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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.
when the results came out they were drastically disproportionate.You want to make sure all laws do not have discriminative intent. 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). The court here is applying the colorblindness model because the test applies to everyone they state that motive is what matters not the effect. however. however. They state that Palmer is their backup.(equal protection) This case resembles Griggs because Test 21 has nothing to do with the job. Thompson. thus the effects do not matter because of no intent Scrutiny Rational basis: minimal.this one is facially neutral. nor effect Anti-classification/colorblindness – You did not intent to discriminate. The court held that disproportion alone is not discrimination. Second. The court said that there was no discriminatory effects because it had the same effects in Blacks and Whites. Disparate impact does: 1) Smokes out illegitimate motives 2) Over-inclusion who do not have a discriminatory intent Washington v. thus this cannot be looked at with strict scrutiny. It is impermissible to get rid of the test under title 7.No segregation in the swimming pool. Yick Wo. 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.Loving. thus the city threw it out for fear of liability under title 7. the means chosen must be necessary and must be the least problematic. what matters is the effect not the motivation or intent unless it is discriminatory on its face. 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. . Thus. you look at the means and see if the means are narrowly tailored to meet the ends.this is a reading of title 7. If you can show that there is a statistical disparity then the burden will fall in the employee to justify the disparity. pretty laid back (will most likely pass) Strict Scrutiny (will most likely fail) – you need a compelling state interest. so when they were ordered to desegregate they decided to close all of its pools. however. Equal protection also include discriminatory effects or impacts. Thus. even if it has the purest of motives. Davis. however the court states that this is discriminatory because it also motivates white supremacy. but the effects. The court held that title 7 can require disparate treatment because left unchecked will lead to unfair disparate treatment. Models: Anti-subordination/ anti-caste. the discrimination was disguised because it still discriminated against Chinese when it was administered Palmer v. this case is based on equal protection not title VII. if it is not looked with strict scrutiny then it will fall under rational scrutiny and thus it will most likely survive. Palmer states that the motive is not important. Here the court declines to look at motivation because it is tricky and is nuance. 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.Different then Brown because this once states that not allowing interracial marriage stating that it applies equally to blacks and whites. Griggs (Title 7). It says that an employer may not use a test because it has discriminatory effects.
(not individualistic. 1/27/10 Scrutiny categories Rational Basis Strict Basis Anti-classification/colorblindness. wealth and practice segregates a city (happens because people move to certain places) De Jure.No because Strict.it follows with discrimination intent Anti-subordination/ against the status quo. Davis does not apply here because that holding is only persuasive authority. there is no prove that there is discrimination. Problem 3-5 Rational or Strict scrutiny? Strict. because even though we have a disparate impact.equal protection prohibits making distinctions based on something like race (very individualistic. and thus taking on a different role .under Brown the district court was the one giving remedies.desegregation vs. 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.segregation did not happen by the state. because of discretion Under Washington V. You have to show that there is intentional discrimination (need a smoking gun).segregation intended by the school district or state (intentional) Remedies. you need to show discriminatory intent or treatment. Davis. however. 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. intergration . or to get your case into the rational basis category. nor that the legislators intended that this effect will happen.yes.Two ways to win: one is to satisfy strict scrutiny (which is almost impossible). there are not groups). but instead it happens because the custom.district impact is 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.
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.it is for the district judge to craft a remedy. Here. There will only be a violation if the segregation is de jure or incited by the State. Keys. Here you need to have an actively wrong doing to enforce a remedy.the court held that if the segregation is due to de facto circumstances then there is no constitutional violation. This is appease with Washington v. Thus.it is a big deal for parents to bus kids from one school district to another school district.Scope North too? Problem of “innocence” Desegregation Brown I.the court held that the court could give the necessary remedy to get rid of segregation. by the 1960 the court is very liberal. (Shot down bussing) 2/1/10 Desegregation De facto vs.Worth too? 3rd parties? Green Swan.” There are innocent 3rd parties who are being harmed by such actions. Miliken v.this is where it all started. The more conservative interpret brown as anti-classification. This might punish innocent victims because there is no intention of .the court could do whatever is necessary to make desegregation happen Keys. De Sure Remedies. if they could show that there is some evidence that there was racial manipulation then that will be considered de jure segregation.segregation has to be intended (de jure). Busing is only ok if the discriminatory acts have been a cause of inter-district boundary. they have all the flexibility of remedial powers they need Miliiken II. the judge bussed kids to white predominant schools and vise versa.is segregation in the north actionable? . Davis.after this case the question of how is it going to happen? Swan. if there is any evidence of state role in segreations then the remedy is okay even in the north Miliken I. Brown II Green.
Mr. Fullilove (Intermediate).it involves federal set-aside for minority business enterprises. strict scrutiny could be met if race is being looked at as a plus factor not a must factor. but rather if there is desegregation in good faith.possible? Desirable? . Missouri v.There is a 30% minority business enterprise in Richmond.you freeze the status quo Neutrality. and defendants could say that it does not apply because Fillilove was a federal case and this one is a state case. thus they will not give strict scrutiny to affirmative action. it states not to go too far in its remedies We have now gone away from Swan and moved toward freeman. Fullilove will support the plaintiff. however.you rebel against the status quo and want to bring actual equality to all Anti-clasification. (this is more of an anti-subordination approach) Wygant (Strict). Croson (strict). however. Bakke sues because 16 of the 100 spots are reserved for minority members. and if you cannot then too bad for the plaintiff). unless the majority left are white. There is nothing racial about seniority. The court is completely split in the opinion. (there has to be a link to identify discrimination. The court said that it was fine because emphasizes the importance of giving benign justification and gives them only intermediate scrutiny not strict scrutiny. The court states a remedy that take race into account so long as it is a remedy for actual past discrimination. However. (very narrow remedies) Affirmative Action Here the court is kind of backing away from Caroline Products Brown Bakke (strict scrutiny) .desegregation and yet some whites are bused to cities to desegregate. 10% of the federal money needs to go to minority contractors. Pitts. if there is then the court needs to back off. in this case the plaintiffs cannot show the past discrimination.)This flunks strict scrutiny (it fails for state and local goverments). Jenkins II & III. (kinda saying point out the bad men. You can say that this is a remedy for past discrimination. and they give a percentage of minority who can be laid-off.a collective bargaining agreement and when you have lay-off you need to do it by seniority.supports Freeman. to the point that you need an anti-discrimination program. the majority agree that this case should be viewed with strict scrutiny because it classifies people. Virginia. the minorities are the ones with least seniority. Metro Broadcasting Adarand v. Justice Powell broke the tie by stating that the davis plan fails because it has quotas and strict scruity applies to affirmative action. Section 5 gives congress special powers to do broad remedies. Pena Anti-subordination. however. The court states that they fix the violation and they need to bother no one else. The minority states that this case is an anti-subordination case. It does not matter if there is no integration. so they get extra slack. However. Diversity is a valid factor to satisfy strict scrutiny. Freeman v. the defendant will need to show the past discrimination.it is very important to defer to the good faith commitment. four other judges stated that this case classifies students and discriminates. However.
