Constitutional Law 2 Review

Citizenship Clause

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." - All people born in the US are citizens of the US. - A repudiation of the holding in Dred Scott by establishing that African Americans were citizens, too. - Note: The 14th Amendment doesn't allow for citizenship to be stripped without consent.

Chaplinsky v. New Hampshire

"Fighting words" are not protected by the First Amendment. - Chaplinsky called the city marshal a "fascist" or "racketeer". Were his comments directed at the city marshal fighting words? - Yes. And fighting words is not a protected class of speech.

Resolution of Ecclestical Disputes

1. Does dispute involve issues of religious doctrine or polity? - If yes, then defer to the religious body to avoid "doctrinal entanglement" - Watson, Serbian E. Orthodox 2. Is there a property dispute between two religious groups? - If yes, then a court may apply religiously neutral principles of law to resolve the dispute. - Watson

Free Exercise Analysis

1. Does the law SIGNIFICANTLY BURDEN a SINCERELY-HELD religious belief or exercise? 2. Is the law burdening religion GENERALLY-APPLICABLE and NEUTRAL, or does it single out religion for DISCRIMINATORY treatment? - If the law is general and neutral, then there is no free exercise claim. - If the law is in fact discriminatory, then there is a free exercise claim, and you must now apply strict scrutiny. 3. Does the government have a COMPELLING INTEREST and is the law the LEAST RESTRICTIVE means to achieve that interest?

Three Provisions of Slavery in the U.S. Constitution

1. Fugitive Slave Act (Article I, Section 2): Requires that slaves who escape to another state "shall be delivered up" on claim of the person to whom that service may be due. 2. Three-Fifths Compromise (Article IV, Section 2): Northerners reached this compromise to stop the South from increasing their representation in Congress. 3. Importation Clause (Article 1, Section 9): Forbade Congress from banning the International Slave Trade until 1808.

Factors for Heightened Scrutiny

1. History of invidious discrimination. 2. Immutable (unchanging) characteristic 3. Exclusion from political process - Means that the particular group is unable to effectuate change to the benefit of that group. - EX: Right to vote (suffrage) * Remember: Heightened scrutiny is inclusive of strict and intermediate. Every law must pass rational basis scrutiny.

Free Speech Analysis

1. Is the restriction imposed by the government? - If there is no government restriction, then 1A does not apply. 2. Speech/expressive conduct OR pure conduct (see Spence test) - 1A generally does not apply to restrictions on pure conduct. 3. Speech protected by the 1st Amendment? - If not, the restriction is permissible, unless based on viewpoint- R.A.V. 4. Do any special rules apply? (If so, use those rules) 5. Restriction content-based or content-neutral? - Content-Based: Apply strict scrutiny. - Content-Neutral: Apply intermediate scrutiny.

3 Levels of Scrutiny for Equal Protection

1. Strict Scrutiny for SUSPECT classifications: race, national origin, religion, alienage- between U.S. citizen and foreigner (exceptions) - Is presumed unconstitutional. - Government must have a compelling purpose for classification and no less discriminatory means to achieve that purpose. - Highest level of burden for the government. 2. Intermediate Scrutiny for SEMI-SUSPECT classifications: sex, nonmarital children (kids born out of wedlock). - Government must have a significant or important purpose and means (ways it discriminates) must be substantially related (narrowly tailored) to achieve that purpose. 3. Minimal for ALL OTHER classifications: age, economic status, disability, sexual orientation. - Government must have a legitimate purpose and means must be rationally-related to that purpose. - Lowest level of scrutiny. - Presumed unconstitutional.

Three Types of Forums

1. Traditional Forum 2. Designated (Limited) Forum 3. Nonpublic Forum

Equal Protection Analysis

1. What is the classification (race, gender, age, sexual orientation, etc.)? 2. What is the appropriate level of scrutiny? - Strict Scrutiny, Intermediate Scrutiny, Rational Basis 3. Does the government action satisfy the level of scrutiny?

