A. BROWN I & II ONLY NONSEGREGATED PUBLIC SCHOOLS WERE CONSISTENT WITH THE REQUIREMENT OF EQUAL PROTECTION OF THE LAWS!

! BROWN V. BOARD OF EDUCATION (Brown I) (1954) o Courts justifications in Brown I Legislative history of EP clause is consistent w/ outlawing segregated ed. Education = most important function of state and local governments Separating [minority children] from others of similar age/qualification solely bc of their race generates feelings of inferiority re: their status in community that may affect their minds and hearts in a way unlikely to ever be undone. Segregation w/ the sanction of the law [has] a tendency to [retard] the educational and mental development of negro children. o Ct did not prescribe remedy BROWN V. BOARD OF EDUCATION (Brown II) (1955) o Cases remanded to lower cts to use tradl equity principles to create remedies to admit to public schools on a racially nondiscriminatory basis w/ all deliberate speed the parties to these cases. Critiques against all deliberate speed approach o If segregation = unconstitutional, the ct cannot legitimately tolerate continued segregation. o Brown II needlessly encouraged white resistance by failing to demand an immediate remedy. o Brown II overstated the administrative difficulties of segregation. o Ct acted unwisely by giving the task of enforcement/clarification of Brown I to lower fed cts 1. FULFILLING BROWN V. BOARD OF EDUCATION A. INITIAL RESPONSE TO BROWN Massive Southern resistance usually rhetorical, but sometimes violent Schools began w/ freedom of choice plans blacks and whites could choose which schools they wanted to attend, were assigned to old school unless they requested transfer Briggs v. Elliot (Eastern District of SC, 1955): Const does not require integration, just forbids use of government power to enforce segregation. COOPER V. AARON (1958): Children admitted to Little Rock Central HS after Eisenhower dispatched troops. Ct held constitutional rights of respondents are not to be sacrificed or yielded to the violence or disorder caused by actions of AR Governor and Legislature. Law and order are not to be used to deprive children their constitutional rights. B. END OF DELIBERATE SPEED Watson v. Memphis (1963): Ct held all deliberate speed no longer applicable; IMMEDIATE desegregation. Goss v. Board of Ed (1963): invalidated one-way transfer plans permitting students to transfer from schools where they were racial minority to those where they were majority Griffin v. County School Board (1964): unconstitutional to close of county schools to avoid desegregation
Page 1

Green v. County School Board (1968): Ct invalidated freedom of choice plan that school adopted to avoid loss of federal funds. Ct held plan could not be accepted as sufficient step to effectuate a transition to a unitary school system. School board needed to come up w/ plan that realistically workedNOW!

C. BUSING Swann v. Charlotte-Mecklenburg Board of Education (1971): Ct upheld school districting plan as well as use of busing in system that remained segregated despite free transfers and new geographic zoning. Ct also said desegregation doesnt require that every school in every community must always reflect racial composition of school system as a whole. o THREE PRINCIPLES Constitutional violation stemmed from purposeful state manipulation of schools racial composition; The scope of judicial power was limited by the constitutional violation; and Once school dist achieved unitary status judicial intervention should cease. Swann justified judicial intervention only to correct deliberate segregative acts. Even if no statute requiring segregation, Ct could find deliberate segregation if demonstrable that school zones set up to produce same effect. o The De Jure-De Facto Distinction Swann justified judicial intervention only to correct deliberate segregate acts. Even if there were no statute requiring segregation, a court could find deliberate segregation if it were demonstrable that school zones were set up to have the same effect. De Jury (by law) segregation is racial separation that is the product of some purposeful act by govr authorities. Violates the equal protection; the court will intervene if necessary to remedy this situation De Facto (by the facts) segregation occurs because of multiple private housing and migration patterns and is unconnected to any purposeful govrn action to racially segregated schools If a school distinct is unintentionally ( de facto) segregated, there is no const. violation and the court will not intervene D. SCHOOL DESEGREGATION Keyes v. School District (1973): Ct found Denver School Board had deliberately segregated schools in particular section of city by manipulating school zones. o Once a showing of purposeful segregation has been made, plaintiffs were not required to show deliberate segregation for each school w/in the school system. o The school never operated under a const or statutory provision that explicitly required or permitted racial segregation, however, there was proof that at least some of the schools had been used to isolate blacks o The court adopted jure-de facto analysis and held that it was a const isolation o 2. END OF AN ERA White flight when Brown decided, urban areas = white majority, by time desegregation attempts began urban areas = primarily black
Page 2

