PLAP Final Exam

Minnesota Voters Alliance v. Mansky (2018)

-Andrew Cilek wore a T-shirt with a tea party logo and a button that advocated for requirement of a photo ID to vote -issue whether the Minnesota law that broadly bans all political appeal at the polling is facially over broad under the fist amendment Minnesota Statute § 211B.II prohibits individuals from wearing political apparel at or around polling places on primary or election days. The text of the statute did not define "political", so Minnesota election officials distributed policy materials to help identify which items fell within the scope of the law. Election officials received instructions to request that anyone wearing apparel which violated the guidelines laid out in the policy materials remove or cover it up. While officials were instructed to allow the person to vote regardless of their compliance, misdemeanor prosecution was a possible outcome, should an individual refuse the removal or cover-up request. This case arose when Andrew Cilek, executive director for Minnesota Voters Alliance, was temporarily prevented from voting at his local polling place in November 2010 because he was wearing a t-shirt with a Tea Party logo and a button that advocated for the requirement of a photo ID to vote. Minnesota Majority, Minnesota Voters Alliance, and Minnesota Northstar Tea Party Patriots, along with their association Election Integrity Watch (EIW), filed a lawsuit against the Minnesota Secretary of State and various county election officials to enjoin enforcement of the statute as unconstitutional. The parties claimed that the statute violated the First Amendment, facially and as-applied, and was selectively enforced, which also violated their Equal Protection rights. Initially, the district court dismissed all claims. The Eighth Circuit affirmed as to the claims regarding Equal Protection and facial First Amendment violations. It reversed and remanded the as-applied First Amendment claim. The district court ultimately granted summary judgment against EIW, et al., on the as-applied First Amendment claim. Reviewing de novo the grant of summary judgment against EIW, the Eighth Circuit considered EIW's claim that the Minnesota statute was not reasonable, as applied to Tea Party apparel, because the Tea Party is not a political party in Minnesota. The Eighth Circuit was unpersuaded and held that the district court was correct in its ruling, since EIW had failed to present specific facts that showed banning Tea Party apparel was not reasonable, given the Minnesota statute's purpose. The Eighth Circuit held that EIW's argument that voters in Tea Party apparel were affected by selective enforcement had also failed, as it offered nothing more than speculation that voters wearing other forms of political apparel avoided enforcement of the statute. EIW, et al., then petitioned the Supreme Court to decide whether the lower courts' ruling was correct. EIW indicates in their petition for a writ of certiorari that there is a circuit split on the issues presented, where the Eighth Circuit's ruling aligns with the D.C. and Fifth Circuit, which both have held that the government has authority to ban forms of political speech near polling places. The Fourth and Seventh Circuits have held, by contrast, that a complete ban on all political speech, absent any limiting principle, is unconstitutional, regardless of the location in which such speech has been banned. The Minnesota statute prohibiting individuals from wearing political apparel at a polling place violates the Free Speech Clause of the First Amendment. In a 7-2 opinion authored by Chief Justice John Roberts, the Court reasoned that a polling place is a nonpublic forum under its precedents, which means that the state may place reasonable limits on speech therein. Content-based restrictions on speech must be "reasonable and not an effort to suppress expression" based on the speaker's viewpoint. The text of the Minnesota statute made no distinction based on the speaker's political persuasion, so it would be permissible so long as it is "reasonable." One component of reasonableness is the presence of "objective, workable standards" guiding enforcement of the law. Because the statute in question does not define the term "political" nor any other key terms describing the types of apparel subject to the prohibition, the law affords too much discretion in enforcing the ban and is thus unreasonable. Justice Sonia Sotomayor filed a dissenting opinion, in which Justice Stephen Breyer joined. The dissent would not have reversed and remanded the court of appeals below, as the Court did, but instead would have certified the question to the Minnesota Supreme Court to give the state courts "a reasonable opportunity to pass upon and construe the statute."

US v. Windsor (2013)

DOMA's federal definition of marriage is unconstitutional and the Federal Government must recognize same-sex marriages sanctioned by the states. The Defense of Marriage Act (DOMA), enacted in 1996, states that, for the purposes of federal law, the words "marriage" and "spouse" refer to legal unions between one man and one woman. Since that time, some states have authorized same-sex marriage. In other cases regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth Amendment, but the courts have disagreed on the rationale. Edith Windsor is the widow and sole executor of the estate of her late spouse, Thea Clara Spyer, who died in 2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by New York state law. Thea Spyer left her estate to her spouse, and because their marriage was not recognized by federal law, the government imposed $363,000 in taxes. Had their marriage been recognized, the estate would have qualified for a marital exemption, and no taxes would have been imposed. On November 9, 2010 Windsor filed suit in district court seeking a declaration that the Defense of Marriage Act was unconstitutional. At the time the suit was filed, the government's position was that DOMA must be defended. On February 23, 2011, the President and the Attorney General announced that they would not defend DOMA. On April 18, 2011, the Bipartisan Legal Advisory Group of the House of Representatives filed a petition to intervene in defense of DOMA and motioned to dismiss the case. The district court denied the motion, and later held that DOMA was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed. Question Does the executive branch's agreement with the lower court that the act is unconstitutional deprive the Supreme Court of jurisdiction to decide the case? Does the Bipartisan Legal Advisory Group of the House of Representatives have standing in the case? Does the Defense of Marriage Act, which defines the term "marriage" under federal law as a "legal union between one man and one woman" deprive same-sex couples who are legally married under state laws of their Fifth Amendment rights to equal protection under federal law? No, unanswered, yes. Justice Anthony M. Kennedy delivered the opinion of the 5-4 majority. The Supreme Court held that the United States Government, despite the executive branch's agreement regarding DOMA's unconstitutionality, retains a significant enough stake in the issue to support Supreme Court's jurisdiction. Because the judgment in question orders the U.S. Treasury to refund tax money, the Government stands to suffer a real economic injury and therefore maintains standing in the case. The Bipartisan Legal Advisory Group (BLAG) presented substantial arguments for the constitutionality of DOMA that reflected an actual controversy under Article III, which allowed the Supreme Court to address the case without needing to decide whether BLAG would have had standing before a lower court. The Court also held that states have the authority to define marital relationships and that DOMA goes against legislative and historical precedent by undermining that authority. The result is that DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law. The Court held that the purpose and effect of DOMA is to impose a "disadvantage, a separate status, and so a stigma" on same-sex couples in violation of the Fifth Amendment's guarantee of equal protection. Chief Justice John G. Roberts wrote a dissent in which he argued that the Court lacked the jurisdiction to review the case and that interests in uniformity and stability justified Congress' enactment of DOMA. He also argued that the majority's opinion did not address the issue of state definitions of marriage affecting same-sex couples. In his separate dissent, Justice Antonin Scalia wrote that the Supreme Court had neither the jurisdiction to review the case nor the power to invalidate democratically enacted legislation. He argued that the majority's opinion wrongly asserted the supremacy of the Supreme Court as the final arbiter of government. However, the majority opinion did not address the issue of whether or not the Equal Protection Clause required laws restricting the definition of marriage to be reviewed under a rational basis or strict scrutiny standard. He also argued that the majority misconstrued DOMA's insidious intent and should not rule based on that presumption. Justice Clarence Thomas and Chief Justice Roberts joined in the dissent. Justice Samuel A. Alito, Jr. also wrote a separate dissent in which he argued that the United States Government did not have standing in the case because the executive branch declined to defend the statute, but that BLAG did have standing because it chose to defend the otherwise undefended statute. He also argued that the Constitution does not guarantee the right to enter into a same-sex marriage because that right is not "deeply rooted in this Nation's history and tradition." Instead, the issue of the definition of marriage is left to the people to decide, a decision in which DOMA does not interfere. Justice Clarence Thomas partially joined in the dissent.

Iancu v. Brunetti (2019)

Erik Brunetti owns the clothing brand "fuct," founded in 1990. In 2011, two individuals filed an intent-to-use application for the mark FUCT, and the original applicants assigned the application to Brunetti. The examining attorney refused to register the mark under Section 2(a) of the Lanham Act, finding it comprised immoral or scandalous matter (the pronunciation of "fuct" sounds like a vulgar word) in violation of that section. Brunetti requested reconsideration and appealed to the Trademark Trial and Appeal Board, which affirmed the examining attorney's refusal to register the mark. The US Court of Appeals for the Federal Circuit found that while the Board did not err in concluding the mark should be excluded under Section 2(a) of the Lanham Act, that section's bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech. Question Does Section 2(a) of the Lanham Act, which prohibits the federal registration of "immoral" or "scandalous" marks, violate the Free Speech Clause of the First The Lanham Act prohibition on the registration of "immoral" or "scandalous" trademarks infringes the First Amendment. Justice Elena Kagan delivered the opinion of the Court. In Matal v. Tam, 582 U.S. __ (2017), the Court held that a prohibition on registration of marks based on their viewpoint violates the First Amendment, and that a provision of the Lanham Act prohibiting registration of "disparaging" marks was viewpoint based. A prohibition on the registration of marks that are "immoral" or "scandalous"—at issue in this case—is similarly viewpoint based and therefore violates the First Amendment. The prohibition distinguishes between ideas aligned with conventional moral standards and those hostile to them, which is the epitome of viewpoint-based discrimination. The Court rejected the government's proposal that the statute is susceptible to a limiting construction that would remove its viewpoint bias. The language of the statute does not support such a reading and to interpret it as such would be to "fashion a new one." Justice Samuel Alito joined the majority opinion in full and wrote a separate concurrence to highlight the importance of the Court continuing to affirm the principle that the First Amendment does not tolerate viewpoint discrimination. Justice Alito noted that Congress can adopt "a more carefully focused statute" that would prohibit the registration of "vulgar" marks without violating the First Amendment. Chief Justice John Roberts filed an opinion concurring in part and dissenting in part. The Chief Justice argued that while he agreed with the majority that the "immoral" portion of the statute was not susceptible to a narrowing construction but agreed with Justice Sonia Sotomayor's argument in favor of such a construction with respect to the "scandalous" portion. Justice Stephen Breyer filed an opinion concurring in part and dissenting in part in which he agreed with the majority as to "immoral" but disagreed as to "scandalous." Justice Breyer advocated against the categorical approach to First Amendment speech issues and for an approach that considers "whether the regulation at issue works speech-related harm that is out of proportion to its justifications." Justice Sonia Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined. While Justice Sotomayor conceded that the majority's construction of the statute is a reasonable one, it is not the only reasonable one and erroneously treats "immoral and scandalous" as a "unified standard." She argued for a narrowing construction of the prohibition on "scandalous" marks to address only "obscenity, vulgarity, and profanity." Such a construction would save the provision and avoid the "rush to register [vulgar, profine, and obscene] trademarks" that the Court's decision makes probable.

