Test 2 cases

Miss Univ for Women v. Hogan 1982 - SD intermediate

"exceedingly persuasive justification" for gender-based distinction. Gender Discrimination: Male denied admission to all women school. +Fact -Hogan (man), registered nurse and qualified applicant, denied admission to Mississippi University for Women (MUW) Nursing program on basis of sex. -No similar school within reasonable distance. -Denial based on state statute 1884. -Hogan challenged saying violation of 14th's DP +Issue Did state statute preventing men from enrolling in MUW (state-sponsored school) violate 14th's EP? Yes. 5-4. For Hogan. +Majority O'Connor: a)State didn't provide "exceedingly persuasive justification" for gender-based distinction. -MUW's primary argument that policy constituted educational affirmative action for women "unpersuasive" since women traditionally have not lacked opportunities to enter nursing. If anything, statute "tends to perpetuate stereotyped view of nursing as exclusively women's job." b)Just because law discriminating against males rather than against females doesn't exempt it from intermediary scrutiny or reduce standard of review. -Party seeking to uphold policy (gov) carry burden of showing exceedingly persuasive justification for classification (important gov interest; substantially related). +Dissent Powell Dissent Powell: a)No gender discrimination because both men and women in Mississippi have choice of universities that they can attend. -14th should not be applied so strictly on the level of a single college, which is merely one of many choices. -In fact, Majority's decision removes one type of choice, an all-female college, from options available to women.

Cohen v. California (1971) sd

+1st protected i)emotive (the expression of emotion) and ii)cognitive (the expression of ideas). +Fact -Cohen wore jacket with words "F the Draft" & "Stop the War" in LA County courthouse where men, women, children present. Cohen knew about the message on jacket. -Police arrested Cohen and charged him with "willfully and unlawfully and maliciously disturbing the peace and quiet by engaging in tumultuous and offensive conduct." +Issue Did California's law that allowed conviction for wearing jacket with "F the Draft" & "Stop the War" violate Cohen's freedom of expression of 1st (applied 14th DP)? Yes. +Majority Harlan: +Gov regulation on 1st FS can only be on manner person exercised the freedom, can not be on message it conveys. (Obrien Test) a) Cal law was not specific enough to inform public that some forms of speech are prohibited in certain places.-Didn't show "distinctions between certain locations" in regards to speech. b)Cohen's message didn't fall into categories of speech that gov could narrowly regulated ie Obscenity. c)Doesn't count as "fighting words" i)Chaplinsky; failed- message not personally directed at hearer. ii)Cantwell; failed- No individual present could reasonably have regard words as direct personal insult. iii)No intent of provoking hostile reaction. iv) No evidence anyone who saw message violent aroused. d)Message wasn't "forced" to view message. -Gov can only regulate messages "forced" upon people if message done in way that impedes on substantial privacy interests. -People in courthouse could have avoided further exposure with message. -Some unwilling listeners in public building not sufficient justification for curtailing speech. e) Fear of disturbance not enough to overcome freedom of expression. f)+"one man's vulgarity is another's lyric." Gov can't regulate what's offensive. g) Consti's 1st protects not just i)cognitive (the expression of ideas). but also ii)Emotive (the expression of emotion). -emotive function which, practically speaking, may often be the more important element of the overall message +Dissenting Blackmun: "Cohen's absurd and immature antic, was mainly conduct and little speech." -within sphere of Chaplinsky.

Miller v. California (1973) UP

+CALIFORNIA WINS UPHOLD +Altered Roth Obscenity test: -local community instead of national standards -Removed "utterly without redeeming social value" test. +Fact -Miller sold adult materials, conducted mass mail campaign to drum up sales for his books. -Pamphlets were explicit. -Miller arrested after Some unwilling recipients and complained to police. +Issue Do mass mailings depicting sexual acts constitute obscenity, which is not afforded First Amendment protection? Yes. +Majority Burger -Miller obscenity test: (a) whether average person, applying contemporary community standards' would find work, taken as whole, appeals to prurient interest. . . (b) whether work depicts or describes, in offensive way, sexual conduct specifically defined by state law (state law must specifically define obscene conduct) (c) whether work, taken as a whole, lacks serious literary, artistic, political, or scientific value." b)Court rejected the "utterly without redeeming social value" test. (Memoirs v Massachusetts 1966) c) Use contemporary community standards not national standards. -Nation too big and diverse to prescribe single abstract formulation of obscenity. d)Disagrees with dissenting Douglas and Brennan that this is repression; to equate free exchange of ideas with commercial exploitation of obscene materials means 1st. Dissenting Douglas: +Tests for regulation of speech should be decided by the people via constitutional amendment because Court is dealing with "tastes and standards of literature"; what is appealing to some may be offensive to others. +(No consti guidelines for obscenity) Courts don't have power to define what is obs. Dissenting Brennan: +California statute is overly broad and therefore facially invalid.

*Holder v. Hall 1994 UP

+Fact +Issue +

Dickerson v. U.S. 2000 SD

+Fact +Issue +

Stenberg v. Carhart 2001 - SD Undue burden

+Fact +Issue +

Hazelwood v. Kuhlmeier 1988 - UP

+Fact +Issue term-41 +

Hustler Magazine v Falwell 1988 - SD

+Fact -Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. -Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. -Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. +Issue Does 1st's freedom of speech protection extend to making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress? Yes +Unanimous Rehnquist -public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." -interest of protecting free speech surpassed state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.

McCleskey v. Kemp 1987 - UP

+Fact -McCleskey, black man, convicted of murdering a police officer in Georgia -jury sentenced McClesky to death -In a writ of habeas corpus, McCleskey argued statistical study proved death penalty in Georgia discriminatory because depended to some extent on race of victim and accused; violated 14th's EP. -"Baldus study" found black defendants who kill white victims are most likely to receive death sentences. +Issue Was Georgia's application of death penalty discriminatory and therefore violated 14th's EP? No. 5-4 for Kemp (Georgia). +Majority Powell: a)Baldus study conluding "racially disproportionate impact" of Georgia death penalty not enough to overturn guilty verdict without showing "racially discriminatory purpose." -McClesky must prove decisionmakers in his case acted with discriminatory purpose. -Petitioner offered no evidence specific to his own case -exceptionally clear proof is required before this Court will infer discretion has been abused. b) didn't violate 14th's EP -would have to prove Georgia Legislature had death penalty statute because of anticipated racially discriminatory effect. c)No merit to Baldus study showing Georgia's capital punishment system arbitrary and capricious in application. -likelihood of racial prejudice shown by study does not constitute the constitutional measure of unacceptable risk of racial prejudice. -inherent lack of predictability of jury decisions does not justify criticism; jury's function to make difficult and uniquely human judgments that defy codification and that build discretion, equity, and flexibility into legal system. d)McClesky's claim taken to logical conclusion, questions principles that underlie of entire criminal justice system. +Brennan's dissent a)Agreed with Justice Marshall that "the death penalty is in all circumstances cruel and unusual punishment forbidden by 8th and 14th Amendments." b)even if capital punishment were constitutional, it could hardly be so where it was demonstrably biased against members of a particular race. c)McClesky's attorney would have told him disturbing fact that: there was significant chance race would play prominent role in determining if he lived or died. +Blackmun Dissent a)If stat evidence valid, Georgia's capital sentencing scheme which is racially-base violates 8th. b)Also 14th's EP; Court in past found disparity in sentences based on race unconsti

Ewing v. California 2003 - UP

+Fact -Under California's 3 strikes law, another felony conviction would require a sentence of 25 years to life. -Ewing, serial offender with history of criminal convictions, arrested for stealing three golf clubs -Ewing given harsh sentence. +Issue Did Ewing's sentence of 25 years to life, in accordance with California's 3 strikes law, violate 8th protection against cruel and unusual punishment? No. 5-4 for California +Majority O'Connor: a)Eighth Amendment has "narrow proportionality principle" that "applies to noncapital sentences." 3 factors to determine if sentence disproportionate and violates 8th: (i) gravity of offense and harshness of penalty; (ii) sentences imposed on other criminals in same jurisdiction; and (iii) sentences imposed for commission of same crime in other jurisdictions." -forbids only extreme sentences that are 'grossly disproportionate' to the crime." -Cal law didn't violate this. b)Court gave great deference to legislatures in mandating sentences for repeat offenders. c)Ewing's conviction not grossly disproportionate and in accordance of 8th -Conviction reflects "rational legislative judgment" and "is justified by the State's public-safety interest in incapacitating and deterring recidivist felons." -Recidivism has long recognized as legitimate basis for recedicism laws. -California has reasonable basis for believing enhanced sentences for habitual felons "advance[s] goals of [its] criminal justice system in any substantial way." +SCALIA and THOMAS CONCURRING a)8th doesn't have proportionality principle. -8th's prohibition of "cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not "guarantee against disproportionate sentences." +Breyer Dissenting: -a)argued Ewing's sentence could be successfully challenged as disproportional --Although Ewing was a recidivist, his present crime was not violent, and so he should not have been sentenced as harshly as recidivist who had committed yet another violent crime. -fact that Ewing's sentence would have been the same if he had been convicted of a violent crime, like rape or murder, suggested it was too harsh a sentence for a shoplifter, even a recidivist shoplifter like Ewing. " +"Outside California three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree."

Cruzan v. Mo. Dept of Health 1990 - UP

+Incompetents don't have right to refuse death prolonging procedures via surrogates unless can prove clear and convincing evidence. Only competents have right to refuse. +Facts -1983 Cruzan in car accident. -Cruzan in persistent vegetative state -Parents wanted permission from state court allowing them to remove Cruzan's feeding tubes which would lead to her death. -Presented evidence Nancy saying when she was 25 "she would not wish to continue her life unless she could live it at least halfway normally." -Parents argued that "Person in Nancy's condition had fundamental right to refuse or direct the withdrawal of death prolonging procedures. +Issues +Does 14th DP extends to include right of incompetent persons to deny medical procedures prolonging life? No. +Does DP allows Missouri to require incompetent patient in irreversible vegetative state to remain on life-support absent clear and convincing evidence that avoiding treatment represents the patient's prior, express choice? Yes +Majority Rehnquist a)Clear and convincing standard consti allowed. -because an incorrect decision to withdraw treatment cannot be corrected (irreversible). Contrastly -incorrect decision to continue treatment would only maintain status quo. b)Balancing of liberty interest against state interests; but incompetent person doesn't have right to refuse lifesaving procedures ( DP) like competent person does. -Because incomps unable to make informed and voluntary choice to exercise that hypothetical right or any other right. -Competent person has right to refuse life-sustaining procedures. (14th's DP; didn't say if right was fundamental) i)State has general interest in protection and preservation of human life; and other particular interests. -may legitimately seek to safeguard personal element of individual's choice between life and death. ii)State also entitled to guard against potential abuses by surrogates who may not act to protect patient. iii)State may also decline to make judgments on "quality" of individual's life, and simply assert an unqualified interest in preservation of human life to be weighed against constitutionally protected interests of individual. c) Denied parent's evidence -Cruzan's statement not wanting to live as "vegetable" did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. d)14th's DP doesn't require State to accept "substituted judgment" of close family members in absence of substantial proof that their views reflect the patient's. +Concurrence O'Connor: a)Court's decision doesn't decide whether State must abide by surrogate decisionmaker. -Doesn't prevent future determination that Consti requires state to implement surrogates' decisions b)Clear and convincing standard too high -few individuals provide explicit oral/written instructions on their intent to refuse medical treatment should they become incompetent. -State's decline to consider other evidence may frequently fail to honor patient's intent. -Should consider patient's appointment of proxy to make health care decisions. c)But task to decide procedures to protect incomps liberty is reserved for States +Concurrence Scalia: a)Majority should've been more clear that fed courts have no business in this field. -State has power to prevent suicide; including refusal against life-preserving procedures. -The point where life becomes "worthless" not determined by SC or Consti. b)Court need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so, it will destroy itself. +Dissenting Brennan a)Nancy Cruzan entitled to choose to die with dignity -Cruzan has fundamental right to be free of unwanted artificial nutrition and hydration; right not outweighed by any State interest. -Procedural obstacles imposed by Missouri SC improperly biased and impermissibly burdens that right. b)State generally must leave choice with person chosen as proxy or patient's family c)Shows stats showing lots of people maintained in persistent vegetative states. d)Missouri and Court have displaced Nancy's own assessment of processes associated with dying. -They have discarded evidence of her will, ignored her values, and deprived her of right to a decision as closely approximating her own choice as humanly possible.

