of the mother's custody. The state court awarded the father custody based on the theory that the child could suffer prejudice because of the mothers decision to cohabitate with a black person.

Held: Unconstitutional under equal protection, the judge's order is invalidated. Reasoning: The potential prejudice the child might face from the mothers choice to cohabitate with a person from another race was not a permissible consideration to justify removing the child from the mothers custody. "The Constitution cannot control such prejudices but neither can it tolerate them." Smolin on Race and Adoption: Palmore of its own force does not seem to ban the use of race-matching in adoption. But, does it have implications for that issue?

UNENUMERATED FR/SDP/FOP SKINNER v. OKLAHOMA (1942)— Oklahoma statue ordered forced sterilization of certain classes of habitual criminals convicted two or more times of crimes involving moral turpitude. Mr. Skinner was accused of stealing chickens. In the past, Skinner had been convicted of robbery with a firearm. Thus, Skinner was a repeat offender subject to the statute. His sterilization was ordered by an Oklahoma Court. He challenged on 14th Amendment grounds.

Held: Unconstitutional, there is a fundamental right to procreate and this statute fails strict scrutiny. ANALYSIS: The Court found that "marriage and procreation are fundamental to the very existence and survival of the race" and thus were "basic civil rights." Having found procreation to be a fundamental right, they further found that strict scrutiny was the appropriate level of review. Here, they find a fundamental right and apply strict scrutiny under Equal Protection. (SMOLIN: Smolin says this is fundamentally confusing. He says using Equal Protection in a fundamental rights case is like taking a baseball to a football game). This statute does not pass strict scrutiny review. Under the statute, thiefs are sterilized for their repeat offenses, while embezzlers are not. The Court found this line to be artificial and offensive to equal protection. SMOLIN: A big question is what really is the right at stake here? Thematically the right is labeled the right to procreate. But, literally the right at stake in this case was the right not to be sterilized

EQUAL PROTECTION ROMER v. EVANS (1996)— Facts: In 1992 Colorado amended the state constitution through a statewide referendum known as "Amendment 2." Amendment 2 repealed all legislation banning discrimination based on sexual orientation and prohibited any future legislative, executive, or judicial action designed to protect homosexuals, gays, or lesbians. An equal protection challenge was brought against Amendment 2. The state argued that Amendment 2 protected other (non-gay) citizens right to free association, i.e. it protected the rights of landlords or employers who have religious or moral objections to homosexuality.

Held: Unconstitutional, violation of equal protection. Analysis: When a law neither burdens a fundamental right nor targets a suspect class, the court will uphold the legislative classification so long as it bears a rational relation to some legitimate end. This is the rational basis test. However, Amendment 2 fails to meet the less than rigorous standard set by the rational basis test. Amendment 2 did not bear a rational relation to a legitimate end. The Court found that the breadth of the legislation was so far removed from any purpose that it cannot be said that the Amendment has any rational connection to any legitimate state purpose or interest. All Amendment 2 does is classify homosexuals to make them unequal to everyone else. Therefore, Amendment 2 violates the concepts of equal protection. SMOLIN: This is rational basis with a bite. This leads us to wonder whether the Court is just paying lip service to rational basis as the standard of review for gay issues, maybe they say they are doing rational basis when they are really doing some form of heightened scrutiny. But, until they say differently, sexual orientation will receive rational basis testing.

EQUAL PROTECTION LOVING v. VIRGINIA (1967)— Virginia had an anti-miscegenation statute which made interracial marriage a criminal offense. Richard Loving and Mildred Jeter were married in Washington, D.C., and returned to Virginia to reside as husband and wife. They were arrested for violating the anti-miscegenation statute. They were convicted and sentenced to one year in prison.

Held: Unconstitutional. Analysis: Because it was a racial classification, it was subjected to strict scrutiny. The statute failed strict scrutiny analysis. Racism is not a compelling interest which a State may rely on in an equal protection challenge, in fact it is the exact evil which the Equal Protection Clause seeks to remedy.

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. v. CAMPBELL (2003) Bad car accident, . The jury awarded Campbell $2.6 million in compensatory damages and $145 million in punitive damages. The trial court reduced the damages to $1 million compensatory and $25 million in punitive. Campbell appealed and the Utah S. Ct. reinstated the $145 million punitive damage award. State Farm challenges the punitive damages as excessive and in violation of Due Process.

Held: Unconstitutional. Rationale: "The Due Process Clause of the 14th Amendment prohbitis the imposition of grossly excessive or arbitrary punishments on a tortfeasor. To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property." 3 Factors: 1. The degree of reprehensibility of the defendant's misconduct. 2. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages awarded. 3. The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS BMW OF NORTH AMERICA, INC. v. GORE (1996)— Facts: Dr. Ira Gore, Jr. purchased a BMW sedan from a BMW dealer in Birmingham, Alabama that had been repainted. The jury found for Gore and awarded Gore $4,000 in compensatory damages and $4 million in punitive damages. The Alabama Supreme Court reduced the punitive damages to $2 million. BMW alleged that the large punitive damage award violated Due Process.