Lemon v. Kurtzman (1971)

Established 3-part test to determine if establishment clause is violated: nonsecular purpose, advances/inhibits religion, excessive entanglement with government. Both Pennsylvania and Rhode Island adopted statutes that provided for the state to pay for aspects of non-secular, non-public education. The Pennsylvania statute was passed in 1968 and provided funding for non-public elementary and secondary school teachers' salaries, textbooks, and instructional materials for secular subjects. Rhode Island's statute was passed in 1969 and provided state financial support for non-public elementary schools in the form of supplementing 15% of teachers' annual salaries. The appellants in the Pennsylvania case represented citizens and taxpayers in Pennsylvania who believed that the statute violated the separation of church and state described in the First Amendment. Appellant Lemon also had a child in Pennsylvania public school. The district court granted the state officials' motion to dismiss the case. In the Rhode Island case, the appellees were citizens and tax payers of Rhode Island who sued to have the statute in question declared unconstitutional by arguing that it violated the Establishment Clause of the First Amendment. The district court found in favor of the appellees and held that the statute violated the First Amendment. Question Do statutes that provide state funding for non-public, non-secular schools violate the Establishment Clause of the First Amendment? Yes. Chief Justice Warren E. Burger delivered the opinion for the 8-0 majority as to the Pennsylvania statute and 8-1 as to the Rhode Island statute. The Court held that a statute must pass a three-pronged test in order to avoid violating the Establishment Clause. The statute must have a secular legislative purpose, its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster "excessive government entanglement with religion." The Court held that both the state statutes in question had secular legislative purposes because they reflected the desire of the states to ensure minimum secular education requirements were being met in the non-public schools. The Court did not reach a holding regarding the second prong of the test, but it did find that the statutes constituted an excessive government entanglement with religion. In the Rhode Island program, the amount of oversight of teachers and curricula required to ensure that there is no unnecessary injection of religion into secular topics would require the government to become excessively involved in the nuances of religious education. The same danger holds true for the Pennsylvania statute, which additionally provides state funding directly to a church-related organization. Government financial involvement in such institutions inevitably leads to "an intimate and continuing relationship" between church and state. The Court also noted the potential political implications of public funding, as there is a risk of religious issues becoming politically divisive. In his concurring opinion, Justice William O. Douglas wrote that the intrusion of the government into the running of non-public schools through grants and other funding creates the entanglement that the Establishment Clause prohibits. He also argued that non-secular schools are so thoroughly governed by religious ideologies that any amount of public funding supports those doctrines, which the Framers of the Constitution dictated the government must not do. Justice Hugo L. Black joined in the concurrence, and Justice Thurgood Marshall joined in the parts relating to case numbers 569 and 570. Justice William J. Brennan, Jr. wrote a separate concurrence in which he argued that the danger was not only that religion would infiltrate the government, but also that the government would push secularization onto religious creeds. An analysis of the statutes in question shows that they impermissible involve the government in "essentially religious activities," which the Establishment Clause is meant to prevent. In his opinion concurring in part and dissenting in part, Justice Byron R. White wrote that the majority opinion goes too far and, in restricting the use of state funds in non-secular schools, creates an obstacle to the use of public funds for secular education. He argued that there was no proof that religion would invade secular education or that the government oversight of the use of public funds would be so extensive as to constitute entanglement.

Gratz v. Bollinger (2003)

Struck down use of "bonus points" for race in undergrad admissions at University of Michigan. The University of Michigan's Office of Undergraduate Admissions (OUA) considers a number of factors in its evaluative process, such as high school grades, standardized test scores, curriculum strength, alumni relationships, geography, and leadership. The OUA also considers race and admits virtually every qualified applicant from certain groups determined to be "underrepresented minorities." Beginning in 1998, the OUA used a point system in which students were awarded an additional 20 points for being a member of an underrepresented minority, and beginning in 1999, the University established an Admissions Review Committee to provide an additional level of consideration. In 1995, Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigan' College of Literature, Science, and the Arts (LSA) as residents of the state of Michigan. Both are of Caucasian descent. Both were denied admission and told that, although they were qualified, they were not competitive enough applicants to be admitted on first review. In October 1997, Gratz and Hamacher filed a class action suit against the University, the LSA, Lee Bollinger, and James Duderstadt. They argued that the admission procedure discriminated against certain racial and ethnic groups in violation of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The district court held that the respondents had shown that a racially and ethnically diverse student body produced significant academic benefits but that the admission policies of 1995-1998 were problematic because they amounted to "holding seats" for certain minority groups. Therefore, the court granted summary judgment for the petitioners with respect to the admissions policies for 1995-1998 and for the respondents with respect to the policy that began in 1999. The U.S. Court of Appeals for the Sixth Circuit heard this case the same day as Grutter v. Bollinger, a similar case, and upheld the University's admission policies in that case. The petitioners in this case then asked the Court to grant certiorari, despite the lack of opinion from the lower court, to resolve the issue. Question Did the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964? Yes. Chief Justice William H. Rehnquist delivered the opinion for the 6-3 majority. The Court held that the OUA's policies were not sufficiently narrowly tailored to meet the strict scrutiny standard. Because the policy did not provide individual consideration, but rather resulted in the admission of nearly every applicant of "underrepresented minority" status, it was not narrowly tailored in the manner required by previous jurisprudence on the issue. In her concurring opinion, Justice Sandra Day O'Connor wrote that the record showed that the only individualized consideration in the admissions process came through the Admissions Review Committee. Because the Committee played only a small part in the overall admissions process, it was not sufficient to satisfy the strict scrutiny standard. Justice Clarence Thomas wrote a separate concurring opinion in which he argued that the Equal Protection Clause prohibits any racial discrimination for the purposes of higher education admission. The admission policy in question failed because it did not allow for sufficient consideration of non-racial factors in determining the admissibility of a candidate from an underrepresented minority group. In his separate opinion concurring in the judgment, Justice Stephen Breyer wrote that, in cases dealing with the Equal Protection Clause, the Court should distinguish between policies of inclusion and policies of exclusion because the former are much more likely to prove consistent with the intent of the Clause. Justice John Paul Stevens wrote a dissenting opinion in which he argued that, because neither of the petitioners could receive any benefit from the relief being requested, precedent required that the case be dismissed. While they are entitled to relief for past wrongs, they cannot seek injunctive relief to prevent future harms to other parties. Justice David Souter joined in the dissent. In his separate dissent, Justice Souter wrote that, by making race only one of a number of factors to be considered, the admissions policy meets the requirements established by previous Equal Protection Clause jurisprudence. Because the point system and the Admissions Review Committee operate in conjunction with each other, there cannot be the "holding of seats" phenomenon that the majority opinion fears. Justice Ruth Bader Ginsburg joined in the dissent. Justice Ginsburg also wrote a separate dissenting opinion in which she argued that, because there is no evidence that the OUA policies attempt to limit or decrease enrollment by any particular racial or ethnic group and there is no evidence of saving seats, the policies do not violate the Equal Protection Clause. Racial information about an applicant can be useful in admission considerations because it often serves to show what a student has accomplished and why the student is worthy of admission. Justice Souter joined in the dissent.

Whole Woman'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. In 2013, the Texas Legislature passed House Bill 2 (H.B. 2), which contained several provisions related to abortions. One such provision required that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed, and another provision required that all abortion clinics comply with standards for ambulatory surgical centers. The petitioners are a group of abortion providers who sued the State of Texas seeking to invalidate those provisions in H.B. 2 as they relate to facilities in McAllen and El Paso. The petitioners argued that H.B. 2 denied equal protection, unlawfully delegated lawmaking authority, and constituted arbitrary and unreasonable state action. The district court dismissed the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and granted declaratory and injunctive relief against the enforcement of the two contested provisions of H.B. 2. The U.S. Court of Appeals for the Fifth Circuit affirmed the district court's dismissal of the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and partially reversed the injunctions because the plaintiffs failed to show that they placed a substantial burden in the path of a woman seeking an abortion. Question Should a court's "substantial burden" analysis take into account the extent to which laws that restrict access to abortion services actually serve the government's stated interest in promoting health? In applying the substantial burden test, courts must weigh the extent to which the laws in question actually serve the stated government interest against the burden they impose. Justice Stephen G. Breyer delivered the opinion for the 5-3 majority, which held that the provisions of H.B. 2 at issue do not confer medical benefits that are sufficient to justify the burdens they impose on women seeking to exercise their constitutional right to an abortion. Therefore, the provisions unconstitutionally impose an undue burden. The Court held that the judicial review of such statutes need not be wholly deferential to the legislative fact-finding, especially when the factual record before the district court contradicted it. In this case, the evidence presented before the district court showed that the admitting privileges requirement of H.B. 2 did not advance the state's interest in protecting women's health but did place a substantial burden in the path of a woman seeking an abortion by forcing about half of the state's abortion clinics to close. This additional layer of regulation provided no further protections than those already in place. Similarly, the requirement that abortion clinics meet the standards for ambulatory surgical centers did not appreciably lower the risks of abortions compared to those performed in non-surgical centers. These requirements were so tangentially related to the actual procedures involved in an abortion that they were essentially arbitrary. If these requirements took effect, only seven or eight facilities in the entire state would be able to function, which is in and of itself a substantial burden on women seeking abortions because those remaining facilities would not be able to meet the demand. The Court also held that the petitioners were not precluded from challenging the provisions as they were applied despite previous litigation on whether the provisions were unconstitutional on their face, especially given the evidence about how their enforcement had actually affected abortion access across the state. In her concurrence, Justice Ruth Bader Ginsburg wrote that modern abortions are so safe relative to other medical procedures, including childbirth itself, that any law that made accessing abortions more difficult in the name of safety could not pass judicial review. Justice Clarence Thomas wrote a dissent in which he argued that the majority opinion bent the rules of judicial scrutiny and misinterpreted precedent to reach its conclusion. He argued that this case should never have made it to the Supreme Court because the Court normally did not allow suits by third parties to vindicate the rights of others. Additionally, the majority opinion misconstrued the undue burden test as requiring courts to apply a standard of review similar to strict scrutiny in assessing laws that regulate abortions, despite the fact that there was no precedential support for that level of scrutiny in these cases. By adding further tiers to the levels of judicial scrutiny, the majority created a test that was a "meaningless formalism" and that provided little guidance to lower courts because the result is based on whether a right is favored instead of being actually enumerated in the Constitution. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the Court should not have reached the substantive issues of this case because the claims should have been barred as already litigated based on the outcome of the facial challenges to the provisions, which arose from the same set of operative facts. If the lower court's decision was wrong as a matter of law, the petitioners could have appealed on that basis, but the strategic decision not to do so had consequences, and the majority opinion should have properly applied the well-established doctrine of claim preclusion. Even if the claims were not precluded, the petitioners did not meet their burden to show that the provisions in question affect a large fraction of Texan women. The fact that some clinics closed is evidence of a correlation with the provisions, not causation. Additionally, the petitioners did not prove that the closure of some clinics would actually affect the number of women able to access abortions, especially since many abortion clinics operated below capacity. Even if those provisions were problematic, the majority erred in declaring them completely unconstitutional when they could and should be upheld in any area in which they did not impose an undue burden. Chief Justice John G. Roberts, Jr. and Justice Thomas joined in the dissent.

