Con Law II

1/11/10

Individual Rights for this semester

1880-1937- worker protective laws were passed, and the supreme court said that congress may
not infringe in the liberties of the employer and employee relations.
Dark ages era- Lochner Era
1937- the court repudiated Lochner, in the Caroline products (pg 34) case the courts took a
different approach in judicial review, they only way they would get involved if there is a
violation of the first ten amendments, the political process is defective, and when the result is
motivated by prejudice.

Theme for this semester: How can we enforce Caroline products without Lochnering.

Lochner v. New York (pg. 489)

Lochner owns a bakery and he makes his workers work more then 12 hours a day, so NY
congress made a law stating that bakers could not work more then 12 hours a week. NY law is
challenged, and he could ask for an injunction, but these were not very common during that time.
So the best way to challenge a statute is by violating it and they bring and affirmative defense. If
the defendant wins then the statute will fall if the state wins then all of the bakers will be
affected. Here, the NY Supreme court stated that the statute was constitutional, it is appealed and
it goes to the US Supreme court.

Justice Peckham (Majority 5)

Liberty is protected by the 14th amendment, however the state can infringe on liberty when the
state is acting on its police power.
Police power in the box, and liberty is outside that box, so where does the statute fall in or
outside of the box?
In side the box is Health, Safety, Welfare, and Morals.
So what is the justification for the law? NY says that the statue is all about a health regulation
because it is unsafe for bakers to bake for that many hours. However, Peckman does not believe
it and is going to give intensive scrutiny and thus the law fails and the statute is unconstitutional.

Dissent
Harlan (3 votes)
Has more in common with Peckham, because he argues that the issue is within the box, however,
he is a little more lax as to what is Health (following precedent, but is not in accordance as to the
details)

Holmes (lone vote)

States that the majority has its prejudices of capitalism or labor, and believes that the court
should hold back because they are imposing their own values (not following precedent)
He is a Thayerist- only laws that are right out discriminatory should be strike down. It is not the
job of the courts to strike down registration.
We should not be protecting formal equality, but instead real world equality.

Challenged:
The 14th amendment section 1 (privileges and immunities)- it is a privilege to pursue whatever
occupation they want
Section 2 (equal protection)- bakers are being singled out by being the only ones protected
Section 3 (due process)- substantive due process includes common law rights (right to recover in
tort, or have K’s enforced, right to property)

In 1937 the court overrules Adkins v. Children’s Hospital, a derivative of Lochner, and Holmes
opinion becomes the model.

Flag Salute Case

The Jehovah witnesses decided that it was against their religious believes to salute the flag,
however, under Gobitis, in an 8-1 decision the court stated that the state is the best institution to
implement such laws stating that nationalism promotes safety. However, in 1941 President
Roosevelt did a speech letting the world know of the four freedoms including civil liberties.

1/13/09

The demise of Lochner

West coast Hotel v. Parish- there is a lot of pressure on the court since at this time 25% of the
population is unemployed. Here, mere rationality is good to pass a statute. (Warren court)
Here the court relaxes in judicial review in legislature, but instead they are only going to ask
whether is rational.
In 1937 the interpretation of the constitution changed.

The contract clause is included in the text of the constitution which means that it was very
important to the founders. Prevents states from letting people out of their obligations.

Blaisdell- in this case a state placed a moratorium on debtors and thus prevented collectors from
taking over the property of the debtors, this however violated the contract clause of the
constitution. Individual rights can be sacrificed for the general welfare of the public that is what
the majority says to support the statute. Here, he changes precedent and to back it up he brings
up McCullough. – contracts clause was overturned

You went from Contracts clause (due process clause) to Equal protection (double standard)- due
process (“preferred freedoms”)

So what happened around 1937 for the court to change its mentality?
- Ackreman has a theory that in 1937 the constitution was amended outside the 5th
amendment because Roosevelt kept rallying up for change
Williamson v. Lee Optical
The rule here is that you cannot take you broken glasses to get them fixed to an optomologist
without a prescription. However, the court said that it is okay because the legislation might have
a rational basis for passing it.

Railway Express b. NY
Statute states that you cannot have advertisement in the side of the car unless the car is of the
owner of the business. The claim is that it violates the EPC because it treats business owners
better then advertisers.

Jackson’s concurring opinion said that he hates due process because it is a lot like Lochner, but
instead he believes that equal protection could be democracy enhancing, but it might impose
burden in minorities who do not have a full blown power of the majority.

West Virginia v. Barnette

Jackson’s opinion: 6-3 overruled Gobidious stating that the they need to protect religious
freedom.
The 14th amendment incorporates all of the provisions of the constitution and gives power to the
states on the constitution. Thus, even though Congress is the only one that cannot make law
infringing religion, the 14 amendment incorporates it to the states.
He states that this violates the 1st amendment he does not make it clear because he is more of a
moral value/ purposeful.
Frankfurter dissent: he states that the court should not get involved and that the states know what
is best for their people.
This case takes a small step toward protecting civil liberties without tripping over Lochner.

1/20/10

Equal Protection
Level of scrutiny
Rational basis- minimal scrutny
Strict

-anti-classification of equal protection ( where you divide persons into groups based on
characterists)
- anti- subordination of equal protection (having the purpose or effect of subordination of one
group over another)
If both of these are in harmony then it will be a really easy case it will be a Loving or a Brown
case, if they are not in harmony then it will be much more difficult

RACE:

Loving v. Virginia
Virginia State has a statute that prohibits interracial marriage, the Loving’s were an interracial
marriage and they got
Here it is clear that the judges brought moral values to the holding of this case stating that the
Virginia statute is unconstitutional.
They looked at the central purpose of the 14th amendment; here the intent of the law is to
subordinate or to heighten the purity of the white race which is definitely unconstitutional.
Equal protection claim on the base of race
Due process claim= right to marry
The court here applies strict scrutiny because of race

The way strict scrutiny works, two tests:

1.The state has to have a purpose an end in mind- it must be compelling
2. Means ends scrutiny- we look at the fit between the means and the ends; the end must be super
legitimate and the means must be narrowly tailor to achieve the ends
(invidious act)

Naim v. Naim (1955)

Similar like the Loving case, however, the case came out the other way which meant that the
court was not ready for interracial marriage.

If it is a racial classification or a racial subordination then you will put them through strict
scrutiny.

Yick Wo v. Hopkins
The board of San Francisco Board of Supervisors adopted a statute stating that if you have a
laundy made out of wood you need a permit. All of the Chinese people who applied (except one)
were being denied of the permit; however, all whites were being provided permits. Thus, may be
on its face the law was not discriminatory on its face, however, it the intent of the law was to
discriminate.

Discriminatory intent vs. impact effects

- Intent for a law to discriminate as opposed to
- The effects will be discriminative because the law is so disproportionate that

Gregs vs. Duke Powers (TITLE VII)

The power plant started to require a high school diploma to work at the plant. The intent is to
have smarter workers, however, the effect was that it prevented minorities to qualify for the job
because in the real world a lot of the minorities do not acquire a high school diploma. The court
holds that if a work place has a discriminatory impact then the burden shifts to the employer to
justify that this discriminatory practice benefits the work place.
Title 7 permits for discriminatory impact or effects which will satisfy equal protection.

Equal Protection
Cases:
Brown(1954)- states the problem with segregation is that it adversely affects the hearts and
minds of African American children and it discriminates. Under Brown white supremacy is the
motivation, and what Brown says is that we have to be colorblind.
Loving- Different then Brown because this once states that not allowing interracial marriage
stating that it applies equally to blacks and whites, however the court states that this is
discriminatory because it also motivates white supremacy.
Yick Wo- this one is facially neutral, however, the discrimination was disguised because it still
discriminated against Chinese when it was administered
Palmer v. Thompson- No segregation in the swimming pool, so when they were ordered to
desegregate they decided to close all of its pools. The court said that there was no discriminatory
effects because it had the same effects in Blacks and Whites. Here the court declines to look at
motivation because it is tricky and is nuance. Thus, what matters is the effect not the motivation
or intent unless it is discriminatory on its face.
Griggs (Title 7)- this is a reading of title 7. It says that an employer may not use a test because it
has discriminatory effects, even if it has the purest of motives, if the outcome of that neutral test
is discriminatory if it does not have any relation to the employment (it must show a business
necessity). Equal protection also include discriminatory effects or impacts. If you can show that
there is a statistical disparity then the burden will fall in the employee to justify the disparity.
Disparate impact does:
1) Smokes out illegitimate motives
2) Over-inclusion who do not have a discriminatory intent
Washington v. Davis- (equal protection) This case resembles Griggs because Test 21 has nothing
to do with the job, this case is based on equal protection not title VII. The court held that
disproportion alone is not discrimination, thus this cannot be looked at with strict scrutiny. Thus,
if it is not looked with strict scrutiny then it will fall under rational scrutiny and thus it will most
likely survive. The court here is applying the colorblindness model because the test applies to
everyone they state that motive is what matters not the effect. They state that Palmer is their
backup, however, Palmer states that the motive is not important, but the effects. Here it fails to
take into account actual equality (aka real world equality)
Ricci (title 7)
In order to get promoted to captain or lieutenant they needed to take a standardized test,
however, when the results came out they were drastically disproportionate, thus the city threw it
out for fear of liability under title 7. The firefighters who did really good brought suit under the
equal protection clause stating that there was discriminatory treatment because of their race (they
are mostly white) Equal protection should be read in a colorblindness way. The court held that
title 7 can require disparate treatment because left unchecked will lead to unfair disparate
treatment. It is impermissible to get rid of the test under title 7.
Models:
Anti-subordination/ anti-caste- You want to make sure all laws do not have discriminative intent,
nor effect
Anti-classification/colorblindness – You did not intent to discriminate, thus the effects do not
matter because of no intent

Scrutiny
Rational basis: minimal, pretty laid back (will most likely pass)
Strict Scrutiny (will most likely fail) – you need a compelling state interest, first look at the ends
(is what the gov trying to do so important that it meets governmental interest) The goal has to be
compelling. Second, you look at the means and see if the means are narrowly tailored to meet the
ends, the means chosen must be necessary and must be the least problematic.
Two ways to win: one is to satisfy strict scrutiny (which is almost impossible), or to get your
case into the rational basis category.