Held: Unconstitutional. REASONING: 1. The reprehensibility of the defendant' s conduct: BMW's conduct was not particularly reprehensible. 2. The ratio of punitive damages to the actual harm inflicted on the plaintiff: The punitive damages here were 500 times the amount of the actual harm. The punitive damages as compared to the civil and criminal penalties that could be imposed for the conduct: The most BMW could have been fined under Alabama's Deceptive Trade Practices Act was $2,000, clearly much lower than the punitive damage figure here

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS ADKINS v. CHILDREN'S HOSPITAL (1923)— This case involved a challenge to a District of Columbia law establishing a minimum wage for women

Held: Unconstitutional. RULE: "There is, of course, no such thing as absolute freedom of contract. It is subject to a great variety of restraints. But freedom of contract is, nevertheless, the general rule and restraint the exception, and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances."

EQUAL PROTECTION USDA v. MORENO (1973)— Facts: § 3(e) of the Food Stamp Act excludes from participation in the Food Stamp program any household containing individuals who are unrelated to any other member of the household. Thus, for Food Stamp purposes the Food Stamp Act created two classes of in individuals: (1) individuals who live in households all of whose members are related to one another and (2) individuals who live in households containing one or more members who are unrelated to the rest. Suit was brought by someone who met all income requirements but failed to satisfy the household membership requirement

Held: Unconstitutional. "Traditional equal protection analysis does not require that every classification be drawn with precise 'mathematical nicety.' But the classification here in issue is not only 'imprecise,' it is wholly without any rational basis." Reasoning: Under rational basis review, a legislative classification will be sustained, if the classification itself is rationally related to a legitimate governmental interest. However, here the classifications are irrelevant to the purpose of the Food Stamp Act. The relationship between persons constituting one economic unit and sharing cooking facilities have nothing to do with their abilities to stimulate the agricultural economy by purchasing farm surpluses, or with their personal nutritional requirements. SMOLIN: Legislative history indicated that this provision was motivated by one Congressman's animus towards hippies. Hatred of hippies is not a legitimate interest.

THE RISE AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS PHILIP MORRIS U.S.A. v. WILLIAMS (2007)— In this case, punitive damages were awarded against Philip Morris during Tobacco litigation. The plaintiff's attorney told the jury to consider others who were harmed by Philip Morris's conduct in fixing punitive damages. Philip Morris challenged on Due Process grounds, claiming that it was improper for the jury to consider anyone other than the litigant in front of the court in fixing punitive damages.

Held: Unconstitutional. "[T]he Constitution's Due Process Clause forbids a State to use a punitive damage award to punish a defendant for injury that is inflicted upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation." Reasoning: The Due Process Clause prohibits a State from punishing an individual without fist providing that individual with "an opportunity to present every available defense." Philip Morris had no opportunity to raise defenses that might be applicable to the non-parties considered if they had been parties.

UNENUMERATED FR/SDP/ROP EISENSTADT v. BAIRD (1972)— Massachusetts statute provided for up to five years in prison for "whoever . . . gives away . . . any drug, medicine, instrument or article whatever for the prevention of conception." The statute provided an exception, that a registered physician could legally prescribe a contraceptive to married individuals." Baird was convicted under this statute, for exhibiting contraceptive articles during a lecture on contraceptives to a group of students at Boston University and giving a young woman a package of vaginal foam at the end of the lecture

Held: Unconstitutional. If a ban on contraception to married person offends Equal Protection, then a ban to unmarried couples would equally offend Equal Protection. Despite strong rhetoric building toward Roe, the 4 Justice Majority purported to apply the rational basis test

EQUAL PROTECTION AND GENDER/SEX UNITED STATES v. VIRGINIA (1996)— The Commonwealth of Virginia runs a state supported military college, VMI. VMI was open only to males. The school had a rigorous training program which "cadets" were required to endure. [The Fourth Circuit Court of Appeals held that VMI's gender discrimination violated equal protection. In response, Virginia proposed to open a parallel program for women at Mary Baldwin College. The program at Mary Baldwin would differ in significant ways from the program at VMI.]

ISSUE #1: Does Virginia's exclusion of women from the educational opportunities provided by VMI deny to women the equal protection of the law guaranteed by the Fourteenth Amendment? HELD #1: Yes. ANALYSIS #1: Gender-based classification, so the party defending it must demonstrate an "exceedingly persuasive justification" for the law. Not all gender-classifications are illegal, gender classifications can be used to compensate women for particular economic disabilities they suffered, to promote equal employment opportunities to advance full development of the talent and capacities of our Nation's people. But, such classifications may not be used . . . to create or perpetuate the legal, social, and economic inferiority of women. Virginia failed to show an exceedingly persuasive justification for excluding all women from the VMI program. Virginia posited two justifications: (1) single-sex education provided some benefits to some students & (2) the VMI educational model of the adversative method of training could not be made available, unmodified, to women. Neither of these justifications were held to be sufficient. ISSUE #2: If VMI's gender classification offends Constitutional equal protection principles, what is required to remedy it? HELD #2: The parallel program offered at Mary Baldwin does not cure the constitutional violation. The parallel program does not provide equal opportunity, therefore it does not satisfy the 14th Amendment. REMEDY: "A remedial decree must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in the position they would have occupied in the absence of discrimination. In this case, the violation was exclusion of women from VMI. The remedy must be aimed to eliminate (so far as possible) the discriminatory effects of the past and bar such discrimination in the future. The lower court should craft a remedy that fits these goals.