Obergefell v. Hodges (2015)

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. 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. Question (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. Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, while same-sex marriage might be good and fair policy, the Constitution does not address it, and therefore it is beyond the purview of the Court to decide whether states have to recognize or license such unions. Instead, this issue should be decided by individual state legislatures based on the will of their electorates. The Constitution and judicial precedent clearly protect a right to marry and require states to apply laws regarding marriage equally, but the Court cannot overstep its bounds and engage in judicial policymaking. The precedents regarding the right to marry only strike down unconstitutional limitations on marriage as it has been traditionally defined and government intrusions, and therefore there is no precedential support for making a state alter its definition of marriage. Chief Justice Roberts also argued that the majority opinion relied on an overly expansive reading of the Due Process and Equal Protection Clauses of the Fourteenth Amendment without engaging with the judicial analysis traditionally applied to such claims and while disregarding the proper role of the courts in the democratic process. Justice Antonin Scalia and Justice Clarence Thomas joined in the dissent. In his separate dissent, Justice Scalia wrote that the majority opinion overstepped the bounds of the Court's authority both by exercising the legislative, rather than judicial, power and by doing so in a realm that the Constitution reserves for the states. Justice Scalia argued that the question of whether same-sex marriage should be recognized is one for the state legislatures, and that for the issue to be decided by unelected judges goes against one of the most basic precepts of the Constitution: that political change should occur through the votes of elected representatives. In taking on this policymaking role, the majority opinion departed from established Fourteenth Amendment jurisprudence to create a right where none exists in the Constitution. Justice Thomas joined in the dissent. Justice Thomas also wrote a separate dissent in which he argued that the majority opinion stretched the doctrine of substantive due process rights found in the Fourteenth Amendment too far and in doing so distorted the democratic process by taking power from the legislature and putting it in the hands of the judiciary. Additionally, the legislative history of the Due Process Clause in both the Fifth and Fourteenth Amendments indicates that they were meant to protect people from physical restraint and from government intervention, but they do not grant them rights to government entitlements. Justice Thomas also argued that the majority opinion impermissibly infringed on religious freedom by legislating from the bench rather than allowing the state legislature to determine how best to address the competing rights and interests at stake. Justice Scalia joined in the dissent. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the Constitution does not address the right of same-sex couples to marry, and therefore the issue is reserved to the states to decide whether to depart from the traditional definition of marriage. By allowing a majority of the Court to create a new right, the majority opinion dangerously strayed from the democratic process and greatly expanded the power of the judiciary beyond what the Constitution allows. Justice Scalia and Justice Thomas joined in the dissent.

Lemon Test

The three-part test for Establishment Clause cases that a law must pass before it is declared constitutional: it must have a secular purpose; it must neither advance nor inhibit religion; and it must not cause excessive entanglement with religion.

Gonzales v. Carhart (2007)

Upheld the Partial-Birth Abortion Ban Act of Roe v. Wade in 2003, but established stricter timeline limitations and limited procedure techniques on abortion In 2003, Congress passed and the President signed the Partial-Birth Abortion Ban Act. The controversial concept of partial-birth abortion is defined in the Act as any abortion in which the death of the fetus occurs when "the entire fetal head [...] or [...] any part of the fetal trunk past the navel is outside the body of the mother." Dr. Leroy Carhart and other physicians who perform late-term abortions sued to stop the Act from going into effect. The plaintiffs argued that the Act could apply to a more common abortion procedure known as "D&E" ("dilation and evacuation"), as well as to the less common "intact D&E," sometimes called D&X ("dilation and extraction"). With this application the Act would ban most late-term abortions and thus be an unconstitutional "undue burden" on the right to an abortion, as defined by the Supreme Court in Planned Parenthood v. Casey. The plaintiffs also argued that the Act's lack of an exception for abortions necessary to protect the health of the mother rendered it unconstitutional under the Supreme Court's decision in Stenberg v. Carhart, regardless of Congress's finding in the Act that partial-birth abortions are never medically necessary. A federal District Court agreed and ruled the Act unconstitutional on both grounds. The government appealed to the Court of Appeals for the Eighth Circuit. The government argued that the Act only bans a narrow category of abortion procedures, and that a health exception is not required when Congress determines that a banned abortion procedure is never necessary for the health of the mother. The Eighth Circuit disagreed and upheld the District Court, ruling that a health exception is required for all bans on abortion procedures when "substantial medical authority" supports the necessity of the procedure. The Circuit Court ruled that the ongoing disagreement among medical experts over the necessity of intact D&E abortions was sufficient to establish that the Act was unconstitutional without a health exception. The Circuit Court did not reach the question of whether the Act was so broad as to qualify as an unconstitutional "undue burden." Question Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to protect the health of the mother? No. The Court ruled by a 5-4 vote that Congress's ban on partial-birth abortion was not unconstitutionally vague and did not impose an undue burden on the right to an abortion. Justice Anthony Kennedy wrote the opinion for the majority. The Court held that, under the most reasonable interpretation, the Act applies only to the intact D&E method (also known as "partial-birth abortion") and not to the more common D&E procedure. The Act's application was limited by provisions that restrict enforcement to cases where the physician intends to perform an intact D&E and delivers the still-living fetus past specific "anatomical landmarks." Because the majority found that the Act applies only to a specific method of abortion, it held that the ban was not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion. The Court also held that Congress, after finding intact D&E never to be medically necessary, could validly omit a health exception from the ban, even when "some part of the medical community" considers the procedure necessary. To require the exception whenever "medical uncertainty" exists would be "too exacting a standard to impose on the legislative power [...] to regulate the medical profession." The Court left open the possibility that an as-applied challenge could be brought against the Act if it were ever applied in a situation in which an intact D&E was necessary to preserve a woman's health. Justice Ginsburg's dissent disputed the majority's claim that the opinion was consistent with the Casey and Stenberg precedents and said "The Court's hostility to the right Roe and Casey secured is not concealed."

FCC v. Pacifica Foundation (1978)

-George Carlin "Filthy Words" monologue -Court said right thing in wrong place -Indecency is language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs 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. His list included shit, piss, ****, ****, ********er, mother****er, and tits. 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. Question Does the First Amendment deny government any power to restrict the public broadcast of indecent language under any circumstances? 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."

Miller Test (Obscenity)

1. a reasonable person applying contemporary community standards would find the work or the content as a whole (not just one page) appeals to prurient (compulsion towards sick, morbid views of sex) 2. the work (as a whole) must depict patently offensive, sexual, or scatological functions, as defined by state laws 3. works as a whole must lack serious literacy, artistic, political, or scientific value.

Brown v. Board of Education I

1954 - The Supreme Court overruled Plessy v. Ferguson, declared that racially segregated facilities are inherently unequal and ordered all public schools to be desegregated. This case was the consolidation of cases arising in Kansas, South Carolina, Virginia, Delaware, and Washington D.C. relating to the segregation of public schools on the basis of race. In each of the cases, African American students had been denied admittance to certain public schools based on laws allowing public education to be segregated by race. They argued that such segregation violated the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs were denied relief in the lower courts based on Plessy v. Ferguson, which held that racially segregated public facilities were legal so long as the facilities for blacks and whites were equal. (This was known as the "separate but equal" doctrine.) Question Does the segregation of public education based solely on race violate the Equal Protection Clause of the Fourteenth Amendment? Separate but equal educational facilities for racial minorities is inherently unequal, violating the Equal Protection Clause of the Fourteenth Amendment. Chief Justice Earl Warren delivered the opinion of the unanimous Court. The Supreme Court held that "separate but equal" facilities are inherently unequal and violate the protections of the Equal Protection Clause of the Fourteenth Amendment. The Court reasoned that the segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children. Warren based much of his opinion on information from social science studies rather than court precedent. The decision also used language that was relatively accessible to non-lawyers because Warren felt it was necessary for all Americans to understand its logic.

Brown v. Board of Education II

1955; declared that public school officials could use "all deliberate speed" to comlpy with the court's 1954 Brown ruling After its decision in Brown v. Board of Education of Topeka (Brown I), which declared racial discrimination in public education unconstitutional, the Court convened to issue the directives which would help to implement its newly announced constitutional principle. The cases stemmed from many different regions of the United States with distinctive conditions and problems. Question What means should be used to implement the principles announced in Brown I? The Brown I decision shall be implemented "with all deliberate speed." The Court held that the problems identified in Brown I required varied local solutions. Chief Justice Warren conferred much responsibility on local school authorities and the courts which originally heard school segregation cases. They were ordered to implement the principles which the Supreme Court embraced in its first Brown decision. Warren urged localities to act on the new principles promptly and to move toward full compliance with them "with all deliberate speed."

City of Richmond v. J.A. Croson Company

1989 Court ruling that the numerical quota system of Richmond, VA, was unconstitutional because the city had not laid the proper groundwork and had not adequately identified or documented discrimination. In 1983, the City Council of Richmond, Virginia adopted regulations that required companies awarded city construction contracts to subcontract 30 percent of their business to minority business enterprises. The J.A. Croson Company, which lost its contract because of the 30 percent set-aside, brought suit against the city. Question Did the Richmond law violate the Equal Protection Clause of the Fourteenth Amendment? In a 6-to-3 decision, the Court held that "generalized assertions" of past racial discrimination could not justify "rigid" racial quotas for the awarding of public contracts. Justice O'Connor's opinion noted that the 30 percent quota could not be tied to "any injury suffered by anyone," and was an impermissible employment of a suspect classification. O'Connor further held that allowing claims of past discrimination to serve as the basis for racial quotas would actually subvert constitutional values: "The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs."

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. The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. Question Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade? In a bitter 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. In a rare step, the opinion for the Court was crafted and authored by three justices: O'Connor, Kennedy, and Souter.

Cohen v. California (1971)

A California statute prohibiting the display of offensive messages violated freedom of expression. Emotive and cognitive aspect A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "**** THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).

Morse v. Frederick

A student at a local high school hung up a banner saying "Bong Hits 4 Jesus" which advertises the use of marijuana. The principal ordered that the banner be taken down and the student be suspended. Result: School officials can prohibit students from promoting the use of drugs and does not violate the student's 1st A rights. A decision was not reached about whether Morse was immune to being sued, being a school official. Case is similar to Hazelwood. *public school students do not have same 1A protections as adults At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District , which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. The dissent conceded that the principal should have had immunity from the lawsuit, but argued that the majority opinion was "[...] deaf to the constitutional imperative to permit unfettered debate, even among high-school students [...]."

Wisconsin v. Yoder

Amish do not have to attend school after 8th grade - right to freedom of religion Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. Question Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons? The Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law. Justice William O. Douglas filed a partial dissent but joined with the majority regarding Yoder. Justices Lewis Powell and William Rehnquist took no part in the consideration or decision of the case.

R.A.V. v. St. Paul (1992)

An ordinance banning the display of any symbols promoting hatred based on race, gender or religion was unconstitutional due to underinclusiveness and viewpoint discrimination. Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. Question Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause? In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."