Craig v. Boren 1976 SD - IS

+Intermediary Scrutiny now applies to Gender Discrimination (previously rational basis). +Fact -OKC law males buy alcohol at 21. -Females buy at 18. -State claimed law passed rational basis because statistics showed men from 18-20 as compared to women drove under influence more and committed more alcohol-related offenses. +Issue Did Oklahoma statute violate 14th EP by establishing different drinking ages for men and women? Yes. +Majority Brennan: a) OKC law violates EP because fails intermediary scrutiny (important interest; substantially related). -Protection of public health and safety is important gov interest, However - Statistics used by Oklahoma insufficient to show substantial relationship between law and this gov interest. -Generalities about drinking habits of aggregate groups didn't suffice. +Dissenting Rehnquist judicial restraint: a)Majority is wrong to conclude: i)Men challenging gender-based statute can invoke more stringent standard of judicial review (intermediary scrutiny) than most other types of classifications ii)Majority doesn't cite any source for new intermediary scrutiny. "Comes out of thin air" b)Gender base classification only needs to pass rational basis test. -Majority doesn't explain why this Statute is subject to a stricter test than legislative classifications unrelated to sex. -No evidence males in this case subjected to systematic discrimination. c)Introduction of new standard bad idea. -Court already has trouble with 2 standards. -HOw is Court to define what objectives "important" and whether law is "substantially relate"? -Phrases are so elastic and invites subjective judicial values (like Graglia's criticism of 14th's DP). -These words require courts to make subjective judgements

*Milliken v. Bradley 1974

+School systems not responsible for desegregation across district lines unless shown they had each deliberately engaged in segregation policy +Fact -NAACP filed suit against Michigan Gov Milliken, arguing: i) schools were not officially segregated (white only) -After reviewing the case and concluding the system was segregated, a district court ordered the adoption of a desegregation plan that encompassed eighty-five outlying school districts. +Issue Did federal courts have authority to impose multi-district desegregation plan on schools outside Detroit area? No. For gov Milliken Majority Burger a)School districts not obligated to desegregate unless been proven District drew lines with racist intent. b)Desegregation, "in the sense of dismantling a dual school system," didn't require "any particular racial balance in each 'school, grade or classroom.'" c) Agreed Constitutional rights of blacks violated by City' school district; BUT -segregative results involving suburban districts didn't make suburban districts nor State of Michigan responsible. d)Emphasized the importance of local control over operation of schools. +Dissent Marshall School district lines, however innocently drawn, constitutes segregation when, under Detroit-only decree, white parents withdraw their children from Detroit city schools and move to suburbs in order to continue in all-white schools. +Dissent Douglas +Integration required; Desegregation not enough ← Evolution of liberal stance on civil rights. -task of equity is to provide unitary system for the affected area

Wallace v. Jaffree (1985) SD

+State endorsement of prayer activities in schools is prohibited by the First Amendment. +Fact -Alabama law authorized teachers to set aside one minute at the start of each day for a moment for "meditation or voluntary prayer. -Jaffree's 3 children attended public schools in Mobile. Youngest son was made fun of by peers for refusing to say prayers. -Jaffree brought suit against School Board (Wallace). Jaffree argued maintenance of regular religious prayer services in public schools violation of 1st establishment clause made applicable to states via 14th. +Issue Did Alabama law authorizing teachers to conduct regular religious activities in classrooms (1 minute of silence for prayers or meditation) during school day violate 1st's Establishment Clause, applied to states by 14th? Yes. +Majority: Justice Stevens +Determined constitutionality of Alabama's law by applying Lemon Test 1971 i)secular legislative purpose, ii)its principal or primary effect must be one that neither promotes nor inhibits religion, iii) it must not foster "excessive government entanglement with religion." i)Failed: +Statute had no secular purpose as it sought to express the State's endorsement of prayer activities. ii)Failed: Alabama's passage of religious statute was affirmative endorsement of religion; thereby violation of state's duty to maintain absolute neutrality toward religion. +Dissent Burger: a) Endorsement of a "moment of silence" doesn't unconstitutionally promote religion. b) Court's ruling against Alabama's statute directly aggressive to religion, which is as unconstitutional as an establishment of religion. c) Criticized Majority's use of Lemon Test because it was applying "one size fits all" test to a less-than-standard case. +Dissent Rehnquist: a)Denounces "Lemon Test" as "having no more grounding in the First Amendment than the wall theory created from "separation of church and state" in Everson v. Board of Education 1947. -It has no basis in the amendment that it is designed to interpret, it cannot yield predictably constitutional results when applied to a statute.

Washington v. Glucksberg 1997 - UP

+fact -Dr. Glucksberg brought this suit challenging Washington State's ban on physician assisted-suicide. -Washington law criminalized persons "knowingly cause or aid another person to attempt suicide." -Nearly all other states condemned practice, either by law or tradition. +Issue Did Washington's ban on physician assisted-suicide violate 14th's DP by denying competent terminally ill adults liberty to choose death over life? No. +Unanimous Rehnquist -Although Casey recognized many 14th's substantive rights are related to personal autonomy; doesn't mean any and all important, intimate, and personal decisions are protected, (San Antonio Independent School Dist. v. Rodriguez 1973) b)right to assisted suicide not fundamental liberty protected by 14th's DP because no deeply rooted traditions supporting "suicide". c)No fundamental right so used rational basis; Washington's ban passed test, rationally related to state's legitimate interest in: i) preserving human life. ii)shielding disabled and terminally ill people from coercion to end their lives iii) protecting medical ethics, d)Cruzan's right to refuse life-prolonging medication and Gluckberg's right to die is different. +O'CONNOR CONCURRING -No need to address question whether suffering patients have constitutional right to obtain relief from suffering that in last days of their lives. -difficulty in defining terminal illness and risk that dying patient's request for assistance in ending life might not be truly voluntary justifies prohibitions on assisted suicide +STEVENS, CONCURRING a)Possible exceptions to Washington law; but generally consti -potential harms are sufficient to support Washington's general public policy against assisted suicide, but they will not always outweigh individual liberty interest of particular patient. -"unqualified interest in the preservation of human life," not itself sufficient to outweigh interest granting patient's dignity and alleviating her intolerable suffering. +SOUTER, CONCURRING Legislature has more powers than Courts to recognize unenumerated rights such as right to assisted suicide. +BREYER, CONCURRING a)Rather than right to assisted suicide, should've been "right to die with dignity.; combination of personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering b)Law doesn't force state-inflict pain; would be different if law prevented patient from receiving palliative care.

Bakke v. Board of Regents 1978 SD

14th Equal Protection: Affirmative Action Race consideration ok; BUT racial quotas unconsti -Diversity can be used but subject to intermediate scrutiny. -No test could achieve +Fact -Bakke white manh applied to UC Davis medical school Rejected even though qualifications exceeded those of any minority students admitted. -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. +Issue -Did school's special admissions program violate 14th's EP? Yes. -Can race be considered a factor in the admissions process? Yes. Plurality Powell a) Classifications based on race require strict scrutiny. -Goal of achieving diverse student body is compelling enough to allow race to be considered as factor in admissions. However, -Cal's use of quotas not necessary to achieve goal; it foreclosed consideration to applicants like Bakke (violated 14th's EP). b) Rigid use of racial quotas like one at issue violated 14th's EP. -Less restrictive programs would serve same purpose c)state was entitled to consider race as one of several factors -no constitutional violation in using race as one of several factors d)School ordered to accept Bakke as student. School couldn't meet its burden to show Bakke would not have been admitted absent special admissions program. +Concurring in part Brennan a) Meaning of Bakke is that majority in favor of continuation of affirmative action b)Government may use race-conscious programs to remedy disadvantages cast on minorities by past discrimination. -Part of California Supreme Court's opinion prohibiting any affirmative action in admissions is, and should be, reversed. -Decision to direct Bakke's admission to school should also be reversed because the special admissions program is constitutional. c)"Benign" discrimination cases should be subject to intermediate scrutiny. d)School's purpose of remedying effects of past discrimination sufficiently important to justify race-conscious admission programs. -Valid when evidence concluding that minority underrepresentation is substantial, and that the handicap of past discrimination was impeding access of minorities. Concurring in Part Burger] -inappropriate to discuss whether race can ever be used as a factor in an admissions decision because it is not an issue in the case. -Only thing at issue is legality of school's special admissions program. -Program violated Title VI of Civil Rights Act of 1964 by excluding Bakke from school because of his race. -California Supreme Court decision should be affirmed.

Roe v. Wade 1973 - SD

14th's DP Privacy and Fundamental Rights: Abortion protected by privacy right. +Fact -(Roe) claimed she was raped and pregnant as result. -Doctor refused abortion citing TX law making crime to "have abortion unless necessary to save mother's life." -Roe referred to 2 lawyers who challenged law on privacy, women's rights, due process, etc grounds. +Issue Does Constitution recognize a woman's right to abortion? Yes but right not absolute regardless of how far along pregnancy is. 7-2 for Roe +Majority Blackmun: (worked at Mayo clinic researching abortions so opinion framed largely in terms of protecting right of physicians to practice medicine without state interference (e.g., by counseling women on whether to pursue abortions) rather than right of women to bodily autonomy.) a)Case not moot because; -Pregnancy (Subject of litigation) is "capable of repetition, yet evading review. -This makes it exception to the rule. b)woman's right to choose to have abortion falls within right to privacy protected by 14th's DP. -Texas law broadly prohibits abortion without respect to stage of pregnancy or other interests violates that 14th right. c) Since right to privacy is fundamental (Griswold 1965), strict scrutiny. d)How protected right is depends on stage of pregnancy -Although state has legitimate interests in protecting health of pregnant women and the "potentiality of human life," BUT -weight of these interests varies over course of pregnancy; law must account for this variability. -State's interests grows and reaches "compelling" point as woman approaches birth. i)1st trimester of pregnancy- state may not regulate abortion decision; only pregnant woman and physician can make decision. ii)2nd trimester- state may impose regulations on abortion that are reasonably related to maternal health. iii)3rd trimester- once fetus reaches point of "viability," state may regulate abortions or prohibit them entirely, so long as laws contain exceptions for cases when abortion is necessary to save life/health of mother. +Dissenting Rehnquist: a)Originalist argument -Researched 19th-century laws on abortion and status of issue at Founding and 14th. -Concluded state restrictions on abortion were considered valid at time of 14th, so its drafters couldn't have contemplated creating rights that conflicted with it. +Dissenting White: a)Criticized majority's arbitrary choice of rigid framework without supporting constitutional or legal foundation. b)Judicial restraint argument -Aggressive use of judicial power exceeded Court's appropriate role by taking away power of state legislatures; Court essentially writing laws for them. -Political process was appropriate mechanism for seeking reform, rather than letting Court decide whether and when mother should be higher priority than fetus.