EQUAL PROTECTION GEDULDIG v. AIELLO (1974)—PREGNANCY AND GENDER DISCRIMINATION California's disability insurance system excluded certain disabilities related to pregnancy from its coverage. An equal protection challenge was brought against the system, arguing that it discriminated on the basis of gender.

ISSUE: Does the California disability insurance system, by excluding certain pregnancy benefits to women, violate the Equal Protection Clause of the 14th Amendment? HELD: No. "We cannot hold that the exclusion [of certain pregnancy benefits] from coverage amounts to invidious discrimination under the Equal Protection Clause [of the 14th Amendment]." ANALYSIS: This rule furthered the state's legitimate interest in making its insurance system self-supporting. The Court applies rational basis review, because the law is facially neutral (the exclusion of pregnancy applies whether the pregnant individual is male or female). However, there is a discriminatory impact, but no discriminatory purpose, so we get rational basis. Under rational basis this policy stands up to a challenge. There was no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not. The program divided people into two groups—pregnant women & non-pregnant people—while all pregnant women are women, there were members of both genders in the group of non-pregnant people. No discrimination here. PREGNANCY DISCRIMINATION ACT: Congress effectively overruled Geduldig by statute when it enacted the Pregnancy Discrimination Act, which defined sex discrimination to include pregnancy discrimination and which prohibits discrimination on that basis.

EQUAL PROTECTION MICHAEL M. v. SUPERIOR COURT OF SONOMA COUNTY (1981)— California's statutory rape statute defined unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus makes men alone criminally liable for statutory rape. Michael M., then a 17 year old, was accused of statutory rape for having sexual intercourse with a 16 year old female. Michael M. was sought to have the charges set aside, alleging that the statutory rape law he was charged under violated the Equal Protection Clause of the 14th Amendment.

ISSUE: Does the California statutory rape statute discriminate on the basis of gender in violation of the Equal Protection Clause of the 14th Amendment? HELD: No. ANALYSIS: The state argued that the purpose of the law was to reduce teen pregnancies and abortions. The legislature could have believed that a statute that defined a party of one sex as the "victim" would make it more likely the instances would be reported, thus advancing the states interest. Plus, young women already had a deterrent, if they participated in the activity that was illegal for males to participate in, they could become pregnant, which in theory would deter them from participating in it. However, males had no such deterrent. So, the statute can be seen as equalizing the deterrents. Either way, the Court found that the statute was constitutional.

EQUAL PROTECTION AND ALIENAGE AMBACH v. NORWICK (1979)— Resident alien sought to become a public school teacher in N.Y. N.Y. law provided that only U.S. citizens or people who manifested an intent to apply for citizenship could become public school teachers. Resident alien was denied the position due to the fact they were not a U.S. citizen. Brought suit under equal protection

ISSUE: Does the State of N.Y. violate Equal Protection when it restricts resident aliens ability to serve as public school techers? HELD: No. This is constitutional. This falls into the self-government and democratic process exception. ANALYSIS: Educators, perform a task "that go[es] to the heart of representative government." Their influence is crucial to the continued health of a democracy. Therefore, the office of public school teacher falls within the "governmental function" exception to the general rule of strict scrutiny applying to alienage classifications. Because it falls within the exception, the classification need only bear a rational relationship to a legitimate state interest (rational basis test). This particular regulation is carefully framed, in that it only bars those aliens who have shown an unwillingness to obtain citizenship.

EQUAL PROTECTION AND AA GRATZ v. BOLLINGER (2003)—THE UM UNDERGRAD PLAN Gratz involved an equal protection challenge to the University of Michigan College of Literature, Science, and the Arts affirmative action policy within their overall admissions policy. The College used a 150 point index to make admissions decisions. Minority status gave an applicant 20 points. No other factor was given anywhere near that much weight. For instance, other subjective factors were given between 1-5 points. For example, due to the 20 point policy, applicants with the same GPA and ACT/SAT scores were subjected to different admissions outcomes based upon their racial or ethnic status. The university admitted that by adding 20 points, virtually every qualified under-represented minority applicant is admitted.