Due Process Clause

14th amendment clause stating that no state may deprive a person of life, liberty, or property without due process of law There are two Due Process Clauses in the Constitution: the 5th Amendment and 14th Amendment. - Due Process of the Fifth Amendment limits the national government, and says: "No person shall....be deprived of life, liberty, or property, without due process of law." - Due Process of the Fourteenth Amendment, which was ratified during Reconstruction, extends that limitation to the states it is surrounded by the familiar guarantees of "the privileges or immunities of citizens" and "the equal protection of the laws."

Equal Protection Clause

14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination. - No State shall deny "equal protection of the laws." Discrimination must be against a member of protected class based on a personal characteristic (e.g. race, sex, religion, national origin, etc.) - EX: Yick Wo

Dred Scott v. Sandford

1857 Supreme Court decision that stated that slaves were not citizens; that living in a free state or territory, even for many years, did not free slaves; and declared the Missouri Compromise unconstitutional.

Brown v. Board of Education

1954 - The Supreme Court overruled Plessy v. Ferguson, declared that racially segregated facilities are inherently unequal and ordered all public schools desegregated. - Because separate is inherently unequal, segregation violates the Equal Protection Clause. - Social Sciences: They cite to the "detrimental effect" that unequal public education has on black kids. Bottom Line: Original public understanding- as evidenced by large majorities in Congress- believed that 14th Amendment forbade segregation of schools.

Regents of the University of California v. Bakke

1978 state university couldn't admit less qualified individuals solely based on race; no racial quotas. - Strict Scrutiny is the appropriate level of scrutiny in this case. - Discrimination on the basis of race is bad no matter the purpose- benign or invidious.

Free Speech Clause

1st Amendment clause; Congress can make no law abridging freedom of speech (including symbolic speech) - Text: "Congress shall make no law...abridging the freedom of speech, or of the press."

Lee v. Weisman

1st amendment Establishment Clause denies inclusion of prayer at start of public school and graduation ceremony - The school's rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. - The cornerstone principle of the Establishment Clause is that the government may not compose official prayers to recite as part of a religious program carried on by the government.

Plessy v. Ferguson

A 1896 Supreme Court decision which legalized state ordered segregation so long as the facilities for blacks and whites were equal. - "Separate but equal" - Supreme Court just put its stamp on racial segregation.

Planned Parenthood v. Casey

A 1992 case in which the Supreme Court loosened its standard for evaluating restrictions on abortion from one of "strict scrutiny" of any restraints on a "fundamental right" to one of "undue burden" that permits considerably more regulation. - Changes trigger for when pre-viability abortion regulations will be subject to strict scrutiny: "undue burden" or "substantial obstacle." ** When it triggers strict scrutiny, the law will fail.

Strict Scrutiny

A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal. - The strict scrutiny standard typically applies if the governmental action involves a fundamental right or suspect classification, including alienage. - EX: race, national origin, religion, alienage

Buckley v. Valeo

A case in which the Supreme Court of the United States upheld federal limits on campaign contributions and ruled that spending money to influence elections is a form of constitutionally protected free speech. - The court also stated candidates can give unlimited amounts of money to their own campaigns. Held: Higher scrutiny for limitations on expenditures (strict) than contributions (intermediate)- Why? - Rationale: Limited quality of speech; corrupting effect of campaign contributions on political officeholders. We shouldn't apply intermediate scrutiny to campaign contributions.

Slaughterhouse Cases

A decision that rejected the claim by butchers that their right to equality before the law had been violated. - For Slaughterhouse, it was held that Privileges or Immunities Clause only protects a narrow range of rights related to national citizenship. - Court defines these rights very narrowly. Rationale: Radical consequences of holding otherwise- would give Congress and federal courts too much control over the states. - But...Slaughterhouse does not specifically hold that the Bill of Rights does not apply to the states. - Cruikshank (1876): Bill of Rights does not apply to states.

44 Liquormart v. Rhode Island

A state ban on advertising the strength of alcoholic beverages was an unconstitutional infringement on commercial speech. - This test is essentially the same as other forms of "intermediate scrutiny": the government's interest need only be "substantial"; it must "directly advance" that interest; and there must not be a more limited restriction that would serve that interest "as well."