Roper v. Simmons 2005 - SD

8th Amendment and Death Penalty for minors unconsti +Fact Simmons was sentenced to death in 1993, when was 17. +Issue Does execution of minors violate prohibition of "cruel and unusual punishment" found in 8th and applied to states 14th's DP? Yes. 5-4 for Simmons.. +Majority Kennedy: a) Used evolving standards of decency to determine which punishments are so disproportionate as to be "cruel and unusual." -majority cited national consensus against juvenile death penalty among state legislatures, c)Capital punishment must be limited to those offenders who commit " narrow category of most serious crimes" and whose extreme culpability makes them " most deserving of execution." Retribution ii)low likelihood minor offenders analyzed their actions against possibility of execution. Deterrence. d)3 diffs between minors and adults shows juvenile offenders can't be classified among worst offenders: i)Juveniles' susceptibility to immature and irresponsible behavior means "their irresponsible conduct not as morally reprehensible as adult." Retribution ii) vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. iii)character of a juvenile is not as well formed as that of an adult. personality traits of juveniles are more transitory, less fixed. d)Minors like retards: -Less culpable. Retribution interest not proportional. -Absence of evidence showing deterrence implies minors less susceptible to deterrence e)Court pointed to "overwhelming" international opinion against the juvenile death penalty. +O'CONNOR, DISSENTING a)Disagrees with categorical prohibition of execution of minors. b)evidence of national consensus weaker than in Atkins. So majority opinion rests on independent moral judgement. c)Majority's comparison of aggregate adults and minors frequently do not hold true when comparing individuals. d)international consensus does not alter my determination that 8th does not,forbid capital punishment of 17-year-old murderers in all cases. +Dissenting Scalia: a)Similar to Atkins -questions whether "national consensus" had formed among states, b)Objected to Court's taking guidance from foreign law in interpreting Constitution c)role of judiciary in constitutional scheme is to interpret law as formulated in democratically selected legislatures. -Court exists to rule on what the law says, not what it should say, and that it is for the legislature, -in light of the evolving standard of decency, not for the Court to arbitrarily make de facto amendments. -He challenged the right of unelected lawyers to discern moral values and to impose them on the people in the name of flexible readings of the constitutional text.

Atkins v. Virginia 2002 - SD

8th Amendment: Death Penalty for Mentally Disabled violates 8th. +Fact -Atkins, mentally retarded, was convicted of abduction, armed robbery, and capital murder of airman. +Issue Is execution of mentally retarded persons "cruel and unusual punishment" prohibited by 8th? Yes. 6-3 for Atkins. +Majority Stevens: a)Since Penry vs. Lynaugh, significant number of States have concluded death is not suitable punishment for mentally retarded criminal. National consensus against death penalty b)Does justification of death penalty - retribution and deterrence of capital crimes - applies to mentally retarded offenders, due to their lessened culpability? i)Retribution- No -If culpability of average murderer is insufficient to justify death penalty, then lesser culpability of mentally retarded offender surely does not merit that form of retribution. -mentally retarded less culpable for their actions, do not realize how wrong their actions are. ii)Deterrence- No -mentally retarded defendants; less likely can process information of possibility of execution as a penalty; so they won't control their conduct based upon that information. - exempting mentally retarded from execution won't lessen death penalty's deterrent effect against offenders not mentally retarded. -punishment is "excessive," and prohibited by 8th, if it is not graduated and proportioned to the offense. c)applying 8th in light of our 'evolving standards of decency,' -we conclude such punishment is excessive -and that Constitution 'places substantive restriction on State's power to take life' of mentally retarded offender," +Dissenting Scalia: a)"seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members." -accused the majority of basing its decision largely on its personal viewpoints rather than legal doctrine. b)in spite of the increased number of states that had outlawed the execution of the mentally retarded, no clear national consensus, -Moreover, public opinion inappropriate measure of constitutional norms. c) Consti provided no basis for using such measures of opinion to determine what is "cruel and unusual". +2 standards for "Cruel and Unusual Punishment" i) "punishments considered cruel and unusual at time BOR adopted..." ii)punishment inconsistent with modern 'standards of decency,' most important evidence is 'legislation enacted by the country's legislatures'..." +Majority used modern decency but -previous decisions on 8th have required "...a much higher degree of agreement before finding a punishment cruel and unusual on 'evolving standards' grounds." d)no "original intent" to indicate Founding Fathers considered executing mentally retarded as "cruel and unusual punishment."

*Gertz v. Welch 1974 - SD

Actual malice standard too high for Private Individuals in libel suit. +Fact John Birch Society accused Gertz of being "Leninist" and "Communist-fronter" because he represented clients suing a law enforcement officer. -Gertz won jury verdict and award of $50,000 but lost his libel suit because trial judge found magazine had not violated actual malice test for libel (New York Times v. Sullivan (1964)). +Issue Does 1st's Freedom of Press allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a public figure? No. +Majority Powell a) Actual Malice test (NYT v. Sullivan 1964) inappropriate because Gertz was neither public official nor public figure. b)Ordinary citizens should be allowed more protection from libelous statements than individuals in public eye. i) private individuals less effective for rebuttal than public figures; more vulnerable to injury from defamation. Private individuals didn't voluntarily expose themselves to injury. b)Recklessness standard (high standard to prove) applies only to defamation of public figures or public officials. -Any standard of fault less than recklessness limits private persons to actual injury. d) Rejected Brennan and Douglas's dissent saying that this would stifle free debate. -Public interest shouldn't outweigh any consideration of bertz's status as private or public figure. Brennan Dissenting a) Failure to apply the New York Times v. Sullivan standard to private persons involved in public matters would stifle "free and robust debate." b) Press in some states could be too easily restricted and consequently practice self-censorship in reporting on public affairs. Douglas Dissenting a) Felt that libel laws were too strict even as it was; leaving liability standards for private figures up to states was too capricious:

Va. Bd. of Pharmacy v. Va. Citizen's Council 1976 - SD

Commercial Speech is protected like noncommercial speech. +Facts Virginia Citizens Consumer Council challenged Virginia statute prohibited licensed pharmacists from advertising prescription drug prices. +Issue Is statutory ban on advertising prescription drug prices by licensed pharmacists violation of "commercial speech" under 1st? Yes. 7-1 for VA Citizen's Council. +Majority Blackmun Case not only about commercial regulation, but also free flow of information. a) 1st protects willing speakers and willing listeners equally. -consumers' right to receive information as it was about pharmacists' right to provide it. -poor, elderly, and infirm needed access to such information to make informed decisions about how to get their prescriptions filled inexpensively. b)In commercial speech cases, ie price advertising, freedom of speech protections apply just as they would to noncommercial speech. -Even speech that is sold for profit, or involves financial solicitations, is protected. -having purely economic interest in content of speech doesn't deprive speaker or listener of 1st protections (NYT v Sullivan? 1964) c)Balancing: Although Virginia State Board of Pharmacy has legitimate interest in preserving professionalism among its members, it may not do so at expense of public knowledge about lawful competitive pricing terms. -Rationale was paternalistic d)States still had power regulate some commercial speech, via content-neutral time, place, and manner regulations, and false or deceptive advertisements. -However, states couldn't suppress truthful information about lawful economic activity, simply out of fear of potential consequences. +Concurring Burger -Limiting scope of Blackmun's majority opinion; Ruling didn't extend to professional services like medicine or law. -Since regulation of these professions governed different set of risks, and services involved personalized to the client, holding of this case shouldn't apply to them. Dissenting Rehnquist a) Majority overextended 1st in elevating advertisement of products to the same level as ideological "marketplace of ideas". -Slippery slope argument: ruling would allow promotion of consumption of liquor, cigarettes, and other products which states traditionally discouraged. b)Lochner criticism; court writing its own economic policy into law. -Regulation should be within police power of state. c)1st protection should be limited to political and social issues.

Bates v. Arizona Bar 1977- SD

Commercial Speech: Lawyer advertisements protected by 1st +Fact -Bates put ad in Arizona newspaper for simple legal services . Arizona Bar prohibited lawyers from advertising. -Arizona bar association initiated proceedings against Bates. -Found guilty and given 1-week suspension. -Bates appealed claiming ban violated 1st commercial speech under Virginia Pharmacy 1976 decision. +Issue Does Arizona Bar's provision banning lawyers from advertising their services violate Bates' 1st freedom of speech, applied by 14th DP? Yes. 5-4 for Bates. +Majority Blackmun: a) Commercial speech has some 1st protection because important functions it serves individual and societal interest: i)providing consumers info about services and products (listener's interest is "substantial"), ii)helping allocate resources in American system of free-enterprise. -appellants' advertisement not misleading, and falls within 1st protections. b)Allowing attorneys to advertise wouldn't harm legal profession or administration of justice, and would supply consumers with valuable information about the availability and cost of legal services. c)Rejected tradition that "every lawyer had established clientele, or that lawyer's reputation for good work would inevitably lead others to seek out his services. -rejected this tradition as historical anachronism. -tradition created higher barriers to entry into legal profession; perpetuated the market position of established attorneys." e) states were still permitted to ban "false, deceptive, or misleading" advertising by lawyers; to regulate the manner in which lawyers may solicit business in person; to require warnings and disclaimers on lawyer advertising in order to assure that the public is not misled; and impose other reasonable restrictions on the time, place, and manner of lawyer advertising. +Dissenting-in-part Rehnquist: Protecting advertisements would demean 1st. -Still unwilling to take step down "slippery slope" argument from Virginia board dissent. -Decision would make it hard to distinguish between protected and unprotected speech.