INTERDISTRICT RELIEF o Milliken v. Bradley (Milliken I) (1974): Ct held that federal cts lacked power to impose interdistrict remedies for school desegregation. To justify interdistrict relief must show that racially discriminatory acts were a substantial cause of interdistrict segregation. W/o interdistrict violation and interdistrict effect, there is no constitutional wrong justifying interdistrict remedy. Inter-district relief is appropriate where P show either that the racially discriminatory acts of one district affect an adjacent district or where district lines have been drawn according to race INTRADISTRICT RELIEF o Milliken v. Bradley (Milliken II) (1977): Ct affirmed ct ordered plan that provided each black student in 70% black system w/ some # of yrs in a racially integrated school Modern Freedom of Choice o US v. Fordice (1992): Ct held 8 public universities in MS had not sufficiently integrated and that the state must take affirmative action to change this under the Equal Protection Clause. System not declared unconstitutional; simply the court ruled that more action needed to be taken to ensure integration. Thomas concurrence: State cannot operate diverse assortment of universities open to all on race-neutral basis, but w/ established traditions and programs that might disproportionately appeal to one race or another. Washington v. Davis (1976): suggests govt is not constitutionally required to engage in raceconscious remediation outside the context of education

Page 3

EQUAL PROTECTION Overview 1. The 14th A commands that no person shall be denied equal protection of the law by any state . a. Individuals who are similar to each other must be treated similarly b. Governs all govr actions that classify individuals for different benefits or burdens under the law i. However- the law does not reject the govs ability to classify person or draw lines in the creation of application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals c. The equal protection clause of the 14th A by its own terms applies only to state and local govr d. There is no equal protection clause that governs the actions of the federal govr, but if the gederal govr classifies individuals in a way which would violate the equal protection clause, the Court had held that it violates the equal protection compenent of the due process clause of the 5th A e. If the law does not classify individuals = analysis under due process f. If the means the law employes to achieve its end is the classification of person for differing benefits or burdens, = employ equal protection guarantee g. What does the court look for /Test i. Whether the classification is properly drawn? ii. Determine whether valid on its face- Inquire about the nature of the legislative classification and it purpose and effect iii. If the law applied in such a way as to create a classification 1. The court will test the law in its application to determine whether the classification established by administrative actions is permissible iv. In reviewing any classification, court will determine WHETHER OR NOT THE PERSONS CLASSIFIED BY THE LAW FOR DIFFERENT TREATMENT ARE IN FACT DISSIMILAR? 1. Relates to the bases- proper for the advancement of legitimate govr purpose v. Look to the end or purpose of the legislation in order to determine whether persons are similarly situated in terms of that governmental system vi. Classification can related to gov ends in any of the following 1. The classification could be perfect in that it treats all similar person in a similar manner 2. The classification for a burden or a benefit while excluding the class of persons who do relate to the legitimate purpose of the statute 3. The class. Can be under-inclusive in that it includes a small number of person who fit the purpose of the statute but excludes some who are similarly situated 4. The classification can be over-inclusive in that it treats in a similar manner not only those persons whose characteristics similarly related to the purpose of the law but also some additional persons who do not share the legitimately distinguishing characteristics 5. There can be a mixed relation of over and under-inclusive vii. Fundament rights violated 1. Any law in question must promote an overriding or compelling interest in order to be valid viii. Economic or general social welfare
Page 4