1/27/10

Scrutiny categories
Rational Basis
Strict Basis
Anti-classification/colorblindness- equal protection prohibits making distinctions based
on something like race (very individualistic, there are not groups)- it follows with
discrimination intent
Anti-subordination/ against the status quo- (not individualistic, instead it is based on
group identity) we do not want to the state to reinforced the subordination of historically
oppressed groups

Problem 3-4 Page 228

Death Penalty case
What kind of scrutiny will this case get?
Rational- No because
Strict- yes, because of discretion
Under Washington V. Davis- district impact is not enough, you need to show discriminatory
intent or treatment. You have to show that there is intentional discrimination (need a smoking
gun).

Problem 3-5
Rational or Strict scrutiny?
Strict, because even though we have a disparate impact, however, there is no prove that there is
discrimination, nor that the legislators intended that this effect will happen. Davis does not apply
here because that holding is only persuasive authority, the state constitution of Minnesota can
overprotect is citizens rights and include disparate impact as well as opposed to Davis which
stated that disparate impacts was not enough.

School desegregation

Swan v. charlotte board of education

The court has a broad power to remedy past discrimination (bussing)

School Desegregation
De Facto- segregation did not happen by the state, but instead it happens because the custom,
wealth and practice segregates a city (happens because people move to certain places)
De Jure- segregation intended by the school district or state (intentional)

Remedies- desegregation vs. intergration

- under Brown the district court was the one giving remedies, and thus taking on a different
role
Worth too?
3rd parties?

Green
Swan- the court held that the court could give the necessary remedy to get rid of segregation.
Here, the judge bussed kids to white predominant schools and vise versa.

Keys- the court held that if the segregation is due to de facto circumstances then there is no
constitutional violation. There will only be a violation if the segregation is de jure or incited by
the State. Thus, if they could show that there is some evidence that there was racial manipulation
then that will be considered de jure segregation.

Miliken v. Bradley
Holding: Busing between separate school districts is only justified when “racial discriminatory
acts of the state or local school districts or of a single school district have been a substantial
cause of interdistrict segregation.” There are innocent 3rd parties who are being harmed by such
actions.
(Shot down bussing)
2/1/10

Desegregation
De facto vs. De Sure

Remedies- Scope

North too?
Problem of “innocence”

Desegregation
Brown I- this is where it all started, by the 1960 the court is very liberal. The more conservative
interpret brown as anti-classification.
Brown II
Green- after this case the question of how is it going to happen?
Swan- the court could do whatever is necessary to make desegregation happen
Keys- is segregation in the north actionable?
- segregation has to be intended (de jure), if there is any evidence of state role in
segreations then the remedy is okay even in the north

Miliken I- it is for the district judge to craft a remedy, they have all the flexibility of remedial
powers they need
Miliiken II- it is a big deal for parents to bus kids from one school district to another school
district. Busing is only ok if the discriminatory acts have been a cause of inter-district boundary.
This is appease with Washington v. Davis. Here you need to have an actively wrong doing to
enforce a remedy. This might punish innocent victims because there is no intention of
desegregation and yet some whites are bused to cities to desegregate. The court states that they
fix the violation and they need to bother no one else.

Freeman v. Pitts- it is very important to defer to the good faith commitment, if there is then the
court needs to back off. It does not matter if there is no integration, but rather if there is
desegregation in good faith. (kinda saying point out the bad men, and if you cannot then too bad
for the plaintiff).

Missouri v. Jenkins II & III- supports Freeman, it states not to go too far in its remedies
We have now gone away from Swan and moved toward freeman. (very narrow remedies)

Affirmative Action
Here the court is kind of backing away from Caroline Products
Brown
Bakke (strict scrutiny) - Mr. Bakke sues because 16 of the 100 spots are reserved for minority
members. The minority states that this case is an anti-subordination case, thus they will not give
strict scrutiny to affirmative action. However, four other judges stated that this case classifies
students and discriminates. Justice Powell broke the tie by stating that the davis plan fails
because it has quotas and strict scruity applies to affirmative action. However, strict scrutiny
could be met if race is being looked at as a plus factor not a must factor. Diversity is a valid
factor to satisfy strict scrutiny.
Fullilove (Intermediate)- it involves federal set-aside for minority business enterprises. 10% of
the federal money needs to go to minority contractors. The court said that it was fine because
emphasizes the importance of giving benign justification and gives them only intermediate
scrutiny not strict scrutiny. Section 5 gives congress special powers to do broad remedies, so
they get extra slack. (this is more of an anti-subordination approach)
Wygant (Strict)- a collective bargaining agreement and when you have lay-off you need to do it
by seniority, unless the majority left are white, and they give a percentage of minority who can
be laid-off. There is nothing racial about seniority, however, the minorities are the ones with
least seniority. The court states a remedy that take race into account so long as it is a remedy for
actual past discrimination, to the point that you need an anti-discrimination program. However,
in this case the plaintiffs cannot show the past discrimination.
Croson (strict)- There is a 30% minority business enterprise in Richmond, Virginia. Fullilove
will support the plaintiff, and defendants could say that it does not apply because Fillilove was a
federal case and this one is a state case. The court is completely split in the opinion; however, the
majority agree that this case should be viewed with strict scrutiny because it classifies people.
You can say that this is a remedy for past discrimination; however, the defendant will need to
show the past discrimination. (there has to be a link to identify discrimination.)This flunks strict
scrutiny (it fails for state and local goverments).
Metro Broadcasting
Adarand v. Pena

Anti-subordination- you rebel against the status quo and want to bring actual equality to all
Anti-clasification- you freeze the status quo

Neutrality- possible? Desirable?

Baselines- status quo,

Diversity

2/3/10

Affirmative Action continued…

Croson
Majority- O’Connor, Rehnquist, White, Kennedy, Scalia (these do not buy into the benign
classification and state that we should not be classifying people.)
O’Connor believes that all classifications are invidious.
Middle- Setevents
Dissent- Marshal, Brennan, Blackmun

Strict scrutiny
Need: Ends: compelling government interest- remedying of past identifiable discrimination
Need: Means: Narrowly tailored to the ends (only if they cover just those identifiable victims)-
person specific
You needs to specify a specific discriminator, otherwise you will not be able to satisfy the
means, ends for strict scrutiny

Intermediate (test more relaxed)

Needs: Ends: important
Needs: Means: substantially related (easier to survive)

Benign discrimination- it is designed to do helpful (to remedy the effects of racism)- they get
intermediate scrutiny
Invidious discrimination- you are trying to stigmatize minorities

Rational basis
Needs: Ends:
Needs: Means:

After Croson affirmative action it looks like it is not going to survive because all cases need to
get strict scrutiny

Metro Broadcasting (Intermediate)

The FCC is giving preferences to minorities. Here, the court comes out different because they
say that this is a case of intermediate scrutiny because it is federal like Fullilove and Croson is a
state case. Section 5 gives extra power to congress to enforce the 14th amendment (however this
runs into trouble because the 14th states that there can be no classifications). The 14th amendment
does not apply to the federal government, it only commands the states, the 5th amendment applies
to the federal government which gives due process to the people. The end here is more diversity
in the airways and that is an important governmental interest, and thus giving preferences to
minorities for licenses is substantially related to diversity.
This case reiterates the state and Federal government distinction.

Adarand v. Pena (Strict)

This case eliminates the intermediate scrutiny. It eliminated the distinction between State and
Federal discrimination.
Here, the federal contract is given additional compensation for hiring subcontractors that are
from socially disadvantage groups. The lowest bid was not a socially economically disadvantage
group, but the contractor chose a minority. The court overturned Metro Broadcasting and
Fullilove stating that they did not give special consideration for the government discrimination
and stated that the case on point is Croson stating that all classification cases require strict
scrutiny.
Judge O’Connor states that strict scrutiny could be satisfied if the government has a compelling
interest and the means are narrowly tailored, thus, “SS is not strict in theory, but fatal in fact.”

Scalia concurs- states that strict scrutiny is fatal in fact, by saying all affirmative action gets strict
scrutiny.

Thomas concurs- disagrees with dissent and states that there are victims due to the affirmative
action programs because the government knows that the majority will be discriminated, thus the
discrimination will be invidious.

Stevens and Ginsburg dissents- states that it is not difficult to see the difference between benign
and invidious discrimination.

Grutter v. Bollinger
Plaintiff is asking for a fair opportunity to compete, however, due to affirmative action. At
Michigan Law School there is no quota for minorities, however, there are plus factors which give
you more points if you’re a minority. O’Connor invents a new compelling government interest
stating that in the field of education affirmative action is good if:
1) because it benefits education
2) brings diverse student body

This case holding is narrowly drawn to education, so it does not apply in a different scenario.
She adds that O’Connor hopes that in 25 years race is no longer a problem and that all the
minorities have caught up.
Grutter gives the alternative so that it is not discriminative like get rid of the LSAT, and to admit
people by lottery, expanding classes, or stop being an elite law school.

Ends allowed so far:

1) Remedying past individual past discrimination
2) National security
This case survives strict scrutity.

Equal protection is individualistic, and is subject to strict scrutiny.

 2/10/10

Intentional segregation of schools of anything is unconstitutional (Brown)

Yoo
Lulove
Washington v. Davis- discriminatory effects do not count, you need to find intent.