Brown v. Entertainment Merchants Association (2011)

Associations of companies that create, publish, distribute, sell and/or rent video games brought a declaratory judgment action against the state of California in a California federal district court. The plaintiffs brought the claim under the First and Fourteenth Amendments seeking to invalidate a newly-enacted law that imposed restrictions and labeling requirements on the sale or rental of "violent video games" to minors. The district court found in favor of the plaintiffs and prevented the enforcement of the law. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that: (1) violent video games did not constitute "obscenity" under the First Amendment, (2) the state did not not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by video games, and (3) even if the state had a compelling interest, the law was not narrowly tailored enough to meet that objective. Question Does the First Amendment bar a state from restricting the sale of violent video games to minors? Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Antonin Scalia. "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection." Justice Samuel Alito concurred in judgment, joined by Chief Justice John Roberts. Alito noted that he disagreed "with the approach taken in the Court's opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology." Justices Clarence Thomas and Stephen Breyer filed separate dissents. Adhering to his strict understanding of the Framers' intent with the Constitution, Thomas wrote: "The Court's decision today does not comport with the original public understanding of the First Amendment." Breyer argued that the California statute met current constitutional standards.

The Civil Rights Cases

Civil Rights Act of 1875 declared unconstitutional by Supreme Court, as the fourteenth amendment protected people from governmental infringement of rights and had no effect on acts of private citizens The Civil Rights Act of 1875 affirmed the equality of all persons in the enjoyment of transportation facilities, in hotels and inns, and in theaters and places of public amusement. Though privately owned, these businesses were like public utilities, exercising public functions for the benefit of the public and, thus, subject to public regulation. In five separate cases, a black person was denied the same accommodations as a white person in violation of the 1875 Act. Question Does the Civil Rights Act of 1875 violate the 10th Amendment of the Constitution which reserves all powers not granted to the national government to the states or to the people? Differentiating between state and private action, the majority ruled that the Fourteenth Amendment did not permit the federal government to prohibit discriminatory behavior by private parties. Thus, Sections 1 and 2 of the Civil Rights Act of 1875 were unconstitutional because they exceeded Congress's authority under the Fourteenth Amendment by purporting to regulate the conduct of private individuals. The Court held the Act likewise exceeded Congress's authority under the Thirteenth Amendment, which bars involuntary servitude and is restricted to prohibiting ownership of slaves, not other forms of discriminatory conduct. Justice Harlan advocated for a broader interpretation of the Thirteenth and Fourteenth Amendments. He pointed to the public function that these private places of accommodation serve. Harlan argued the line between state and private action is often blurred, such as how private railroads provide the government function of facilitating travel. He suggested that restrictions on the right to travel might violate the Thirteenth Amendment prohibition against involuntary servitude, and argued that the Privileges or Immunities Clause of the Fourteenth Amendment may also be implicated.

Roberts v. United States Jaycees (1984)

Compelling appelle to accept women as regular members does not abridge either the male members' freedom of intimate association or their freedom of expressive association. According to its bylaws, membership in the United States Jaycees was limited to males between the ages of eighteen and thirty-five. Females and older males were limited to associate membership in which they were prevented from voting or holding local or national office. Two chapters of the Jaycees in Minnesota, contrary to the bylaws, admitted women as full members. When the national organization revoked the chapters' licenses, they filed a discrimination claim under a Minnesota anti-discrimination law. The national organization brought a lawsuit against Kathryn Roberts of the Minnesota Department of Human Rights, who was responsible for the enforcement of the anti-discrimination law. Question Did Minnesota's attempts to enforce the anti-discrimination law violate the Jaycees' right to free association under the First Amendment? In a unanimous decision, the Court held that the Jaycees chapters lacked "the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women." The Court reasoned that making women full members would not impose any serious burdens on the male members' freedom of expressive association. The Court thus held that Minnesota's compelling interest in eradicating discrimination against women justified enforcement of the state anti-discrimination law. The Court found that the Minnesota law was not aimed at the suppression of speech and did not discriminate on the basis of viewpoint.

City of Boerne v. Flores (1997)

Congress may enact legislation enforcing constitutional rights established by the Court (like the Religious Freedom Restoration Act), but it does not have the power to expand those religious freedom rights with federal regulation and oversight. The Archbishop of San Antonio sued local zoning authorities for violating his rights under the 1993 Religious Freedom Restoration Act (RFRA), by denying him a permit to expand his church in Boerne, Texas. Boerne's zoning authorities argued that the Archbishop's church was located in a historic preservation district governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional insofar as it sought to override this local preservation ordinance. On appeal from the Fifth Circuit's reversal of a District Court's finding against Archbishop Flores, the Court granted Boerne's request for certiorari. Question Did Congress exceed its Fourteenth Amendment enforcement powers by enacting the RFRA which, in part, subjected local ordinances to federal regulation? Yes. Under the RFRA, the government is prohibited from "substantially burden[ing]" religion's free exercise unless it must do so to further a compelling government interest, and, even then, it may only impose the least restrictive burden. The Court held that while Congress may enact such legislation as the RFRA, in an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its legislative restrictions. This, the Court added, is precisely what the RFRA does by overly restricting the states' freedom to enforce its spirit in a manner which they deem most appropriate. With respect to this case, specifically, there was no evidence to suggest that Boerne's historic preservation ordinance favored one religion over another, or that it was based on animus or hostility for free religious exercise.

Cruzan v. Director, Missouri Department of Health

Court stated that a patient's life sustaining treatment can be withdrawn at the request of a family member only if there is "clear and convincing evidence" that the patient did not want such treatment In 1983, Nancy Beth Cruzan was involved in an automobile accident which left her in a "persistent vegetative state." She was sustained for several weeks by artificial feedings through an implanted gastronomy tube. When Cruzan's parents attempted to terminate the life-support system, state hospital officials refused to do so without court approval. The Missouri Supreme Court ruled in favor of the state's policy over Cruzan's right to refuse treatment. Question Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf? In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements.

Reno v. ACLU (1997)

Court struck down the communications Decency Act designed to protect minors from obscene online content, because it was excessively broad and did not define obscene. 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. Question 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. Justice Sandra Day O'Connor authored an opinion concurring in the judgment in part and dissenting in part, joined by Chief Justice William Rehnquist. Justice O'Connor would invalidate the provisions only to the extent that they fail to adhere to the Court's principle that zoning restrictions may be valid if they do not unduly limit adult access to the material.

New York v. Ferber (1982)

Court upheld a law that permitted criminal prosecutions for those who produce or sell material in which minors perform sex acts, without any proof of obscenity A New York child pornography law prohibited persons from knowingly promoting sexual performances by children under the age of sixteen by distributing material which depicts such performances. Question Did the law violate the First and Fourteenth Amendments? No. In the Court's first examination of a statute specifically targeted against child pornography, it found that the state's interest in preventing sexual exploitation of minors was a compelling "government objective of surpassing importance." The law was carefully drawn to protect children from the mental, physical, and sexual abuse associated with pornography while not violating the First Amendment.

Employment Division v. Smith (1990)

Determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to do so. Neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment. Two counselors for a private drug rehabilitation organization ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The state appellate court reversed the denial of benefits, finding that the denial violated their First Amendment right to the free exercise of religion. The state supreme court affirmed the appellate court. The U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the Free Exercise Clause. The case returned to the U.S. Supreme Court in this new posture. Question Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

Smith Test (Free exercise)

Does Law have non-secular purpose? Does it apply generally to everyone? If YES to both: Law is valid If NO to both: Law is invalid

Town of Greece v. Galloway (2014)

Does the establishment clause prevent a city from beginning the legislative session in prayer? The Court ruled 5-4 that is does not, even if the prayer is sectarian because it would require that the government be the arbiters of religious speech and would involve the government in religion and thus would violate the establishment clause. The town of Greece, New York, is governed by a five-member town board that conducts official business at monthly public meetings. Starting in 1999, the town meetings began with a prayer given by an invited member of the local clergy. The town did not adopt any policy regarding who may lead the prayer or its content, but in practice, Christian clergy members delivered the vast majority of the prayers at the town's invitation. In 2007, Susan Galloway and Linda Stephens complained about the town's prayer practices, after which there was some increase in the denominations represented. In February 2008, Galloway and Stephens sued the town and John Auberger, in his official capacity as Town Supervisor, and argued that the town's practices violated the Establishment Clause of the First Amendment by preferring Christianity over other faiths. The district court found in favor of the town and held that the plaintiffs failed to present credible evidence that there was intentional seclusion of non-Christian faiths. The U.S. Court of Appeals for the Second Circuit reversed and held that the practices violated the Establishment Clause by showing a clear preference for Christian prayers. Question Does the invocation of prayer at a legislative session violate the Establishment Clause of the First Amendment even in the absence of discrimination in the selection of prayer-givers and content? No. Justice Anthony Kennedy delivered the opinion for the 5-4 majority. The Court held that the context and jurisprudence surrounding the First Amendment suggested that the Establishment Clause was never meant to prohibit legislative prayer, which created the proper deliberative mood and acknowledged religion's role in society. The content of this prayer does not need to be non-sectarian, because such a requirement would place the courts in the role of arbiters of religious speech, which would involve the government in religion to an extent that is impermissible under the Establishment Clause. The Court thus held that the prayers in question do not violate this tradition and are therefore acceptable under the First Amendment. Justice Kennedy further argued that legislative prayer is primarily for the members of the legislative body, and therefore such prayers do not coerce the public into religious observance. Though the respondents testified that they felt offended by these prayers, Justice Kennedy distinguished between offense and coercion and noted that the former does not violate the Establishment Clause. Justice Antonin Scalia and Justice Clarence Thomas did not join in this portion of the opinion. In his concurring opinion, Justice Samuel A. Alito, Jr. wrote that there is a long tradition of constitutionally permissible legislative prayer and that such prayer need not be non-sectarian, especially when such a requirement would place the government in the position of policing prayer. Justice Thomas wrote a separate opinion concurring in part and concurring in the judgment in which he argued that the Establishment Clause should be read as a federalist provision that protected states' rights rather than individual rights. Justice Stephen G. Breyer wrote a dissent in which he argued that, as the Court of Appeals held, the Town of Greece must do more to make its legislative prayer inclusive of other faiths. Despite the fact that the town is not exclusively Christian, the town made no significant effort to inform non-Christian clergy about the possibility of delivering an invocation, and in doing so, marginalized religious minority populations. Justice Elena Kagan wrote in a separate dissent that the town's failure to represent a variety of religions in its meetings amounted to the unconstitutional preference of one religion over others. To do so in a public forum where people come to participate in the political process forces individuals who do not agree with the beliefs represented in the prayer to either acquiesce or visibly make their dissent known. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Breyer joined in the dissent.

Bowers v. Hardwick (1986)

Equal protection and due process not extended to same-sex relationships. Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari. Question Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal? No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

Wallace v. Jaffree

First Amendment/Establishment Clause - silent prayer in schools case, State endorsement of prayer activities in schools is prohibited by the First Amendment. An Alabama law authorized teachers to conduct regular religious prayer services and activities in school classrooms during the school day. Three of Jaffree's children attended public schools in Mobile. Question Did Alabama law violate the First Amendment's Establishment Clause? Yes. The Court determined the constitutionality of Alabama's prayer and meditation statute by applying the secular purpose test, which asked if the state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deviation from the state's duty to maintain absolute neutrality toward religion, but was an affirmative endorsement of religion. As such, the statute clearly lacked any secular purpose as it sought to establish religion in public schools, thereby violating the First Amendment's Establishment Clause.