1. Rationally related to a legitimate gov purpose a. Rational relationship test whether it is conceivable that the classification bears a rational relationship to an end of gov that the Const does not prohibits ix. Strict Scrutiny Test the court will not defer to the decision of the other branches of gov but will instead independently determine the degree of relationship that the classification bears to a constitutionally compelling end

I. EP: RATIONAL BASIS REVIEW AND HEIGHTENED SCRUTINY

become the main tool to address laws that arguably target a class of citizens for disfavored treatment

The Court tends to focus on three basic questions: 1. How has the government defined/classified the group being benefited/burdened, (classification) This is the question of means Classification must be justified through relevant differences between individuals (ie. methadone use & non-users) A difference is relevant if, but only if, it bears an empirical relationship to the purpose of the rule. This is presumably what the Court means in Beazer when it says that legislative classifications are valid unless they bear no rational relationship to the states objectives. Discriminatory impact is not enough to prove a racial or gender classification. Either: Law has to be facially discriminatory (discriminatory on its face) If the law is facially neutral, burdened group has to show that there is a racial or gender discriminatory impact and legislative discriminatory purpose Once classification is determined, then 2. What is the purpose, goal or interest & apply appropriate level of scrutiny? This is the question of ends 3. Is there a sufficient connection between the means the government is using and the ends it is pursuing, (i.e., does the government action meet the level of scrutiny? This is the question of fit or nexus The classification must be relevant to the state objective Usually courts prefer a law narrowly tailored to its objective, not overly broad

A. LEGITIMATE PURPOSE- Rational Basis

Legitimate purpose using police powers to protect public safety, public health, or public morals. o Railway Express Agency v. NY (1949): Ct upheld law banning advertising vehicles. Legitimate purpose was to enhance traffic safety bc prohibited ads could be more distracting. Guy driving advertised van for own business ok, guy driving advertized van as commercial advertising not ok
Page 5

o Williamson v. Lee Optical (1955): Ct upheld OK law making it illegal for anyone other than optometrist/ophthalmologist to fit/duplicate/replace glasses, UNLESS prescription from optometrist/ophthalmologist. Legitimate purpose was promotion of health b/c eye exams ensure correct vision, but also detect ailments and diseases. RB goes no further than invidious discrim. Laws regulating business, Rational Basis. o Romer v. Evans (1996): CO enacted a constitutional amendment prohibiting local governments from enacting antidiscrimination measures that protected homosexuals practices & relationships. No legitimate justification for singling a group out and precluding from political process. Non-legitimate Purpose seemed to be invidious and animus toward the class it affects. Didnt pass RB, so court didnt go further to applying Strict scrutiny. Nearly all goals not forbidden by Constitution may be deemed sufficient for rational basis. Harming a politically unpopular group is not a legitimate purpose. o US Dept. of Ag v. Moreno (1973): Food Stamp Act of 1964 prevented a household from receiving food stamps if it included individuals not related to one another. Ct said purpose of act to increase nutrition for low-income families. Leg history showed intent to prevent hippies (politically unpopular group) from getting stamps (And all pretty much on record.) Ct held act violated rational basis test. Law upheld as long as Ct can identify some feasible legitimate purpose, even if govts actual purpose. o Under RB scrutiny EP is violated if classification rests on grounds wholly irrelevant to the achievement of the States objective. -- McGowan v. MD (1961) Actual purpose is irrelevant. Law should be upheld if any facts can justify the discrimination. o Caveat: Powell dissent, Sckweiker v. Wilson (1981): Ct should be skeptical of a hypos re: legislative purpose, unsupported by leg history. If no purpose indicated, classification must bear fair and substantial relation to asserted purpose. o MN v. Clover Leaf Creamery Co.(1981) : Law banned retail sale of milk in nonreturnable plastic containers, but allowed sale in nonreturnable paper cartons. Leg said purpose = easing waste disposal, conservation, etc. Trial Ct held law violated EP bc actual basis was to promote interests of local dairy and pulpwood industries. S Ct. reversed, say there was no empirical connection between purpose and means. Problems w/ actual purpose o Assumes one motivation underlies legislation when different legislators may vote to enact for different reasons. Rehnquist dissent Kassel v. Consolidated Freightways (1981) o Requires proving legislature sought purpose, and then proving enacted law not suited to accomplish purpose. Rehnquist dissent, Trimble v. Gordon (1977) Ct must decide whether classification bears reasonable relation to its purpose Nexus or fit part of this test usually prevails OVER INCLUSIVE classification that disadvantages a larger class than needed to achieve states purpose o Permissibility depends on cost of generalization v. cost of individualized judgment
Page 6