ISSUE: Does the UM Undergraduate Admissions Plan comport with Equal Protection in § 1 of the 14th Amendment? HELD: No, this is unconstitutional. It cannot pass the test of strict scrutiny. ANALYSIS: This is an explicit racial classification, so it is reviewed under the Equal Protection Clause under the test of strict scrutiny. Therefore, for it to stand constitutional muster, it must be narrowly tailored to further a compelling governmental interest. It is clear form Grutter, that diversity in higher education is a compelling state interest. However, this plan is not narrowly tailored. This is not the Harvard Plan, the racial or ethnic group the applicant belonged to in net effect became determinative for minority applicants. Therefore, it was not narrowly tailored to effectuate the goal of diversity, it swept too broadly, it made race too much of a factor. It was not a quota, but neither did it operate like the Harvard Plan. WHO VOTED TO STRIKE DOWN: Rhenquist, Scalia, Thomas, Kennedy, & O'Conner. Note that O'Conner who wrote the majority opinion upholding the affirmative action plan in Grutter, voted to strike this plan down.

EQUAL PROTECTION AND ALIENAGE GRAHAM v. RICHARDSON (1971)— Arizona determined welfare benefits based on citizenship status. To be eligible for welfare benefits in Arizona, one must either be (1) a U.S. citizen or (2) have resided in the U.S. for a total of 15 years. Richardson was a 64-year old immigrant from Mexico. She was not a U.S. citizen and had not resided in the U.S. for 15 years. Other than failing to meet the citizenship and residency requirements, she was qualified to receive such assistance. She was denied benefits solely based upon the residency provision of the statute. She brought a challenge to the statute under the Equal Protection Clause of the 14th Amendment.

ISSUE: Does the citizenship/residency requirement of Arizona's welfare statute violate Equal Protection? HELD: Yes. The Court invalidated the 15 yr. residency requirement. CITIZENS AND ALIENS PROTECTED UNDER THE 14TH: It has long been settled that the term "person" encompasses lawfully admitted resident aliens as well as citizens of the United States . . . and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside. GENERAL RULE FOR STANDARD OF REVIEW: Classifications based on alienage are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a "discrete and insular" minority for whom heightened judicial solicitude is appropriate. Thus, STRICT SCRUTINY is the general rule when alienage classifications are involved. ANALYSIS: The Court concluded that the State's desire to preserve limited welfare benefits for its own citizens is inadequate to justify restricting benefits to citizens and longtime resident aliens.

EQUAL PROTECTION AND ALIENAGE PLYLER v. DOE (1982)— Texas denied free public education to undocumented children. These children were brought to the U.S. as children by their parents (thus, they had no choice in it).

ISSUE: Does this violate Equal Protection? HELD: Yes, this is unconstitutional. TEST: The Court created a unique test for classifications affecting undocumented aliens. A classification cannot be considered rational unless it furthers some substantial goal of the State. Here, the Court took one word from rational basis test and another word from intermediary scrutiny. ANALYSIS: The 14th Amendment says "no State shall . . . 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. The 14th Amendment applies to citizens, resident aliens, and undocumented aliens. By denying the children an education, the law imposed a lifetime of hardship on the children. The Court did not find it fair that the statute punished the children for the crimes of their parents. SMOLIN: The basic unjustness of the law was the determinative factor here.

EQUAL PROTECTION PALMER v. THOMPSON (1971)— Jackson, Mississippi maintained segregated public facilities, including swimming pools. They had 4 pools for white people and 1 for black people. They were ordered to desegregate public facilities. The city undertook to desegregate. They desegregated city parks, auditoriums, golf courses, and the city zoo. However, instead of desegregating the pools, the city council closed the city pools. A number of black citizens filed suit, seeking to have the pools reopened and operated on a desegregated basis.

ISSUE: Whether closing the pools is state action that denies equal protection of the laws to Blacks. HELD: No. Analysis: This is not a case where whites are permitted to use facilities while blacks are denied access, neither is it a case where a city is maintaining a separate set of facilities for the different races. This is a case where the city council made a legislative judgment to shut down a public service, which burdened the races equally. No violation.

UNENUMERATED FR/SDP/ROP MAHER v. ROE (1977)— A Connecticut Welfare Department regulation limited state Medicaid benefits for first trimester abortions to those that were "medically necessary." A challenge was brought

ISSUE: Whether the Constitution requires a participating State to pay for nontherapeutic abortions when it pays for childbirth. HELD: NO. ANALYSIS: The Constitution imposes no obligation on the States to pay pregnancy related medical expenses. However, when a States decides to pay some expenses, the manner in which it dispenses the benefits is subject to constitutional limitations. But, this regulation did not discriminate against any suspect class. So, the only question was whether the regulation "impinge[d] upon a fundamental right . . . protected by the Constitution." Roe did not declare an unqualified constitutional right to abortion. Rather, Roe protects women from unduly burdensome interferences with their freedom to decide whether to terminate a pregnancy. Thus, Roe does not place any limit on the authority of the State to favor childbirth over abortion, and to implement that judgment by allocating public funds. The Court found that the regulation placed no obstacle in the pregnant woman's path to an abortion. The State did make childbirth a more attractive option, but it did not place a restriction on the access to abortion.