Marshal. the 5th amendment applies to the federal government which gives due process to the people. Kennedy. The 14th amendment does not apply to the federal government.they get intermediate scrutiny Invidious discrimination. 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. it only commands the states.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.O’Connor. The end here is more diversity .Setevents Dissent. Rehnquist. Brennan.) O’Connor believes that all classifications are invidious.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. Scalia (these do not buy into the benign classification and state that we should not be classifying people. Blackmun Strict scrutiny Need: Ends: compelling government interest. 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).status quo. Here.it is designed to do helpful (to remedy the effects of racism). Middle. ends for strict scrutiny Intermediate (test more relaxed) Needs: Ends: important Needs: Means: substantially related (easier to survive) Benign discrimination.Baselines. otherwise you will not be able to satisfy the means. White. Diversity 2/3/10 Affirmative Action continued… Croson Majority.
She adds that O’Connor hopes that in 25 years race is no longer a problem and that all the minorities have caught up. 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. there are plus factors which give you more points if you’re a minority. Here. Stevens and Ginsburg dissents. thus. Pena (Strict) This case eliminates the intermediate scrutiny. however. The lowest bid was not a socially economically disadvantage group.” Scalia concurs. Ends allowed so far: 1) Remedying past individual past discrimination 2) National security This case survives strict scrutity. expanding classes. or stop being an elite law school.states that strict scrutiny is fatal in fact. Thomas concurs. It eliminated the distinction between State and Federal discrimination. 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. and to admit people by lottery. Bollinger Plaintiff is asking for a fair opportunity to compete. thus the discrimination will be invidious. . This case reiterates the state and Federal government distinction.states that it is not difficult to see the difference between benign and invidious discrimination. by saying all affirmative action gets strict scrutiny. but the contractor chose a minority. “SS is not strict in theory. At Michigan Law School there is no quota for minorities. due to affirmative action. so it does not apply in a different scenario. the federal contract is given additional compensation for hiring subcontractors that are from socially disadvantage groups. Adarand v. but fatal in fact.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. however.in the airways and that is an important governmental interest. Grutter v. Grutter gives the alternative so that it is not discriminative like get rid of the LSAT. and is subject to 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. Equal protection is individualistic. and thus giving preferences to minorities for licenses is substantially related to diversity.
narrowly tailored . Seattle School District . thus that court has a lot of room to remedy.must be reasonable related to the ends -Really easy to satisfy Intermediate scrutiny – Ends.important governmental interests . Davis.states that you cannot the university is treating race as a group instead of looking at the individual Rational Basis.Ends. 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. 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. De facto segregation does not merit mediation by the court.give affirmative action strict scrutiny always Grutter.discriminatory effects do not count.substantially related Strict Scrutiny Ends.anything that does not afoul to other things to the constitution Means.brings diversity into the picture. However. you need to find intent.2/10/10 Intentional segregation of schools of anything is unconstitutional (Brown) Yoo Lulove Washington v.Means. and looks at each applicant individually Gratz.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. Affirmative action There is a strong trend on anti-classification Crose and Aradan.compelling governmental interest Means. to have a remedy you need to have a continuous violation of the law.
stated that women did not have any independent identity from that of her husbands. because there are other alternatives that need to be taken into consideration. and it was not allowed. Bradwell brought down this case. the tailoring is fine. Grutter’s opinion only applies to higher education. However. because there are many other remedies. Thus. Bradwell v.Two school districts are keeping tabs on race for magnet schools and transfers to and from schools. or race balancing and thus. Minor v. because if the district is so gerrymandered than it could be said that the legislators were intentionally thinking of race when they did this. the means fail because they are not narrowly tailored. Illinois. however. were all activist women) 1867.womens rights and equality between the sexes (first movement in the US)(Stanton. looks like affirmative action. Davis except that it comes out the other way.he is articulating the underenforcement theory. However. Also. and affirmative action needs to meet strict scrutiny. Reno This is like Washington v. Justice Bradley.Married women (the woman’s identity was merged with that of her husband) 1848. but the decree was lifted in 1973 and the other district does not have a history of discrimination. Paul. She brought suit under the immunity and privileges clause. 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. Woodhull. The court concludes in this case race was exclusive as oppose from Grutter race was a component to the admission to the school. Then he reads Brown stating that the court should not be in the business of stopping desegregation Shaw v. thus this is race classification.so what is the original intent of the 14th amendment? .was denied the right to vote.it specifically did not choose to include women in the interpretation in the 14th amendment. One of the district’s was de jure segregated. Happersett. .the 14th amendment was drafted but it did not include women . Justice Kennedy concurs: He says that you take diversity into account. the court stated that de jure segregation has been cure many years ago. Anthony. the means do not exhaust the alternatives remedies. 2/17/10 Sex and Gender Law of the land at the time of the constitution Femme Sole. even if the diversity argument is successful.Single women Femme Convert. Breyer dissents (77 pages of dissent).woman wanted to become a lawyer.
and at the end it does not stick.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. Oregon (1908). Thus. that the distinction does not pass Reed. Stanton. Reed(1971) Preferred males to administer estates. The court stated that it was convenient because the men was going to get all of the property anyways. thus it was convenient. here we are only applying rational basis. and also uses the cases before Reed to support that Sex has been discriminated. he created a class that needs to be seen with strict scrutiny.A.). and gives women some power Adkins v.a navy office challenges a statute.Muller v. where the men have a shorter time to get promoted.Title 9. but not a male until he is 21.where movements have shaped the interpretation of the constitution Reed v.the 19th amendment is passed and that is why Muller is overruled Gloesaert v.R. After 1937. Frontiero v.bans discrimination in employment (passes in 1964) (but not really enforced) .Equal Rights Amendment (E. Justice Brennan states that they were going to follow Reed.requires equality in higher education (1972) . Children’s Hospital. It stated giving women more power.Lochner falls apart d 1960’s the feminist movement starts again! Congress’ action .has an exception. Court’s action Started to apply the living constitutionalist theory. There are four votes for strict scrutiny. or change the constitution (this is if you are looking at the discrimination in an originalist point of view. so they need more . However. there are three votes for rational basis plus. Schlesinger v. Clearly Allowed women to work as bartender if the husband or dad was owner of the bar. and men will get an education which will need more support from their parents. There is a distinction of the sex based on the men of the military. Burger did this because he wanted it to be read as strict scrutiny. He adds that because congress has recognized women’s rights then the court should also recognize them in the court. it would not survive strict scrutiny because the means are not narrowly tailored. over females. Thus. Rational basis plus. The court states. strict scrutiny is left hanging.statute where parents can stop supporting a child if she is 18. but for a husband to be dependent of a wife he had to be 50% or more dependent.the court changes its mind of the exception 1920. The court allowed it because women are not allowed in combat. (so Brennan is going to invent intermediate scrutiny which will stick) Stanton v. Richardson A wife could always be defendant of her husband. Stereotypes will need more then just rational basis scrutiny. and is based on stereotypes that women will get married at 18.this case is closer to intermediate scrutiny than to rational basis. Ballard. But.Title 7.