Gregg v. Georgia 1976 - UP

Death penalty doesn't violate 8th and 14th +Fact -After Furman v Georgia's moratorium on the death penalty, Georgia wanted reduce jury discretion as well as arbitrary application of death penalty by spelling out conditions to jury that must be present before death p can be imposed. -Also state SC reviewed all jury determinations of death. -Bifurcated trials- guilt determination and sentencing separate -Gregg tried under Georgia's new death penalty system. -Jury found Gregg guilty of murder and sentenced him death. +Issue Is death sentence violation of 8th's protection against cruel and unusual" punishment applied to the states via 14th's DP? No. +Majority Stewart: a)Test for 8th's cruel and unusual punishment i) Punishment must not involve unnecessary and wanton infliction of pain. ii)Must not be grossly disproportionate to severity of crime. iii)Is it consistent with basic concept of human dignity. b) Is death penalty per se violation of 8th and 14th? NO -History says no: England and America had long history of acceptance -Framers of 5th and 14th considered capital punishment in light of due process and still didn't make any explicit prohibition. -Society today still see it as appropriate (35 states have laws allow CP). c) Didn't overrule Georgia's finding that capital punishment serves as useful deterrent to future capital crimes and appropriate means of social retribution against its most serious offenders. d)+Punishment of death did not violate 8th and 14th under all circumstances. e)Georgia's CP scheme satisfied the problems identified in Furman (too much: arbitrariness, jury discretion in CP) -Bifurcated trial and jury directions -Georgia SC reviews each CP decision. +Concurring White: Even with all the improvements of Georgia's CP scheme, jurors would still impse death penalty in substaintial portion of cases so it loses its usefulness as a sentencing device. b)Gregg has failed to show that Georgia SC failed to properly review jury's sentence. +Dissenting Brennan: a)Restating opinion in Furman that death penalty always "cruel ad unusual" and violation of 8th and 14th because -"It treats members of human race as "nonhumans, as objects to be toyed with and discard." (inconsistent with 14th and 8th that even vilest criminal remains human being possessed with common human dignity. -Cruel if penalty "subjects individual to fate forbidden by principle of civilized treatment guaranteed by 8th" +Dissenting Marshall b)Furman evidence shows that "capital punishment not necessary as deterrent to crime in our society" c)Denies argument that retribution is needed to promote stable society because people may become disorderly if they perceive state to be unwilling or unable to punish criminals. No evidence of this d)Death penalty, unnecessary to promote goal of deterrence or to notions of retribution, constitutes as excessive penalty forbidden by 8th and 14th.

Frontiero v. Richardson 1973 SD - Brennan tried SS but not adopted

Dependent requirements for husbands with military wives SD +Fact -Federal law stated wives of military members automatically became dependents; however, husbands of female military members not automatically accepted as dependents unless they were dependent on their wives for over ½ of their support. -Frontiero was woman in military and had allowance for her husband turned down. -Frontiero argued violation of equal protection requirement of 5th's DP clause. -Air Force argued that policy intended to save administrative costs by not forcing military bureaucracy to determine that every wife was in fact dependent. +Issue Did federal law, requiring different qualification criteria for male and female military spousal dependency, unconstitutionally discriminate against women thereby violating equal protection requirements of 5th's DP? Yes. 8-1 for Frontiero. +Plurality Brennan a)Federal law clearly commanded "dissimilar treatment for men and women who are similarly situated," violating 5th's DP and the equal protection requirement of that clause. b)Majority couldn't agree on judicial standard of review. i)Brennan applied strict scrutiny to sex-based classification as it would racial classification; Found government's interest in administrative convenience couldn't justify discriminatory practices (Reed v Reed 1971). -heightened standard of review needed due to America's "long and unfortunate history of sex discrimination". (Brennan's standard not adopted) +Concurring opinion by Powell (joined by Burger and Blackmun) +Wouldn't go so far as to hold sex discrimination to same strict scrutiny standard as race, -Instead, argued statutes drawing lines between sexes alone involved "very kind of arbitrary legislative choice forbidden by Constitution," approach used in Reed v. Reed. +Dissent Rehnquist Affirmed lower court's decision: District Court speculated dissimilar treatment of sexes was because most military personnel were male, and so administratively more efficient to give dependency benefits automatically to wives of servicemen.

*Freeman v. Pitts 1992 UP

Education/Race: End of Federal oversight in desegregation +Fact -DeKalb County School System (DCSS) in Georgia had racially segregated schools; slow to respond to Brown 1954. -Green v. School Board of New Kent County 1968 held freedom of choice plans alone didn't satisfy constitutional obligation to desegregate. -Green 1968 also outlines 6 factors in which a school district should achieve desegregation, -After Green decision, black residents sued DCSS school officials arguing their desegregation efforts inadequate. DCSS developed better desegregation plan and next years under court supervision made progress. -Then DCSS petitioned District Court to declare DCSS officially desegregated and withdraw supervision. -District court relinquished supervision in 4 areas, but maintained supervision in 2 areas in which segregation still existed. -Both respondents, black schoolchildren and their parents, and petitioners, the DCSS officials, appealed District Court's decision. -Court of Appeals 11th argued District Court should have authority over DCSS until it is fully desegregated in all 6 categories for several years. -Freeman, DCSS superintendent of schools, appealed to USSC +Issue Can federal court maintain supervision in all areas of desegregation even if Dekalb County School System has satisfied the goals of some of Green's factors? No +Unanimous Kennedy +district court must only maintain supervision over school system in categories school has failed to abide by court-ordered desegregation plan. a)incremental approach provides district courts with systematic and orderly means to their ultimate goal: to fully withdraw supervision. b)Once a school shows that it will act in accordance with equal protection, a court may hand control back to the district. c)Withdrawing supervision incrementally allows district court to focus more attention and resources where needed most. d)Swann 1971 doesn't require awkward and inconvenient measures to achieve racial balance. -Racial balance only to be pursued when racial imbalance was caused by constitutional violation. e)If ongoing racial segregation in public school district caused by private and not state action, federal judiciary has no constitutional authority to order district to remedy imbalance. -Resegregation that occurs because of private choices cannot be blamed on an unlawful school policy and therefore does not violate Constitution. f)Racial imbalance doesn't automatically points to de jure segregation. g)DCSS has no duty to achieve system wide racial balance in student population. SCALIA, CONCURRING a)Majority's decision has helped Dekalb County because they can run their own schools again; but this decision needs to be extended to other schools with federal judicial oversight. -Absurd that segregated system from long time ago still has effect on schools today. b)Must go towards tradition where: i)plaintiffs alleging equal protection violations must prove intent and causation, and not merely existence of racial disparity ii)public schools should be controlled by locally elected authorities and parents. iii)allow pupils to attend "schools nearest their homes." SOUTER, CONCURRING a)Agrees with incremental withdrawal but courts should find that unremedied Green-factors poses no immediate threat to causing racial imbalance. -Courts can reassert jurisdiction if this happens. BLACKMUN concurring Integrated school system is no less desirable because it is difficult to achieve, and it is no less a constitutional imperative because that imperative has gone unmet for 38 years.

City of Richmond v. JA Croson 1989 SD

Equal Protection: Affirmative Action in granting subcontracts for minority-contractors violates 14th's EP +Fact -Richmond had affirmative action program required city's construction contractors to subcontracts 30 percent of their total contract dollars to minority business enterprises (MBEs). -plan developed to correct effects of racial discrimination. -no specific examples that Richmond discriminated in awarding contracts to minority businesses; rather, problem stemmed largely from lack of minority-owned contracting businesses in Richmond area. -Croson Company was only bidder on project -minority subcontractor they were required to have demanded too high price. -Croson requested waiver from set-aside requirements or permission to raise cost of project. -City refused and rebid contract. -Croson sued to have set-aside program declared violation of 14's EP +Majority O'Connor: i)generalized assertion of past discrimination in entire construction industry cannot justify use of rigid racial quota. ii)City provided little evidence detailing scope of past discrimination a)Strict Scrutiny appropriate because Richmond law creates racial distinction; Richmond law fails strict scrutiny -stated interest of providing remedy for past discrimination in construction industry not compelling; based on evidence showing little previous discrimination in this area. -Plan not narrowly tailored: it favors all minorities rather than only African-Americans (and "absolutely no evidence of past discrimination against" those other groups). -There are alternative race-neutral ways for city to accomplish this objective. -Richmond's rigid pursuit of racial balancing through racial quotas unconstitutional. b)To accept Richmond's claim that past societal discrimination alone can serve as basis for rigid racial preferences would be to open door to competing claims for "remedial relief" for every disadvantaged group: - also would 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." +Dissenting Marshall: a)Courts previously have upheld affirmative action based on similar evidence Richmond used to justify its Plan. -Record show construction industry been subject to discriminatory practices, and it is unclear how this case differs from Fullilove v. Klutznick (1980). b)Strict scrutiny should not be applied to review affirmative action measures, but only to measures that are actually racist. -Majority seems to misguidedly believe that racial discrimination is no longer a problem that gov needs to address, when plenty of evidence suggests opposite.

*Swann v. Charlotte Mecklenburg 1971

Equal Protection: Racial balancing in Desegregating schools constitutional +Facts -After Brown 1, little progress in desegregating schools -When school board failed to submit plan for desegregation, district court appointed John Finger, educational consultant, employed Finger Plan. -Finger Plan required busing of additional 300 black students, established "satellite zones" and required pairing and grouping techniques to achieve even greater integration. -Finger plan approved by Court of Appeals. -Both plaintiffs and school board appealed to USSC +Issue Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation? Yes. +Unanimous Burger + Once violations of previous mandates directed at desegregating schools had occurred, scope of district courts' equitable powers to remedy past wrongs were broad and flexible. a)Racial balances or racial quotas remedial plans were to be judged by their effectiveness, and the use of mathematical ratios or quotas were legitimate "starting points" for solutions. b)One-race schools predominantly or exclusively black schools required close scrutiny by courts c)Remedial altering of attendance zones non-contiguous (borders not touching) attendance zones, as interim corrective measures, were within the courts' remedial powers d)Transportation of Students +no rigid guidelines could be established concerning busing of students to particular schools.

Reed v. Reed 1971 SD - Rat

First case ruling gender-based discrimination violates equal protection. SD Rational basis (legitimate; rationally related) +Fact -Man and woman Reed divorced, had son who died and left no will. -Estate was small; only few personal items and small savings account. Total value less than $1000. -judge appointed Cecil (father/man) administrator, in accordance Idaho law ("males must be preferred to females") -Although they were both parents (equal priority) judge said "males must be preferred to females." +Issue Did Idaho's preference of men over women in administration of estate violate 14th's EP? Yes. Unanimous for Sally Reed (woman) +Majority Burger: a)Idaho's law allowing different treatment establishes classification subject to scrutiny under EP. (Rational basis: legitimate interest; rationally related) -State's classification only allowed if "reasonable, not arbitrary, and show difference having substantial relation to the object of the legislation, so that all persons similarly circumstanced treated same." -Did difference in preference in administration bear a rational relationship to state objective? NO b)Idaho's arbitrary preference of males violates 14th's EP. -Reducing workload of probate courts (eliminate hearings on merits) is legitimate gov interest BUT -Mandatory preference to one sex for just that purpose is to make type of arbitrary legislative discrimination forbidden by 14th's EP -Lower Court's ruling in this context may not lawfully be mandated solely on the basis of sex." -Dissimilar treatment for men and whom similarly situated violated 14th EP.