B. REASONABLE RELATIONSHIP

o NYC Transit Authority v. Beazer (1979): Ct (Stevens) upheld as rational policy against employing drug users & was applied to methadone users. Legislative classifications are valid unless they bear no rational relationship to the states objectives. Purpose is to serves the general objectives of safety and efficiency. Not directed at a particular group of people, was a policy choice. UNDER INCLUSIVE classification where some people disadvantaged/burdened will remain disadvantaged/burden and the statute/laws failure to include them undermines (to some extent) achievement of the states interest o Even substantial underinclusiveness allowed bc govt allowed to take one step at a time to phase out a problem. Williamson v. Lee Optical (still allowed sale of ready to wear glasses w/o prescription.) o It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. -- Railway Express Agency, Inc. v. NY (ie. Ads on commercial vehicle not allow, but personal business vehicle allowed) ARBITRARY AND UNREASONABLE LAWS o Sometimes laws so arbitrary that they fail rational basis. o City of Cleburne v. Cleburne Living Center (1985): Ct invalidated zoning ord that prevented building home for mentally retarded, but allowed hospitals and boarding houses. City claimed purpose that junior high kids across street could be harmed There was not a rational relation that purpose (It was mere negative attitudes w/ no proof) and Ct said this based on private bias and not legit purpose. o Village of Willowbrook v. Olech (2000): Ct held valid EP claim. Couple asked village to connect to municipal water supply, but village would only do if couple granted them 30ft easement. Village only required 15ft from everyone else, couple had previously sued village. Ct said treatment was arbitrary and based on ill will.

II. EQUAL PROTECTION: RACE STRICT SCRUTINY

Racial classifications ONLY PERMISSIBLE IF necessary to achieve compelling government & goal CANNOT be achieved through any less discriminatory alternative. To prove discriminatory effects in race cases, the claimant must show that similarly situated individuals of a different race were not prosecuted/burdened If a statute, etc. 1.) explicitly draws line between races or 2.) motivated by racial legislative purpose, strict scrutiny will be used. Essential element of segregation as matter of law is a current condition of segregation from intentional state action A suspect class is grouped adversely, strict scrutiny is sure to apply. A suspect class is: o 1.) a discrete and insular(isolated) minority o 2.) possessing an immutable trait o 3.) shares a history of discrimination o 4.) generally disadvantaged in the political process Justifications for strict scrutiny o Original intent of 14th: protect Afri. Amer. from discrim based on race, color, or previous condition of servitude o Race is rarely related to any legitimate govt purpose o Racial classifications violate a fundamental moral norm o Unfair to discriminate against immutable characteristic
Page 7