the court stated that this was okay because it redresses the previous discrimination of women Mississippi Univ. Goldfarb. It is important to correct these stereotypes so the court gives a remedy of letting women in VMI. there they do not use the method of constantly challenged and doubting. Craig v. Boren The court made up a new level of scrutiny. This case is based in “real differences. The court stated that this deserves intermediate scrutiny (it must serve important governmental objective and must be substantial related to achievement of those objectives. however.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. Boren Statue in Oklahoma stated that women were allowed to get 3. means have to substantially relating to the ends. However.time to make it to the top. Webster.2% beer when they are 18 and men have to wait until they were 21. (you must rely on the actual justification at the time it is created) In Califano v.Scalia .SSI calculation was not the same for man and women (women had better outcome).” but what is a real difference. Ends test in intermediate test. Men sued for discrimination based on sex. Thus. 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. US v. Thus. this school does not survive this level or scrutiny because the argument that Virginia get because it perpetuates stereotypes.important state interest. The statute was upheld because women do face more hardship then men. 2/22/10 Craig v.) Dissenting. The school opens another institution similar to the men one except that this one is for women. v. 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). Dissent.there should not be that many rational basis. intermediate scrutiny. Khan v. Virginia This is an all male military academy and they used the method of constantly challenged and doubting (very demoralizing). Shevin. This might allow a little more flexibility. Hogan – this is a single sex school where a man wants to apply and is denied because he is a man.striken down because it is based on a stereo type In Califano v. this is really leveling the plain field for men and women to get a promotion. the court struck it down.
Marshall dissents: his level of scrutiny is trending toward strict scrutiny. Rostker v. and men cannot. Thus. but if you’re a women you do not have to register.CA decided that it would save money by not providing disability insurance to pregnant women. Blackmun (concurs)Brennan dissents. The court stated that there is a real difference between mother and fathers in regards to children. Here the girl was 16. thus the court defers to the military and to congress. The court stated that this was not sex discrimination. but not the father to bring the child’s wrongful death suit. it will not be automatic if the father is the US citizenship. and thus there is no real difference. He states that they should let the legislature fix it. The court gave a rational basis scrutiny because the sex is not . however. 2/24/10 Disparate impacts Geduldig v. Superior court of Sonoma county. Scalia states that the courts view should be neutral and should not intervene in either side. The view is that women are naturally going to bond to the child. The guy sued stating that that statute was unconstitutional. Aiello. as oppose to the father is not because it is not sure if he is the father.5 years and was charged with statutory rape.5 and the male was 17. the government’s argument was that women could get pregnant at a young age. The court upheld the differences stating that Congress gives the level of scrutiny to immigration issues. here the statute is hurting man. Hughes.He states that women are not discrete and insular minorities. Parham v. What is intermediate scrutiny after Virginia? Depending on the party and the justices.a penal code only included statutory rape for women not men. This court interprets the intermediate scrutiny closer to rational bases. The court states that there are real differences. Goldberg Men when they turn 18 have to register for the draft. But we think that it is a lot closer to strict then to rational. The court upholds the distinction because women are not permitted to go into combat. because here the state is discriminating for being pregnant not for being a women. like Rosket it has a deference to congress and that is why the court applies intermediate scrutiny trending toward rational basis. The claim is that men are treated more favorable than woman.states that this is a stereotype. INS Statue gives automatic citizenship to children born to a US citizenship mother out of wedlock.a Georgia law allowed mother. Real Differences Cases that allows distinctions based on “real differences” Michael M v. The level of scrutiny is intermediate trending toward rational. Nguyen v. not helping women.
and on the other side is pregnant women. Feeney sues in the basis that to give a veteran’s preference is to give men a preference. Justice Ginsburg ruled that by denying the parents the appeal will violate the equal protection clause. Feeney needs to show intent of the discrimination to win her case. there is veteran’s preference statute. SLJ The courts allow the parents to the rights to appeal because they could not pay the fees. 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. however. The prosecutor offered a neutral explanation as to why he eliminated the jurors. Feeney never got the jobs. Feeney needs to show a purpose and show that the legislature wanted to favor men. 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.does not get heightened scrutiny Hernandez v. MLB v. there was no evidence that the state intended to exclude women when passing the veterans preference statute. and disability Wealth is not a suspect to scrutiny. Kentucky 3/1/10 . Feeney has the burden of finding the intentional discrimination. Language. 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. Feeney. Batson v. ST putting burdens on women is not going to allow Other suspicious other classifications: Wealth. thus. v. it incorporates pregnancy into the sex discrimination clause in title VII. veterans had preferential treatment.Feeney is a civil servant in Mass. and she has taken test and done really well (high enough.A. Here. 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. 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. but for other factors would have gotten the job). however stereotypes diminishes the opportunities to women is not going to work. P. of Mass.being discriminated because in one side of the equation is men and women who are not pregnant. Congress passed the Pregnancy discrimination act. Court will not allow classification in the bases of sex. Language. however.
failed rational basis.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. Kennedy’s theory for sexual orientation. Evans Some parts of Colorado pass a law prohibiting the cities from discriminating on sexual orientation. Sexual Orientation Romer v.no targeting . Second. If you are trying to uphold the amendment: Sexual orientation Romer. Also. 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.can’t close to a group .Process. The Supreme court refused to recognize the disabled as a quasi-suspect class.Pregnancy discrimination does not constitutes sex discrimination on the bases of equal protection Language is distinguishable from race Disability City of Cleburne v. (Craig or Frontiero). Why doesn’t the real differences argument works here? Because the court does not want to get into the fine differences of disable people. however. 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. under intermediate scrutiny the city’s zoning regulation was invalid both on its face and as applied. The conservatives of the state made and special election to nullify city law.Animus based. rational basis did not survive in this case. and Amendment 2 came into law which prohibited homosexuals from proclaiming a minority protected class. thus this is called rational basis with bite. If you are representing the gay couple then you want to read it broadly. however they stated that this did not leave them entirely unprotected from invidious discrimination. we can argue for rational basis with bite (Cleburne). . the court gave this case rational basis. The living center sued and the court stated that the developmentally disabled are a “quasi-suspect class” and that.
this does not mean that the ninth circuit will give all cases similar strict scrutiny this only applies to CA. This is not an immutable (undisputable) class. the Supreme Court vacated this argument) Goodridge v. 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. then amendment two should be okay because it is disfavoring criminal acts. Watkins v. However. Thus. So is this case just targeting status or is it just animus based. Railway express set up: there needs to be a legitimate interest and the means must be rational related to the ends. Scalia punishes status as opposed to acts. he does state the difference between being homosexual and sodomy. thus marriage is not about procreation. The equal protection of the CA constitution is what the court uses to get strict scrutiny. and states that if they are gay then they must engage in sexual acts thus. There is no need to have a child raised by a man and a woman. US Army The ninth circuit heightened scrutiny to gays and lesbians (however. In Re Marriage cases California gives strict scrutiny to these cases. Fertility is not a requirement for marriage. the court gives this case intermediate scrutiny and it kind of blurs the line between it and rational basis. and they . And the financial aspect of the state is going to be impacted by preventing gay marriage. 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.Scalia’s dissent: his class is over exclusive and his main case on point is Bowers which criminalizes sodomy. since sodomy is a crime. 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. 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.