Griswold v. Connecticut (1965)

Found a "right to privacy" in the Constitution that would ban any state law against selling contraceptives In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by higher state courts. Their plan was to use the clinic to challenge the constitutionality of the statute under the Fourteenth Amendment before the Supreme Court. Question Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? 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. In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital relations. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void. Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments. Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the right to privacy. Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision. Justice Black, joined by Justice Stewart, dissented. Unpersuaded by the loose reasoning of the majority, Black felt that there was no way to infer that the Constitution contained a right to privacy. He also dismissed the views of the concurrences that it could be found in the Ninth and Fourteenth Amendments. Justice Stewart, joined by Justice Black, filed a separate dissenting opinion. Stewart argued that despite his personal view that the law was "uncommonly silly," he felt that the Court had no choice but to find it constitutional.

Virginia v. Black (2003)

Freedom of Expression; Declares cross burning is protected by the First Amendment as long as the act does not have the intent to intimidate. Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating a Virginia statute that makes it a felony "for any person..., with the intent of intimidating any person or group..., to burn...a cross on the property of another, a highway or other public place," and specifies that "any such burning...shall be prima facie evidence of an intent to intimidate a person or group." At trial, Black objected on First Amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred. He was found guilty. O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. In Elliott's trial, the judge did not give an instruction on the statute's prima facie evidence provision. Ultimately, the Virginia Supreme Court held, among other things, that the cross-burning statute is unconstitutional on its face and that the prima facie evidence provision renders the statute overbroad because the probability of prosecution under the statute chills the expression of protected speech. Does the Commonwealth of Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment? Yes, but in a plurality opinion delivered by Justice Sandra Day O'Connor, the Court held that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined. Justice Antonin Scalia left the latter portion of the Court's conclusion to argue that the Court should vacate and remand the judgment of the Virginia Supreme Court with respect to Elliott and O'Mara, so that that court could have an opportunity to construe the cross-burning statute's prima-facie-evidence provision. Justice David H. Souter, joined by Justices Anthony M. Kennedy and Ruth Bader Ginsburg, concluded that the Virginia statute is unconstitutional and therefore concurred in the Court's judgment insofar as it affirmed the invalidation of Black's conviction. Justice Clarence Thomas dissented.

Bethel School District v. Fraser (1986)

Gave public school officials the authority to suspend students for speech considered to be lewd or indecent At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." Fraser was suspended from school for two days. Question Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly? The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."

Craig v. Boren (1976)

Gender discrimination can only be justified if it serves "important governmental objectives" and be "substantially related to those objectives" intermediate scrutiny An Oklahoma law prohibited the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18. Curtis Craig, a male then between the ages of 18 and 21, and Carolyn Whitener, a licensed vendor challenged the law as discriminatory. Question Did an Oklahoma statute violate the Fourteenth Amendment's Equal Protection Clause by establishing different drinking ages for men and women? Yes. In a 7-to-2 decision, the Court held that the statute made unconstitutional gender classifications. The Court held that the statistics relied on by the state of Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety. Generalities about the drinking habits of aggregate groups did not suffice. The Court also found that the Twenty-first Amendment did not alter the application of the Equal Protection Clause in the case. In striking down the Oklahoma law, the Court established a new standard for review in gender discrimination cases. More demanding than the lowest standard for review -- rational basis -- but less demanding than the highest standard -- strict scrutiny, the majority articulated an in-between standard -- intermediate scrutiny.

Wisconsin v. Mitchell (1993)

Hate crimes or assault based on hate crimes are NOT protected by the First Amendment. This is extended to cover race, religion and sexual orientation. Supreme Court ruled that it was unconstitutional to impose stiffer sentences on hate crimes. The judge in those cases can consider religious or racial motivation On October 7, 1989, Todd Mitchell, a young black man, instigated an attack against a young white boy. He was subsequently convicted of aggravated battery in the Circuit Court for Kenosha County. According to Wisconsin statute, Mitchell's sentence was increased, because the court found that he had selected his victim based on race. Mitchell challenged the constitutionality of the increase in his penalty, but the Wisconsin Court of Appeals rejected his claims. However, the Wisconsin Supreme Court reversed. Question Did the increase in Mitchell's sentence based on his bigoted motives violate his First Amendment rights? No. In a unanimous opinion authored by Justice William H. Rehnquist, the Court found that the Wisconsin statute paralleled antidiscrimination laws which had been found to comply with the First Amendment. It also determined that the consequences for the victim and the community tended to be more severe, when the victim of a crime was chosen on account of his or her race. Thus, when the Wisconsin statute increased the sentence for such crimes, it was not punishing the defendant for his or her bigoted beliefs or statements, but rather the predicted ramifications of his or her crime. Finally, the Court concluded that the Wisconsin statute did not violate the right to free speech because the occasion in which an average person's racist comments would be used against him or her in a court of law would arise so rarely that he or she would not feel forced to suppress them.

Near v. Minnesota (1931)

Held that the guarantee of a free press does not allow a prior restraint on publication, except in extreme cases, such as during wartime In a Minneapolis newspaper called The Saturday Press, Jay Near and Howard Guilford accused local officials of being implicated with gangsters. Minnesota officials sought a permanent injunction against The Saturday Press on the grounds that it violated the Public Nuisance Law because it was malicious, scandalous, and defamatory. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined from further committing or maintaining the nuisance. The state supreme court upheld both the temporary injunction and the permanent injunction that eventually issued from the trial court. In an opinion authored by Chief Justice Charles Hughes, the Court held that the statute authorizing the injunction was facially unconstitutional, meaning the decision was based on an analysis of the law's general applications, not the specific context of this case. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. (The majority used the incorporation doctrine to apply the rights granted under the Bill of Rights to the states under the Fourteenth Amendment.) The Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. In some situations, such as when speech is obscene, incites violence, or reveals military secrets, the government might be able to justify a prior restraint. Justices Butler, Van Devanter, McReynolds, and Sutherland dissented in an opinion written by Justice Butler.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages. Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA. The Administrative Law Judge issued a written order finding in favor of Craig and Mullins, which was affirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals subsequently affirmed the Commission's ruling. Question Does the application of Colorado's public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment? The Court reversed in a 7-2 decision, holding that the Colorado Civil Rights Commission's conduct in evaluating a cake shop owner's reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause. The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion. The majority acknowledged that from Phillips' perspective, creating cakes was a form of artistic expression and a component of his sincere religious beliefs. The Court also explained that in 2012, the year that Phillips refused his services to Craig and Mullins, the law in Colorado and across the country with regard to same sex marriage was much more unsettled than it became after United States v. Windsor, 570 US 744 (2013) and Obergefell v. Hodges, 576 US ___ (2015). At the time, the State Civil Rights Division had also concluded in at least three other cases that bakers had acted lawfully in declining to make cakes that included messages they disagreed with, specifically messages demeaning gay persons. Thus it was not unreasonable for Phillips to believe that he was acting lawfully at the time, and his claims before the Commission were entitled to neutral treatment. However, the Court stated that Phillips did not receive this neutral treatment, with members of the Commission showing clear and impermissible hostility toward his religious beliefs. The Court explained that commissioners' comments disparaging Phillips' beliefs and characterizing them as rhetorical were inappropriate, though these comments were not mentioned or disavowed in subsequent legal proceedings. The Court concluded that these comments cast doubt on the fairness of the Commission's consideration of Phillips' claims. The Court also pointed out that disparities between Phillips' case and those of other bakers with objections to making cakes with anti-gay messages, and who were victorious before the Commission, further reflected hostility toward the religious basis for Phillips' position. The Court concluded that the Commission's actions violated the State's duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations. Under the facts of this case, the Court determined that Phillips' religious justification for his refusal to serve Craig and Mullins was not afforded the neutral treatment mandated by the Free Exercise Clause. Justice Ginsburg authored a dissenting opinion, in which she was joined by Justice Sotomayor, stating that neither the Commission's comments regarding Phillips' religious views nor its alleged disparate treatment of bakers objecting to making cakes with anti-gay messages justified ruling in favor of Phillips. Justice Kagan filed a concurring opinion, joined by Justice Breyer, in which she agreed with the majority that the Commission had not given neutral treatment to Phillips' religious views, but declined to assign any significance to the Commission's treatment of bakers who refused to create cakes with anti-gay messages because she believed that this did not violate the Colorado law at issue in Phillips' case. Justice Gorsuch also filed a concurring opinion, joined by Justice Alito, in which he argued that the cases of Phillips and the bakers who objected to using anti-gay messages in their baking were quite similar, and the Commission acted inappropriately in treating them differently. Justice Thomas filed an opinion concurring in part and concurring in the judgment, and was joined by Justice Gorsuch. Thomas argued that an order requiring Phillips to bake a wedding cake for a same-sex couple would violate his First Amendment rights.

Zobrest v. Catalina Foothills School District (1993)

James Zobrest was deaf since birth. He attended public school through the eighth grade where the local school board provided a sign-language interpreter. Zobrest's parents elected to send their son to a Roman Catholic high school and requested that the local school board continue to provide their son with a sign-language interpreter. The school board denied the request on constitutional grounds. The Zobrests then filed suit, alleging that the Individuals with Disabilities Education Act (IDEA) and the Free Exercise Clause of the First Amendment required the school district to provide the interpreter and that the Establishment Clause did not bar such relief. The District Court granted the school district summary judgment on the ground that the interpreter would act as a conduit for the child's religious inculcation, thereby promoting his religious development at government expense in violation of the Establishment Clause. The Court of Appeals affirmed. Question May a school district decline to provide an interpreter to a deaf child based on the Establishment Clause of the First Amendment? No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the Establishment Clause did not bar the school district from providing the requested interpreter. Chief Justice Rehnquist reasoned that, because the IDEA creates no financial incentive for parents to choose a sectarian school, the presence of an interpreter is not linked to the state and is the result of the private decision of individual's parents. "The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as 'handicapped' under the IDEA, without regard to the 'sectarian-nonsectarian, or public-nonpublic nature' of the school the child attends," wrote Chief Justice Rehnquist.

Plessy v. Ferguson (1896)

Legalized segregation in publicly owned facilities on the basis of "separate but equal." Louisiana enacted the Separate Car Act, which required separate railway cars for blacks and whites. In 1892, Homer Plessy - who was seven-eighths Caucasian - agreed to participate in a test to challenge the Act. He was solicited by the Comite des Citoyens (Committee of Citizens), a group of New Orleans residents who sought to repeal the Act. They asked Plessy, who was technically black under Louisiana law, to sit in a "whites only" car of a Louisiana train. The railroad cooperated because it thought the Act imposed unnecessary costs via the purchase of additional railroad cars. When Plessy was told to vacate the whites-only car, he refused and was arrested. At trial, Plessy's lawyers argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments. The judge found that Louisiana could enforce this law insofar as it affected railroads within its boundaries. Plessy was convicted. Question Does the Separate Car Act violate the Fourteenth Amendment? The Court held that the state law was constitutional. In an opinion authored by Justice Henry Billings Brown, the majority upheld state-imposed racial segregation. Justice Brown conceded that the 14th Amendment intended to establish absolute equality for the races before the law, but held that separate treatment did not imply the inferiority of African Americans. The Court noted that there was not a meaningful difference in quality between the white and black railway cars. In short, segregation did not in itself constitute unlawful discrimination. In dissent, John Marshall Harlan argued that the Constitution was color-blind and that the United States had no class system. Accordingly, all citizens should have equal access to civil rights.