Nonpublic Forum

Any public property that is not a traditional or designated public forum, such as government offices, schools, jails, and military bases. - A nonpublic forum - The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.

United States v. Virginia

Appears to adjust the test for sex-based classifications to something closer to strict scrutiny "requiring "exceedingly persuasive justification". - Women were not afforded the same educational opportunities and facilities at the alternative school. - Level of scrutiny here is between intermediate and strict scrutiny. - "Exceedingly persuasive justification."

Article 4 Overview

Article 4: Provisions that bind the states to one another as a Union. 1. Full Faith and Credit Clause 2. Privileges and Immunities Clause 3. Extradition Clause 4. Fugitive Slave Clause 5. Powers of Congress to admit new states and legislate for territories. 6. Guarantee Clause

Guarantee Clause

Article IV, Section 4, of the U.S. Constitution that guarantees that every state will have a republican form of government, with a structure similar to that of the national government. - It is understood that the Guarantee Clause requires states to produce governments by electoral processes, as opposed to inherited monarchies, dictatorships, or military rule.

Affirmative Action

Cases: Preferences (e.g. admission) benefitting racial minorities. - Special treatment, not equal treatment, given to one race while unequal treatment given to the other. - The Supreme Court applies strict scrutiny in cases where whites were excluded from admission on the basis of race. - The analysis must be: 1) what purposes are sufficiently compelling; and 2) do the means/ends fit (how/what)? - Bottom Line: Racial classifications trigger strict scrutiny. Affirmative action programs are for a benign purpose, but they still trigger strict scrutiny.

Prager University v. Google LLC

Censorship of private speech on social media platforms is not unconstitutional. - The entity must perform a function that is traditionally and exclusively governmental. - YouTube is a private entity that creates its own content and regulates what's uploaded on its website. - YouTube is thus a private actor, not a government function.

Procedural Due Process

Constitutional requirement that governments proceed by proper methods; limits how government may exercise power. 2 Threshold Questions: 1. Whether there was a deprivation of "life, liberty, or property." 2. If there was, the second question is whether the deprivation was without "due process of law?" - What process is due: 1) Proper Notice and a Hearing: An opportunity to be heard, basically.

Reed v. Town of Gilbert

Content-based outdoor sign- NC GS 136-32 probably unconstitutional. - Benign motives are not enough to save a content-based restriction. - Because these restrictions were content-based on their face, the Court need not examine justifications or the government's motives in determining whether the restrictions are subject to strict scrutiny.

Loving v. Virginia

Court overturns Virginia's miscegenation statute- explicit racial classification applying equally to both races still violates the Equal Protection Clause. - Takeaway: Brown and Loving establish the modern rule that the government may not discriminate on the basis of explicit racial classifications. - Racial classifications under the law are inherently suspect.

NAACP v. Claiborne Hardware

Court protects speech that intimidates and coerces if the speech does not incite violence. "Freedom of speech does not protect violence or speech that incites unlawful action, but speech does not lose protection because it may "embarrass" others or "coerce them into action" - FCS does not protect VIOLENCE, but forbids groups responsible for actions of individual members not authorized or rattled. - When we acknowledge that FSC doesn't protect violence, we still acknowledge that you can't hold the group responsible for individual actions that were not acting on their behalf.

Lawrence v. Texas

Court ruled that a state law may not ban sexual relations between same-sex partners. What constitutional right invalidates the Texas sodomy law in Lawrence? - The right of sexual autonomy - "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

Corfield v. Coryell

Deals with Privileges and Immunities Clause - Bottom Line: You get the same equal civil rights, not the same equal rights. - Takeaway: The Supreme Court very narrowly defines Privileges and Immunities.

Pierce v. Society of Sisters

Districts cannot mandate that students attend only public schools. - "Liberty of parents and guardians to direct the upbringing and education of children under their control." - Have to respect the dignity of parents.

Griswold v. Connecticut

Established that there is an implied right to privacy in the U.S. Constitution. - A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal. - Rationale: Text has penumbras formed by emanations- zones of privacy- marital privacy right, therefore the law is unconstitutional. What is the scope of the privacy right recognized by Griswold? Is it limited to marriage? - Nah son, we got Eisenstadt.