Affirmative action
There is a strong trend on anti-classification
Crose and Aradan- give affirmative action strict scrutiny always
Grutter- brings diversity into the picture, and looks at each applicant individually
Gratz- states that you cannot the university is treating race as a group instead of looking at the
individual

Rational Basis- Ends- anything that does not afoul to other things to the constitution
Means- must be reasonable related to the ends
-Really easy to satisfy
Intermediate scrutiny – Ends- important governmental interests
- Means- substantially related
Strict Scrutiny Ends- compelling governmental interest
Means- narrowly tailored
- you have to prove that no alternatives fit better then the ones you have
o Good Ends: Remedying past discrimination
 School desegregation (here you have to pay attention to race)
 If harm was done to someone based on race, the legislature could come up
with a program to remedy the particular act of discrimination
o Good Ends: National security
 It is okay to discriminate to protect the nation
o Good Ends: Educational diversity
 The means in Grutter were good because the University used an
individualized system to admit students

Remedies to segregations are not held to any scrutiny, thus that court has a lot of room to
remedy.
However, to have a remedy you need to have a continuous violation of the law.
De facto segregation does not merit mediation by the court, but the political institutions can do it
if they want.
This case brings together the Brown segregation and the affirmative action cases

Parents involved in Community Schools v. Seattle School District

Two school districts are keeping tabs on race for magnet schools and transfers to and from
schools. One of the district’s was de jure segregated, but the decree was lifted in 1973 and the
other district does not have a history of discrimination. Thus, the court stated that de jure
segregation has been cure many years ago, thus this is race classification, or race balancing and
thus, looks like affirmative action, and affirmative action needs to meet strict scrutiny. The court
concludes in this case race was exclusive as oppose from Grutter race was a component to the
admission to the school. Also, Grutter’s opinion only applies to higher education. However, even
if the diversity argument is successful, the means fail because they are not narrowly tailored,
because there are other alternatives that need to be taken into consideration.
Justice Roberts really wants to strike this case down because this case classifies people and the
only way we want to classify people is when you want remedy an ongoing violation of the
constitution.
Justice Kennedy concurs:
He says that you take diversity into account, however, the means do not exhaust the alternatives
remedies, because there are many other remedies.

Breyer dissents (77 pages of dissent)- he is articulating the underenforcement theory, the
tailoring is fine. Then he reads Brown stating that the court should not be in the business of
stopping desegregation

Shaw v. Reno
This is like Washington v. Davis except that it comes out the other way, because if the district is
so gerrymandered than it could be said that the legislators were intentionally thinking of race
when they did this.

2/17/10

Sex and Gender

Law of the land at the time of the constitution
Femme Sole- Single women
Femme Convert- Married women (the woman’s identity was merged with that of her husband)
1848- womens rights and equality between the sexes (first movement in the US)(Stanton,
Anthony, Woodhull, Paul, were all activist women)
1867- the 14th amendment was drafted but it did not include women
- so what is the original intent of the 14th amendment?
- it specifically did not choose to include women in the interpretation in the 14th
amendment.
Bradwell v. Illinois- woman wanted to become a lawyer, and it was not allowed. She brought
suit under the immunity and privileges clause. However, Justice Bradley, stated that women did
not have any independent identity from that of her husbands.

Minor v. Happersett- was denied the right to vote, Bradwell brought down this case.
Muller v. Oregon (1908)- has an exception, and gives women some power
Adkins v. Children’s Hospital- the court changes its mind of the exception
1920- the 19th amendment is passed and that is why Muller is overruled

Gloesaert v. Clearly
Allowed women to work as bartender if the husband or dad was owner of the bar. It stated giving
women more power.
After 1937- Lochner falls apart
d
1960’s the feminist movement starts again!
Congress’ action
- Title 7- bans discrimination in employment (passes in 1964) (but not really enforced)
- Title 9- requires equality in higher education (1972)
- Equal Rights Amendment (E.R.A.)- equality should not be denied or abridge on the base
of sex (did not last very long)
Two things to do if there is discrimination: sue on a statute, or change the constitution (this is if
you are looking at the discrimination in an originalist point of view.
Court’s action
Started to apply the living constitutionalist theory- where movements have shaped the
interpretation of the constitution
Reed v. Reed(1971)
Preferred males to administer estates, over females. The court stated that it was convenient
because the men was going to get all of the property anyways, thus it was convenient. However,
it would not survive strict scrutiny because the means are not narrowly tailored. But, here we are
only applying rational basis.
Rational basis plus- this case is closer to intermediate scrutiny than to rational basis. Burger did
this because he wanted it to be read as strict scrutiny.

Frontiero v. Richardson
A wife could always be defendant of her husband, but for a husband to be dependent of a wife he
had to be 50% or more dependent. There is a distinction of the sex based on the men of the
military. Justice Brennan states that they were going to follow Reed, and also uses the cases
before Reed to support that Sex has been discriminated. Thus, he created a class that needs to be
seen with strict scrutiny. He adds that because congress has recognized women’s rights then the
court should also recognize them in the court.
There are four votes for strict scrutiny, there are three votes for rational basis plus. Thus, strict
scrutiny is left hanging, and at the end it does not stick. (so Brennan is going to invent
intermediate scrutiny which will stick)

Stanton v. Stanton- statute where parents can stop supporting a child if she is 18, but not a male
until he is 21. The court states, that the distinction does not pass Reed, and is based on
stereotypes that women will get married at 18, and men will get an education which will need
more support from their parents. Stereotypes will need more then just rational basis scrutiny.

Schlesinger v. Ballard- a navy office challenges a statute, where the men have a shorter time to
get promoted. The court allowed it because women are not allowed in combat, so they need more
time to make it to the top. Thus, this is really leveling the plain field for men and women to get a
promotion.

Khan v. Shevin- widows not widowers are allowed to get a tax break because women will have a
harder time to get a job after she becomes a widow. The statute was upheld because women do
face more hardship then men.

Craig v. Boren
Statue in Oklahoma stated that women were allowed to get 3.2% beer when they are 18 and men
have to wait until they were 21. Men sued for discrimination based on sex. The court stated that
this deserves intermediate scrutiny (it must serve important governmental objective and must be
substantial related to achievement of those objectives.)
Dissenting- there should not be that many rational basis.

2/22/10

Craig v. Boren
The court made up a new level of scrutiny, intermediate scrutiny. This might allow a little more
flexibility.

Ends test in intermediate test- important state interest; means have to substantially relating to the
ends. (you must rely on the actual justification at the time it is created)

In Califano v. Goldfarb- striken down because it is based on a stereo type

In Califano v. Webster- SSI calculation was not the same for man and women (women had better
outcome), the court stated that this was okay because it redresses the previous discrimination of
women

Mississippi Univ. v. Hogan – this is a single sex school where a man wants to apply and is
denied because he is a man, the brings a suit and the court found that the rational for
compensating women was not adequate and was based on a stereotype that women did better in
nursing. Thus, the court struck it down.

US v. Virginia
This is an all male military academy and they used the method of constantly challenged and
doubting (very demoralizing). The school opens another institution similar to the men one except
that this one is for women, however, there they do not use the method of constantly challenged
and doubting. The court states that this gets intermediate scrutiny however here the court is
asking that the means be exceedingly persuasive (Ginsburg wants to raise the level of scrutiny).
However, this school does not survive this level or scrutiny because the argument that Virginia
get because it perpetuates stereotypes. It is important to correct these stereotypes so the court
gives a remedy of letting women in VMI.
This case is based in “real differences,” but what is a real difference.
Dissent- Scalia
He states that women are not discrete and insular minorities. He states that they should let the
legislature fix it. Scalia states that the courts view should be neutral and should not intervene in
either side.

What is intermediate scrutiny after Virginia? Depending on the party and the justices. But we
think that it is a lot closer to strict then to rational.

Real Differences
Cases that allows distinctions based on “real differences”

Michael M v. Superior court of Sonoma county- a penal code only included statutory rape for
women not men. Here the girl was 16.5 and the male was 17.5 years and was charged with
statutory rape. The guy sued stating that that statute was unconstitutional; the government’s
argument was that women could get pregnant at a young age, and men cannot. The court states
that there are real differences, here the statute is hurting man, not helping women.
This court interprets the intermediate scrutiny closer to rational bases.
Blackmun (concurs)-
Brennan dissents- states that this is a stereotype, and thus there is no real difference.

Parham v. Hughes- a Georgia law allowed mother, but not the father to bring the child’s
wrongful death suit. The court stated that there is a real difference between mother and fathers in
regards to children. The view is that women are naturally going to bond to the child, as oppose to
the father is not because it is not sure if he is the father.

Rostker v. Goldberg
Men when they turn 18 have to register for the draft, but if you’re a women you do not have to
register. The court upholds the distinction because women are not permitted to go into combat,
thus the court defers to the military and to congress.
The level of scrutiny is intermediate trending toward rational.
Marshall dissents: his level of scrutiny is trending toward strict scrutiny.

Nguyen v. INS
Statue gives automatic citizenship to children born to a US citizenship mother out of wedlock,
however, it will not be automatic if the father is the US citizenship. The court upheld the
differences stating that Congress gives the level of scrutiny to immigration issues. Thus, like
Rosket it has a deference to congress and that is why the court applies intermediate scrutiny
trending toward rational basis.

2/24/10

Disparate impacts
Geduldig v. Aiello- CA decided that it would save money by not providing disability insurance
to pregnant women. The claim is that men are treated more favorable than woman. The court
stated that this was not sex discrimination, because here the state is discriminating for being
pregnant not for being a women. The court gave a rational basis scrutiny because the sex is not
being discriminated because in one side of the equation is men and women who are not pregnant,
and on the other side is pregnant women.
Congress passed the Pregnancy discrimination act, it incorporates pregnancy into the sex
discrimination clause in title VII.