A. Strict Scrutiny of Race-Specific Classifications That Disadvantage

14th: ensure African Americans enjoy all civil rights under the law enjoyed by whites and to give AAs protection of gen govt. o Strauder v. WV (1880): Ct declared WV law limiting jury service to white male citizens over 21. Law unconstitutional bc expressly singled out and disadvantaged blacks who should be seen as competent to serve on jury. ALL RESTRICTIONS WHICH IMPEDE ON CIVIL RIGHTS OF SINGLE RACIAL GROUP = IMMEDIATELY SUSPECT!! However: o Korematsu v. US (1944): Stated racial classification should be subject to rigid scrutiny. Ct upheld Japanese relocation program. Evacuation/internment of 110,000 Japanese Americans. Ct justified program on assumption that it was bc of a military imperative for natl security and not to disadvantage a group. Classification = over inclusive re: JAs (govt interred everyone even though it claimed only a few unloyal ppl) and underinclusive b/c no other race that posed a threat was interred FACIALLY DISCRIMINATING LAWS = TROUBLING Only case where Ct upheld racial classif. burdened minorities. 1. Race Classification that Burden Both Whites and Racial Minorities *M]ere equal application of a statute concerning racial classifications is [not] enough to remove the classifications from the 14ths proscription on all invidious racial discrimination. o Loving v. VA (1966):Ct struck down VAs law prohibiting interracial marriage. Restricting right to marry based on race = EP violation! Court found legislative purpose behind statute was to preserve white supremacy. o CASE MARKED USE OF HEIGHTENED SCRUTINY! Hunter v. Erickson (1969): Akron enacted fair housing law prohibit racial discrim in real estate trans. Citizens then enacted law that stated ordinances regulating based on race had to be approved by the citys voters before taking affect. o Holding: (White) the statue violated EP clause b/c laws impact falls on the minority. o Citizens amendment passed served no compelling government purpose. o Reasoning: law = explicitly racial classification treating racial housing matters differently from other racial and housing matters. 2. Facially Race-Neutral statutes w/Discriminatory Impact or Discriminatory Administration Some laws are facially race neutral are administered in a manner that discriminates against minorities or has a disproportionate impact against them A facially race neutral law is not unconstitutional solely because it may affect a greater portion of one race over another, instead, the law must be traced to a racially discriminatory purpose.- Davis Rule.

Page 8

o WA v. Davis (1976), pg. 546: Applicants for the DC police force has to take an a test, and the statistics showed that black applicants had a low passing rate compared to white applicants Holding: (Justice White) Proof of discriminatory impact was not enough; need to prove a discriminatory purpose; Justice Stevens concurred o If statues racially adverse affects are non-race specific (effects no particular race), then RB will be used and usually upheld o The distinction between purpose & effect becomes more important in these cases. o Discriminatory purpose, alone, is insufficient to prove that a FACIALLY NEUTRAL LAW constitutes a race or national organ classification Palmer v. Thompson EP not violated when a city closed down its previously segregated swimming pool rather than allow it to be integrated. no case has hold that a legislative act ay violate EP solely b/c of the motivations f the men who voted for it US v. Armstrong to prove impermissible discriminatory prosecution based on race, must show discriminatory purpose and effect MUST BE PROOF OF DISCRIMINATORY PURPOSE- (Strict Scrutiny if discriminatory purpose found.) o How is a Discriminatory Purpose Proven? Find discriminatory motive through legislatures making decisions in part, because of, adverse effects on an identifiable group (Feeny) Personnel Administrator of MA v. Feeney (1977): Upheld statute giving preference to veterans for state jobs. At the time, almost all veterans in state were male (98% v. 1.8% of women) basis for discriminatory intent: discriminatory purpose, more than volition/intent as awareness of consequence Village of Arlington Heights v. Metro Housing Development Corp. (1977): challenge to citys refusal to rezone a parcel of land to allow construction of low and moderate income housing Here (Justice Powell) held that there must be proof of a discriminatory purpose in order for such laws to be treated as racial or national original classifications. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. This demands a sensitive inquiry into circumstantial & direct evidence of intent. a. discriminatory purpose as a motivating factor is sufficient. different ways discriminatory purpose can be proved: a. Statistics (but this is difficult to establish) b. Look at the history surrounding the govts actions c. Through legislative or administrative history of a law BURDEN SHIFT: If P gives evidence of discriminatory purpose, burden shifts to govt to show that it would have done the same w/o discriminatory motivation Past history of racial discrimination may be an indicator of current discriminatory purpose.
Page 9