Compelled Speech

Expression that government requires a person or group to utter or to carry in its medium - Must apply strict scrutiny here. - Government cannot force a citizen to force someone not to speak. - Gobitis and Barnett: compelled flag salute. REMEMBER: If the government compels you to speak, it triggers strict scrutiny, which automatically makes it unconstitutional.

Eistenstadt v. Baird

Extension of Griswold to unmarried persons- Eisentadt redefines the right to privacy. - Alternative approach to anti-contraception laws: rational basis scrutiny - Court could strike the law down on minimal scrutiny alone.

13th Amendment

Forbids slavery and involuntary servitude. - Repudiates 2nd holding of Dred Scott. - Regulates private conduct as well as government action (no state action requirement) - Can't just capture and enslave other people even as a private citizen.

American Legion v. American Humanist Association

Giant cross on govt land to honor WWI veterans - Court found that it's an old cross don't read too much into it, if it's old enough and there's a memorialization then cross probably won't be removed - There is great historical value

Glucksberg v. Washington

Glucksberg 2-step SDP Analysis: 1) Deeply rooted in our nation's history and tradition...2) "careful description" of asserted right. The right must be identified at the most specific level (e.g. right to physician-assisted suicide).

Coercion Test

Government may not *directly* or *indirectly* coerce individuals to exercise (or refrain from exercising) religion. - Under this test the government does not violate the establishment clause unless it: (1) provides direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to support or participate in religion against their will.

14th Amendment

Granted citizenship to all persons born or naturalized in the United States—including former enslaved people—and guaranteed all citizens "equal protection of the laws." Accomplishes 2 Things 1. Establishes substantive protections (citizenships, Privileges or Immunities, Due Processes, Equal Protection Clauses) which can be enforced by courts against state action (not federal, not private). 2. Grants legislative power to Congress to enforce these substantive protections- especially to ensure constitutionality of the Civil Rights Act of 1866. - 1st sentence repudiates 1st holding of Dred Scott (citizenship). - Repealed 3/5ths Clause (but reduces representation for states that deny blacks the right to vote)

Romer v. Evans

Prevents any state from discriminating against homosexuals. Level of scrutiny? - Rational basis scrutiny: Scrutiny of the animus that produced the law Court says it fails RBT because there is no rational reason for law motivated by bare desire to harm certain groups.

Employment Division v. Smith

First Amendment/Free Exercise Clause case. - Held that there is no Free Exercise claim if the burden on religion is from a generally applicable, facially-neutral law. *- If a law applies to both believers and non-believers without singling out religion for a harsher treatment, there is no free exercise claim.

Texas v. Johnson

First Amendment/Freedom of Speech/symbolic speech - flag burning is protected speech The Texas law is anti-speech. - Aimed at the expressive component of the case. - It is a viewpoint restriction, which raises the level to strict scrutiny. - * Because the law is anti-speech, strict scrutiny applies- law therefore fails.

Endorsement Test

Forbids governmental practices that a reasonable observer would view as endorsing religion. - Government violates the Establishment Clause if it sends a message endorsing or disfavoring religion. - Championed by Sandra Day O'Connor in the case Lynch v. Donnelly. Both the purpose and effect prongs of the Lemon test are examined through the lens of endorsement. - Under this clarification, the Establishment Clause test is: (1) whether the government has a purpose to endorse or disapprove of religion; and(2) whether the effect of the challenged practice is to endorse or disapprove of religion.

Boy Scouts of America v. Dale

Held that a private organization may ban gays from its membership. - At what point does the government's interest become less than compelling? Government does not have an overriding interest in telling private expressive associations who you can and who you can't have as members. - Continuum: The more private the association is, the less compelling the interest the government has in controlling its message. * Bottom Line: A state may not compel an organization to accept members where such acceptance would significantly depart from the organization's expressive message.