When privileges and Immunities does not work. The court agreed to retry him and found him guilty of first degree murder. such as employment discrimination due to sexual orientation is still not going to fly. The court is not interested in practices and tradition because it usually masks inequality. The state appealed because there was an error and wanted the case to be remanded.are not political powerless (Caroline products (is it a discrete and insular minorities?). if we follow slaughter house then we should not take the P or I clause (14th amendment) seriously. There is still strict scrutiny for sexual orientation. They instead said that they had a fundamental right (article IV) under P and I to pursue their occupation.deals with enumerated rights (1-8th amendment) (do they apply to the states) The unenumerated right question asks. it carves out a narrow definition of the equal protection meaning of marriage. The Slaughter House Case Louisiana banned all slaughter houses except for the Crescent City Company. Privileges and Immunities protect substantive rights. Thus. but only Marriage is not allowed. however. Thus. The majority say that they are not going to create a fundamental right as you see fit without government regulation. Privilege and Immunities clause. Palko appeal stated that there is no double jeopardy because it will violate their fundamental fifth amendment. we invent substantive due process to take on the protections that the immunities and the privileges were taken away. The court upheld the Louisiana exception. . Connecticut (overturned in the 1960’s) Palk was charged with first degree murder and the jury found him guilty of second degree. FUNDEMENTAL RIGHTS Due process protects procedure.adds other fundamental rights. So should double jeopardy apply only to the federal government or should the state also abide by it. the court is interested whether there is settle undated stereotyping and the court said that here there is. The court also did not buy the argument that the acceptance of gay marriage will devalue the people who are already married. the court has eliminated he P and I Clause. however. everything else. and what are they? Due process has come to protect fundamental rights Palko v. 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. The incorporation question. the right to get a fair trial. and thus now you have to look for fundamental rights under the due process and the equal protection clause.are they legitimate. However.
current case pending) Third amendment Seventh amendment Adamson v.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. unless they commit violations of the prohibition laws. Oklahoma Sterilization is ordered for criminals who have committed three crimes. This is too mechanical. Justice Frankfurter. Since this case stated that it does not matter if the right is enumerated as long as there is ordered liberty. allow only some important enumerating rights. but still leaving discretion to the court. Cardozo does not care if the right is implicit in the constitution. but it will fall under equal protection clause of the 14th amendment. Here. Thus. double jeopardy does not apply to states. However. (rights recognizing Anglo-American traditions) Skinner v. Does one have a fundamental right to procreate? This is for sure and unenumared right because it is not explicit in the constitution. Only rational basis is needed to approve this discrimination. and you can extend it to fit unenumerated rights. 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 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. Incorporated rights to states First amendment Fourth amendment Fifth Amendment except no grand juries Six Amendments Eight Amendments Not incorporated Second Amendment (may be.discrimination. dissent Does not like justice discretion (the court makes things up). embezzlement. and incorporate all 8th amendments. The murderer challenged this under the fifth amendment of no self. the law does not apply to every criminal equal because it excludes white collar crimes. 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. or political offenses. but whether is implicit in the concept of order liberty. and believes that selective incorporation. revenue acts. 3/15/10 . Thus. take away discretion because if they do then they are using “natural Law” (lochnering).
there is an issue and to the inequality of the wage of their vote. If you create fundamental rights. however. he claims that this falls under the 14th amendment. intermediate. equal protection clause. . and the states have the right to choose by however means they wanted to elect the electoral college of their state. but it is required that the right to vote is not diluted. this gets strict scrutiny. (one person one vote). Triggers of Equal protection: invidious classification (must show discriminatory intent) 1) Race is involved (strict scrutiny) 2) Gender (heightened. the lawyer needs to prove that this somehow violated the US constitution. Then Bush’s lawyer’s requested cert. One person one vote is not required by the constitution. they turn a textual argument into a structural one. Gore sued stating that they were violating the State constitution because they were not taking into consideration the intent of the voter. no one is being deprived to the right to vote. then it will get rational basis. Thus. and if it is not a fundamental interest. Due process fundamental rights 1) rights incorporated by the 14th amendment (enumerated rights) 2) Unenumerated rights Fundamental Interests Get heightened protection Voting Reynolds v. This case does not fall into the suspect classes of the invidious classification. however.Equal protection is supposed to protect you from classifications. Not all counties are included. then strict scrutiny will attach. but because the court believes that this is wrong they create a new category called “fundamental interest” and give it strict scrutiny. 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. The justices state that the constitution as a whole is all about the right to vote. thus. Sims There is unequal redistricting and thus rural areas had 16 times the voting power then the urban areas. The court decided that the recount stop and that they should go with the results they had before the court got involved. The fundamental right to vote can be infringed by delusion. Gore Each state is constitutionally obligated to elect their electors. and the intent of the voter standards is not specific enough. Here. Bush v. The holding is that voting is a fundamental interest and when the voting is unequal then strict scrutiny is triggered. 2) The interest is so fundamental that the court will apply strict scrutiny. When Florida gave the presidency to Bush.
If you have schools. San Antonio Independent School District v. Plyer v. but instead it should be a sliding scale. He said he was not Lochnering because he does not care about the economic impact. if you have them then there needs to be equal treatment for all. 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 .takes out the parts that are unconstitutional Facial challenged. it is still a fundamental right that deserves strict scrutiny to protect the right. instead. however.Stevens Dissent: stated that the court needed to leave the recount to the state for them to figure it out.Warren would create a prophylactic right around the fundamental right (give it strict scrutiny) to protect it from dilution.fundamental rights .all of the statue is struck down Fundamental rights.The court applies a balancing test As applied. he does not want to take away local control.rational basis with bite TX passed a law that excluded children of illegal immigrants the right to an education. 3/17/10 Equal protection.The interest is so fundamental that you have to protect it to super prophylactic remedy to protect it. He chooses it because he believes the scale works better then the categories. here he is favoring the poor because the rich are the ones getting the benefit over the poor. not having the same amount of funding is fundamental. . Or is it? The court stated that education is a fundamental right. .Due process -Schools are not constitutionally mandatory. Doe (right thing to do case).You need intent (Davis) Equal protection. Even though it is not expressed in the constitution.However Powell does not follow Warren. 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.invidious classification . . The court stated that this violated the equal protection clause because it punishes innocent children who have no control of the situation. then education will become a fundamental interest where once it exists then it has to be distributed equally. He states that there should not be classification of scrutiny. but only having a minimal education is fundamental. and he is afraid of Lochnering. Justice Powell is worried about remedies. 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.