P.A. of Mass. v. Feeney- Feeney is a civil servant in Mass. and she has taken test and done really
well (high enough, but for other factors would have gotten the job). Feeney never got the jobs,
however, there is veteran’s preference statute, thus, veterans had preferential treatment. Feeney
sues in the basis that to give a veteran’s preference is to give men a preference. Feeney needs to
show a purpose and show that the legislature wanted to favor men. The court stated that Feeney
needs to show that the action taken by the legislation was in part of “because of” not merely “in
spite of” discriminatory intent. Feeney needs to show intent of the discrimination to win her
case. Here, however, there was no evidence that the state intended to exclude women when
passing the veterans preference statute.
Feeney has the burden of finding the intentional discrimination.

Court will not allow classification in the bases of sex, however stereotypes diminishes the
opportunities to women is not going to work. ST putting burdens on women is not going to allow

Other suspicious other classifications:

Wealth, Language, and disability

Wealth is not a suspect to scrutiny.

MLB v. SLJ
The courts allow the parents to the rights to appeal because they could not pay the fees. Justice
Ginsburg ruled that by denying the parents the appeal will violate the equal protection clause.

Language- does not get heightened scrutiny

Hernandez v. New York

The prosecutor in the case eliminated prospective jurors because they understood/speak Spanish
and he did not believe that they could accept the interpreter as the final arbiter. The court agrees
with the prosecutor and added that there is no intent on the part of the prosecutor that he was
using language as a pretext. The prosecutor offered a neutral explanation as to why he eliminated
the jurors.

Rule: if you want to challenge a juror and the other side makes an argument that there is a racial
pattern in the elimination then the burden shifts to the lawyer, but if the lawyer has a neutral fact
for elimination then the burden will shift to the plaintiff to prove that his actions are a pretext to
discrimination based on race or gender.

Batson v. Kentucky
3/1/10
Pregnancy discrimination does not constitutes sex discrimination on the bases of equal protection
Language is distinguishable from race

Disability
City of Cleburne v. Cleburne living center
Creates a new category: rational basis with bite

Facial challenge: challenges a statute on its face

As applies challenge: as the statute applies to me is unconstitutional (veering more toward this
now)

Facts: The living center applied for a special permit to house the feeble-minder and the city
council denied the permit. The living center sued and the court stated that the developmentally
disabled are a “quasi-suspect class” and that, under intermediate scrutiny the city’s zoning
regulation was invalid both on its face and as applied. The Supreme court refused to recognize
the disabled as a quasi-suspect class, however they stated that this did not leave them entirely
unprotected from invidious discrimination. Also, the court gave this case rational basis, however,
rational basis did not survive in this case, thus this is called rational basis with bite.

Why doesn’t the real differences argument works here? Because the court does not want to get
into the fine differences of disable people.

Sexual Orientation

Romer v. Evans
Some parts of Colorado pass a law prohibiting the cities from discriminating on sexual
orientation. The conservatives of the state made and special election to nullify city law, and
Amendment 2 came into law which prohibited homosexuals from proclaiming a minority
protected class. Kennedy states that you cannot single a group out and prevent them from their
rights
If you are trying to kill the amendment:
This case should come out with heightened scrutiny because they are a suspect class since there
is history of discrimination. (Craig or Frontiero). Second, we can argue for rational basis with
bite (Cleburne).
If you are trying to uphold the amendment:

Sexual orientation

Romer- failed rational basis.

Kennedy’s theory for sexual orientation-
- Animus based- no targeting
- Process- can’t close to a group
- Rational basis with bite for sexual orientation
If you read Romer narrowly (this case is pure animus hatred) if you want to support heterosexual
marriage. If you are representing the gay couple then you want to read it broadly.
Scalia’s dissent: his class is over exclusive and his main case on point is Bowers which
criminalizes sodomy. However, he does state the difference between being homosexual and
sodomy. Scalia punishes status as opposed to acts, and states that if they are gay then they must
engage in sexual acts thus, since sodomy is a crime, then amendment two should be okay
because it is disfavoring criminal acts.
So is this case just targeting status or is it just animus based.

If you can use the state’s constitution you can create different interpretations of the constitution
and the US Supreme Court cannot review the holding on the state’s constitution.

Watkins v. US Army
The ninth circuit heightened scrutiny to gays and lesbians (however, the Supreme Court vacated
this argument)

Goodridge v. Department of Public Health

Massachusetts in its constitution provides for same sex marriage because that is a fundamental
right and because of the equal protection clause.
Fertility is not a requirement for marriage, thus marriage is not about procreation. There is no
need to have a child raised by a man and a woman. And the financial aspect of the state is going
to be impacted by preventing gay marriage. Thus, the court gives this case intermediate scrutiny
and it kind of blurs the line between it and rational basis.

In Re Marriage cases
California gives strict scrutiny to these cases, this does not mean that the ninth circuit will give
all cases similar strict scrutiny this only applies to CA.

Railway express set up: there needs to be a legitimate interest and the means must be rational
related to the ends.

3/8/10

Three things in the 5th amendment applies to states:

Privileges and Immunities
Equal Protection
Due Process
In the 1800’s the court in a case established that the bill of rights did not apply to the states only
the federal government.
The 14th amendment was created after this and created obligations on the states (included the first
8th amendments to the states)

Goodrich stated that sexual orientation needed only rational basis???

In re Marriage Cases(CA)
Here the court decided to apply strict scrutiny. The equal protection of the CA constitution is
what the court uses to get strict scrutiny. This is not an immutable (undisputable) class, and they
are not political powerless (Caroline products (is it a discrete and insular minorities?). However,
the court is interested whether there is settle undated stereotyping and the court said that here
there is.
The court is not interested in practices and tradition because it usually masks inequality.
The court also did not buy the argument that the acceptance of gay marriage will devalue the
people who are already married.

There is still strict scrutiny for sexual orientation; however, it carves out a narrow definition of
the equal protection meaning of marriage. Thus, everything else, such as employment
discrimination due to sexual orientation is still not going to fly, but only Marriage is not allowed.

FUNDEMENTAL RIGHTS

Due process protects procedure, the right to get a fair trial.

Privileges and Immunities protect substantive rights.
When privileges and Immunities does not work, we invent substantive due process to take on the
protections that the immunities and the privileges were taken away.

The Slaughter House Case

Louisiana banned all slaughter houses except for the Crescent City Company. The court upheld
the Louisiana exception. The majority say that they are not going to create a fundamental right as
you see fit without government regulation. They instead said that they had a fundamental right
(article IV) under P and I to pursue their occupation. Thus, if we follow slaughter house then we
should not take the P or I clause (14th amendment) seriously.

3/10/10
The 9th amendment tells us that we the enumerated fundamental rights (1-8th amendment) is not
an exhausted list of all of our fundamental rights.

Privilege and Immunities clause- adds other fundamental rights, however, the court has
eliminated he P and I Clause, and thus now you have to look for fundamental rights under the
due process and the equal protection clause.

The incorporation question- deals with enumerated rights (1-8th amendment) (do they apply to
the states)
The unenumerated right question asks- are they legitimate, and what are they?

Due process has come to protect fundamental rights

Palko v. Connecticut (overturned in the 1960’s)

Palk was charged with first degree murder and the jury found him guilty of second degree. The
state appealed because there was an error and wanted the case to be remanded. The court agreed
to retry him and found him guilty of first degree murder. Palko appeal stated that there is no
double jeopardy because it will violate their fundamental fifth amendment. So should double
jeopardy apply only to the federal government or should the state also abide by it.
The court stated that the test for enumerated rights whether a right is incorporated against the
state whether that right is implicit in the concept of order liberty. However, Cardozo does not
care if the right is implicit in the constitution, but whether is implicit in the concept of order
liberty. Thus, double jeopardy does not apply to states.

Since this case stated that it does not matter if the right is enumerated as long as there is ordered
liberty, and you can extend it to fit unenumerated rights.

Incorporated rights to states

First amendment
Fourth amendment
Fifth Amendment except no grand juries
Six Amendments
Eight Amendments

Not incorporated
Second Amendment (may be, current case pending)
Third amendment
Seventh amendment

Adamson v. California (overturn in the 1960s)

Murderer did not testify at his trial and the judge and the prosecutor pointed out to the jury that
due to his act of not testifying that is evidence against him. The murderer challenged this under
the fifth amendment of no self- discrimination.
The court stated that the right of self-incrimination is not part of the 14th amendment because this
does not violate the concept of ordered liberty

Justice Black, dissent

Does not like justice discretion (the court makes things up). Thus, take away discretion because
if they do then they are using “natural Law” (lochnering), and incorporate all 8th amendments.

Justice Frankfurter, concurring

States that by taking discretion that they need, will deter states from reform and due process and
the court should really intervene only when necessary. This is too mechanical, and believes that
selective incorporation; allow only some important enumerating rights, but still leaving
discretion to the court. (rights recognizing Anglo-American traditions)

Skinner v. Oklahoma
Sterilization is ordered for criminals who have committed three crimes, unless they commit
violations of the prohibition laws, revenue acts, embezzlement, or political offenses. Does one
have a fundamental right to procreate? This is for sure and unenumared right because it is not
explicit in the constitution, but it will fall under equal protection clause of the 14th amendment.
Here, the law does not apply to every criminal equal because it excludes white collar crimes.
Only rational basis is needed to approve this discrimination.

3/15/10
Equal protection is supposed to protect you from classifications.

If you create fundamental rights, then strict scrutiny will attach.