Citizens United v. FEC

Held that corporations are merely people associating together for corporate or group speech. - As such, corporations as expressive associations are recognized throughout our history as having free speech rights. - Corporations, as expressive corporations, are entitled to full First Amendment protection (e.g. newspapers, non-press entities). * Corporations are often engaged in political speech, and thus should be entitled to 1A protections.

Brandenburg v. Ohio

Held that the government can't punish or prohibit inflammatory speech unless it is likely to incite imminent lawless action. - ** Brandenburg Test: Government may prohibit or punish advocacy that is directed to inciting or producing imminent lawless action and likely to incite or produce such action. Hate speech? - Sure, but that is protected unless it produces an imminent lawless action.

United States v. Windsor

Held unconstitutional the federal Defense of Marriage Act (DOMA) - Applied heightened scrutiny but did not find fundamental right to marry for same-sex couples. Suggested that DOMA was motivated by animus- a "bare desire to harm" gays; held that the purpose of DOMA was to "disparage" and "injure" those in lawful same-sex marriages.

Town of Greece v. Galloway

Prayer at the beginning of a legislative meeting is constitutional (adults, voluntary, non-coercive) - All justices approve of government prayer in some form—but disagree on standards - Because the city had made a good-faith effort to be inclusive, it was all good. - Offensiveness ≠ coercion, but avoid coercion by non-participatory prayers Held that, because of the long history of legislative prayer in America, such prayers do not constitute an establishment of religion, and is permissible for a legislative body, including a municipality, to invite members of the clergy to begin sessions with a prayer.

History and Tradition Test

If the practice goes back to the Founding Fathers, ipso facto...it's constitutional. - Test determines whether the practice is firmly rooted in the nation's history and tradition.

Substantive Due Process

Judicial interpretation of the Fifth and Fourteenth Amendments' due process clauses that protects citizens from arbitrary or unjust state or federal laws. Basic SDP Framework 1. Identify the right/liberty interest involved- describe it in specific terms. 2. Is the right/interest infringed? 3. Determine the level of scrutiny. - Enumerated Right: Apply separate analysis for that right- SDP fundamental right analysis applies only to incorporation of BOR. - Unenumerated Rights: Source is natural law, fixed common law, tradition, penumbras, and shadows, etc. - Fundamental "big-L" Liberty Interest: Apply strict scrutiny/ Only affirmative action can pass this, usually. - Non Fundamental "little L" Liberty Interest: Apply minimal scrutiny 4. Is there a sufficient justification for the government's infringement of the right? 5. Is the means (how) sufficiently related to the end (why)?

Police Department of Chicago v. Moseley

Law made an exception based on content. - "Unless...a labor dispute"= A constitutional problem. - The government puts itself in the position of determining which message was allowed.

Civil Rights Cases (1883)

Legalized segregation with regard to private property. - Held that: 1) 13th Amendment prohibits "badges and incidents of slavery", but not individual discrimination; (2) 14th Amendment did not authorize Congress to forbid discrimination by private persons- limited to "state action."

Washington v. Davis

Neutral legal rule or requirement that simply happens to produce a disparate impact on different rates that does not necessarily violate the Equal Protections Clause. - There was no evidence that the police were purposefully trying to screen out blacks in the admissions process. The 14th Amendment is not violated simply by showing the discriminatory impact. You also need evidence of underlying purpose or motive.

Schempp v. Abington School District

Not the Bible reading per se, but it was only the Bible reading that was at issue. - Solution is a mix of secular and religious texts. - Bottom Line: Public schools cannot sponsor Bible readings and recitations of the Lord's Prayer under the First Amendment's Establishment Clause.

R.A.V. v. Paul

Ordinance punished racist "fighting words"- SCOTUS: - Viewpoint regulation is impermissible, even if within unprotected categories of speech. - Punishes based on viewpoint expression, which is unconstitutional. The U.S. Supreme Court has held that content-based restrictions on speech are presumptively invalid and will only be upheld if the underlying speech is itself unprotected, or if the restrictions can be shown to be narrowly tailored to satisfy a compelling government interest, that is, if they can survive strict scrutiny.