Wisconsin v. Yoder (1972) SD

Free exercise: Yonder test: compelling interest/least restrictive means standard +Fact -Wisconsin had compulsory education law mandating children attend public or private school until age 16. -Law violated norms of Old Order Amish. -Wisconsin school district administrator brought criminal complaints against Yonder and other Amish for removing their children from school are they had completed 8th grade. -Amish Parents claimed that compulsory attendance law violated their 1st and 14th rights. Do compulsory education laws violate Yonder's 1st right to free exercise of religion, as applied to states by 14th's DP? Yes +Unanimous Burger a)Amish objection to formal education beyond eight grade is firmly grounded in deep religious conviction, therefore qualifies for 1st protections. -Values taught at highschool are in conflict with Amish values and way of life. b)Balancing gov interest in educating its citizens and fundamental right of Amish to Freely exercise their religion (1st) (Strict scrutiny) Yonder Test -Yonder Test: Gov restriction of religious exercise is Constitutional only if law advances compelling gov interest and employs least restrictive means available to attain that interest. c)Rejects Wisconsin's argument that law applies uniformly to all citizens on State and doesn't discriminate. -Even facially neutral regulation can violate consti if unduly burden's free exercise of religion Amish. d) Additional one or two years of high school would not produce benefits of public education (i-prepare citizens to participate in democracy ii-prepares persons for self-reliance) cited by Wisconsin to justify the law. e)Amish are productive members of society even without education. Concurring White: a)State has not shown that Amish children who leave school in eighth grade will be intellectually stunted or unable to acquire new academic skills later. b)Rule against state because: i)Amish religious policy is sincere. ii)Potential adverse impact of state requirement is great iii)State's valid interest in education already satisfied by eight years children have already spent in school +Dissenting-in part Douglass: +Amish children's rights are not considered: Majority only considered parents and State's interests. -Majority ruling would impose parent's notion of religious duty on the children (invasion of child's rights). -If Amish child desires to attend high school and is mature enough, the State able to override parents' religiously motivated objections.

*Boy Scouts of America v. Dale 2000 SD Strict

Freedom of Association: Gay Boyscout can be denied under 1st expressive association right +Fact -Monmouth Council of Boy Scouts of America revoked Dale's membership when they found out he was gay. -When Dale asked why, Scouts said Scouts forbid membership to homos -1992 Dale filed complaint against Boy Scouts claiming revocation of his membership violated New Jersey public accommodations law prohibiting sexual orientation discrimination. +Issue Were Boyscouts a private organization and thereby entitled to deny membership to individuals whose views were inconsistent with the group's values pursuant to 1st freedom of association (applied 14th DP)? Yes 5-4 for Boyscouts of America +Majority Rehnquist: a)Freedom to not associate is in 1st FA -Expressive association not absolute right; can be regulated by regulations that pass strict scrutiny. b)Boyscouts engages expressive association so protected. -BS leaders teach youth members values of BS both expressly and by example. -Association that seeks to transmit values engages in expressive activity c)Has to see if forced inclusion of Dale significantly affects group's ability to advocate public or private viewpoints. -Scout Oath and Law say "morally straight" and "clean" -BS says this is against homos. +Court accepts BS's claim that homosexual conduct is not morally straight and clean. d)Court has great deference for group in regards to accepting its values and what would impair its expression. e)BS ability to express its message is significantly affected by forced inclusion of DAle. -Dales presence in BS would force BS to send message that BS accepts homo conduct as a legitimate form of behavior. i)association need not associate for purpose of disseminating certain message to be protected ii)BS method of expression is protected. iii)1st does not require every member of group agree on every issue for group's policy to be "expressive association." +BS takes official position on homo conduct = sufficient for 1st protections. f)1st prohibits State from imposing such requirement through application of its public accommodations law +Dissenting Stevens a)New Jersey law doesn't violate BS right to associate and free speech because law doesn't impose any serious burdens on BS's goals. -Also doesn't force BS to communicate message it doesn't wish to endorse. c)"morally straight" and "Clean" doesn't say anything about honosexually. d)Disagrees with deference majority afford bS. -Inquiry on whether group is, in fact, expressing message (whatever it may be) and whether message (if one is expressed) is significantly affected by State's antidiscrimination law is to be conducted by Court's independent inquiry and not deference to group. e)Inquiry would yield that BS express no clear message burdened by New Jersey's Law. f)Prejudice against homos have ancient roots Bowers v Hardwick 1986 UP. -These prejudices still prevalent and are causing harm. -Harm is only added by Majority providing constitutional shield for a policy that perpetuates these prejudices.

*Hurley v. Irish American Gay Lesbians 1995 SD

Freedom of Association: Private parade can't be forced to show message +Fact -Veterans Council (private organization) in charge of organizing St Patrick's Day Parade. -1992 Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) applied to march in the parade -Council denied application -GLIB obtained state court order allowing group to participate GLIB filed suit against council parade organizer Hurley. -GLIB alleged denial of application to march violated, Massachusetts public accommodation law. -Council argued parade was expression of its commitment to "religious and social values." +Issue Was Parade a private event in which the Council (private organization) was entitled to 1st Freedom of expression and association protections allowing them to choose who could march? Yes Unanimous for Hurley +Majority Souter: a)Parade is form of expression entitled to 1st protections. -Parade is a public drama; marchers are making collective point. -Having identifiable, particularized message not requirement for 1st protection. b)Private speaker doesn't forfeit 1st protection simply by combining voices or not having exact message. -1st doesn't require speaker to create items featured in the communication; selection of marchers in parade is enough to warrant 1st protections. c)No GLIB members has been excluded from participating in approved groups marching. GLIB were only denied because their banner would have altered expressive content of Council's parade. d)State Courts wrongly in determining parade as place of public accommodation, also made -Council's speech itself to be public accommodation. -Under this reasoning, anyone would have right to participate in petitioners' speech and alter it. -But this use of State power "violate[s] fundamental 1st rule that speaker has autonomy to choose content of his own message and, conversely, to decide what not to say." e)Disapproval of private speaker's statement does not legitimize use of Commonwealth's power to compel speaker to alter message by including one more acceptable to others.

New York v. Ferber 1982 - UP

Freedom of Speech: Child Pornography not expression protected by 1st +Fact -New York law prohibited distribution of material depicting children engaged in sexual conduct without requiring that material be legally obscene. -Bookstore owner Ferber charged under NY law when he sold 2 movies to undercover police officer. -Films were "devoted almost exclusively to depicting young boys masturbating. +Issue Did New York child pornography law prohibiting persons from distributing material which depicts children engaging in sexual conduct violate 1st Freedom of expression applied via 14th's DP? No +Unanimous for NY +Majority White: a) NY passes strict scrutiny i)State's interest in "safeguarding physical and psychological well-being of minor is compelling" ii)Distribution of materials showing sexual activity of juveniles intrinsically related to the sexual abuse of children in 2 ways: -Materials produced are permanent record of children's participation and the harm to the child is exacerbated by their circulation. -distribution network for child pornography must be closed if production of material which requires the sexual exploitation of children is to be effectively controlled. c)Rejects Miller test argument because standard irrelevant to the child who has been abused. d) Value of live performances and photographic reproductions of children engaged in lewd sexual conduct (like the films of Ferber) is very limited. e)g) Miller test is loosened for child pornography cases: i)trier of fact need not find material appeals to prurient interest of the average person; ii)not required that sexual conduct portrayed in patently offensive manner; iii)material at issue need not be considered as a whole h) Distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. +Concurring Brennan: +In cases where depictions of children have serious literary, artistic, scientific, or medical value; regulation from NY law or similar laws would violate 1st Free expression. +"For Court's assumption of harm to the child resulting from "permanent record" and "circulation of child's participation", lacks force where depiction is serious contribution to art or science. +In absence of exposure, or particular harm, to juveniles or unconsenting adults, State lacks power to suppress sexually oriented materials.

Lawrence v. Texas 2003 SD Rational basis

Fundamental Rights DP: Homosexuals have privacy rights to intimate relations in their bedrooms +Fact -Houston Police responded to reported weapons disturbance in private residence, entered Lawrence's apartment and saw him and Garner, engaging in private, consensual sexual act. -Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of Texas statute forbidding persons of same sex to engage in certain intimate sexual conduct. -Like Bowers law, only applied to same sex. +Issue Does Lawrence's criminal convictions for adult consensual sexual intimacy in private home violate their privacy rights protected by 14th's DP? Yes +Majority Kennedy a)Liberty protects person from unwarranted gov intrusions into private places, allowing freedom of thought, belief, expression, and certain intimate conduct. b)Chose to deal with DP rather than equal protection. -Because to reconsider Bowers c)Issue more than just prohibition of sexual intercourse. -Law seeks to control personal relationship which is within liberty of persons to choose without being punished as criminals. d)14th's DP gives homosexuals right to engage in their conduct without intervention of the government," -adults may choose to enter relationship in confines of their homes and private lives and still retain freedom. -Sexuality is one element of relationship bond. -liberty protected by Constitution allows homosexual persons right to make this choice. -They were full consenting adults in realm of privacy. e)Privacy balancing; Texas law fails rational basis "Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," f)Court overruled Bowers. -Bowers' historical propposition of a longstanding tradition laws prohibiting homosexual conduct is overstated: dubious history in this country of laws directed at homosexual conduct. g)Points to emerging pattern for homosexual conduct -Number States with laws prohibiting conduct decreasing; states that have laws against gays not enforced -European court has ruled procripstions against gays invalid. h)PP v Casey 1992 reaffirmed substantive rights regarding personal decisions: marriage, procreation, contraception, relationships... i)Used Stevens' Dissent in Bowers +Stevens' dissenting opinion Bowers concluded: (1) fact that State's governing majority has traditionally viewed practice as immoral is insufficient reason for upholding law prohibiting the practice, and (2) individual decisions concerning intimacies of physical relationships, are form of "liberty" protected DP. -That analysis should have controlled Bowers, and it controls here. +O'Connor Concurring: a)Doesn't join Majority in overruling Bowers 1986 -she would have SD Texas law using equal protection rather than due process. -less persuaded by the privacy argument of the defense than its alternative argument that the state could not criminalize anal sex between men if it did not criminalize anal sex between a man and a woman. b)Rational basis; Texas law fails because moral disapproval of particular group insufficient to satisfy rational basis +Dissenting Scalia a)Disagrees with O'Connor saying belief that certain sexual behavior is "immoral and unacceptable" satisfies rational basis. b)warned that rethinking Bowers decision could have ripple effect that would undermine many of the Court's other decisions. -decision would lead to a slippery slope in which no form of sexual conduct, no matter how socially undesirable, could be constitutionally prohibited. -Also no reason to deny marriage to gay couples exercising liberty protected by Consti. c)laws are constantly based on morality, if all laws representing essentially moral choices are invalidated under 14th's DP, courts will be very busy indeed." d)Substantive DP only protects fundamental rights (deeply rooted in Nation's history and tradition) -Bowers 1986 decided homosexual sodomy is not fundamental e)He accused the majority of taking the process of social change into its own hands rather than letting gay rights activists pursue their goals through the legislature. -implying that the majority tailored its reasoning to further the causes of abortion and gay rights with which those Justices sympathized. +Dissenting Thomas: a)agreed with Scalia's dissent for the most part, b) Found Texas law was "silly" and should be repealed, -but he could find no constitutional basis for a right to privacy or other foundation for striking it down through the courts.