Triggers of Equal protection: invidious classification (must show discriminatory intent)
1) Race is involved (strict scrutiny)
2) Gender (heightened, intermediate, and intermediate plus scrutiny)
3) Rational bases plus
Wealth gets rational basis
Other way to get Equal protection triggered: (the trigger is not classification)
Fundamental interest (strict scrutiny)
1) Giving a right that is not in the constitution and making it a fundamental right, this gets
strict scrutiny.
2) The interest is so fundamental that the court will apply strict scrutiny, and if it is not a
fundamental interest, then it will get rational basis.
Due process fundamental rights
1) rights incorporated by the 14th amendment (enumerated rights)
2) Unenumerated rights

Fundamental Interests
Get heightened protection

Voting

Reynolds v. Sims
There is unequal redistricting and thus rural areas had 16 times the voting power then the urban
areas. Here, no one is being deprived to the right to vote, however, there is an issue and to the
inequality of the wage of their vote. The holding is that voting is a fundamental interest and
when the voting is unequal then strict scrutiny is triggered. This case does not fall into the
suspect classes of the invidious classification, but because the court believes that this is wrong
they create a new category called “fundamental interest” and give it strict scrutiny. The justices
state that the constitution as a whole is all about the right to vote, thus, they turn a textual
argument into a structural one.
The fundamental right to vote can be infringed by delusion. (one person one vote). One person
one vote is not required by the constitution, but it is required that the right to vote is not diluted.

Bush v. Gore
Each state is constitutionally obligated to elect their electors, and the states have the right to
choose by however means they wanted to elect the electoral college of their state. When Florida
gave the presidency to Bush, Gore sued stating that they were violating the State constitution
because they were not taking into consideration the intent of the voter. Then Bush’s lawyer’s
requested cert, however, the lawyer needs to prove that this somehow violated the US
constitution. Thus, he claims that this falls under the 14th amendment, equal protection clause.
Not all counties are included, and the intent of the voter standards is not specific enough. The
court decided that the recount stop and that they should go with the results they had before the
court got involved.
Stevens Dissent: stated that the court needed to leave the recount to the state for them to figure it
out.

San Antonio Independent School District v. Rodriguez

The poor district of Edgewood sued the district because they were getting a disproportionate
amount of money less then that of the Alamo Heights which was predominantly white. If you
have schools, then education will become a fundamental interest where once it exists then it has
to be distributed equally. Or is it? The court stated that education is a fundamental right, but only
having a minimal education is fundamental, not having the same amount of funding is
fundamental. Justice Powell is worried about remedies, he does not want to take away local
control, and he is afraid of Lochnering.

3/17/10

Equal protection- invidious classification

- You need intent (Davis)

Equal protection- fundamental rights

- The interest is so fundamental that you have to protect it to super prophylactic remedy to
protect it.
- The court applies a balancing test
As applied- takes out the parts that are unconstitutional
Facial challenged- all of the statue is struck down

Fundamental rights- Due process

-Schools are not constitutionally mandatory, however, if you have them then there needs to be
equal treatment for all.
- Warren would create a prophylactic right around the fundamental right (give it strict scrutiny)
to protect it from dilution.
- However Powell does not follow Warren, instead, Powell stated that the equal
protections clause does not require absolute equality or precisely equal advantages (Powell gave
it rational basis scrutiny)

Marshall dissenting in the Rodriguez case: he approaches it by structure and values. Even though
it is not expressed in the constitution, it is still a fundamental right that deserves strict scrutiny to
protect the right. He states that there should not be classification of scrutiny, but instead it should
be a sliding scale. He chooses it because he believes the scale works better then the categories.
He said he was not Lochnering because he does not care about the economic impact, here he is
favoring the poor because the rich are the ones getting the benefit over the poor.

Plyer v. Doe (right thing to do case)- rational basis with bite

TX passed a law that excluded children of illegal immigrants the right to an education. The court
stated that this violated the equal protection clause because it punishes innocent children who
have no control of the situation. The court stated that this is irrational and even though Rodriguez
stated that education was not a fundamental right the court still found that this was an equal
protection violation (mainly because the statute was so hateful, that the court applies a more
elemental equal protection analysis).

Edgewood Independent School District v. Kirby

This is State law, so if you cannot get it through the courts, then get it through the states (since
they have their own constitution).

Right to Travel

Saenz v. Roe
CA law stated that for the first year they were in CA for the first year you get the benefits from
their original state. The court stated that all people in the US have a right to interstate travel
includes the right to stop and set up residence, and the state cannot discriminate for when you
decide to stop under the privileges or immunities clause.

3/22/10

Fundamental Privacy Rights

Meyer v. Nebraska (pre-1937)

Nebraska law banned the teaching a language other than English. However, this case follows
directly form Lochner. This is not a right for the students to learn a foreign language, but it
protects the right for teachers to contract with their students. The judge thinks that learning a
different language does not affect Health, Safety, Welfare, or Morals (which is the only things
that States could regulate) so the court stated that there is no business for the state to intervene.
This is simply a right to contract with the students, because in the constitution you have a right to
liberty of contract.

Planned Parenthood started to develop arguments based on Lochner and Meyer to prevent States
from prohibiting buying or distributing contraceptives.

Pierce v. Society of Sisters

Uses the same analysis as Meyer and comes out the same way as Meyer and states that people
have a right to liberty to K with private schools.

Poe v. Ullman
Connecticut passed a law stating that no one could use a contraceptive. A married couple brought
suit to against the State because the women could not have kids because it would put her life in
danger, and that doctor recommended that she take contraceptives, however, because of the
against contraceptives she was afraid to buy them. The court decided that the case was not ripe
because the possibility of prosecution was very remote.
However Harlan dissented (which opened the doors to the right to contraception as a
fundamental right)
He makes a purposive, historical, and structural argument.
His argument is very detailed, and states that the state has no business in marriage, and if they
want to use contraceptive then that privacy needs to be protected. Contraceptives to commit
adultery or sodomy are illegal; it is only protected under marriage, which marriage is a protected
fundamental right since other courts have established that.

Griswold v. Connecticut
Griswold used contraceptives to prevent pregnancy and Connecticut had a law prohibiting the
use contraceptives. Thus, Griswold was facing jail time for violating the law.
J. Douglas- states that he is not Lochnering, instead he is using the due process clause. He states
that the 1st, 3rd, 4th, 5th, 9th have penumbras formed by emanations. And all of these have a theme,
and that is privacy, and within that penumbra of privacy there is a right to contraception. He
would also say that it includes all types of intimacies, not just the marriage.(Textual and
purposive argument)
Goldberg (Concurring)- He uses that ninth amendment to prove his point which says that the
rights retained by the people should not be limited by the first 8th amendments. (sort of a textual
argument because he is pointing to the text, but the 9th amendment states not to pay attention to
the text only), and encourages a living constitution interpretation.
White (Concurring)- states that he does not see how the ban on contraceptives will deter people
from committing illicit sexual acts, thus it fails rational basis (means ends scrutiny).
Harlan (Concurring)- uses Anglo- American Traditions, and due process clause
Black (Dissents)- states that the ninth amendment states that powers not given to the federal
government, will be given to the states, thus the 9th amendment is not a broadening tool for
fundamental rights, but instead it is a limiting tool for the federal government. He states that if
the court uses discretion will lead to Lochner (super legislation). He has a textual argument.
Stewart (Dissents)- states that this is a silly law, and he cannot say that it violates the
constitution.
So how do we read Griswold? Broad like Douglas or Goldberg, or narrow like Harlan or White.
If you are a conservative- read it narrowly (as a marriage case)
If you are a liberal- read it broadly to include all that you can.

3/24/10

Robert Bork
Critiquing Griswold: every time there is a clash between a majority and minority, there is going
to be a loser. Thus we should never side with the minority, so side with the majority in order to
be neutral. He states that Griswold is wrong, because the justices are making it up and they are
Lochnering.

Constitutional key moments:

1) the founding of the constitution (1787)
2) The reconstruction (1867)- 13th ,14th,and 15th amendment added (through Article 5)
3) The new deal (1937)- non textual amendment

Article 5 is not exclusive to bind the future in which the constitution could be amended. Article 5
is one way, but not the only way.
The job of the court is to synthesizes the three constitutional moments and translate them to
resonate with the commitments of the new deal

Roe v. Wade (7-2 vote)

Norma McCorvey wanted to get an abortion after she got a pregnant. He holds that the right to
abortion comes from the right to privacy, and the right to privacy comes from the 14th
amendment due process clause. However, does the fetus have a right to life? Well it depends
when the mother decides to abort the baby. Blackmun states that in the first trimester abortion is
unrestricted, the second trimester not unrestricted, can only be aborted is there is a threat to the
mom, the last trimester the state my regulate the right to abortion since there is a interest in
protecting the right of the unborn child (since the fetus it is now viable, it can leave outside the
womb). Still good law, but there are many exceptions, such as the right to abortion is not as
liberal as it was before.

View on abortion- test: whether there is an undue burden on the right to abortion

4/5/10
Abortion
Roe- it is unconstitutional especially in the first trimester to stop you from having an abortion
(this is more of an infringement of a right)

The Medical case- states that the state needs to take an affirmative obligation to pay for the
abortion, thus that court moves away from that (this is more of a funding problem)

After Roe the right to life movement had strengthen a lot and for sometime Roe was dead (that
was because all the votes in the Supreme court were gone and were replaced by more
conservative judges. Thus, everyone was expecting that under Planned Parenthood v. Casey, Roe
will be overruled; however, this did not happen. (The judges decided to reaffirm Roe v. wade)

Planned Parenthood v. Casey

I plurality holding for this case, Kennedy, O’Connor, and Souter all wrote the holding. This is
supposed to protect personal autonomy. The justices take the living constitution approach.
Set four rules: (pg. 586, 2nd paragraph).
New test: Viability & undue burden
The undue burden test: (pg. 588)
The plurality overrules those case that give strict scrutiny to abortion, instead the new test is the
undue burden: only where state regulation imposes an undue burden on a woman’s ability to
make this decision does the power of the state reach into the heart of this liberty protected by the
Due Process clause.
No more strict scrutiny, the plurality is now doing a balancing test, balancing the woman’s
interest, and the state’s interest (the trimester test set in Roe is no longer
Scalia’s rule is that there is nothing in the constitution protecting abortion, and the longstanding
traditions of American Society have permitted it to be legally proscribed
Gonzalez v. Carhart
The state can’t tell doctors what they can and cannot do, and there must be and exception on
abortion when the mother’s health is at risk.
Kennedy- rejects the statute that the law is vague, second he rejects the idea that it is an undue
burden on the due process of women to obtain an abortion because it does not prevent anyone
from having an abortion; it only prevents doctors from using certain methods to perform an
abortion.
Ginsburg- states that there needs to be equal citizenship, and personal autonomy, that is what is
at stake.