Privileges and Immunities Clause

Part of Article IV of the Constitution guaranteeing that the citizens of each state are afforded the same rights as citizens of all other states. - A state must accord out-of-staters the same fundamental privileges and immunities that it gives to its own citizens (civil rights, but not political rights, use of state property, etc.) - Note: Out-of-staters do not carry their state's rights with them into another state.

Rucho v. Common Cause

Partisan gerrymandering claims are not justifiable; contrast racial gerrymandering. - Nonjustifiable: Can't come up with standards to determine how much partisan gerrymandering is too much. - Remedy is through Democratic process, i.e. the state legislative assembly. - Using politics as a classification is nowhere near as bad as racial gerrymandering for discrimination.

Fulton v. City of Philadelphia

Philadelphia's refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment - City's actions burdened CSS religious exercise by forcing it to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs

Masterpiece Cakeshop v. Colorado

Phillips bakes "custom cakes" considered to be works of cake. A same-sex couple wanted to order a custom cake to celebrate at their wedding, but Phillips didn't want to use his artistic talents to celebrate same-sex marriage on grounds of his religious convictions. They filed a discrimination complaint with the Civil Rights Commission in Colorado.. - The record contained evidence that the Commission held anti-religious bias. Such a bias violated the Free Exercise Clause. - There was overt evidence of anti-religious bias. Next time, just don't be obvious about it, 'kay?

Traditional Forum

Places that are historically associated with expression, such as sidewalks, streets, and parks—or designated—those that the government has opened for public use, such as civic auditoriums. - In such public forums, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication. - Schools are NOT an open forum

Renton v. Playtime Theaters

Porn is right on the razor-edge of free speech, but we'll allow it. ;) - It is a content-based regulation on its face, but the Court treats it as content-neutral. Why does SCOTUS apply intermediate scrutiny? - Because the Renton ordinance is aimed at the secondary, economic effects of adult theaters on the surrounding community. The effects include increased crime and traffic in areas relating to the theaters' business. - We'll treat it as content-neutral because it's focused on the economic effects, not the content itself. - Remember again: content-based restrictions triggers strict scrutiny.

Boiling v. Sharpe

Racial discrimination in public schools of D.C. denied blacks due process of law as protected by the 5th Amendment (relied on the guarantee of "liberty" to find the segregation unconstitutional) - 5th Amendment due process includes "equal protection".

Clark v. CCNV

Regulation challenged was the homelessness situation in Lafayette Park, Washington D.C (statute said that vagrants couldn't sleep in the park) Expressive conduct or TPM regulation? - It could go either way, but ultimately it's a TPM regulation. Court applied intermediate scrutiny= substantial interest that is narrowly tailored to governmental interest? - Yes, sleeping in a park overnight is a reasonable TPM regulation. It is content-neutral because it applies to any group. - Government does not draw any distinctions between the CCNV and other groups.

Afroyim v. Rusk

Ruled that Congress has no general power to revoke American citizenship without consent. Why? - Constitutional argument in overruling Perez is text and history. - Idea is what the 14th Amendment confers in terms of national citizenship can't be taken away by federal statute. Congress didn't want rights of newly freed blacks to be given only to be taken away by Southern legislatures.

Snyder v. Phelps

Speech on a public sidewalk, about a public issue, cannot be liable for a tort of emotional distress, even if the speech is found to be "outrageous". - You can't punish speech mainly because of its offensiveness.

American Booksellers Association v. Hudnut

Speech that is demeaning on the basis of race, gender, sexual orientation? - Obscene content appeals not to the brain, but to the groin. ;) - Obscene: To be obscene, "a publication must, taken as a whole, appeal to the prurient interest, must contain patently offensive depictions or descriptions of specified sexual conduct, and on the whole have no serious literary, artistic, political, or scientific value." * Again, the government cannot restrict/prohibit speech because of its offensive nature.

Commercial Speech

Speech that proposes a commercial transaction. - Usually economically-oriented for a giveaway. (Commercial advertising, in other words) - Advertisement that refers to specific product, speaker has economic motivation. There is an intermediate scrutiny for restrictions on commercial speech. * Commercial speech is entitled to intermediate First Amendment protection when it concerns lawful activity and is neither false nor misleading. - Restrictions on such speech are valid if the regulation is narrowly tailored to serve a substantial governmental interest.