Planned Parenthood v. Casey 1992 - SD Undue burden

Fundamental Rights: Undue burden on abortion rights unconsti +Fact -Pennsylvania abortion control law required: i)informed consent & 24 hour waiting period prior to procedure. ii)parental (or judicial) consent for minors iii)Married woman seeking abortion had to indicate she notified her husband of her intention to abort fetus. iv)Record keeping and reporting -Provisions challenged by several abortion clinics and physicians. -Casey, Gov of Pennsylvania was defendant/appellee +Issue Can state require women who wants abortion to i)informed consent & 24 hour waiting period prior to procedure ii)parental (or judicial) consent for minors iii)Spousal notification iv)Record keeping without violating their right to abortion as guaranteed by 14th's DP (Roe v. Wade 1973)? No. 5-4 for Planned Parenthood. +Majority O'Connor -

Michael M. v. Superior Court 1981 - UP

Gender Discrimination: Statutory Rape Law that only applies to males consti laws based on Physical differences between men and women more likely consti and UP +Fact -Michael M., 17 and 1/2 year-old male, found guilty of violating California's "statutory rape" law. -Law defined unlawful sexual intercourse as " act of sexual intercourse accomplished with female not the wife of the perpetrator, where female is under 18 years old." -Statute thus made men alone criminally liable for such conduct. -Michael M. challenged constitutionality of Cal statutory rape law. +Issue Did California's statutory rape law unconstitutionally discriminate on basis of gender and thereby violation of 14th's EP? No. 5-4 for Cal. +Plurality Rehnquist a)Cal law passed intermediate scrutiny -"young men and young women are not similarly situated with respect to problems and risks of sexual intercourse." b)State had strong interest in preventing "illegitimate pregnancy." -Reasonable for unreasonable for legislature to protect minor females by excluding them from punishment. -Moreover, risk of pregnancy itself constitutes substantial deterrence to young females. -No similar natural sanctions deter males so penalties on men necessary to "roughly equalize" deterrents on the sexes. -virtually all significant consequences of teenage pregnancy fall on female, so legislature acts within its authority when punishing only males who, by nature, suffers few of consequences of his conduct." c)statute helped to further a major goal of the state -law aided in preventing teen pregnancy; major goal of state of California +Brennan dissent (joined by White, Marshall, and Stevens) a)Majority placed "too much emphasis on desirability of achieving State's asserted statutory goal - prevention of teenage pregnancy - and not enough emphasis on whether sex-based discrimination in California statute is substantially related to achievement of that goal." b)For Cal law to be consti, State must show that gender-neutral statute would be less effective means of achieving that goal.

US v. Virginia(VMI case) 1996 SD - intermediate / Exceedingly persuasive justification

Gender: 14th's EP- Gender discrimination must have "exceedingly persuasive justification" +Fact analogous to Sweatt v Painter 1950 -Virginia Military Institute VMI had men-only admissions policy. -VMI's mission to produce "citizen-soldiers"- men prepared to take leadership positions in military and civilian life. -VMI training stressful. -1990 complaint letter from female high school student made US sue Virginia and VMI allegingin men-only admissions policy violated 14th's EP. -In response, state created Virginia Women's Institute for Leadership (VWIL) as parallel program for women. -VWIL located in private women's college short distance from VMI. -VWIL program designed to train female "citizen-soldiers" to take leadership positions in American society, but many acknowledged funding, facilities, and academic programs at women's inferior to VMI. +Issue Does Virginia's creation of women's-only academy VWIL, as parallel program to male-only academy VMI, satisfy 14th's EP? No. +Ginsburg Majority a)Virginia failed to show "exceedingly persuasive justification" for VMI's single-sex admissions policy. -Inherent differences between men and women cannot be grounds for constraining individual's opportunity (Loving v Virginia 1967) b)Virginia's VWIL insufficient remedy for 14th's EP violation; could not offer women same benefits as VMI offered men. i)not provide same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets. -Remedy must directly address related violation. -Virginia has not shown substantial equality in the separate educational opportunities for men and women c)Virginia failed to support its claim that single-sex education contributes to educational diversity; did not show VMI's male-only admissions policy was created or maintained for educational diversity. -Similar to Miss v Hogan 1982; Court finds no close resemblance between " alleged objective" and " actual purpose of discriminatory classification," d)VMI's males-only policy didn't advance diversity. e)Virginia argued women's admissions would destroy would change VMI so much as to destroy it; affect i)physical training ii)absence of privacy iii)adversative approach. -Argument disproved because women serve in military and some women are fully capable for VMI standards. +Concurring Rehnquist: a)Disapproves of Majority introducing "exceedingly persuasive justification" to the appropriate intermediate scrutiny test. -This is element of uncertainty. -Would have stuck with intermediate scrutiny- "substantially related to important interest." +Dissenting Scalia: a)There are gender-based developmental differences that support Virginia's restriction of adversarial method to only men's VMI. b)Criticizing court for adding current preferences of society into Common Law. -Accusing Majority of judicial activism; inscribing their personal views onto consti. c)Majority doesn't answer questions of intermediate scrutiny. -Just uses "exceedingly persuasive justification"

Plyler v. Doe 1982 SD - rat but intermediate implied

Illegal Aliens (Noncitizens) has 14th rights +Fact -1975 Texas Legislature revised laws to withhold state funds for education of children not legal US residents in local school districts. -Law also allowed local school districts deny enrollment any illegal alien student. -1977 suit filed against Plyler (superintendent of Tyler Texas ISD) on behalf of Mexican school-age children living in Smith County, Texas. -Children were denied admission because couldn't prove legal status. +Issue Did Texas (Tyler ISD) violate 14th's EP by denying Mexican children any public education based on their illegal status? Yes. 5-4 for Doe +Majority Brennan: a)Illegal aliens entitled to 14th's EP . -Illegal aliens and their children, though not citizens of US or Texas, are people "in any ordinary sense of term". -Illegal aliens cannot be discriminated on grounds that they entered country illegally. -14th's phrase "within its jurisdiction" confirms protections extended to anyone subject to laws of State/US. b)b)Used 'rational basis'; but Intermediary scrutiny implied +Although undocumented resident aliens not "suspect class," and education not "fundamental right," BUT -Public education has pivotal role in society; deprivation of education damages individual's social, economic, intellectual, and psychological wellbeing, and poses an obstacle to individual achievement. -"area of special constitutional sensitivity" c)Texas law failed rational basis -Whether children has undocumented status vel non (or not) doesn't establish sufficient rational basis for denying benefits other residents enjoy. +Denied resources argument -classification cannot be sustained as furthering its interest in "preservation of state's limited resources for education of lawful residents." -Limiting negative economic effects of illegal immigration is a State interest but Texas law doesn't offer effective solution. +Concurring Marshall: Although joins Maj opinion, doesn't retreat from dissent in San Antonio v Rodriguez 1973. -Still believe education is fundamental right. -Supported by "unique status accorded public education by our society, and by close relationship between education and our most basic constitutional values. " +Dissenting Burger: a)Judicial activism criticism -Agrees education important but Court is trespassing on separation of powers by setting social policy that the Consti doesn't give them power to do so. -Rushing to fix social problem deprives political processes opportunity to function. b)Congress is vested with powers to deal with issue of illegal immigration

Duncan v. Louisiana 1968 - SD

Incorporated 6th right to jury trial +Fact -Duncan, black teenager in Louisiana, found guilty of battery against white youth by allegedly slapping him. -Duncan was sentenced to 60 days in prison and fined $150. -Duncan's request for a jury trial was denied. Judge cited Louisiana Constitution which grants jury trials only in cases involving punishments of hard labor or death. +Issue Did Louisiana violate Duncan's 6th amendment right to trial in criminal cases (as applied to states via 14th's DP)? Yes. +Majority White: a)Jury trial has deep history in US and therefore is fundamental --Preservation of jury trial as a protection against arbitrary rule was one of the main objectives in Declaration of Independence and Bill of Rights of 1689. b)Court rejects prior dicta indicating right to jury trial in criminal prosecutions not incorporated (palko v Connecticut 1937 UP) +Concurring Black: Also agree because of his dissent in Adamson v California a)Would choose Palko v Connecticut's 1937 selective incorporation over Twining's no incorporation at all. b_Believes that 14th intended to make BOR applicable to states. -But selective incorporation limits only incorporation of provisions in BOR, not like substantive DP. This prevents judges from roaming freely on their own notions of what policies outside BOR are desirable. +Concurring Fortas: +Disagrees that incorporation of 6th would have to also impose all its federal requirements to the states like unanimous verdicts or jury of 12. -This damages federalism. -14th's DP only requires Court to ensure basic fairness to federal proceedings. +Dissenting Harlan: a)14th's due process requires procedures to be fundamentally fair; doesn't require uniformity of rules between federal and state courts. -Doesn't require imposing federal notions of criminal justice onto states. b)Majority didn't say how framers of 6th intended to make it applicable to states, majority also conceded that procedures were fair in this case. Yet they still reversed the conviction. c)Harlan's interpretation of 14th. (substantive DP) (define "liberty" and "DP of law" using traditions of American gov and see if it is "fundamental") (wants total incorporation if they are incorporating BOR in order to maintain consistent standard) i)14th not meant to force incorporation of BoR provisions. ii)14th's protections not limited to only BoR provisions. -Ratifiers of14th didn't intend constitutional straitjacket on States. -Instead, they knew that conceptions of "liberty" and "due process of law" would change due to the increasing experience and evolving conscience of American people. This would result in new "intermediate premises" (implicit rights protected by consti but not written.)

Lemon v. Kurtzman (1971)

Lemon test: Both were excessive entanglement of church and state +Fact +Both Pennsylvania and Rhode Island adopted statutes that provided for state to pay for aspects of non-secular, non-public education. -Rhode Island Law provided state financial support for private elementary schools by supplementing 15% of teachers' annual salaries (teachers had to agree in writing not teach religious subjects) -Pennsylvania statute 1968 provided funding (state tax on cigarettes) for secular expenses in non-public elementary and secondary. Like: school teachers' salaries, textbooks, and instructional materials for secular subjects. -Lemon challenged this law by suing Kurtzman Pennsylvania's Superintendent of schools. Wanted trial court to declare law unconsti because establishment of religion +Issue Do statutes providing state funding for non-public, non-secular schools- for use of secular purposes- violate Establishment Clause of 1st? Yes. +Majority Burger + Both statutes unconstitutional under religion clause of 1st for excessive entanglement of state and church. a)Lemon Test: statute must pass all three-pronged test in order to avoid violating the Establishment Clause: i)secular legislative purpose, ii)its principal or primary effect must be one that neither promotes nor inhibits religion, iii) it must not foster "excessive government entanglement with religion." b)Both cases fail Lemon test: i)both state statutes in question had secular legislative purposes because reflected desire of states to ensure that minimum secular education requirements were met in non-public schools. GOOD iii)But excessive entanglement between church and state + In RI program, amount of oversight required to make sure no religion in secular curricular would require government to become excessively involved the RI schools. +Same danger for Pennsylvania statute (make sure money for secular purposes), which additionally provides state funding directly to church-related organization. -Government involvement in such institutions inevitably leads to "an intimate and continuing relationship" between church and state. c) Court also noted potential political implications of public funding, as there is a risk of religious issues becoming politically divisive. +Concurring Douglas: +Cited precedents that said no gov funding for religious purposes (Everson v BD of Edu 1947). a)Taxpayers' forced contribution to parochial schools in present case violates 1st EC. -Classes in schools are part of an organic system; you can't separately fund anything in a vacuum because it would inevitably affect a religious area of the institution. IE: Paying salaries of teachers. Even if they teach secular subjects, their presence as teachers is critical to purpose of parochial school which is to advance religion.