Everson v. Board of Education of Ewing Township (1947)

Maintained that although public funds could be used to bus children to parochial schools, the wall separating church and state must be kept high and strong. Wall of Separation A New Jersey law authorized reimbursement by local school boards of the costs of transportation to and from schools, including private schools. 96% of the private schools who benefitted from this law were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion violated both the New Jersey state constitution and the First Amendment. After losing in state courts, Everson appealed to the U.S. Supreme Court on purely federal constitutional grounds. Question Did the New Jersey statute violate the Establishment Clause of the First Amendment? A divided Court held that the law did not violate the Constitution. Justice Black reasoned that the law did not pay money to parochial schools, nor did it support them directly in anyway. It was rather enacted to assist parents of all religions with getting their children to school. Justices Jackson, Frankfurter, Rutledge, and Burton dissented.

Roth v. US (1957)

Obscenity is not within the area of constitutionally protected speech or press test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).

City of Erie v. Pap's A.M. (2000)

Obscenity, in this case dealing with nude dancing, was not a right protected under the 1st Amendment. A community-standard would be used to determine what would be considered artistic expression when related to nudity OBrien test "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. The Court of Common Pleas struck down the ordinance as unconstitutional, but the Commonwealth Court reversed. In reversing, the Pennsylvania Supreme Court found that the ordinance's public nudity sections violated Pap's right to freedom of expression as protected by the First and Fourteenth Amendments. The court explained that, although one purpose of the ordinance was to combat negative secondary effects, there was also an unmentioned purpose to "impact negatively on the erotic message of the dance." Additionally, because the ordinance was not content neutral, the court subjected it to strict scrutiny and found that it failed the narrow tailoring requirement of such a test. After the U.S Supreme Court granted certiorari, Pap's filed a motion to dismiss the case as moot, noting that Kandyland no longer operated as a nude dancing club, and that Pap's did not operate such a club at any other location. The Court denied the motion. Question 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." Cite this page

Romer v. Evans (1996)

Prevented states from passing laws that prevented giving protected status for groups of people; law specifically targeted homosexuals Colorado voters adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment 2's enforcement. The Colorado Supreme Court affirmed on appeal. Question Does Amendment 2 of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the Fourteenth Amendment's Equal Protection Clause? Yes. In a 6-to-3 decision, the Court held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

Abington School District v. Schempp (1963)

Prohibited school-sponsored devotional Bible reading in public schools because it violated the establishment clause and due process clause (Warren Court) 2-prong test Under Pennsylvania law, public schools were required to read from the bible at the opening of each school day. The school district sought to enjoin enforcement of the statute. The district court ruled that the statute violated the First Amendment, even after the statute had been amended to permit a student to excuse himself. The Court consolidated this case with one involving Maryland atheists who challenged a city rule that provided for opening exercises in the public schools that consisted primarily of reading a chapter from the bible and the Lord's Prayer. The state's highest court held the exercise did not violate the First Amendment. The religious character of the exercise was admitted by the state. Question Did the Pennsylvania law requiring public school students to participate in classroom religious exercises violate the religious freedom of students as protected by the First and Fourteenth Amendments? Public schools cannot sponsor Bible readings and recitations of the Lord's Prayer under the First Amendment's Establishment Clause. In an opinion authored by Justice Clark, the majority concluded that, in both cases, the laws required religious exercises and such exercises directly violated the First Amendment. The Court affirmed the Pennsylvania decision, and reversed and remanded the Maryland decision because the mandatory reading from the bible before school each day was found to be unconstitutional. Justice Stewart dissented, expressing the view that on the records it could not be said that the Establishment Clause had necessarily been violated. He would remand both cases for further hearings.

Engel v. Vitale (1962)

Prohibited state-sponsored recitation of prayer in public schools by virtue of 1st Amendment's establishment clause and the 14th Amendment's due process clause; Warren Court's judicial activism. The New York State Board of Regents authorized a short, voluntary prayer for recitation at the start of each school day. A group of organizations joined forces in challenging the prayer, claiming that it violated the Establishment Clause of the First Amendment. The New York Court of Appeals rejected their arguments. Question Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? The state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion. In an opinion authored by Hugo L. Black, the Court held that respondent's decision to use its school system to facilitate recitation of the official prayer violated the Establishment Clause. Specifically, the policy breached the constitutional wall of separation between church and state. The Court ruled that the constitutional prohibition of laws establishing religion meant that government had no business drafting formal prayers for any segment of its population to repeat in a government-sponsored religious program. The Court held that respondent's provision of the contested daily prayer was inconsistent with the Establishment Clause. Justice Douglas concurred in the judgment on the ground that the state's financing a religious exercise violated the First Amendment. Justice Stewart dissented, arguing that no "official religion" was established by permitting those who want to say a prayer to say it.

Zelman v. Simmons-Harris (2002)

Public money can be used to send disadvantaged children to religious schools in tuition voucher programs. Ohio's Pilot Project Scholarship Program provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to attend participating public or private schools of their parent's choosing. Both religious and nonreligious schools in the district may participate. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. In the 1999-2000 school year 82 percent of the participating private schools had a religious affiliation and 96 percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. A group of Ohio taxpayers sought to enjoin the program on the ground that it violated the Establishment Clause. The District Court granted them summary judgment, and the Court of Appeals affirmed. Question Does Ohio's school voucher program violate the Establishment Clause? No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the "Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice."

Tinker v. Des Moines (1969)

Public school students may wear armbands to class protesting against America's war in Vietnam when such display does not disrupt classes students don't lose free speech at school, but it is limited In December 1965, a group of students in Des Moines held a meeting in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season and to fast on December 16 and New Year's Eve. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year's Day, the planned end of the protest. Through their parents, the students sued the school district for violating the students' right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district's actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion. Justice Abe Fortas delivered the opinion of the 7-2 majority. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference. In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he noted that the majority's opinion relies on a distinction between communication through words and communication through action. Justice Hugo L. Black wrote a dissenting opinion in which he argued that the First Amendment does not provide the right to express any opinion at any time. Because the appearance of the armbands distracted students from their work, they detracted from the ability of the school officials to perform their duties, so the school district was well within its rights to discipline the students. In his separate dissent, Justice John M. Harlan argued that school officials should be afforded wide authority to maintain order unless their actions can be proven to stem from a motivation other than a legitimate school interest.

Lee v. Weisman (1992)

Public schools may not have clergy lead prayers at graduation ceremonies In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restaining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies. When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court and was granted certiorari. Question Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment? Yes. In a 5-to-4 decision, the Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." Such conduct conflicts with settled rules proscribing prayer for students. 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 government may not compose official prayers to recite as part of a religious program carried on by government.

Dred Scott v. Sanford (1857)

Ruled slaves were not citizens under the Constitution; struck down Missouri Compromise (Taney Court) Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott filed suit in Missouri court for his freedom, claiming that his residence in free territory made him a free man. After losing, Scott brought a new suit in federal court. Scott's master maintained that no "negro" or descendant of slaves could be a citizen in the sense of Article III of the Constitution. Question Was Dred Scott free or slave? The majority held that "a negro, whose ancestors were imported into [the U.S.], and sold as slaves," whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court. Because the Court lacked jurisdiction, Taney dismissed the case on procedural grounds. Taney further held that the Missouri Compromise of 1820 was unconstitutional and foreclose Congress from freeing slaves within Federal territories. The opinion showed deference to the Missouri courts, which held that moving to a free state did not render Scott emancipated. Finally, Taney ruled that slaves were property under the Fifth Amendment, and that any law that would deprive a slave owner of that property was unconstitutional. In dissent, Benjamin Robbins Curtis criticized Taney for addressing the claim's substance after finding the Court lacked jurisdiction. He pointed out that invalidating the Missouri Compromise was not necessary to resolve the case, and cast doubt on Taney's position that the Founders categorically opposed anti-slavery laws. John McLean echoed Curtis, finding the majority improperly reviewed the claim's substance when its holding should have been limited to procedure. He also argued that men of African descent could be citizens because they already had the right to vote in five states.

Frontiero v. Richardson (1973)

Ruled that both male and female spouses of military service members receive equal benefits strict standard of review Sharron Frontiero, a lieutenant in the United States Air Force, sought a dependent's allowance for her husband. Federal law provided that the wives of members of the military automatically became dependents; husbands of female members of the military, however, were not accepted as dependents unless they were dependent on their wives for over one-half of their support. Frontiero's request for dependent status for her husband was turned down. Question Did a federal law, requiring different qualification criteria for male and female military spousal dependency, unconstitutionally discriminate against women thereby violating the Fifth Amendment's Due Process Clause? Yes. The Court held that the statute in question clearly commanded "dissimilar treatment for men and women who are similarly situated," violating the Due Process Clause and the equal protection requirements that clause implied. A majority could not agree on the standard of review, however. The plurality opinion written by Justice William J. Brennan, Jr., applying a strict standard of review to the sex-based classification as it would to racial classification, found that the government's interest in administrative convenience could not justify discriminatory practices. But a concurring opinion by Justice Lewis F. Powell and joined by Chief Justice Warren E. Burger and Justice Harry A. Blackmun would not go so far as to hold sex discrimination to the same standard as race, choosing instead to argue that statutes drawing lines between the sexes alone necessarily involved the "very kind of arbitrary legislative choice forbidden by the Constitution," an approach employed in the Court's prior decision in Reed v. Reed. Justice Potter Stewart concurred separately that the statutes created invidious discrimination in violation of the Constitution. Justice William H. Rehnquist dissented affirming the reasoning of the lower court opinion.

Regents of the University of California v. Bakke (1978)

Schools can't use admission quotas and admit students solely on the bais of their race. Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. The school reserved sixteen places in each entering class of one hundred for "qualified" minorities, as part of the university's affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications (college GPA and test scores) exceeded those of any of the minority students admitted in the two years Bakke's applications were rejected. Bakke contended, first in the California courts, then in the Supreme Court, that he was excluded from admission solely on the basis of race. Question Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? No and yes. There was no single majority opinion. Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the Equal Protection Clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action.

Texas v. Johnson (1989)

Struck down Texas law that banned flag burning, which is a protected form of symbolic speech. OB test In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Ashcroft v. ACLU (2002)

Struck down a federal ban on "virtual" child pornography The Court upheld that "community standards" likely violates the First Amendment and that there are less restrictive alternatives to COPA, such as blocking and filtering software. The Child Pornography Prevention Act of 1996 (CPPA) prohibits "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct." The Free Speech Coalition, an adult-entertainment trade association, and others filed suit, alleging that the "appears to be" and "conveys the impression" provisions are overbroad and vague and, thus, restrain works otherwise protected by the First Amendment. Reversing the District Court, the Court of Appeals held the CPPA invalid on its face, finding it to be substantially overbroad because it bans materials that are neither obscene under Miller v. California, 413 U.S. 15, nor produced by the exploitation of real children as in New York v. Ferber, 458 U.S. 747. Question Does the Child Pornography Prevention Act of 1996 abridge freedom of speech when it proscribes a significant universe of speech that is neither obscene under Miller v. California nor child pornography under New York v. Ferber? Yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the two prohibitions described above are overbroad and unconstitutional. The Court found the CPPA to be inconsistent with Miller insofar as the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Moreover, the Court found the CPPA to have no support in Ferber since the CPPA prohibits speech that records no crime and creates no victims by its production. Provisions of the CPPA cover "materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment" and abridge "the freedom to engage in a substantial amount of lawful speech," wrote Justice Kennedy.