Obergefell v. Hodges

States obligated to recognize same-sex marriage from other states. - Holding: There is a fundamental right to same-sex marriage. 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.

Lochner v. New York

Supreme Court case that decided against setting up an 8 hour work day for bakers in New York. - Argued that the Fourteenth Amendment should have been interpreted to contain the freedom to contract among the rights encompassed by substantive due process.

Meyer v. Nebraska

Supreme Court ruled that states cannot restrict foreign-language instruction. - Nebraska was interfering with "the right...to acquire useful knowledge."

The Religion Clause

Text of the 1st Amendment: "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof..." - The Establishment and Free Exercise Clause

Engel v. Vitale

The 1962 Supreme Court decision holding that state officials violated the First Amendment when they wrote a prayer to be recited by New York's schoolchildren. - Unconstitutional because its effect was coercive on the children. - Kids either prayed or faced social ridicule and stigma by their friends.

Roe v. Wade

The 1973 Supreme Court decision holding that a state ban on all abortions was unconstitutional. - Holding: Women have a constitutional right to get an abortion for virtually any reason and at any time for the entire 9 months of pregnancy.

Craig v. Boren

The 1976 ruling in which the Supreme Court established the "intermediate scrutiny" standard for determining gender discrimination. - State must have an important/significant reason and its means must be narrowly tailored to accomplish that objective. - "Exceedingly persuasive justification." Craig v. Boren set the modern standard for intermediate scrutiny.

Roberts v. Jaycees

The Court held that the anti-discrimination law could force the Jaycees to admit women as full time members because admitting women would not burden the groups freedom of expressive association. - Jaycees don't really have an expressive identity or message that will be compromised by admitting women.

McDonald v. City of Chicago

The Court held that the right of an individual to "keep and bear arms" protected by the 2nd Amendment is incorporated by the Due Process Clause of the 14th Amendment and applies to the states. - 2A right to keep and bear arms is a fundamental right necessary to the system of "ordered liberty."

Whole Women's Health v. Hellerstedt

The Court ruled 5-3 that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion. - Unconstitutional laws placed substantial obstacle in path of women seeking abortion, and, therefore, constitute an undue burden on abortion access.

Cohen v. California

The First Amendment, as applied through the Fourteenth, prohibits states from making the public display of a single four-letter expletive a criminal offense, without a more specific and compelling reason than a general tendency to disturb the peace. - There is no compelling reason for California to criminalize this particular word as opposed to any other potentially offensive words.

Shelley v. Kraemer

The Fourteenth Amendment prohibits a state from enforcing restrictive covenants that would prohibit a person from owning or occupying property based on race or color. - Voluntary compliance with racial covenants doesn't violate the 14th Amendment. But... - It does become an issue when you go to state courts to judicially enforce a racially restrictive covenant (RRC). - It then becomes a state action, which is prohibited by the 14th Amendment.

Full Faith and Credit Clause

The Full Faith and Credit Clause requires the courts of one state to enforce the final judgments and judicial decrees of another state, but does not typically require one state to apply another state's laws in its own courts. - EX: If you get a divorce in one state (via judicial decree), it's also binding on another state's courts and thus given effect. - Section of Article IV of the Constitution that ensures judicial decrees and contracts made in one state will be binding and enforceable in any other state.

Democratic Party v. Wisconsin

The U.S. Supreme Court ruled that state laws attempting to dictate how delegates vote at national party conventions violate the associational rights of political parties. - Each party is an expressive association, and they have a right to exclude others who would contradict their message. - Democratic Party should've conducted its own primary without having to worry about Republicans coming over to influence them.

State Action Doctrine

The constitutional law principle that the Constitution applies only to state action toward individuals, not actions between individuals where there is no state involvement. Can Congress regulate private action under Reconstruction Amendments? - Generally YES under 13th Amendment, but generally NO under 14th Amendment.