Decision difference between Carhart 1 and 2. 1 was a state law, and 2 was a federal law.

Bowers v Harwick
Hardwick challenge the Georgia statue criminalizing sodomy by committing that act with
another adult male in his bedroom.

4/7/10

Due Process:
“Right to Die”
Washington v. Glucksberg
This is about assisted suicide by doctors. Washington State had a ban against assisted suicide.
The argument is that the right to die is contained within the due process.
To support this argument you may want to cite: Casey/ Roe, Griswold/ Poe (dissent), Skinner,
Loving
Myers v. Nebraska/ Pierce

If you want to go against that argument you want to cite: Bowers, Lochner (Lochnering), Cruzan
(not in the text book)

The court is interested in resolving the right to die process, and how narrowly or broadly they are
gong to interpret the fundamental rights.
The Court asserted that because assisted-suicide is not a fundamental liberty interest, it was
therefore not protected under the 14th Amendment (thus it gets rational basis).

O’Connor- states that

Souter- First you must prove that there is a fundamental right, and if there is proof then they
could give a higher level of scrutiny then just reasonable basis.

Same Sex
Lawrence v. Texas
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too
narrowly. The majority held that intimate consensual sexual conduct was part of the liberty
protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect
of invalidating similar laws throughout the United States that purport to criminalize sodomy
between consenting same-sex adults acting in private. It also invalidated the application of
sodomy laws to heterosexual sex.

Cities Romer- because this case is about animosity and Romer is also about animosity as well
and it withstood Bowers.

Kennedy- goes for a very high level of generality

Foreign Law used in this case- Kennedy cites the European Court of Human Rights where he
states that other countries are pulling away from Bowers and that the US should also follow the
same path. This is very controversial because he is using foreign law that does not apply to the
US.

4/12/10

STATE ACTION DOCTRINE

This doctrine comes from the 14th amendment, however, the 13th amendment does not have a
state action requirement it is addressed to private parties also.

There is a pre-requisite to the 14th amendment and that is that the state is acting not a private
party.

If the state violates the 14th amendment then there is a violation, if a private party does it then it
is not a violation of the 14th amendment.

Where does state action comes from?

When in the era of the new deal the commerce clause disappeared and now the 14th amendment
had to take its place.
Their theory revolved on Federalism- it is important that the federal government does not intrude
onto state affairs, unless you can show that new legislation is necessary

Public Function Exception on private parties

Nixon v. Herdon
White primaries- a Texas law prohibited blacks from voting on the primary election. So is there
state action in this case? The court states that there is state action because these are public
functions being exercised (Public function exception). If there is a private party exercising public
functions then that is state action.

You need to prove state action before you can get a due process claim.

There is state action when there are state actors involved, but when there is no state actors
involved then there is no state action and there is thus no violation of the 14th amendment.

Entanglement Exception
This is when the government is sufficiently entangled that it is considered state action.

Shelley v. Kramer
There is a racially restrictive covenant in a plot of land, and a black couple bought a residence in
that plot of land. A neighbor sued to have the covenant enforced, and the trial court enforced it.
Shelley appealed and stated that by the court enforcing the covenant then there is state action and
violated the 14th amendment. The court agreed.
If we take Shelley seriously then everything is state action.

Burton v. Wilmington Parking Authority

A private restaurant does not serve African Americans, however it is located in a state owned
building.

Moose Lodge v. Irvis

Here, an African American was not let into the moose lodge. The claim is that Pennsylvania
there is state action when the moose lodge when they refuse to serve and African American
because they have a liquor license.
Discriminatory intent is required proving that it intended to discriminate at the time the state
gave the liquor license (Washington v. Davis)

4/14/10

State Action continued…

State action after moose lodge is a step back from Shelly v. Kramer where everything was state
action. But in Edmonson v. Leesville the state action doctrine came back.
Justice O’Connor dissents stating that a lawsuit is between two private parties and that the use of
the courtroom is incidental and not state action.

First Amendment

The first amendment is addressed to Congress- however, if the president decides to limit speech
then there will be a violation of separation of powers. The first amendment is a federalist
provision, only the states reserve the right to limit speech.

Point of the first amendment:

- there is not first amendment originalism
- all views are purposive
o seek truth- free market in ideas
o autonomy
o open the channels of communication
 might enhance political process

Texas v. Johnson
Johnson burned the US flag and there was a policy that prohibited flag burning, he was found
guilty for desecrating the flag and got one year or prison and a fine. The Ct of Appeals
overturned his conviction saying that the State could not punish Johnson for burning the flag
because the First Amendment protects such activity as symbolic speech. In a five to four decision
the Supreme Court upheld the Ct of Appeals reversal.
Rehnquist dissents- stating that the flag is a symbol and it should be respected. He argued that
the "uniqueness" of the flag "justifies a governmental prohibition against flag burning in the way
respondent Johnson did here."

R.A.V. v. City of ST Paul

The defendant burned a cross in the front lawn of an African- American family that lived across
the street. The minor was charged with two counts, one of which a violation of the St. Paul Bias-
Motivated Crime Ordinance.
The court stated that the St. Paul Bias-Motivated Crime Ordinance was struck down both
because it was overbroad, proscribing both "fighting words" and protected speech, and because
the regulation was "content-based," proscribing only activities which conveyed messages
concerning particular topics. Judgment of the Supreme Court of Minnesota reversed. The court
talks about “fighting words”- those that by their very utterance inflict injury or tend to incite an
immediate breach of the peace" are among the "well-defined and narrowly limited classes of
speech [which] the prevention and punishment of...have never been thought to raise any
constitutional problem."

Content discrimination- A law that discriminates based on the content of a message — as

opposed to the time, place or manner in which that message is made, or the reactions it incites in
people — is considered presumptively unconstitutional.

Viewpoint discrimination- A regulation is considered to discriminate on the basis of viewpoint

when it attacks a particular individual’s or group’s message, as opposed to the mode in which
that message is conveyed. Such laws are facially unconstitutional and are considered an
especially egregious form of content discrimination. For example, a law prohibiting cross-
burning in general have been found to be unconstitutional, whereas a law banning cross-burning
with the intent to intimidate have been found not to be unconstitutional. See Virginia v. Black
(2003).

United States v. O’Brien- O’Brien is in a protests against the Vietnam War and he burns his draft
card. The court stated that it considered the law justified by a significant government interest that
was unrelated to the suppression of speech and was tailored towards that end.

Holding: A criminal prohibition against burning draft cards did not violate the First Amendment,
because its effect on speech was only incidental, and it was justified by the significant
government interest in maintaining an efficient and effective military draft system. First Circuit
Court of Appeals vacated and remanded. They took the content as neutral.

Illegal Advocacy
Schenck v. U.S.
Schenck mailed leaflets stating that the draft violated the 13th amendment. The court in a
unanimous decision stated that the Defendant's criticism of the draft was not protected by the
First Amendment, because it created a clear and present danger to the enlistment and recruiting
practices of the U.S. armed forces during a state of war.

Abrams v. U.S.
The defendants were convicted on the basis of two leaflets they printed and threw from windows
of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of
American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US
efforts to impede the Russian Revolution and advocated the cessation of the production of
weapons to be used against Soviet Russia.
Holding: The Supreme Court ruled 7–2 that the Act did not violate the freedom of speech
protected by the First Amendment. Justice John Hessin Clarke used a relatively restrictive speech
test – "bad tendency" – to uphold the conviction. Justices Oliver Wendell Holmes and Louis
Brandeis dissented and said that the more speech protective standard – "clear and present
danger" – ought to be applied to overturn the conviction.
In Sum: Defendants' criticism of U.S. involvement in World War I was not protected by the First
Amendment, because they advocated a strike in munitions production and the violent overthrow
of the government.

Brandenburg v. Ohio
Brandenburg was trying to promote the KKK by videotaping cross-burnings, and other KKK’s
activities. Brandenburg was charged with advocating violence under Ohio's criminal syndicalism
statute for his participation in the rally and for the speech he made.
Holing: The U.S. Supreme Court reversed Brandenburg's conviction, holding that the
government cannot constitutionally punish abstract advocacy of force or law violation. The
unanimous majority opinion was a per curiam decision.
In sum: Ohio's criminal syndicalism statute violated the First Amendment, as applied to the state
through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than
the constitutionally unprotected incitement to imminent lawless action.

4/19/10

Free Speech

I. Government may impose content-neutral restrictions on speech, subject to

reasonableness requirements
i. The government cannot regulate the content, but is trying to achieve other
things
1. ex) laws prohibiting fire (Prevents people from burning a cross)
2. time, place and manner restrictions is another example
3. content-based restriction- restricts the content of the speech
II. Government may not ban speech based on content absent a compelling state
interest (hard to satisfy, is the same level of strict scrutiny)
 7 exceptions:
i. Incitement to violence
ii. True threat
iii. Defamation (in some circumstances)
iv. Advertising
v. Obscenity
vi. Fighting Words
vii. Intellectual property theft
III. Content restrictions may be Ok in these special zones:
i. Schools, prisons, military
ii. Government employees
iii. Certain government property- but not public forums
iv. Government funding restrictions
v. Broadcast media

Brandenburg v. Ohio
It held that government cannot punish inflammatory speech unless it is directed to inciting and
likely to incite imminent lawless action

Virginia v. Black
Three defendants were convicted in two separate cases of violating a Virginia statute against
cross burning.
In this case, the Court struck down that statute to the extent that it considered cross burning as
prima facie evidence of intent to intimidate. Such a provision, the Court argued, blurs the
distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected
"messages of shared ideology." However, cross-burning can be a criminal offense if the intent to
intimidate is proven. (Intimidation is not constitutionally protected, and intimidation is the focus
of the statute)
Holding: Virginia's statute against cross burning is unconstitutional because it places the burden
of proof on the defendant to demonstrate that he or she did not intend the cross burning as
intimidation.