EQUAL PROTECTION ROSTKER v. GOLDBERG (1981)— Congress enacted the Military Selective Service Act. The Act required all males, upon attaining to the age of eighteen, to register with the selective service (register for the draft). Females were not required to register with the selective service.

ISSUE: Whether the Military Selective Service Act violates the Fifth Amendment to the United States Constitution in requiring all males, but not females, to register for the draft? HELD: No. This is constitutional. REASONING: The military regulations did not allow women to serve as combat troops. The purpose of the draft was to get combat troops to serve in the military. Because only males could serve as combat troops, an all male draft was closely related to the government's important interest in facilitating the draft of combat troops. DEFERENCE ON NATIONAL SECURITY ISSUES: This case also illustrates the deference which the Courts afford to Congress in areas related to national security and military affairs. The Constitution gives Congress the powers: "To raise and support Armies," "To provide and maintain a Navy," and "To make Rules for the Government and Regulation of the land and naval Forces." Thus, the Constitution has textually committed those duties to Congress and Congress has great latitude in deciding how it will carry out its duties in those contexts

EQUAL PROTECTION AND GENDER/SEX FRONTIERO v. RICHARDSON (1973)— The military had differing standards concerning the rights of male and female members to claim spouses as dependents for the purposes of obtaining increased quarters allowances and medical and dental benefits. A male service member could claim his wife as a "dependent" without regard to whether she was in fact dependent upon him for any part of her support. A female service member could only claim her husband as a dependent if he was in fact dependent upon her for over one-half of his support.

ISSUE: Whether the difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. HELD: Yes, the Court struck down the statute. PRECEDENTIAL VALUE: There was no majority opinion here. We have 8 votes to strike down the statute as a violation of Due Process. However, there is no majority as it relates to the appropriate standard to review sex/gender classifications. 4 JUSTICE PLURALITY (Brennan, White, Douglas, Marshall)—Say that classifications based on sex are inherently suspect and must therefore be subjected to close judicial scrutiny. They would apply strict scrutiny, just as it is applied to race, alienage, and national origin. The 4 Justices determined that the statute would not satisfy strict scrutiny. JUSTICE STEWART: Concurred in judgment, agreeing that the statue was unconstitutional, but he did not address the standard of review (i.e. scrutiny). JUSTICE POWELL (joined by CJ Burger, Blackmun): Agreed the statue was unconstitutional, but did not agree that sex/gender should be a suspect classification.

EQUAL PROTECTION AND GENDER/SEX CRAIG v. BOREN (1976)—First case adopting intermediary scrutiny for gender. An Oklahoma statute prohibited the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18.

ISSUE: Whether the gender-based differential [in beer sales] constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment. HELD: Struck down as unconstitutional. The "gender-based differential contained in" the law "constitutes a denial of the equal protection of the laws to males aged 18-20." The law was not substantially related to the important governmental purpose of public safety LEVEL OF SCRUTINY: The Court announced intermediate scrutiny as the appropriate level of scrutiny under which to review gender based classifications. The Court formulated intermediate scrutiny as follows: "To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." ANALYSIS: Here, women are being permitted something that men are not being permitted (the ability to purchase 3.2% alcohol under the age of 21). This is a gender based classification, so it garners intermediate scrutiny. State brings forward as it important governmental objective traffic safety (a public health and safety concern). The Court accepts public health and safety as an important governmental objective. The state argues that young men are more dangerous drivers under the influence of alcohol than women, the state offered statistical evidence which tended to prove this. The Court found that this was insufficient to satisfy the intermediary scrutiny analysis.

1st Am.: Intro. to Places, Speech, and Public Forum Analysis Davis v. Massachusetts (1897).

In Davis, the Court upheld a Boston ordinance that prohibited "any public address" on publicly owned property "except in accordance with a permit from the mayor." The Court affirmed a decision of the Massachusetts Supreme Court that stated that because the government was the owner of the property, it can regulate speech on its property as the owner, just as any private landowner could do. NO LONGER GOOD LAW.

UNENUMERATED FR/SDP/ROP STENBERG v. CARHART (2000)

In Stenberg, the Court invalidated a Nebraska ban on "partial-birth abortion" in a 5-4 decision. The legal issues, however, were largely technical and related to a late term abortion procedure involving a relatively small percentage of abortions. The Court was concerned with the statutes lack of a health exception and the fact that it was unclear exactly what the statute forbade (was it just one type of abortion or was it really a broader statute?)

EQUAL PROTECTION AND AA Regents of the University of California v. Bakke (1978). In Bakke, the UC-Davis Med. School set aside 16 out of 100 spots for minorities.

In a 5-4 decision with no majority opinion the Court invalidated the set-aside. However, the Court did make it clear that race could be used as a factor in admissions. No majority existed as to the issue of what type of scrutiny was to be used to evaluate affirmative action decision. In his opinion, Justice Powell outlined a plan which made race a consideration that he believed would pass constitutional muster. This plan is known as the "Harvard Plan." Under it, race can be one subjective factor of many, amidst a group of other subjective factors that may be considered.