A married couple brought suit to against the State because the women could not have kids because it would put her life in danger. because of the against contraceptives she was afraid to buy them. 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. 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. . 3/22/10 Fundamental Privacy Rights Meyer v. This is simply a right to contract with the students. The court stated that all people in the US have a right to interstate travel includes the right to stop and set up residence. but it protects the right for teachers to contract with their students. Welfare. Ullman Connecticut passed a law stating that no one could use a contraceptive. Safety. However. that the court applies a more elemental equal protection analysis). The court decided that the case was not ripe because the possibility of prosecution was very remote.protection violation (mainly because the statute was so hateful. Poe v. this case follows directly form Lochner. This is not a right for the students to learn a foreign language. 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. Edgewood Independent School District v. historical. Nebraska (pre-1937) Nebraska law banned the teaching a language other than English. However Harlan dissented (which opened the doors to the right to contraception as a fundamental right) He makes a purposive. however. because in the constitution you have a right to liberty of contract. Kirby This is State law. Planned Parenthood started to develop arguments based on Lochner and Meyer to prevent States from prohibiting buying or distributing contraceptives. and structural argument. then get it through the states (since they have their own constitution). and the state cannot discriminate for when you decide to stop under the privileges or immunities clause. The judge thinks that learning a different language does not affect Health. and that doctor recommended that she take contraceptives. Right to Travel Saenz v. Pierce v. so if you cannot get it through the courts.
but the 9th amendment states not to pay attention to the text only). so side with the majority in order to be neutral. Stewart (Dissents). Douglas. instead he is using the due process clause. and states that the state has no business in marriage. He states that the 1st. but not the only way. there is going to be a loser. and if they want to use contraceptive then that privacy needs to be protected. which marriage is a protected fundamental right since other courts have established that. Harlan (Concurring). not just the marriage. He states that if the court uses discretion will lead to Lochner (super legislation).13th . and within that penumbra of privacy there is a right to contraception. and due process clause Black (Dissents). Article 5 is one way. thus the 9th amendment is not a broadening tool for fundamental rights. (sort of a textual argument because he is pointing to the text. He has a textual argument.(Textual and purposive argument) Goldberg (Concurring). Constitutional key moments: 1) the founding of the constitution (1787) 2) The reconstruction (1867). Connecticut Griswold used contraceptives to prevent pregnancy and Connecticut had a law prohibiting the use contraceptives. And all of these have a theme. 3rd. thus it fails rational basis (means ends scrutiny). 5th. but instead it is a limiting tool for the federal government.American Traditions.14th. and he cannot say that it violates the constitution. Contraceptives to commit adultery or sodomy are illegal. Thus. 4th. it is only protected under marriage. 9th have penumbras formed by emanations.states that this is a silly law. Thus we should never side with the minority.non textual amendment Article 5 is not exclusive to bind the future in which the constitution could be amended. or narrow like Harlan or White.states that the ninth amendment states that powers not given to the federal government. and encourages a living constitution interpretation. He would also say that it includes all types of intimacies.and 15th amendment added (through Article 5) 3) The new deal (1937). . If you are a conservative.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.His argument is very detailed. J. will be given to the states. Griswold was facing jail time for violating the law. He states that Griswold is wrong. Griswold v. So how do we read Griswold? Broad like Douglas or Goldberg.read it narrowly (as a marriage case) If you are a liberal. because the justices are making it up and they are Lochnering.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.states that he does not see how the ban on contraceptives will deter people from committing illicit sexual acts. White (Concurring).states that he is not Lochnering. and that is privacy.uses Anglo.
everyone was expecting that under Planned Parenthood v.test: whether there is an undue burden on the right to abortion 4/5/10 Abortion Roe. However. and the right to privacy comes from the 14th amendment due process clause. Still good law. 588) The plurality overrules those case that give strict scrutiny to abortion. Set four rules: (pg. Kennedy. the second trimester not unrestricted. Casey I plurality holding for this case. 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. This is supposed to protect personal autonomy. O’Connor. the plurality is now doing a balancing test. (The judges decided to reaffirm Roe v. does the fetus have a right to life? Well it depends when the mother decides to abort the baby. No more strict scrutiny. Casey. but there are many exceptions. 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.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. however. can only be aborted is there is a threat to the mom. The justices take the living constitution approach. wade) Planned Parenthood v. He holds that the right to abortion comes from the right to privacy. such as the right to abortion is not as liberal as it was before. Blackmun states that in the first trimester abortion is unrestricted.states that the state needs to take an affirmative obligation to pay for the abortion. Thus. this did not happen.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. Roe will be overruled. 586. 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. and Souter all wrote the holding. 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. 2nd paragraph). and the longstanding traditions of American Society have permitted it to be legally proscribed . View on abortion. Wade (7-2 vote) Norma McCorvey wanted to get an abortion after she got a pregnant. it can leave outside the womb). New test: Viability & undue burden The undue burden test: (pg. balancing the woman’s interest.
and there must be and exception on abortion when the mother’s health is at risk. Texas Lawrence explicitly overruled Bowers.First you must prove that there is a fundamental right. The argument is that the right to die is contained within the due process. The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Cruzan (not in the text book) The court is interested in resolving the right to die process. that is what is at stake.Gonzalez v. it only prevents doctors from using certain methods to perform an abortion. O’Connor. To support this argument you may want to cite: Casey/ Roe. 1 was a state law. and personal autonomy. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize sodomy . Kennedy. and if there is proof then they could give a higher level of scrutiny then just reasonable basis. Same Sex Lawrence v. Nebraska/ Pierce If you want to go against that argument you want to cite: Bowers. and how narrowly or broadly they are gong to interpret the fundamental rights. Skinner. Decision difference between Carhart 1 and 2. holding that it had viewed the liberty interest too narrowly. 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. Lochner (Lochnering). The Court asserted that because assisted-suicide is not a fundamental liberty interest.rejects the statute that the law is vague. Loving Myers v. it was therefore not protected under the 14th Amendment (thus it gets rational basis). 4/7/10 Due Process: “Right to Die” Washington v.states that Souter. 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. Glucksberg This is about assisted suicide by doctors. Griswold/ Poe (dissent). Washington State had a ban against assisted suicide.states that there needs to be equal citizenship. Ginsburg. Carhart The state can’t tell doctors what they can and cannot do.