Yick Wo v. Hopkins

The first case where the United States Supreme Court ruled that a law that is race-neutral on its face, but is administered in a prejudicial manner, is an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution. - Was racially neutral on its face, but was applied in a racially biased way. - Discriminatory application of a neutral law still violates E.P. Clause. Bottom Line: Neutral law not to be enforced if applied in a racially discriminatory fashion.

United States v. O'Brien

The government had the right to regulate speech if: 1) it is within the constitutional power of the government; 2) It furthers an important or substantial government interest (intermediate scrutiny); 3) The government interest is unrelated to suppression of freedom of speech; 4) The restriction on the freedom is no greater necessary to the furtherance of the interest/the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest.

Designated (Limited) Forum

The government has a opened place/program for private expression: - Typical rules apply for those who have access - Access can be restricted based on speaker identity or subject matter if exclusion is: (1) reasonable in view of forum's purpose and (2) viewpoint neutral. - EX: A public school, as a designated limited public forum, may allocate access to school facilities and funds among student groups when the allocation is done in a manner that is viewpoint neutral.

Expressive Association

The right to associate for the purpose of engaging in those activities protected by the First Amendment: speech, assembly, petition for the redress of grievances, and the exercise of religion. - Why protect collective expression? Oftentimes, people band together to send messages. FSC does not just protect individual speech, but collective expression as well. - Hurley: compelled speech + right of groups to control their own expressive message - Right to expressive association gives you the right to exclude people who come into the group with contrasting messages to express.

Rational Basis Test

The lowest-level standard used by the Supreme Court to determine whether a law is compatible with the Constitution. - Test: The law must be rationally related to a legitimate government purpose (presumption of rationality). A law subject to this standard is assumed to be constitutional as long as its goals are clearly linked to its means. - "Legitimate purpose" is any conceivable legitimate government purpose even if it's not the law's actual purpose. - "Rationally related": over and under inclusiveness requirement. EX: There are other classifications that disadvantage mentally retarded people (Buck v. Bell), homosexuals, or innocent children of illegal aliens

Intermediate Scrutiny

The standard used by the courts to decide cases of discrimination based on gender and sex. - They must be substantially related to an important governmental interest, and it must be narrowly tailored to achieve that purpose. - Involves classifications based on sex and nonmarital children. - EX: A classification based on legitimacy is a quasi-suspect classification that requires intermediate scrutiny

Lemon Test

The three-part test created for Establishment Clause cases that a law must pass before it is declared constitutional: 1) it must have a secular purpose; 2) it must neither advance nor inhibit religion; and 3) it must not cause excessive entanglement between church and state.

Virginia v. Black

This case stated that cross burning was the equivalent of "fighting words", and was thus unconstitutional. - True threats are not protected

Content-Based Restriction

Trigger Strict Scrutiny because the government may not regulate, punish, or discriminate against speech because of its content. (1) Subject Matter Restriction: Regulates matter based on subject matter. (2) Viewpoint Restriction: Where the government prohibits one particular viewpoint and not another. - * Always goes down.

Content-Neutral Regulations

Trigger intermediate scrutiny. - Usually upheld: time, place, or manner- Clark. - Content-based regulations that are aimed at secondary effects of speech (not primarily communicative effects- Renton. - Regulation on conduct component of expressive conduct- O'Brien

Rosenberger v. UVA

UVA maintains student activities fund to help student groups fund activities. Refuses to help Christian group print proselytizing bulletin. Constitutional? - No; violates Est. Clause. The Establishment Clause requires schools to be neutral re: religion. Here, UVA engaged in viewpoint discrimination by denying the Christian group $.

Strauder v. West Virginia

Voided a law barring African Americans from serving on juries. - Default Rule: When there is a racial classification on the face of the law, it triggers strict scrutiny.

Fighting Words

Words that inflict injury or tend to excite an immediate breach of the peace. - Speech intended to incite violence. Speech more likely to incite a physical harm is less likely to be protected. - Likely to get a fist in your face, basically. - BUT insulting, offensive, outrageous speech IS protected. Bottom Line: It's a direct personal insult intended to provoke a violent response.