San Antonio ISD v. Rodriguez 1973 UP - rat

Other Equal Protections Issues: Poor not suspect class requiring strict scrutiny +Fact -Texas's formula for distributing funds to School Districts relied on local property taxes for supplemental revenue. -Although Edgewood district (Rodriguez) taxed themselves at much higher rate than other nearby districts but their yield from local taxes was lower because i)they lacked vast property tax base like other districts ii) lower value of assessable property. -Result: High inter-district disparity in per-pupil expenditures between the poor district and other district. -Also Texas law placed ceiling on amount residents could tax themselves for this formula. -No way for Edgewood parents to achieve funding equality. -Rodriguez and other Mexican American parents filed suit declaring state funding system violated 14th's EP. +Issue Did Texas' public education finance system violate 14th's EP by failing to distribute funding equally among its school districts?No. 5-4 +Majority Powell: a)No strict scrutiny -no fundamental right to education in Constitution -poor not suspect class. Texas system didn't systematically discriminate against all/just poor people in Texas (system disadvantages anyone who lived in poor school districts regardless of income) b)Doesn't violate 14th's EP; rational relationship to legitimate state purpose. -While assuring basic education for every child in State (legitimate purpose), system also encourages participation and control of school districts at local level (rationally related). -14th's EP doesn't require absolute equality or precisely equal advantages." c)Similarities between Texas' system and other states' proves funding scheme not irrational and invidiously discriminatory. +Dissenting Marshall: a)Right to equal start in life in regards to education is too vital to allow state discrimination on grounds as tenuous as taxable local wealth. b)The political process (legislative/exec action as suggested by Maj) is unsuited for providing remedy for this discrimination. -Takes too long meanwhile children get inferior education (Makes sense because Marshall in fighting segregated education found that legislative unwilling/ ineffective so had to use Courts instead) c)Disagrees with rigid strict or rational basis analysis of EP; Texas scheme is unconsti -Precedent shows Court applying gradations of review standards based on constitutional/societal importance of interest adversely affected and invidiousness of classification. -Whether right is fundamental isn't reliant on whether guaranteed by Consti. -Precedent shows Court has previously recognized rights not mentioned in Consti due to importance of interests at stake.

Central Hudson G and E v. PSC 1980 - SD

Powell 4 part test for commercial speech +Fact -Facing energy shortage, NY Public Service Commission ordered state public utility companies to stop all advertising that promoted electricity use. -Extended ban even after shortage ended. -Central Hudson Gas and Electric challenged the regulation. +Issue Did NY's ban on all advertising that promoted electricity use violate freedom of speech protected by 1st and 14th?Yes +Majority Powell: a)cited the protections for "commercial speech from unwarranted governmental regulation" set forth in Virginia Pharmacy. b)4-part analysis for commercial speech cases i)commercial speech must concern lawful activity and not misleading. ii)is gov interest substantial iii)whether regulation directly advances gov interest asserted iv)regulation not more extensive than is necessary to serve interests. c) regulation failed step 4 -Balancing: New York's interest in promoting energy conservation substantial and accepted NY PSC's regulation would directly further that interest. However, since regulation restricted all promotional advertising regardless of its effect on electricity use, it is overly extensive and violation of 1st and 14th. +Dissenting Rehnquist a)NY law is economic regulation, and the speech involved is low on hierarchy of speech protected by 1st. b)Court in using "no more extensive than necessary" analysis to assess the ban unduly impairs state legislature's ability to adopt reasonable legislation to promote interests reserved to the State

Bowers v. Hardwick 1986- UP

Privacy and Fundamental Rights: No rights Sodomy in private bedroom +Fact -Hardwick was observed by Georgia police officer engaging in consensual homosexual sodomy with another adult in bedroom of his home. Hardwick charged with violating Georgia statute that criminalized sodomy Hardwick challenged statute's constitutionality in Federal District Court. +Issue +

Stanley v. Georgia 1969 - SD

Private possession of obscene materials not a crime. +Fact -Law enforcement officers with warrant searched Stanley's home investigating his alleged illegal gambling activities. -During search, officers found three reels of eight-millimeter film. -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. +Issue Did Georgia statute infringe upon the freedom of expression protected by 1st? Yes +Majority: Justice Marshall a)+Rights to receive information and to personal privacy were fundamental to a free society. +"[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." b)+Distinction between private possession of obscene materials and production and distribution of such materials. -Production could be regulated by the states. Concurrence Stewart a)+4th is also at issue; films were seized in violation of 4th applied to states 14th. -4th prohibits general warrants to search person's home; particular items to be found must be specified on warrant. +Search warrant issued was for the seizure of materials in Stanley's home relating to bookmaking -No mention of obscene films on the warrant, and so the seizure of the films as evidence was unconstitutional. b)+Plain view doctrine (requires the character of object to be "immediately apparent"). -Films and their content not in plain view, officers had to play films to determine they violated Georgia obscenity statute. c)Search warrant cannot be used as a "ticket" to enter private property. -Once inside, an officer cannot assume the privileges of a general warrant. d)For these reasons, films are inadmissible as evidence.

Romer v. Evans 1996 SD Rational basis

Rational basis for Sexual orientation discrimination: +fact -Initial Amendment to Colorado constitution made sexual orientation impermissible ground for discrimination. -In responses, citizens against gays proposed and passed Amendment 2 -Amendment 2 prevented any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." -Evans, gay, sued Governor Romer and Colorado state claiming new amendment violated 14th's EP; amendment 2 prohibited gays from using political process to secure lgeal protections against discrimination. +Issue Does Amendment 2, forbidding extension of official protections to those who suffer discrimination due to their sexual orientation, violate 14th's EP? Yes +Kennedy Majority -At once both too narrow and too broad: singles out one group and denies them protection across the board. a)Amendment 2 singled out homosexual but no others, imposing on them broad disability by denying right to seek legal protection from discrimination. -A2 objective is to repeal legal protections for discrimination based on sexual orientation, and forbids reinstatement of these legal protections. -A2 is far reaching: repeals and forbids all laws providing specific protections in both private and public spheres -Homosexuals are forbidden safeguards others enjoy or may seek without constraint. b)Other people may find nothing special that A2 withholds because they take them for granted. -these are protections against exclusion from almost limitless number of transactions and endeavors that constitute ordinary civic life in free society. c)A2 fails Rational basis i)Broadly imposes disability on single group via invalid form of legislation. ii)So singular focused on homosexuals that only explanation is animus toward that group iii)lacks rational relationship to legitimate state interest (citizens' freedom of association against homos and interest in conserving resources to fight discrimination against other groups). d)Law making it hard for one group than others to seek aid from gov is denial of EP 14th and has no consti tradition +Dissenting Scalia: a)A2 was not born from desire to harm homos but attempt by Colorado citizens to preserve traditional sexual mores against politically powerful minority to revise these norms via laws. b)Court is departing from Bowers v Hardwick 1986 precedent. -Consti doesn't say anything about sexual-orientation discrimination so should be left to normal political processes. -SD A2 is not judicial judgment, but political will. c)Coloradans have entitlement to be hostile toward homo conduct as long as they don't punish it intruding on intimate lives. -A2 doesn't disfavor homos just denies preferential treatment.

Rostker v. Goldberg 1981 - UP intermediate

Requiring only men to register for the draft was constitutional. +Fact -Rostker (Director of Selective Service System) -Goldberg (lawyer challenging MSSA) -President Carter reactivated draft registration process. -Congress agreed with Carter's decision, but didn't enact Carter's recommendation that the Military Selective Service Act (MSSA) be amended to include registration of females. -Number of men and lawyer Goldberg challenged gender distinction of MSSA. +Issue Did MSSA's gender distinctions violate 5th's Due Process Clause? No. 6-3. For Rostker. +Majority Rehnquist: a) Congress's decision to exempt women from registration "wasn''t motivated by traditional way of thinking about females'" and didn't violate 5th's. b)Men and women not "similarly situated" for purposes of draft registration because of combat restrictions on women. -War historically based on physicality so men dominated the field, as a result, women were generally not eligible for combat in the different military branches. c) Drafting women for noncombat roles would create administrative and military problems that are sufficient to justify Military Selective Service Act excluding women. +Dissent White -Didn't think excluding women "offended the Constitution", but rather Congress didn't "conclude that every position in military, no matter how far removed from combat, must be filled with combat ready men." +Dissent Marshall -dissented on the principle of equal civic obligation.

Loving v. Virginia 1967 - SD

Right to Marry is fundamental right. +Fact -Jeter (black woman), Loving (white man) married in Washington DC. -Returned to Virginia to live and 1 yr later charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. -Lovings were found guilty and sentenced to a year in jail -Lovings file suit against Virginia's antimiscegenation law claiming it violated EP clause of 14th. +Issue Did Virginia's law preventing marriages between persons solely on basis of racial classifications violate the Equal Protection of 14th? Yes. +Unanimous Warren a)Rejected state's argument that statute was legitimate because it applied equally to both blacks and whites. (equal application theory) -Equal application doesn't satisfy the heavy burden of justification required (by 14th) of state statutes based on race. (Strict scrutiny) b)Racial classifications subject to strict scrutiny c)Right to marry is fundamental. -Fundamental to existence and survival. -"Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State." -Freedom to marry long recognized one of vital personal rights essential to orderly pursuit of happiness by free men. d)Virginia law violated 14th's EP. -No legitimate purpose independent of racial discrimination. -Restricting freedom to marry on account of race violates EP.