unless you can show that new legislation is necessary Public Function Exception on private parties Nixon v. Their theory revolved on Federalism. 4/12/10 STATE ACTION DOCTRINE This doctrine comes from 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. 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). but when there is no state actors involved then there is no state action and there is thus no violation of the 14th amendment. There is a pre-requisite to the 14th amendment and that is that the state is acting not a private party.between consenting same-sex adults acting in private. Herdon White primaries. Kennedy.goes for a very high level of generality Foreign Law used in this case. if a private party does it then it is not a violation of the 14th amendment. Entanglement Exception . You need to prove state action before you can get a due process claim. There is state action when there are state actors involved.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. If the state violates the 14th amendment then there is a violation. It also invalidated the application of sodomy laws to heterosexual sex.it is important that the federal government does not intrude onto state affairs. Cities Romer. the 13th amendment does not have a state action requirement it is addressed to private parties also. however. This is very controversial because he is using foreign law that does not apply to the US.a Texas law prohibited blacks from voting on the primary election.because this case is about animosity and Romer is also about animosity as well and it withstood Bowers. If there is a private party exercising public functions then that is state action.
free market in ideas o autonomy o open the channels of communication might enhance political process Texas v. however it is located in a state owned building. But in Edmonson v. Moose Lodge v. Kramer where everything was state action.This is when the government is sufficiently entangled that it is considered state action. an African American was not let into the moose lodge. The first amendment is a federalist provision. 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. Discriminatory intent is required proving that it intended to discriminate at the time the state gave the liquor license (Washington v. only the states reserve the right to limit speech.however. If we take Shelley seriously then everything is state action.there is not first amendment originalism . Point of the first amendment: . and a black couple bought a residence in that plot of land. First Amendment The first amendment is addressed to Congress. Shelley appealed and stated that by the court enforcing the covenant then there is state action and violated the 14th amendment. if the president decides to limit speech then there will be a violation of separation of powers. and the trial court enforced it.all views are purposive o seek truth. A neighbor sued to have the covenant enforced. Johnson . 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. Davis) 4/14/10 State Action continued… State action after moose lodge is a step back from Shelly v. Burton v. Kramer There is a racially restrictive covenant in a plot of land. Wilmington Parking Authority A private restaurant does not serve African Americans. The court agreed. Shelley v. Leesville the state action doctrine came back. Irvis Here.
place or manner in which that message is made. Illegal Advocacy . one of which a violation of the St. Such laws are facially unconstitutional and are considered an especially egregious form of content discrimination. v. O’Brien. Black (2003). 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.stating that the flag is a symbol and it should be respected. United States v. he was found guilty for desecrating the flag and got one year or prison and a fine.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.A." Content discrimination. First Circuit Court of Appeals vacated and remanded. because its effect on speech was only incidental. Paul Bias-Motivated Crime Ordinance was struck down both because it was overbroad. For example. proscribing both "fighting words" and protected speech.American family that lived across the street." proscribing only activities which conveyed messages concerning particular topics. He argued that the "uniqueness" of the flag "justifies a governmental prohibition against flag burning in the way respondent Johnson did here. Paul BiasMotivated Crime Ordinance. The court stated that the St.V.A law that discriminates based on the content of a message — as opposed to the time. City of ST Paul The defendant burned a cross in the front lawn of an African.Johnson burned the US flag and there was a policy that prohibited flag burning. and because the regulation was "content-based. whereas a law banning cross-burning with the intent to intimidate have been found not to be unconstitutional. Rehnquist dissents. or the reactions it incites in people — is considered presumptively unconstitutional. In a five to four decision the Supreme Court upheld the Ct of Appeals reversal.O’Brien is in a protests against the Vietnam War and he burns his draft card. 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. The minor was charged with two counts. See Virginia v. a law prohibiting crossburning in general have been found to be unconstitutional.have never been thought to raise any constitutional problem... The court talks about “fighting words”. They took the content as neutral. Judgment of the Supreme Court of Minnesota reversed." R. Viewpoint discrimination. and it was justified by the significant government interest in maintaining an efficient and effective military draft system. as opposed to the mode in which that message is conveyed.A regulation is considered to discriminate on the basis of viewpoint when it attacks a particular individual’s or group’s message. Holding: A criminal prohibition against burning draft cards did not violate the First Amendment.
The court in a unanimous decision stated that the Defendant's criticism of the draft was not protected by the First Amendment.restricts the content of the speech Government may not ban speech based on content absent a compelling state interest (hard to satisfy. 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.Schenck v. involvement in World War I was not protected by the First Amendment. U. Schenck mailed leaflets stating that the draft violated the 13th amendment. place and manner restrictions is another example 3.S. armed forces during a state of war. holding that the government cannot constitutionally punish abstract advocacy of force or law violation.S. In sum: Ohio's criminal syndicalism statute violated the First Amendment. because it created a clear and present danger to the enlistment and recruiting practices of the U. 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. The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. subject to reasonableness requirements i. Ohio Brandenburg was trying to promote the KKK by videotaping cross-burnings. The second leaflet. One leaflet. but is trying to achieve other things 1. Holding: The Supreme Court ruled 7–2 that the Act did not violate the freedom of speech protected by the First Amendment.S. because they advocated a strike in munitions production and the violent overthrow of the government. Justice John Hessin Clarke used a relatively restrictive speech test – "bad tendency" – to uphold the conviction. and other KKK’s activities. Government may impose content-neutral restrictions on speech. U.S. 4/19/10 Free Speech I. Brandenburg v. Abrams v. as applied to the state through the Fourteenth.S. . is the same level of strict scrutiny) II. time. Supreme Court reversed Brandenburg's conviction. The unanimous majority opinion was a per curiam decision. In Sum: Defendants' criticism of U. written in Yiddish. The government cannot regulate the content. denounced the sending of American troops to Russia. because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action. content-based restriction. 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. signed "revolutionists". ex) laws prohibiting fire (Prevents people from burning a cross) 2.
Dissent: Justice Clarence Thomas argued that cross-burning itself should be a First Amendment exception.but not public forums iv." Thomas wrote. the Court struck down that statute to the extent that it considered cross burning as prima facie evidence of intent to intimidate. Obscenity vi. "prohibits only conduct. Ohio It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action Virginia v. Such a provision. 7 exceptions: i. due to the historical association of flagburning with terrorism." Justice David Souter argued that cross-burning. A. 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." However. even with the proven intent to intimidate. In this case. "[T]his statute. blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology. Certain government property. Black Three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. And. should not be a crime under the R. cross-burning can be a criminal offense if the intent to intimidate is proven." Defamation . not expression. Schools. V. Government employees iii. Broadcast media Brandenburg v. prisons. just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment. Defamation (in some circumstances) iv. Intellectual property theft Content restrictions may be Ok in these special zones: i. City of St. Advertising v. Paul precedent because of "the statute’s contentbased distinction. True threat iii. military ii. as others have argued regarding flag-burning. Incitement to violence ii. Government funding restrictions v. (Intimidation is not constitutionally protected.III. v. those who hate cannot terrorize and intimidate to make their point. the Court argued. Fighting Words vii.