1st Am.: Indecent Speech Ashcroft v. ACLU Congress passed the Child Online Protection Act (COPA) to prevent minors from accessing pornography online. The American Civil Liberties Union (ACLU) and online publishers sued in federal court to prevent enforcement of the act, arguing that it violated the Free Speech clause of the First Amendment. The District Court agreed. On appeal, a Third Circuit Court of Appeals panel affirmed, holding that because the act used "community standards" to decide which material was harmful to minors, it would prohibit material that was felt offensive in the most "puritanical" communities from being displayed in more "tolerant" ones.

Is the Child Online Protection Act's requirement that online publishers prevent children from accessing "material that is harmful to minors" likely to violate the First Amendment by restricting too much protected speech and using a method that is not the least restrictive one available? Yes. The Court found that Congress had not yet met its burden to show that the COPA requirements were more effective than other methods of preventing minors. Justice Anthony Kennedy, in the majority opinion, wrote that the district court's injunction "was not an abuse of discretion, because on this record there are a number of plausible, less restrictive alternatives to the statute." The majority also emphasized that barring the statute's enforcement during the trial would be less harmful than allowing it, because allowing it would be likely to prevent online publishers from publishing certain material.

EQUAL PROTECTION AND AGE MASSACHUSETTS BOARD OF RETIREMENT v. MURGIA (1976)— Massachusetts law provided for automatic retirement of state troopers upon the attainment of age fifty. Murgia was a state trooper who was forced to retire upon turning 50 due to the law. It was not disputed that he was in proper mental and physical condition to perform all duties necessary to be a state trooper

Issue #1: Does the law violate Equal Protection as an age-based classification? Held #1: No. The law passes rational basis review. The state posits as its state interest the need to protect the public by assuring the physical preparedness of its uniformed police. Since physical fitness generally declines with age, mandatory retirement at 50 serves to remove from service those whose fitness for the work presumptively has diminished with age. This clearly rationally related to the state's interest. Issue # 2: What level of scrutiny should be applied to age-based classifications? Held #2: Rational basis is the appropriate level of scrutiny. Strict scrutiny is not proper because strict scrutiny analysis is only required when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Age implicates neither. Plus, if we all live our normal life-span, then we will all pass through that stage of life, so it is unlike other classifications that garner strict scrutiny.

EQUAL PROTECTION AND AA GRUTTER v. BOLLINGER (2003)—the UM LAW SCHOOL ADMISSIONS CASE The University of Michigan had a law school admissions policy that included an affirmative action policy. The policy allowed race to be considered as one of several subjective factors, but admissions officers were required to evaluate "applicant[s] based on all the information available in the file." The policy also required the admissions officers to look beyond grades and test scores to certain 'soft' variables. Through the policy, the law school hoped to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school stronger than the sums of its parts."

Issue #1: Is diversity in higher education a compelling state interest that can justify the use of race in university admissions? HELD: Yes. Issue #2: Does the UM Law Admissions plan comport with Equal Protection? HELD: This is constitutional and comports with ideas of Equal Protection. This can pass muster under strict scrutiny. NOTE: The Court reiterated the fact that: "Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied. ANALYSIS: Here, race was but one of many factors considered. Race was not determinative. This was the Harvard Plan. When we apply strict scrutiny, we find that diversity in higher education is a compelling state interest and we find that the UM Plan was narrowly tailored to achieve its goal of diversity in the law school. The Court reiterated the fact that "a race-conscious admissions program cannot survive a quota system." The UM Plan, by adopting a Harvard Plan-esque use of race as one subjective factor of many steered clear of setting up a quota system. NOTE THE DEFERENCE THAT O'CONNER AFFORDS TO THE UNIVERSITIES DECISION: Even though they were doing strict scrutiny, O'Conner advocated giving the University's decision of great measure of deference. NOTE AN ODDITY IN THE O'CONNER OPINION: O'Conner seems to attempt to put a 25 year sunset on the need for affirmative action programs. This case was decided in 2003, so that would put her theoretical sunset for the need for, and presumably the constitutionality of Affirmative Action programs in 2028. Is this binding at all? Almost certainly not. WHO VOTED TO UPHOLD THE SYSTEM? O'Conner, Stevens, Souter, Breyer, & Ginsburg. NOTICE JUSTICE KENNEDY'S DISSENT: Justice Kennedy was concerned that the use of race as "one subjective category" was just a smoke screen for the use of race as the determinative factor. So, he advocated for looking very closely at both the means and the ends when strict scrutiny is employed. Smolin paraphrasing Kennedy: "Don't just look at what they say they do, look at what they actually do." So, Kennedy seems to advocate a strict version of strict scrutiny

UNENUMERATED FR/SDP/ROP HARRIS v. MCRAE (1980)— Harris involved a challenge to the "Hyde Amendment" in the Social Security Act, which denied reimbursement of abortion costs under the Medicaid program for abortions unless they were medically necessary to save the life of the mother, or in the case of rape or incest.