Griswold v. Connecticut, 1964 - SD

Substantive Due Process Right of Privacy includes right to use contraception. +Facts -Connect law prohibited distribution and use of medical advice on contraceptives -Griswold, director of Planned Parenthood opened birth control clinic in 1961, with intent of being arrested for violating Connecticut contraception law -Griswold arrested for dispensing contraceptives to married couple. +Issue -Does Constitution protect right of privacy against state restrictions on a couple's ability to be counseled in use of contraceptives and ability to use contraceptives in bedroom? Yes. +Majority Douglas a)Griswold and Buxton had standing. +Precedent permits appellant in certain circumstances to invoke rights of third party in challenging constitutionality of a law. Rights of Clients of Griswold and Buxton (married couple). -Law impedes directly on right of married couple to have a confidential relationship as clients with appellants. b) 14th's Substantive Due Process includes right to privacy which extends to decision of married couples to use contraception. -Implicit right (right to use contraception) made specific right (right of privacy) more secure. c)Penumbra from explicit rights 1,3,4,5,9 gave life to implicit rights. -Created zone of privacy in bedroom -Connecticut law was destructive to this zone. d)Right to privacy under 14th is fundamental and requires strict scrutiny test; law fails. -Law unnecessarily broad and would give police right to search sacred place of martial bedrooms for contraceptives. +Concurrence Goldberg a)+Relied on 9th to incorporate right of privacy. b)+To determine which rights are fundamental must look at the "traditions and [collective] conscience of our people" to see if principle is "so rooted there as to be ranked fundamental." +Concurrence Harlan +Relies on 14th's DP (reiterates his Poe dissent) -Law violates basic values "implicit in concept of ordered liberty." -Liberty interest in 14th embraces right to privacy. -Right doesn't need to rely on all the rights Douglas said; just 14th is enough. +Concurrence White: +14th's DP; used rational basis test -State's interest against promiscuous sexual relationships is valid BUT -State's law has mostly been against birth control clinics rather than single person, so policy is not rationally related achieve goal of reducing the incidents of adultery. +DISSENT BLACK (total incorporationist; doesn't like adding rights not explicit in BOR via 14th's Substantive DP) a)right of privacy not expressly in Consti. b)Gov has right to do something unless expressly prohibited by Consti. c)+Rejecting natural law +Regarding Harlan and White's premise that Court has power to invalidate all state laws it considers arbitrary, unreasonable or oppressive. And if law under scrutiny has no rational purpose, or is offensive to "sense of fairness and justice" -This premise is based on natural law, which require judges to determine what is consti on basis of their own beliefs of what laws are necessary. (this is power of legislative body) -This is taking on power to make laws; justices only has power to interpret laws d)+Goldberg's 9th and tradition -No way to figure out traditions rooted in collective conscience. e)rejects philosophy that Consti must be changed over time by judges; -There are ways correct to add rights via constitutional amendments by the people. +DP is an "arbitrary and capricious" formula that threatens stability of the nation (see dissent in Lochner v NY 1905) +Dissenting Stewart: -Agree philosophically with majority: "Uncommonly silly law" but -No where in consti that protects right of privacy -Connecticut citizens can use 9th and 10th to persuade representatives to repeal it.

National Treasury Union v. Von Raab 1989 UP

Suspicionless drug testing for certain employees didn't violate 4th Search and Seizure +Fact -1986,US Customs Service implemented drug testing program through urine for employees who: i)either carry firearms, ii)involved in intercepting drugs as they enter country, or iii)in high level positions involving classified information. +Issue Did drug testing program of US Custom Service employees which didn't require probable cause violate 4th's prohibition against Searches and Seizures? No. 5-4 for US Customs Service. +Majority Kennedy a)Gov passes reasonable standard; situation serves special gov need (beyond normal law enforcement) so doesn't need warrant or probable cause. -Drug testing program is to deter drug use among employees who are in sensitive positions in the Service. -These substantial interest may justify departure from warrant and probable cause requirements. b)Requiring warrant would take up Custom Service's resources and not provide any protection of personal privacy. c)Government's need to conduct suspicionless searches required by Customs program outweighs privacy interests of employees engaged directly in drug interdiction, and those carrying firearms. d)Government has compelling interest in safeguarding our borders and public safety -Drug testing policy serves this interest by ensuring front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment customs personnel are country's "first line of defense" against drug smugglers and they are exposed to criminal elements, so they have "diminished expectation of privacy" because of the demands of that position. +Scalia Dissenting a)Disagrees with Majority because neither frequency of use nor connection to harm was demonstrated. -No evidence Customs agents have history of drug use or evidence of problem existing. b)Drug testing program was implemented as PR move to show Americans Customs Service is serious about war on drugs. -Individual liberty cannot be sacrificed to make symbolic point. c)Cited Brandeis Olmstead (UP) dissent to criticize ends justifies means approach.

*Roberts v. Jaycees 1984 Brief Supp UP

UPHELD Minnesota Human Rights Act public accommodation law +Fact -Jaycees (civic organizations for young men) had bylaws limiting membership to males between 18 and 35. -Females given limited membership; couldn't vote or hold office -2 local Jaycees chapters in Minnesota, contrary to bylaws, admitted women as full members. -When Jaycees revoked the chapters' licenses, Minnesota chapter filed discrimination claim alleging exclusion of women from full membership violated Minnesota Human Rights Act. -In response, Jaycees sued Kathryn Roberts of Minnesota Department of Human Rights, who was responsible for enforcement of anti-discrimination law; Argued requirement to admit women as regular members violated male members' 1st free speech and association. +Issue Did Minnesota's attempts to enforce anti-discrimination law violate Jaycees' male member's 1st right to free association applied via 14h's DP? No. Unanimous 7-0 for Roberts. +Brennan Unanimous a) Application of Minnesota Human Rights Act compelling Jaycees to accept women as regular members didn't abridge either male members' freedom of association b)Jaycees not private group that enjoys 1st protections. Jaycees outside of 1st protected category of "highly personal relationship" because of: i)Its large size, ii)unselective membership, (no criteria being employed for judging applicants for membership) iii)many of its important activities involved participation of nonmembers of both genders. c) Minnesota law passed Strict Scrutiny (shades of O'brien Test) i)Court ruled State's compelling interest in combating gender discrimination (interest unrelated to suppression of expression) justified law's impact on Jaycees' male member's freedom of expressive association. ii)State has advanced those interests through the least restrictive means iii)even if Act causes incidental abridgment of appellee's protected speech, that effect is not greater than necessary to accomplish State's legitimate purposes. d) no evidence showing admission of women as full voting members will impede appellee's ability to engage in its constitutionally protected civic, charitable, lobbying, fundraising, and other activities, or to disseminate its preferred views. +Concurring O'Connor: rights of commercial association (minimal protection) vs rights of expressive association (lots of protection) a)a)Compelling interest/Obrien test both overprotective of activities undeserving of constitutional protection and underprotective of important 1st concerns. b)Commercial association and speech minimal protections -Majority required right of association dependent "substantial showing that admission of women will change message communicated by group's speech." (Brennan's part D) -Test might improperly give protection for discrimination when commercial associations engage in expressive activities. c) Expressive association and speech full protection In weighing interests of Minnesota in ending gender discrimination against the Jaycees' 1st right of association, Majority neglects to estalbish Jaycee's activities and purposes are protected by 1st because of expressive association. -Ban on specific group voices on public affairs violates 1st (strict scrutiny), contrastly, -only minimal constitutional protection of the freedom of commercial association (rational basis). +Association's right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice.

Grutter v. Bollinger 2003 UP

Was diverse law school student body compelling gov interest? Yes. -Critical Mass allowed and wasn't rigid Quota like Bakke +Facts -Grutter, white resident of Michigan, applied for Michigan Law School. -Grutter applied with 3.8 GPA and LSAT 161. Grutter denied admission. -Grutter sued claiming rejection due to admissions policy that awarded racial preferences violation of 14th's EP. -Michigan Law didn't set rigid race quota like Bakke -Each applicant considered individually. -Michigan Law School used race as factor in admissions because to create "critical mass" of minority students which it claimed served "compelling interest in achieving diversity among its student body. +Issue Does University of Michigan Law School's use of racial preferences in student admissions violate 14th's EP or Title VI of Civil Rights Act of 1964?No. +O'Connor Majority a)student body diversity is compelling state interest that can justify use of race in university admissions. b)Michigan Passes strict scrutiny because didn't use quota system or other forms of "racial balancing" (narrowly tailored) to impermissibly achieve diverse student body (compelling interest). -considered each applicant individually and holistically. -Michigan Law's admissions policy promotes "cross-racial understanding," c)Evidence shows educational benefits of diverse student body -Amici: military, businesses -Schools training ground for Nation's leaders d)Narrowly tailored doesn't require exhausting every race-neutral alternative -require serious, good faith consideration of race-neutral alternatives that will achieve diversity university seeks; Michigan did this. e)To be narrowly tailored, race-conscious admissions program must not "unduly burden individuals who not members of favored racial groups." -Michigan passes Summary: 14th's EP does not prohibit Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining educational benefits from diverse student body Dicta: Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." +Dissenting Rehnquist: a)Law School's admissions policy was not narrowly tailored. -Critical mass is just veil for racial balancing b) Michigan doesn't offer race-specific arguments why one minority required more students than others. +KENNEDY, dissenting. a)To be constitutional, university's compelling interest in diverse student body must be achieved by system where individual assessment is safeguarded throughout admissions process; Michigan law doesn't show how they reconciled individual consideration of applicants against "critical mass". +Thomas Dissent/Concurrence: a)Quotes Douglass in arguing that black Americans can achieve without meddling of governmental administrators. b)Concurred with O'Connor that racial preferences would be unlawful in 25 years, however, Thomas found race-based affirmative action programs in higher education unlawful now under 14th's EP. c)Majority doesn't realize that racial classifications are perse harmful; no benefit can justify racial classifications. d)Quotes own concurrence in Adarand 1995 that affirmative action programs stamp minorities with badge of inferiority that cause them to develop dependencies or adopt entitled attitude. -stigma against minorities because people question if they are qualified. e)Echoes Harlan Dissent in Plessy 1898: Consti is Color-blind. -no compelling state interest in Michigan maintaining an elite law school -if Michigan could not remain prestigious institution and under race-neutral system, "Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system."

Buckley v. Valeo 1976 - SD

i) Political campaign contribution subject to limitations ii) Expenditures in campaigns constituted speech and couldn't be limited. +Fact +After Watergate, Congress attempted to remove corruption in political campaigns by restricting financial contributions to candidates. -Federal Election Campaign Act of 1971 (Act) -i) Limits money individual/ groups could contribute to single campaign. ii) Limits expenditures by individuals, groups,or candidates for campaign. iii) Limits expenditures by candidate from personal/family funds. iv) Required political committees to record contributions above certain amount. v) Required disclosures of political contributions vi)Federal Election Commission was created to enforce the statute. +Issue Did limits placed on i)contributions and ii)electoral expenditures by Federal Election Campaign Act of 1971, violate 1st's freedom of speech and association clauses and 5th DP? i)No ii)Yes. +Per Curiam i) Upheld Restrictions on individual contributions to political campaigns and candidates (did not violate 1st). ii) SD Limits on both candidate and independent expenditures (did violate 1st.) -Consti affords broadest protection to political expression to assure exchange of ideas for bringing about political and social changes desired by the people, -These issues include "political association as well as political expression." b) Upheld contribution limits to political campaigns and candidates; (didn't violate 1st) -Justified by state's interest in "the prevention of corruption (large financial contributions) and appearance of corruption spawned by real or imagined influence of large financial contributions on candidates. -FECA restrictions enhance "integrity of our system of representative democracy" by guarding against unscrupulous practices. - Limitation only marginal restriction upon contributor's ability to engage in free communication", because persons/groups free to communicate directly with voters. c) Gov restriction of independent expenditures in campaigns, limitation on expenditures by candidates from personal/family resources, and limitation on total campaign expenditures all violated 1st. -These things don't necessarily increase potential for corruption like individual contributions to candidates would do; restricting them didn't serve gov interest great enough to warrant curtailment on free speech and association. d) Upheld reporting and disclosure requirements: --Government has vital interest in "provid[ing] voters with information 'as to where political campaign money comes from and how it is spent by candidate' to help voters evaluate candidate. -"disclosure requirements deter actual corruption and avoid appearance of corruption by exposing large contributions and expenditures to public e) Gov Public funding of campaigns constitutional -The Court held that the government can condition receipt of the campaign subsidy on a candidate's voluntary agreement to limit his or her total spending. f) FEC appointment scheme was unconstitutional violation of separation of powers.