Glen Theater. Inc Indiana banned public nudity in ballroom dancing. The article did contain some false information. in a patently offensive way. 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. sexual conduct specifically defined by the applicable state law. lacks serous literary. California) 1) whether the average person. Holding: The First Amendment. park. because the statements were not made with knowing or reckless disregard for the truth. City of Renton v. The court upheld the ban on nude dancing because such establishments attract crime. taken as a whole. or with actual malice. and 3) whether the work. taken as a whole. and wide-open. appeals to the prurient interest 2) whether the work depicts or describes. artistic. Obscenity Traditionally not protected The court began to reject anything that had to do with sex. If the court would have held that there was liability then all the political cartoonist and caricaturist will be out of business. Pap’s AM Erie passed an ordinance against nude dancing requiring that the dancers wear pasties and GStrings. Playtime Theater A city ordinance prohibited adult movie theaters within 1000 feet of any residence. political. Sullivan. 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. City of Erie v. .A commissioner in Alabama brought a libel action against the NY Times. Falwell The court held that the magazine was protected under the constitution because the libel was parody. protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official. or scientific value The test is still current. applying contemporary community standards would find that the work. Barnes v. as applied through the Fourteenth. Hustler Magazine v. robust. church. and prostitution and thus is a content neutral because it prevents secondary effects that the city could validly seek to suppress. The court stated that the statute was contentneutral because it will prevent the negative effects in the neighborhood.New York Times v. What is obscenity? Miller test (Miler v. or school.
. education. in order to pass out leaflets. Rock Against Racism There is a dispute between the residents of central park and the concerts that take place there. and manner restriction. 4/21/10 Government Speech Government is bound by the first amendment Pickering v. rather this is a time. Hill v. without a showing that his statements were knowingly or recklessly false. place.” Holding: this is a time. Restrictions are content-neutral because they are restricting the volume not the contents of the music. Ceballos is a decision by the Supreme Court of the United States involving the First Amendment free speech protections for government employees.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. 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. his speech had no First Amendment protection. or engage in “oral protest. thus this is a content-neutral statute because it applies to all people not just targeting a certain people. place. 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. Supreme Court of Illinois reversed and remanded Garcetti v. United States v. and manner restrictions. without that person’s consent. or counceling. Board of Education The dismissal of a public school teacher for public statements regarding issues of public importance. The sidewalk is a public forum. display a sign. and manner restriction. that because his statements were made pursuant to his position as a public employee. thus the government cannot restrict speech. 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. violated his First Amendment right to free speech. in a 5-4 decision. The Court ruled. Ward v. 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. place. rather than as a private citizen.
advising. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas. the Court of Appeals invalidated the restriction. in this case the court did not want to really push this doctrine Legal services corp. "the LSC program was designed to facilitate private speech.The government cannot require you to waive your first amendment rights. Velazquez The Legal Services Corporation Act authorizes the Legal Services Corporation (LSC) to distribute funds. not to promote a governmental message. arguing that the . The District Court denied a preliminary injunction. Constitution. federal government to promote family planning (Title X). Kennedy." 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. appropriated by Congress. In a 5-4 opinion delivered by Justice Anthony M. among other things. Sullivan Health and Human Services regulations prohibiting recipients of government funds from advocating. Unconstitutional condition: the government places conditions to those that fund. Question: Does the funding restriction on the Legal Services Corporation. so they cannot directly control your first amendment right. Justice Kennedy wrote for that Court that. and Fifth Amendments to the U. With Title X of the Public Health Service Act. First Amendment. to local grantee organizations." Justice Antonin Scalia wrote a dissent. which provide free legal assistance to indigent clients in welfare benefits claims. the law states that you cannot do indirectly what you cannot do directly. Congress prohibited the funds from being "used in programs where abortion is a method of family planning. counseling. LSC grantee lawyers and others filed suit to have the restriction declared unconstitutional. 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. which was joined by Chief Justice William H. 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. .however. violate the First Amendment? Conclusion: Yes. However. however. however. v. or Fourth or Fifth Amendment. or promoting the idea that a woman seek an abortion. it is not the same if the government is funding your business. or referring patients for abortion do not violate statute.S. The case concerned the legality and constitutionality of Department of Health and Human Services regulations on the use of funds spent by the U. 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.S. which prevents attorneys from representing clients in an attempt to amend or challenge existing welfare law. Rust v. Fourth. These regulations were challenged on the grounds that they were not permissibly within the scope of the statute and that they violated the First. but also counseling. concluding that it was impermissible viewpoint discrimination that violated the First Amendment.
" In the opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric. that is why it comes out different then in Rust. which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct.in violation of established school policy. Thirdly. only after exiting the room he put the jacket on and was then arrested.and that failing to act would send a powerful message to the students in her charge.” The student was disciplined because the banner advocated drug use. The first amendment does not require schools to tolerate at school events student expression that contributes to those dangers Fighting words." The court made the distinction that doctors are public and lawyers are private. Captive audiences. 1968. The court stated this is not an obscenity because there is nothing sexual to it. Student Speech Tinker v. Second. He was convicted of violating section 415 of the California Penal Code." Harlan’s arguments can be constructed in three major points: First. Paul Robert Cohen.Appropriations Act "does not directly regulate speech. and it neither establishes a public forum nor discriminates on the basis of viewpoint. . consistently with the First and Fourteenth Amendments. overturned the appellate court's ruling. 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. and hate speech Cohen v. Des Moines School District Students wore black armbands on campus in protest of the Vietnam war and were expelled. and it does not threaten anyone. make the simple public display of this single four-letter expletive a criminal offense. but this also not a fighting word. California On April 26. Federick A student waived a huge banner reading “Bong Hits 4 Jesus. knowing where to draw the line between harmless heightened emotion and vulgarity can be difficult. Inside the court room he had the jacket folded over his arm. per Justice John Marshall Harlan II." The Court. states (California) cannot censor their citizens in order to make a “civil” society. by a vote of 5-4. Morse v. the court said that students cannot be expelled students from wearing black armbands. The court held that it was reasonable for the principal to conclude that the banner promote illegal drug use. "the State may not." it said. was arrested for wearing a jacket bearing the words "Fuck the Draft" inside the Los Angeles Courthouse. 19. because it is something that is not going to provoke violence. "[A]bsent a more particularized and compelling reason for its actions.