Adarand Constructors v. Pena (1995)

Supreme Court decision holding that federal programs that classify people by race, even for an ostensibly benign purpose such as expanding opportunities for minorities, should be presumed to be unconstitutional. Adarand, a contractor specializing in highway guardrail work, submitted the lowest bid as a subcontractor for part of a project funded by the United States Department of Transportation. Under the terms of the federal contract, the prime contractor would receive additional compensation if it hired small businesses controlled by "socially and economically disadvantaged individuals." [The clause declared that "the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities...." Federal law requires such a subcontracting clause in most federal agency contracts]. Another subcontractor, Gonzales Construction Company, was awarded the work. It was certified as a minority business; Adarand was not. The prime contractor would have accepted Adarand's bid had it not been for the additional payment for hiring Gonzales. Question Is the presumption of disadvantage based on race alone, and consequent allocation of favored treatment, a discriminatory practice that violates the equal protection principle embodied in the Due Process Clause of the Fifth Amendment? Yes. Overruling Metro Broadcasting (497 US 547), the Court held that all racial classifications, whether imposed by federal, state, or local authorities, must pass strict scrutiny review. In other words, they "must serve a compelling government interest, and must be narrowly tailored to further that interest." The Court added that compensation programs which are truly based on disadvantage, rather than race, would be evaluated under lower equal protection standards. However, since race is not a sufficient condition for a presumption of disadvantage and the award of favored treatment, all race-based classifications must be judged under the strict scrutiny standard. Moreover, even proof of past injury does not in itself establish the suffering of present or future injury. The Court remanded for a determination of whether the Transportation Department's program satisfied strict scrutiny.

Miller v. California (1973)

Supreme Court decision that avoided defining obscenity by holding that community standards be used to determine whether material is obscene in terms of appealing to a "prurient interest" and being "patently offensive" and lacking in value Obscenity defined as appealing to prurient interests of an average person with materials that lack literary, artistic, political, or scientific value Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (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; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.

Washington v. Glucksberg (1997)

The Court held that the right to physician-assisted suicide did not exist in the Constitution and that state prohibitions were constitutional. Dr. Harold Glucksberg -- along with four other physicians, three terminally ill patients who have since died, and a nonprofit organization that counsels individuals contemplating physician assisted-suicide -- brought this suit challenging the state of Washington's ban on physician assisted-suicide. The State of Washington has historically criminalized the promotion of suicide attempts by those who "knowingly cause or aid another person to attempt suicide." Glucksberg alleged that Washington's ban was unconstitutional. Following a District Court ruling favoring Glucksberg and his fellow petitioners, the Ninth Circuit affirmed and the Supreme Court granted Washington certiorari. Question Did Washington's ban on physician assisted-suicide violate the Fourteenth Amendment's Due Process Clause by denying competent terminally ill adults the liberty to choose death over life? No. Analyzing the guarantees of the Due Process Clause, the Court focused on two primary aspects: the protection of our nation's objective fundamental, historically rooted, rights and liberties; and the cautious definition of what constitutes a due process liberty interest. The Court held that the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause since its practice has been, and continues to be, offensive to our national traditions and practices. Moreover, employing a rationality test, the Court held that Washington's ban was rationally related to the state's legitimate interest in protecting medical ethics, shielding disabled and terminally ill people from prejudice which might encourage them to end their lives, and, above all, the preservation of human life.

Hazelwood School District v. Kuhlmeier (1988)

The Court ruled in favor of school district censorship of student newspapers as long as censorship is related to legitimate concerns. The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test.

Church of Lukumi Babalu Aye v. City of Hialeah (1993)

The Court ruled that laws banning animal sacrifice were unconstitutional because they targeted the Santeria religion. The Church of Lukumi Babalu Aye practiced the Afro-Caribbean-based religion of Santeria. Santeria used animal sacrifice as a form of worship in which an animal's carotid arteries would be cut and, except during healing and death rights, the animal would be eaten. Shortly after the announcement of the establishment of a Santeria church in Hialeah, Florida, the city council adopted several ordinances addressing religious sacrifice. The ordinances prohibited possession of animals for sacrifice or slaughter, with specific exemptions for state-licensed activities. Question Did the city of Hialeah's ordinance, prohibiting ritual animal sacrifices, violate the First Amendment's Free Exercise Clause? Yes. The Court held that the ordinances were neither neutral nor generally applicable. The ordinances had to be justified by a compelling governmental interest and they had to be narrowly tailored to that interest. The core failure of the ordinances were that they applied exclusively to the church. The ordinances singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their stated ends. Only conduct tied to religious belief was burdened. The ordinances targeted religious behavior, therefore they failed to survive the rigors of strict scrutiny.

Dennis v. United States (1951)

The Court ruled that the Smith Act, which prohibited advocating the overthrow of the U.S. government by force and violence, did not violate the 1st Amendment. diff btw teaching and advocacy uphold clear and present danger state doesn't need to wait to act In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the US government and for the violation of several points of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. The party members who had been petitioning for socialist reforms claimed that the Act violated their First Amendment rights. Party leaders were found guilty and lower courts upheld the conviction. In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a "clear and present danger" that threatened the government. Given the gravity of the consequences, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech. Justices Frankfurter and Jackson concurred in separate opinions. Justices Black and Douglas dissented in separate opinions. Justice Black stressed that the petitioners were not charged with an attempt to overthrow the Government or any overt acts designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date. "No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids."

New York Times v. US

The President argues that the publication of the Pentagon Papers is in violation of executive privilege. Result: The barring of the publication of these papers is in violation of the 1st A. Publication does not imperial the public. gov has heavy burden of proof for violating 1A In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Stanley v. Georgia (1969)

The Supreme Court held that states cannot prohibit a citizen from having obscene material for personal use Law enforcement officers, under the authority of a warrant, searched Stanley's home pursuant to an investigation of his alleged bookmaking activities. During the search, the officers found three reels of eight-millimeter film. The officers viewed the films, concluded they were obscene, and seized them. Stanley was then tried and convicted under a Georgia law prohibiting the possession of obscene materials. Question Did the Georgia statute infringe upon the freedom of expression protected by the First Amendment? The Court held that the First and Fourteenth Amendments prohibited making private possession of obscene materials a crime. In his majority opinion, Justice Marshall noted that the rights to receive information and to personal privacy were fundamental to a free society. Marshall then found that "[i]f 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." The Court distinguished between the mere private possession of obscene materials and the production and distribution of such materials. The latter, the Court held, could be regulated by the states.

Roe v. Wade (1973)

The court legalized abortion by ruling that state laws could not restrict it during the first three months of pregnancy. Based on 4th Amendment rights of a person to be secure in their persons. In 1970, Jane Roe (a fictional name used in court documents to protect the plaintiff's identity) filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas, where she resided, challenging a Texas law making abortion illegal except by a doctor's orders to save a woman's life. In her lawsuit, Roe alleged that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Question Does the Constitution recognize a woman's right to terminate her pregnancy by abortion? Inherent in the Due Process Clause of the Fourteenth Amendment is a fundamental "right to privacy" that protects a pregnant woman's choice whether to have an abortion. However, this right is balanced against the government's interests in protecting women's health and protecting "the potentiality of human life." The Texas law challenged in this case violated this right. Justice Harry Blackmun delivered the opinion for the 7-2 majority of the Court. First, the Court considered whether the case was moot, concluding that it was not. When the subject of litigation is "capable of repetition yet evading review," a case need not be dismissed as moot. Pregnancy is a "classic justification for a conclusion of nonmootness." The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman's right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right. Although the state has legitimate interests in protecting the health of pregnant women and the "potentiality of human life," the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability. In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of "viability," a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.

Locke v. Davey (2004)

The court upheld a policy in Washington State excluding those who wish to study Theology from a publicly funded scholarship. The state simply could distribute the scholarship fund to whoever it wanted. The Washington State Promise Scholarship, created by the state legislature in 1999, gives college scholarship money to talented students. However, this money cannot be used to obtain a degree in theology if the program is taught to cause belief. Washington's constitution prohibits funding religious instruction. The 1969 state code applied this ban to college financial aid. Joshua Davey forfeited his Promise Scholarship money in order to major in pastoral ministries at a private Christian college. Davey filed suit in U.S. district court, claiming the state constitution's ban on funding religious instruction violated his First Amendment right to free exercise of religion (in the U.S. Constitution). The district court rejected Davey's claim. The Ninth Circuit Court of Appeals reversed, concluding Davey's free exercise rights were violated. Question If a state provides college scholarships for secular instruction, does the First Amendment's free exercise clause require a state to fund religious instruction? No. In a 7-2 opinion delivered by Chief Justice William Rehnquist, the Court ruled that a state does not violate the First Amendment's free exercise clause when it funds secular college majors but excludes devotional theology majors. The Court rejected Davey's argument that the state scholarship program is unconstitutional because it is not neutral toward religion. "The State has merely chosen not to fund a distinct category of instruction," the Court wrote. Similarly the Washington Constitution - which explicitly prohibits state money from going to religious instruction - does not violate the free exercise clause. Unlike laws and programs the Court has struck down under the free exercise clause, nothing in either the scholarship program or the state constitution "suggests animus towards religion." States have a "historic and substantial interest" in excluding religious activity from public funding.

Schempp Test

Two prongs: 1. Purpose (is the primary purpose to advance or inhibit religion?) 2. Effect (is the primary effect to advance or inhibit religion?)

United States v. Virginia (1996)

Under the 14th Amendment's Equal Protection Clause the Court held that Virginia Military Institute's male-only admissions policy was unconstitutional. The Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's only exclusively male public undergraduate higher learning institution. The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated the Fourteenth Amendment's equal protection clause. On appeal from a District Court ruling favoring VMI, the Fourth Circuit reversed. It found VMI's admissions policy to be unconstitutional. Virginia, in response to the Fourth Circuit's reversal, proposed to create the Virginia Women's Institute for Leadership (VWIL) as a parallel program for women. On appeal from the District Court's affirmation of the plan, the Fourth Circuit ruled that despite the difference in prestige between the VMI and VWIL, the two programs would offer "substantively comparable" educational benefits. The United States appealed to the Supreme Court. Question Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal Protection Clause? No. In a 7-to-1 decision, the Court held that VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause. Virginia failed to support its claim that single-sex education contributes to educational diversity because it did not show that VMI's male-only admissions policy was created or maintained in order to further educational diversity. Furthermore, Virginia's VWIL could not offer women the same benefits as VMI offered men. The VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets. Finally, the Fourth Circuit's "substantive comparability" between VMI and VWIL was misplaced. The Court held that the Fourth Circuit's "substantive comparability" standard was a displacement of the Court's more exacting standard, requiring that "all gender-based classifications today" be evaluated with "heightened scrutiny." When evaluated with such "heightened scrutiny," Virginia's plan to create the VWIL would not provide women with the same opportunities as VMI provides its men and so it failed to meet requirements of the equal protection clause. [NOTE: Justice Ginsburg's announcement of the Court's opinion may be considered an address to the American public. It is a plain-spoken and forceful summary of the majority position.]