Dissent: Justice Clarence Thomas argued that cross-burning itself should be a First Amendment
exception, as others have argued regarding flag-burning, due to the historical association of flag-
burning with terrorism. "[T]his statute," Thomas wrote, "prohibits only conduct, not
expression. And, just as one cannot burn down someone's house to make a political point and
then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make
their point."

Justice David Souter argued that cross-burning, even with the proven intent to intimidate, should
not be a crime under the R. A. V. v. City of St. Paul precedent because of "the statute’s content-
based distinction."

Defamation
 New York Times v. Sullivan- A commissioner in Alabama brought a libel action against the NY
Times. The article did contain some false information. The court stated that a public official or
public figure needs to prove malice to bring an action or recover damages for a libel action
because public officials should be open to debate which is uninhibited, robust, and wide-open.

Holding: The First Amendment, as applied through the Fourteenth, protected a newspaper from
being sued for libel in state court for making false defamatory statements about the official
conduct of a public official, because the statements were not made with knowing or reckless
disregard for the truth, or with actual malice.

Hustler Magazine v. Falwell

The court held that the magazine was protected under the constitution because the libel was
parody. If the court would have held that there was liability then all the political cartoonist and
caricaturist will be out of business.

Obscenity
Traditionally not protected

The court began to reject anything that had to do with sex.

What is obscenity?
Miller test (Miler v. California)
1) whether the average person, applying contemporary community standards would find that
the work, taken as a whole, appeals to the prurient interest
2) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
3) whether the work, taken as a whole, lacks serous literary, artistic, political, or scientific
value

The test is still current.

City of Renton v. Playtime Theater

A city ordinance prohibited adult movie theaters within 1000 feet of any residence, church, park,
or school. The court argues that this is content-neutral because it has nothing to do with the
speech taking place inside the theater and it prevents the negative side effects to the
neighborhood.

Barnes v. Glen Theater, Inc

Indiana banned public nudity in ballroom dancing. The court stated that the statute was content-
neutral because it will prevent the negative effects in the neighborhood.

City of Erie v. Pap’s AM

Erie passed an ordinance against nude dancing requiring that the dancers wear pasties and G-
Strings. The court upheld the ban on nude dancing because such establishments attract crime,
and prostitution and thus is a content neutral because it prevents secondary effects that the city
could validly seek to suppress.
Public Forum Doctrine
If something is a true public forum that government cannot restrict speech unless it has a public
state interest but may pose time, place, and manner restrictions.

United States v. Grace

There is a Law prohibiting signs in the US Supreme Court building and on its grounds including
the sidewalk. The court stated the government cannot prohibit person from manifesting
themselves in any public sidewalk. The sidewalk is a public forum, thus the government cannot
restrict speech.
Hill v. Colorado
A Colorado State made it unlawful for anyone within 100 feet of a healthcare facility to
“knowingly approach” within eight feet of another person, without that person’s consent, in
order to pass out leaflets, display a sign, or engage in “oral protest, education, or counceling.”

Holding: this is a time, place, and manner restriction, thus this is a content-neutral statute
because it applies to all people not just targeting a certain people.

Ward v. Rock Against Racism

There is a dispute between the residents of central park and the concerts that take place there.
The city of NY comes up with the compromise stating that they were going to regulate the
volume and thus if they wanted to have a concert then they needed to get a city employee to
control the volume.
Restrictions are content-neutral because they are restricting the volume not the contents of the
music, rather this is a time, place, and manner restriction.

4/21/10

Government Speech
Government is bound by the first amendment

Pickering v. Board of Education

The dismissal of a public school teacher for public statements regarding issues of public
importance, without a showing that his statements were knowingly or recklessly false, violated
his First Amendment right to free speech. Supreme Court of Illinois reversed and remanded

Garcetti v. Ceballos
is a decision by the Supreme Court of the United States involving the First Amendment free
speech protections for government employees. The plaintiff in the case was a district attorney
who claimed that he had been passed up for a promotion for criticizing the legitimacy of a
warrant. The Court ruled, in a 5-4 decision, that because his statements were made pursuant to
his position as a public employee, rather than as a private citizen, his speech had no First
Amendment protection.
The government cannot require you to waive your first amendment rights, so they cannot directly
control your first amendment right; however, it is not the same if the government is funding your
business.

Rust v. Sullivan
Health and Human Services regulations prohibiting recipients of government funds from
advocating, counseling, or referring patients for abortion do not violate statute, First
Amendment, or Fourth or Fifth Amendment.
The case concerned the legality and constitutionality of Department of Health and Human
Services regulations on the use of funds spent by the U.S. federal government to promote family
planning (Title X). With Title X of the Public Health Service Act, Congress prohibited the funds
from being "used in programs where abortion is a method of family planning." In 1988, the
Republican-appointed Secretary of Health and Human Services issued new regulations that
prohibited projects receiving these funds from not only providing abortions, but also counseling,
advising, or promoting the idea that a woman seek an abortion. These regulations were
challenged on the grounds that they were not permissibly within the scope of the statute and that
they violated the First, Fourth, and Fifth Amendments to the U.S. Constitution.

Unconstitutional condition: the government places conditions to those that fund; however, the
law states that you cannot do indirectly what you cannot do directly.
- however, in this case the court did not want to really push this doctrine

Legal services corp. v. Velazquez

The Legal Services Corporation Act authorizes the Legal Services Corporation (LSC) to
distribute funds, appropriated by Congress, to local grantee organizations, which provide free
legal assistance to indigent clients in welfare benefits claims. The Omnibus Consolidated
Rescissions and Appropriations Act of 1996 prohibited the LSC from funding any organization
that represented clients in an effort to amend or challenge existing welfare law, among other
things. The prohibition was such that grantees could not continue representation in a welfare
matter even where a constitutional or statutory validity challenge became apparent after
representation was well under way. LSC grantee lawyers and others filed suit to have the
restriction declared unconstitutional. The District Court denied a preliminary injunction.
However, the Court of Appeals invalidated the restriction, concluding that it was impermissible
viewpoint discrimination that violated the First Amendment.
Question:
Does the funding restriction on the Legal Services Corporation, which prevents attorneys from
representing clients in an attempt to amend or challenge existing welfare law, violate the First
Amendment?
Conclusion:
Yes. In a 5-4 opinion delivered by Justice Anthony M. Kennedy, the Court held that the funding
provision that limited arguments legal services attorneys were allowed to make on behalf of
indigent welfare claimants violated the First Amendment by regulating private speech and
insulating federal law from legitimate judicial challenge. Justice Kennedy wrote for that Court
that, "the LSC program was designed to facilitate private speech, not to promote a governmental
message." Justice Antonin Scalia wrote a dissent, which was joined by Chief Justice William H.
Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas, arguing that the
Appropriations Act "does not directly regulate speech, and it neither establishes a public forum
nor discriminates on the basis of viewpoint."
The court made the distinction that doctors are public and lawyers are private, that is why it
comes out different then in Rust.

Student Speech

Tinker v. Des Moines School District

Students wore black armbands on campus in protest of the Vietnam war and were expelled, the
court said that students cannot be expelled students from wearing black armbands.

Morse v. Federick
A student waived a huge banner reading “Bong Hits 4 Jesus.” The student was disciplined
because the banner advocated drug use. The court held that it was reasonable for the principal to
conclude that the banner promote illegal drug use- in violation of established school policy- and
that failing to act would send a powerful message to the students in her charge. The first
amendment does not require schools to tolerate at school events student expression that
contributes to those dangers

Fighting words, Captive audiences, and hate speech

Cohen v. California
On April 26, 1968, Paul Robert Cohen, 19, was arrested for wearing a jacket bearing the words
"Fuck the Draft" inside the Los Angeles Courthouse. Inside the court room he had the jacket
folded over his arm, only after exiting the room he put the jacket on and was then arrested. He
was convicted of violating section 415 of the California Penal Code, which prohibited
"maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by]
offensive conduct."

The Court, by a vote of 5-4, per Justice John Marshall Harlan II, overturned the appellate court's
ruling. "[A]bsent a more particularized and compelling reason for its actions," it said, "the State
may not, consistently with the First and Fourteenth Amendments, make the simple public display
of this single four-letter expletive a criminal offense."

In the opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric."

Harlan’s arguments can be constructed in three major points: First, states (California) cannot
censor their citizens in order to make a “civil” society. Second, knowing where to draw the line
between harmless heightened emotion and vulgarity can be difficult. Thirdly, people bring
passion to politics and vulgarity is simply a side effect of a free exchange of ideas—no matter
how radical they may be.

The court stated this is not an obscenity because there is nothing sexual to it, but this also not a
fighting word, because it is something that is not going to provoke violence, and it does not
threaten anyone.
Dissent: In a dissenting opinion, Justice Harry Blackmun, joined by Burger and Black, suggested
that Cohen's wearing of the jacket in the courthouse was not speech but conduct (an "absurd and
immature antic") and therefore not protected by the First Amendment.

The second paragraph of Blackmun's dissent noted that the Supreme Court of California
construed section 415 in In re Bushman 1 Cal.3d 767, 83 Cal.Rptr. 375 (Cal, 1970), which was
decided after the Court of Appeal of California's decision in Cohen v. California and the
Supreme Court of California's denial of review. Blackmun wrote that the case "ought to be
remanded to the California Court of Appeal for reconsideration in the light of the subsequently
rendered decision by the State's highest tribunal in Bushman."