3d 767. 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. Writing for a unanimous court. 1970). Hate Speech Beauharnais v. Chief Justice William Rehnquist reasoned that. This case is no longer good law. and 2) ensuring that unwanted speech does not enter one's home. Supreme Court upheld the FCC action in 1978. which was decided after the Court of Appeal of California's decision in Cohen v. joined by Burger and Black. The second paragraph of Blackmun's dissent noted that the Supreme Court of California construed section 415 in In re Bushman 1 Cal. even though it has not been formally overruled.Rptr. criminality." This is libel. neighborhoods and persons. Whereas . Pacifica received a sanction from the FCC. 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. color. 375 (Cal. 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." FCC v. ruling that the routine was "indecent but not obscene". for allegedly violating FCC regulations which prohibited broadcasting indecent material. in substance. Wisconsin Supreme Court reversed and remanded.Dissent: In a dissenting opinion. a father complained to the FCC that his son had heard the George Carlin routine "Filthy Words" broadcast one afternoon over WBAI. 83 Cal. The Court stated that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience. by a vote of 5 to 4. The U. creed or religion. Pacifica Foundation In 1973. by the Negro. their property.S. in the form of a letter of reprimand. unchastity. harassment and invasion of white people. Justice Harry Blackmun. The Court accepted as compelling the government's interests in 1) shielding children from patently offensive material. California and the Supreme Court of California's denial of review.S.'" His criminal conviction by the trial court was sustained by the Illinois Supreme Court which the U. Wisconsin v. Wisconsin's law served the same purpose as federal antidiscrimination law. 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. and gave the FCC broad leeway to determine what constituted indecency in different contexts. a Pacifica Foundation FM radio station in New York City. or lack of virtue of a class of citizens of any race. 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.
you need to look for view point discrimination within a carved-out category. Time. no overbreadth Hate Speech Wisconsin v.A. Mitchell.then you need to see if it falls within the exceptions (carve-outs) 1.. 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. as stated above. Procedural protections 1. etc… 4. conduct ii. but for conduct Should Hate Speech be regulated: you can ban cross burning to the extent that it is a threat. The court stated that it was ok because what they were being punished for was not speech. no prior restrains 2. and schools a. but was instead directed at violence in particular. the law was not explicitly targeting beliefs or statements 4/26/10 First Amendment I.then it will always survive i. militaries. obscenity 3. no vagueness 3. if not. but it cannot just ban all discriminatory fighting works (this will be unconstitutional) . and Manner (Public-forum) 1. Special places (opposite of a public forum) 1. but it has to be narrowly tailored 2.in R. Among these secondary effects mentioned were the increased likelihood of a bias-motivated crime to provoke retaliation. the statute in this case was directed towards conduct that was not expressive as such. If yes. Content Neutrality a.this case is about sentencing enhancements for hate crimes. thus the government could ban all fighting words. fighting words 2. Leave open alternate channels of communication b. especially if. and to incite community unrest. Place. Test: a. If the regulation is narrowly tailored b. but not for the reason of stopping the KKK cult. The Court explained that these secondary effects were more than adequate reason for such a sentencing enhancement. . The government can regulate this. jails. the ordinance struck down was explicitly targeted at expression.V. to inflict greater emotional distress on the victim. there are a lot of deference’s iii.
ACLU Commercial speech. the law is not going to allow it. and the US wanted an injunction for the publication. he was not arguing that he could not be banned. even though it was a matter of national security.must have a very compelling reason to get around this prohibition Vagueness If a law is to vague. And they issued an injunction to King. he stated that it was . wideopen. gives too much discretion. 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. Prior restraint. PacificaOverbreath. laws that have this effect will fail ebcause they want a public sphere that is robust. The New York Times got a hold pentagon papers about the Vietnam War.Offensive Speech FCC v. v.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. a minister was passing pamphlets in the terminal. U. however.S. Papachristou v. the court did not allow it because it constituted a prior restraint.Reno v. and King defied the injunction Any system that New York Times Co. Jacksonville Avoid “chilling effects” we do not want to chill speech.
the court holds that the total ban in DC for hand guns is unconstitutional (Scalia. Board of Directors of Rotary International v. dissenting. Scalia overrules Miller because it is contrast with the original intent of the second amendment. so Scrutiny is doing the work. Dale Reconciling the cases: Gender gets strict scrutiny and sexual orientation does not. The court stated that this law was too overbroad and it did not survive. and they cannot be carried in courts. the court said no because otherwise it will interfere with the freedom of association.too overbroad because it will also ban someone reading a book. The court stated that this was protected under the freedom of association NAACP v. Rotary Club of Duarte Boys Scout of America v.Bowling v. Patterson During discovery Patterson subpoena the list of membership. or someone wearing a t-shirt with statements. Freedom of Association NAACP v. uses a textualism and originalism approach to write the holding). The 14th amendment applies to the meaning to the 5th amendment. then it should still remain good law. Claiborne Hardware Can everyone in the organization be held liable for a violent incident. is interested on precedent and states that if Miller has been good law for such a long time. Stevens. Issues: Incorporation? Is it incorporated or does it only apply to the states . Sharpe 4/27/10 A ban on handguns greater then 38 calibers and they have to be registered every year. 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.
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. disability (other classifications. HOT) Fundamental rights Lochner (HOT).warm Language. what is not: Equal protection West Virginia v.you argue both sides (why is it a fundamental right. Barnett (justice Jackson. place. and why it is not) Level of scrutiny suspect classifications heightened scrutiny fundamental rights also get strict scrutiny times.Hot .when this one dies Barnett takes its place (compare Barnett & Heller) Economic Rights (not that hot.not hot) Intermediate scrutiny.- is it a fundamental right (according to Heller it the 2nd amendment is a fundamental and individual right) Standard (Polko). and manner get a lower scrutiny What is hot.warm) Incorporation.
Burton (the restaurant leasing parking space from the county) gives state action .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. Exemption for public function i.HOT HOT HOT Speech.HOT Issues from the practice exam #1 1) State Action a.Moose Lodge which causes no state action Fundamental rights .- Amendments that are incorporated o First.gender . t 2) Fundamental Right a. strict scrutiny ( you need to satisfy compelling governmental interest narrowly taylor) . Trigger: his pharmicy is located in the county hospital ii. The only pharmacy in the city.serves for level of scrutiny iii. yes o Second.State license by the state. Abortion 3) Equal protection . Contraception c. Privacy b.Economic Reasonable constitutional argumentsState action . 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.
substantially related to a governmental state interest to an important governmental interest Thus if you can say that this is not sex discrimination.Is the law facially neutral (yes. it will not survive the second part of the test because it is not narrowly taylored . 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. Davis then you will get strict.Abortion (Roe v.Washington v. but it has a disparate impact) o (Yik Wo).Americans who practice acupuncture • The senator’s statement that acupuncture is like Voodoo shows animosity • If you meet Washington v. the earlier the trimester the higher the 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. Kasey (undue burden) Equal Protection . however.intent can be shown through the disparate impact First apply.No lochnering . Wade. 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. and contraceptives will be under that protection because it will only be 72 hours which will fall under the complete protection of Roe v. Grutter and Korematsu.A compelling interest that the government has adopted is protecting the health of a woman. if it fails then it will get rational bases o The only cases that have survived Strict Scrutiny is. . 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) . Wade) (Kasey) o The right to abortion is protected.
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