Issue: Whether the Hyde Amendment by denying public funding for certain medically necessary abortions contravenes the liberty or equal protection guarantees of the Due Process Clause of the Fifth Amendment. Held: No. This is a permissible regulation. ANALYSIS: The Hyde Amendment places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, encourages alternative activity deemed in the public interest. Even though a woman has the freedom (right) to choose an abortion, it does not follow that this freedom carries with it a constitutional entitlement to the financial resources to have that abortion. "Although the government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation." The Hyde Amendment does not unduly interfere with a woman's right to have an abortion. KG: Congress does have to fund life-saving abortions, but not otherwise.

UNENUMERATED FR/SDP/ROP PLANNED PARENTHOOD v. DANFORTH (1976

Legislation requiring the consent of the woman's husband in order for her to get an abortion is unconstitutional. PLANNED PARENTHOOD v. CASEY (1992)— Pennsylvania abortion law provided that no physician shall perform an abortion on a married woman without a signed statement from the women stating that she notified her husband of the procedure. HELD: Unconstitutional. It was an undue burden on the right to have an abortion. ANALYSIS: The Court found that the spousal notification provision was an undue burden on a woman's right to have an abortion. The Court was concerned with spousal abuse related to spousal notification. The Court found that it would impose a substantial obstacle for many women, which would cause them not to get an abortion. Thus, this portion of the statute was unconstitutional. "A State may not give to a man the kind of dominion over his wife that parents exercise over their children."

1st Am.: Obscenity & Child Pornography MILLER v. CALIFORNIA (1973)— FACTS: Miller was convicted under California law for knowingly distributing obscene materials. The charges stemmed from Miller's mass mailing advertising the sale of illustrated "adult" books.

NARROWING THE CATEGORY OF OBSCENITY: Obscene material is unprotected by the First Amendment. But, the Court confined obscenity to the depiction or description of sexual conduct. Even under Miller, patently offensive depictions of sexual conduct may be protected if it has serious literary, artistic, political, or scientific value. Under Miller, no one will be subject to prosecution for the sale or exposure of obscene materials unless the materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. MILLER TEST: (a) Whether the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; (c) Whether the work, taken as a whole, lacks serous literary, artistic, political, or scientific value. The Supreme Court has made it clear that the government can prohibit the sale, distribution, and exhibition of obscene materials even to willing recipients. However, the Court has also held that the government cannot prohibit or punish the

EQUAL PROTECTION AND ALIENAGE Matthews v. Diaz (1976)

SCOTUS upheld a federal law denying medical benefits to aliens.

1st. Am.: Religious Displays/Ceremonies LYNCH v. DONNELLY (1984)—in Lynch the Court held a different crèche scene constitutional.

SMOLIN: This case is not in the book, but all you need to know is that in this case the Court held the public display of a crèche scene was constitutional. SMOLIN ON COUNTY OF ALLEGHENY & LYNCH—Justice O'Connor uses her endorsement test in each of these cases, distinguishing between the crèche scenes, and between the crèche scene and menorah in County of Allegheny.

RIGHT TO VOTE/ELECTIONS BUSH v. GORE (2000)

The Court decided that under the Equal Protection Clause, the failure of the State of Florida to have a clear method to recount by hand the "hanging chad" ballots was unconstitutional. The failure to have a clear standard offended Equal Protection

UNENUMERATED FR/SDP/ROP LAWRENCE v. TEXAS (2003)—Overrules Bowers v. Hardwick A Texas statute made it a crime for two persons of the same sex to engage in certain forms of intimate sexual conduct. The police responded to a potential weapons disturbance at a house where they found Lawrence and Garner allegedly engaging in a certain homosexual sexual act. They were prosecuted. They appealed on grounds that they had a fundamental right to engage in consensual sexual activity. Issue: Whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.

The Court explicitly overruled Bowers and invalidated the Texas anti-sodomy law. But, the Court did not apply strict scrutiny or proclaim a fundamental right to consensual adult sexual activity. So, at most we can say that the State cannot criminalize adult consensual sodomy done in private—and by implication this should extend to all adult consensual sex in private. SMOLIN ON RATIONAL BASIS HERE: The Court applied only rational basis testing here. But, they "cheated" and found the law unconstitutional under rational basis. Does this signal a shift in the Courts thinking, suggesting in the future they will apply a form of heightened scrutiny to sexual orientation? Can't tell what Lawrence v. Texas means for the future.

1st Am.: Schools, Free Speech, Equal Access, Etc. LAMB'S CHAPEL v. CENTER MORICHES UNION FREE SCHOOL DIST. (1993)

The Court held that once a school district allowed community groups to use facilities during the evenings and weekends, religious groups could not be excluded.

SECOND AMENDMENT McDonald v. City of Chicago (2010)

The Court held that the 14th Amendment incorporated the Second Amendment to the States, striking down a Chicago handgun law.

SECOND AMENDMENT District of Columbia v. Heller (2008

The Court held that the Second Amendment right to keep and bear arms, is a personal, individual right, which applies beyond the context of a Militia; hence the D.C. "prohibition on the possession of usable handguns in the home" violates the Second Amendment.