FCC v. Pacifica Foundation

In 1973, a father complained to the FCC that his son had heard the George Carlin routine "Filthy
Words" broadcast one afternoon over WBAI, a Pacifica Foundation FM radio station in New
York City. Pacifica received a sanction from the FCC, in the form of a letter of reprimand, for
allegedly violating FCC regulations which prohibited broadcasting indecent material.

The U.S. Supreme Court upheld the FCC action in 1978, by a vote of 5 to 4, ruling that the
routine was "indecent but not obscene". The Court accepted as compelling the government's
interests in 1) shielding children from patently offensive material, and 2) ensuring that unwanted
speech does not enter one's home. The Court stated that the FCC had the authority to prohibit
such broadcasts during hours when children were likely to be among the audience, and gave the
FCC broad leeway to determine what constituted indecency in different contexts.

Hate Speech
Beauharnais v. illinois
The defendant in Beauharnais distributed a leaflet "setting forth a petition calling on the Mayor
and City Council of Chicago 'to halt the further encroachment, harassment and invasion of white
people, their property, neighborhoods and persons, by the Negro.'" His criminal conviction by
the trial court was sustained by the Illinois Supreme Court which the U.S. Supreme Court upheld
after rejecting the Fourteenth

The Court upheld an Illinois law making it illegal to publish or exhibit any writing or picture
portraying the "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any
race, color, creed or religion." This is libel.

This case is no longer good law, even though it has not been formally overruled.

Wisconsin v. Mitchell

A statute that stated that if you commit a hate crime while committing a felony you will get an
enhanced punishment. The court held that enhanced sentencing for bias-motivated crimes does
not violate a defendant's First Amendment rights. Wisconsin Supreme Court reversed and
remanded. Writing for a unanimous court, Chief Justice William Rehnquist reasoned that, in
substance, Wisconsin's law served the same purpose as federal antidiscrimination law. Whereas
in R.A.V., the ordinance struck down was explicitly targeted at expression, the statute in this case
was directed towards conduct that was not expressive as such, but was instead directed at
violence in particular.

The Court further stated that Wisconsin was within its rights to offer sentence enhancement in
bias-motivated crime because it had a compelling interest in preventing the negative secondary
effects of such crimes. Among these secondary effects mentioned were the increased likelihood
of a bias-motivated crime to provoke retaliation, to inflict greater emotional distress on the
victim, and to incite community unrest. The Court explained that these secondary effects were
more than adequate reason for such a sentencing enhancement, especially if, as stated above, the
law was not explicitly targeting beliefs or statements

4/26/10

First Amendment

I. Content Neutrality
a. If yes- then it will always survive
i. Time, Place, and Manner (Public-forum)
1. The government can regulate this, but it has to be narrowly tailored
2. Test:
a. If the regulation is narrowly tailored
b. Leave open alternate channels of communication
b. if not- then you need to see if it falls within the exceptions (carve-outs)
1. fighting words
2. obscenity
3. etc…
4. conduct
ii. Special places (opposite of a public forum)
1. jails, militaries, and schools
a. there are a lot of deference’s
iii. Procedural protections
1. no prior restrains
2. no vagueness
3. no overbreadth

Hate Speech

Wisconsin v. Mitchell- this case is about sentencing enhancements for hate crimes. The court
stated that it was ok because what they were being punished for was not speech, but for conduct

Should Hate Speech be regulated: you can ban cross burning to the extent that it is a threat, but
not for the reason of stopping the KKK cult.
- you need to look for view point discrimination within a carved-out category, thus the
government could ban all fighting words, but it cannot just ban all discriminatory fighting
works (this will be unconstitutional)
Offensive Speech

FCC v. Pacifica-

Overbreath- Reno v. ACLU

Commercial speech- the government has to offer special care in regulating it

Procedural protections

- Prior restrains
o Ex) if you are about to print an article and the government comes is and issues an
injunction from printing it (this is a prior restraint)

Shuttlesworth v. City of Birmingham – there was an Easter march planned and the city has a
shaddy system that gives the city sole discretion to allow parade permits and they deny it. And
they issued an injunction to King, and King defied the injunction
Any system that

New York Times Co. v. U.S.

The New York Times got a hold pentagon papers about the Vietnam War, and the US wanted an
injunction for the publication, the court did not allow it because it constituted a prior restraint,
even though it was a matter of national security.

Prior restraint- must have a very compelling reason to get around this prohibition

Vagueness

If a law is to vague, gives too much discretion, the law is not going to allow it.
Papachristou v. Jacksonville
Avoid “chilling effects” we do not want to chill speech, laws that have this effect will fail
ebcause they want a public sphere that is robust, wideopen, and uninhabited

Overbreadth

- A statue that is too overbroad and thus it is too overinclusive

- Under this doctrine there is an exception for standing, if you can step in the shoes of
someone who can have standing then the law will survive
Board of Airport Commissioners v. Jews for Jesus
LAX banned all first amendment activity within the terminals, a minister was passing pamphlets
in the terminal, however, he was not arguing that he could not be banned, he stated that it was
too overbroad because it will also ban someone reading a book, or someone wearing a t-shirt
with statements. The court stated that this law was too overbroad and it did not survive.

Freedom of Association

NAACP v. Patterson
During discovery Patterson subpoena the list of membership. The court stated that this was
protected under the freedom of association

NAACP v. Claiborne Hardware

Can everyone in the organization be held liable for a violent incident, the court said no because
otherwise it will interfere with the freedom of association.
Board of Directors of Rotary International v. Rotary Club of Duarte

Boys Scout of America v. Dale

Reconciling the cases: Gender gets strict scrutiny and sexual orientation does not, so Scrutiny is
doing the work, not the fist amendment

Second Amendment

Miller The second amendment is about the government to organize militias to keep the peace
(this is the most popular view)
The other view is: the second amendment is about the right to bare arms for individual hunting
and self-defense purposes

In Heller- the court holds that the total ban in DC for hand guns is unconstitutional (Scalia, uses
a textualism and originalism approach to write the holding).
Scalia overrules Miller because it is contrast with the original intent of the second amendment.

Stevens, dissenting, is interested on precedent and states that if Miller has been good law for
such a long time, then it should still remain good law.

The 14th amendment applies to the meaning to the 5th amendment- Bowling v. Sharpe

4/27/10

A ban on handguns greater then 38 calibers and they have to be registered every year, and they
cannot be carried in courts.

Issues:

Incorporation? Is it incorporated or does it only apply to the states

 - is it a fundamental right (according to Heller it the 2nd amendment is a fundamental and
individual right)
- Standard (Polko)- you argue both sides (why is it a fundamental right, and why it is not)

Level of scrutiny

- suspect classifications heightened scrutiny

- fundamental rights also get strict scrutiny
- times, place, and manner get a lower scrutiny

What is hot, what is not:

Equal protection

West Virginia v. Barnett (justice Jackson, HOT)

Fundamental rights

Lochner (HOT)- when this one dies Barnett takes its place (compare Barnett & Heller)

Economic Rights (not that hot- but should know letter of scrutiny (rational baisis))

Railway Express (HOT)

Discriminatory intent (Davis) (HOT)

Contract Clause (warm)

Desegragation (more for analogies)

Affirmative Action

Parents Involve with dissegragation (FIRE)

Facially neutral classification designed to benefit minorities (COLD)

Sex and Gender (history- not hot)

Intermediate scrutiny- warm

Language, disability (other classifications- warm)

Incorporation- Hot
 - Amendments that are incorporated
o First, yes
o Second, is being argues
o Third not
o Four yes
o Fifth yes
o Six yes
o Seven no
o Eight yes, but with exceptions

Right to Privacy

Contraception

Same sex intimacy

State action- HOT HOT HOT

Speech- HOT

Issues from the practice exam #1

1) State Action
a. Exemption for public function
i. Trigger: his pharmicy is located in the county hospital
ii. The only pharmacy in the city- serves for level of scrutiny
iii. t
2) Fundamental Right
a. Privacy
b. Contraception
c. Abortion
3) Equal protection
- gender
- Economic
Reasonable constitutional arguments-
State action
- Burton (the restaurant leasing parking space from the county) gives state action
- State license by the state- Moose Lodge which causes no state action
Fundamental rights
- Griswold (the state cannot infringe in their right to contraception_
o When a FR is implicated you need to think what kind of scrutiny will it meet,
strict scrutiny ( you need to satisfy compelling governmental interest narrowly
taylor)
  A compelling interest that the government has adopted is protecting the
health of a woman, however here it seems that the pharmacist’s beliefs are
being protected (Roe)
• Counter (Romer v. Evens) Protecting moral interest is a
compelling government interest, however, it will not survive the
second part of the test because it is not narrowly taylored
- Abortion (Roe v. Wade) (Kasey)
o The right to abortion is protected, the earlier the trimester the higher the
protection, and contraceptives will be under that protection because it will only be
72 hours which will fall under the complete protection of Roe v. Wade.
 Kasey (undue burden)
Equal Protection
- only targeting women which is sex discrimination on its face and this gets intermediate
scrutiny
o Real differences cases (targeting women who are the ones who can get pregnant
(the court can accept those if they are plausible)
• Intermediate scrutiny- substantially related to a governmental state
interest to an important governmental interest
 Thus if you can say that this is not sex discrimination, but is more
differences between women and women who are pregnant then it will get
rational basis

Question II

Issue:
Equal Protection
Facial discrimination (taking away his right to practice his occupation)
- No lochnering
- Is the law facially neutral (yes, but it has a disparate impact)
o (Yik Wo)- intent can be shown through the disparate impact
 First apply- Washington v. Davis (you need to show discriminatory intent)
(then counter with Yik Wo)
• You need to go on and see if you can show if there is some
discriminatory intent – here the law has resulted in the decrease of
the amount of Asian- Americans who practice acupuncture
• The senator’s statement that acupuncture is like Voodoo shows
animosity
• If you meet Washington v. Davis then you will get strict, if it fails
then it will get rational bases
o The only cases that have survived Strict Scrutiny is,
Grutter and Korematsu.