West Virginia State Board of Education v. Barnette (1943)

West Virginia Board of Education required all pupils and teachers to salute the flag each day. Any who did not were expelled. Result: Requiring public school children to salute the flag is unconstitutional. - overruled Minersville. symbols are speech In 1942, the West Virginia Board of Education required public schools to include salutes to the flag by teachers and students as a mandatory part of school activities. The children in a family of Jehovah's Witnesses refused to perform the salute and were sent home from school for non-compliance. They were also threatened with reform schools used for criminally active children, and their parents faced prosecutions for causing juvenile delinquency. In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. In an opinion written by Robert Houghwout Jackson, the Court found that the First Amendment cannot enforce a unanimity of opinion on any topic, and national symbols like the flag should not receive a level of deference that trumps constitutional protections. He argued that curtailing or eliminating dissent was an improper and ineffective way of generating unity. Justices Black and Douglas concurred to repudiate their earlier opinions in First Amendment decisions. Justice Frankfurter dissented. He believed the Court was exceeding the scope of the judicial role and was taking on a legislative function in striking down the law.

Rosenberger v. University of Virginia (1995)

Witholding money to subsidize a Christian magazine impedes First Amendment rights; viewpoint discrimination Ronald W. Rosenberger, a University of Virginia student, asked the University for $5,800 from a student activities fund to subsidize the publishing costs of Wide Awake: A Christian Perspective at the University of Virginia. The University refused to provide funding for the publication solely because it "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality," as prohibited by University guidelines. Question Did the University of Virginia violate the First Amendment rights of its Christian magazine staff by denying them the same funding resources that it made available to secular student-run magazines? Yes. The Court, in a 5-to-4 opinion, held that the University's denial of funding to Rosenberger, due to the content of his message, imposed a financial burden on his speech and amounted to viewpoint discrimination. The Court noted that no matter how scarce University publication funding may be, if it chooses to promote speech at all, it must promote all forms of it equally. Furthermore, because it promoted past publications regardless of their religious content, the Court found the University's publication policy to be neutral toward religion and, therefore, not in violation of the establishment clause. The Court concluded by stating that the University could not stop all funding of religious speech while continuing to fund an atheistic perspective. The exclusion of several views is as offensive to free speech as the exclusion of only one. The University must provide a financial subsidy to a student religious publication on the same basis as other student publications.

Sherbert Test

a standard for deciding whether a law violates the free exercise clause; a law will be struck down unless there is a "compelling governmental interest" at stake and it accomplishes its goal by the "least restrictive means" possible

O'Brien Test

a three-part test used to determine whether a content-neutral law is constitutional Chief Justice Earl Warren established a test for determining whether laws that impact expressive conduct pass constitutional scrutiny. Warren wrote, "We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

Gitlow v. New York (1925)

applied 1A to the states under 14A uphold clear and present danger Anarchist calling for overthrow of the government. Established precedent of federalizing Bill of Rights (applying them to States); States cannot deny freedom of speech - protected through due process clause of Amendment 14 Gitlow, a socialist, was arrested in 1919 for distributing a "Left Wing Manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under New York's Criminal Anarchy Law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterances without propensity to incitement of concrete action. The appellate division affirmed his conviction, as did the New York Court of Appeals, the highest court in that state. In an opinion authored by Justice Edward Sanford, the Court concluded that New York could prohibit advocating violent efforts to overthrow the government under the Criminal Anarchy Law. Citing Schenck and Abrams, the Court reasoned the government could punish speech that threatens its basic existence because of the national security implications. Despite the small scale of Gitlow's actions, the majority was not persuaded that they were too insignificant to have an impact. The Supreme Court previously held, in Barron v. Baltimore (1833), that the Constitution's Bill of Rights applied only to the federal government. Gitlow partly reversed that precedent and established that while the Bill of Rights was designed to limit the power of the federal government, the incorporation principle allows it to be applied to states. In dissent, Justice Oliver Wendell Holmes held that Gitlow had not violated the clear and present danger test used in Schenck. Since Gitlow's call to action was abstract and would not resonate with a large number of people, Holmes concluded that there was not sufficient imminence to warrant punishing the speech.

Michael M. v. Superior Court of Sonoma County

boyfriend argues that his girlfriend is just as guilty of underage sex as he is; the law only makes it illegal for men to prevent adolescent pregnancy and provide a deterrent for men Michael M., a 17 and 1/2 year-old male, was found guilty of violating California's "statutory rape" law. The law 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 made men alone criminally liable for such conduct. Michael M. challenged the constitutionality of the law. Question Did California's statutory rape law unconstitutionally discriminate on the basis of gender? No. In a plurality decision, the Court held that the law did not violate the Equal Protection Clause of the Fourteenth Amendment, noting that "young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse." The Court found that the state had a strong interest in preventing "illegitimate pregnancy." The Court noted that "[i]t is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males."

Schenck v. United States (1919)

clear and present danger test A 1919 decision upholding the conviction of a socialist who had urged young men to resist the draft during World War I. Justice Holmes declared that government can limit speech if the speech provokes a "clear and present danger" of substantive evils. During World War I, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft violated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public to disobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the First Amendment. The Court held that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congress' wartime authority. Writing for a unanimous Court, Justice Oliver Wendell Holmes concluded that courts owed greater deference to the government during wartime, even when constitutional rights were at stake. Articulating for the first time the "clear and present danger test," Holmes concluded that the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent. Holmes reasoned that the widespread dissemination of the leaflets was sufficiently likely to disrupt the conscription process. Famously, he compared the leaflets to falsely shouting "Fire!" in a crowded theatre, which is not permitted under the First Amendment.

U.S. v. Williams (2008)

federal statute can prohibit pandering of child pornography even if person doesn't actually possess it to trade; does not apply to virtual pornography upholds provisions of the PROTECT ACT, which makes it illegal to send or receive images online that are indistinguishable from that of a minor in a sexual situation, thus allowing the regulation of virtual or digitally created images to circumvent the holding of New York v. Ferber or the original intent of the Child Pornography Prevention Act. Michael Williams was convicted in federal district court of "pandering" (promoting) child pornography. The PROTECT Act proscribes the pandering of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography. The Act represents Congress's attempt to outlaw sexually explicit images of children - including both images of real children and computer-generated images of realistic virtual children. The Supreme Court struck down Congress's previous effort as overbroad in Ashcroft v. Free Speech Council, because the law as written could have outlawed artwork that was neither obscene nor child pornography. Williams argued that the PROTECT Act was similarly overbroad, but the district court held that the government can legitimately outlaw the pandering of material as child pornography, even if the material is not in fact child pornography. The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court and struck down the PROTECT Act as unconstitutionally overbroad. The Eleventh Circuit was unmoved by the government's argument that prosecuting the promotion of virtual child pornography as real is necessary to combat the child porn market. The Circuit Court held that the Act's prohibition was broad enough to include any "braggart, exaggerator, or outright liar" who claims in a non-commercial context to have child pornography but actually does not. Thus, the Act's pandering provision prohibited protected speech as well as actual child pornography. Question Does the PROTECT Act abridge First Amendment freedom of speech by outlawing the pandering of material that is believed to be, or claimed to be, illegal child pornography? No. Justice Antonin Scalia, writing for a seven-Justice majority, held that the statute was not overly broad as written. Justice Scalia noted specifically that offers to engage in illegal transactions are categorically excluded from First Amendment protection, and he characterized the speech of an individual claiming to be in possession of child pornography in this category of unprotected speech. He also stated that the law did not violate Due Process because its requirements were clear and could be understood by courts, juries and potential violators. Justice David Souter filed the only dissenting opinion, in which Justice Ruth Bader Ginsburg joined.

Bolling v. Sharpe (1954)

held that racial segregation in the public schools of the District of Columbia is a denial to Negro children of the due process of law guaranteed by the Fifth Amendment. The D.C. Board of Education denied a petition by a group of parents in Anacostia to racially integrate John Phillip Sousa Junior High School. The following year, in 1950, the parents sought admission to the all-white school for 11 African-American children. When the request was again denied by the Board, a Howard University law professor brought a lawsuit. The claim was dismissed by the trial court. Question Did the segregation of the public schools of Washington D.C. violate the Due Process Clause of the Fifth Amendment? The Fifth Amendment's guarantee of "liberty" protected by due process also guaranteed racial equality in public education in the District of Columbia. In a unanimous decision authored by Chief Justice Earl Warren, the Court found that racial discrimination in the public schools of Washington, DC, denied blacks due process of law as protected by the Fifth Amendment. Noting the legal peculiarities of DC, Justice Warren recognized that the Fifth Amendment (which applied to the District) did not contain an Equal Protection Clause, while the Fourteenth Amendment. Lacking an equal protection standard to invalidate the District's segregation, Warren creatively relied on the Fifth Amendment's guarantee of "liberty" to find the segregation of the Washington, DC, schools unconstitutional. The Supreme Court decided this case on the same day as Brown v. Board of Education, which overshadowed it. Its most important legacy is the concept of reverse incorporation and the application of the same anti-discrimination principles to state and federal governments.

Brandenburg v. Ohio (1969)

speech that does not call for illegal action is protected, and even speech that does call for illegal action is protected if the action is not "imminent" or there is reason to believe that the listeners will not take action Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

Lawrence v. Texas

state law may not ban sexual relations between same-sex partners (right of privacy) Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling. Question Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled? No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents.

Sherbert v. Verner (1963)

the Supreme Court ruled that disqualifying Sherbert, a Seventh-Day Adventist, from receiving unemployment benefits violated the free-exercise clause Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. The Employment Security Commission ruled that she could not receive unemployment benefits because her refusal to work on Saturday constituted a failure without good cause to accept available work. Under South Carolina law, employers were not allowed to require employees to work on Sunday. Question Did the denial of unemployment compensation violate the First and Fourteenth Amendments? The Free Exercise Clause prohibits the government from setting unemployment benefits eligibility requirements such that a person cannot properly observe key religious principles. In a majority opinion written by Justice Brennan, the Court held that the state's eligibility restrictions for unemployment compensation imposed a significant burden on Sherbert's ability to freely exercise her faith. Furthermore, there was no compelling state interest which justified such a substantial burden on this basic First Amendment right. Justices Douglas and Stewart concurred in separate opinions. Justice Harlan, joined by Justice White, dissented on the ground that Seventh-Day Adventist was unavailable for Saturday work just as anyone who refuses Saturday work for personal reasons is unavailable, and that the effect of the Court's decision was to require South Carolina to make an exception in favor of those whose unavailability for work stems from religious convictions.