UNENUMERATED FR/SDP/ROP ROMER v. EVANS

The Court invalidated Colorado's Amendment 2, purportedly on equal protection rational basis grounds

EQUAL PROTECTION AND DISABILITY HELLER V. DOE (1993)

The Court reaffirmed that rational basis was the appropriate level of review for discrimination based on disability in HELLER v. DOE (1993). In Heller, the Court upheld a state law that allowed mentally retarded individuals to be civilly committed if there was clear and convincing evidence justifiying institutionalization, but required that there be proof beyond a reasonable doubt before an individual could be committed because of mental illness. Although disability classifications receive only rational basis review under the Equal Protection Clause, the Americans with Disabilities Act, a federal statute, broadly prohibits such discrimination.

1st Am.: Schools, Free Speech, Equal Access, Etc. WIDMAR v. VINCENT (1981

The Court ruled that a university that allowed student groups to use school buildings could not exclude religious student groups from access. =In Widmar the Supreme Court declared unconstitutional a state university's policy of preventing student groups from using school facilities for religious worship or religious discussion. The school policy permitted registered student groups to use school facilities, but it forbade their use "for purposes of religious worship or religious teaching." -The Court found that this was unconstitutional, once they opened the forum to student groups, they could not make a content-based restriction against religious use.

EQUAL PROTECTION ORR v. ORR (1979)—The Alabama Alimony Case Alabama had an alimony statute. The statute imposed an obligation to pay alimony on husbands, but not wives. This was an explicit gender classification, which garners intermediary scrutiny under equal protection

The Court strikes this down as UNCONSTITUTIONAL under equal protection. This is based on the gender stereotype that women are dependent on men for support. SMOLIN: Here, we see a law based on a gender role stereotype struck down. SMOLIN ON THE IMPACT OF ORR v. ORR ON FAMILY LAW: This case only specifically deals with alimony. However, the case has been interpreted as having wiped-out all gender roles based family law issues. This signaled a move away from gender-based assumptions and to individualized decision making in family law. We will no longer allow the states to rely on gender based stereotypes in the form of a presumption, we do family law on an individualized basis.

1st Am.: Fighting Words BEAUHRNAIS v. ILLINOIS (1952), a challenge was brought to a Chicago City Ordinance that prohibited the display of any movie, drama, sketch, or publication that portrayed any race, color, or creed as depraved, criminal, unchaste, or lacking virtue.

The Court upheld the ordinance, noting the libelous utterances were unprotected speech. Precedential Value: Beauhrnais has never been officially overruled, but it is doubtful whether it is still good law.

1st Am.: Reputation, Defamation, Libel, & Freedom of Speech DUN & BRADSTREET

The limitations of Gertz and New York Times v. Sullivan do not apply to private figures as plaintiffs in matters of private concern. Under Dun & Bradstreet: 1. There are no special First Amendment limitations. Presume and punitive damages do not require proof of actual malice.

EQUAL PROTECTION AND LEGITIMACY Lalli v. Lalli (1978)

the Court upheld a state law that provided that a non-marital child could inherit from his or her father only if paternity was established during the father's lifetime. So, some non-marital children could inherit (those whose parents had established paternity within their lifetime) and some couldn't (those whose parents hadn't established paternity). The Court found that the state had an important interest in preventing fraud and that requiring paternity to be established during the father's lifetime was substantially related to that objective. Thus, the Court upheld the law. But, not all laws that discriminate among non-marital children are upheld. SO, the framework for analysis is this: (a) IF the law's distinction is between marital and non-marital children, the law is likely to be invalidated. (b) IF the law's distinction is among non-marital children, the Court will apply intermediate scrutiny in evaluating the law.

EQUAL PROTECTION AND WEALTH Dandridge v. Williams (1970)

the Court upheld a state law that put a cap on welfare benefits to families regardless of their size. As a consequence of the law, children in larger families received less per person than those in smaller families. The Court held that rational basis review was appropriate and accepted the state's interest in allocating scarce public benefits as sufficient to justify the law.

EQUAL PROTECTION AND SEXUAL ORIENTATION ROMER v. EVANS

the Supreme Court used the rational basis test to invalidate a Colorado initiative that encouraged discrimination based on sexual orientation. The Court used rational basis and found that the initiative failed under the rational basis test. --Although the decision used only rational basis, the Court showed some judicial willingness to protect the gays. Romer established that animus against gays and lesbians, even when presented as a purported "moral" basis for a law, is not sufficient to meet the rational basis test.

EQUAL PROTECTION AND SEXUAL ORIENTATION Lawrence v. Texas

the court struck down a ban on consensual homosexual adult sexual conduct, when done in private. The Court again used rational basis testing to strike down the law. Smolin: The Court in Lawrence purports to strike the law down on rational basis grounds, but are we seeing a shift toward homosexuality as a protected class? Will intermediary or strict scrutiny be applied sometime in the future? Never can tell, we will see what the future holds.