o Rogers v. Lodge (1982): Ct at-large election system unconstitutional bc sufficient proof of discriminatory purpose behind system (diluted black vote). Area had history of literacy tests, poll taxes, and white primaries made use of at-larges look more discriminatory in purpose. FACIALLY NEUTRAL LAWS ADMINISTERED IN RACIALLY DISCRIMINATORY MANNER = EP VIOLATION o Yick Wo v. Hopkins (1886): City ordinance reqd laundries be located in brick or stone buildings unless waiver from Board obtained. All petitions filed by Chinese denied, all but 1 filed by non-Chinese approved. Wo convicted for violating ordinance S Ct. reversed. o If law administered with injustice/inequality, just as bad as if law was prejudicial. Gomillion v. Lightfoot (1960): AL statute altered shape of Tuskegee from square to 28 sided figure. New boundary removed 4 out of 5 of the citys black votes, but no white voters. Ct held statute infringed on rights of black votes in violation of 15th. Hunter v. Underwood (1985): AL constitution disenfranchised all persons convicted of particular misd. Court found Misds on list were ones thought by legislative drafters to be commonly committed by blacks and therefore AL constitution unconstitutional. Note: May arg that motivation for enacting law in past should not determine its current validity if some time has passed. Motivation for keeping law may differ from enacting intent. Classification based on characteristics of a minority race (not race classifying and not intended to circumvent race as classifying principle) If a legitimate reason for such classification, chances are it will be accepted. Hernandez v. NY (1991): claimed prosecutor used peremptory challenges to remove Latinos from jury. purpose fear bilingual jurors would have hard time taking interpreters translation as official testimony. Ct said no EP violation bc it was not race specific in its application and met its purpose. Different if Latinos were to be excluded, instead of any race that spoke Spanish. Rice v. Cayetano (2000): Hawaii Const gave Office of Hawaii Affairs power to administer trust revenue from land to descendants of indigenous people. Right to vote for OHA governing body was limited to indigenous descendants. Ct found limitation violated 15th amendment prohibition against racial restrictions. Said ancestry = proxy for race. o Dissents: Stevens, joined by Ginsburg: rather than ancestry being used as a proxy for race, the Court should perceive this as simply a trust whose terms provide that the trustees shall be elected by a class including beneficiaries.

B. De facto racial classifications- I think a heightened RB test

C. Racially motivated classifications not subject to strict scrutiny

Rationale: its extremely hard to prove motivation and its futile to strike down the law because the law can be reenacted for different reasons. Laws racially motivated actions deemed to have neutral effects o Palmer v. Thompson (1971): Afric. Amer. citizens of Jackson, brought EP claim against city for closing the public city pools instead of desegregating them. Background: City council decided that rather deseg pools, would close 4 public-operated pools. Purpose: claiming that they could not be operated safely and economically on an
Page 10

integrated basis. The Black citizens of Jackson brought this action on EP grounds to force city to reopen and operate pools on a desegregated basis. Ct upheld decision to close pools; state action did not violate equal protection solely because of the motivations of the men who voted for it. Result probably because of recreation nature of pools v. necessary. City could easily close pool for other legitimate reasons Discretionary decisions - some decisions made in government are so discretionary in nature, therefore are not subject to improper purpose review. (ie. bush/obama selecting Sup. Ct. Justices on grounds of race) o Mayor of Philadelphia v. Educational Equality League (1974) (suggesting that judicial oversight of discretionary appointments may interfere with the ability of an elected official to respond to the mandate of his constituency) and Davis v. Passman (1979) (holding that an employee of a congressman had asserted violation of a constitutionally protected right when she alleged that she had been fired because she was a woman). Causation - sometimes suggested that if the state can show that the same classification would have been used without improper motivation, strict scrutiny will not apply. o Mt. Healthy City School District Board of Education v. Doyle (1977): teacher not rehired because she engaged in First Amendment conduct. However, court found they could have not rehired her even without her act protected by first amendment

D. Problems with Administration of Criminal Justice

Castenada v. Partida (1977): Mexican-American successfully made out prima facie case of intentional exclusion of persons of his ethnic background by showing a substantial underrepresentation of MAs based on a comparison of the group's proportion in the total population of eligible jurors to the proportion called to serve. Test as to whether jury selection procedures were set up to produce racially discriminatory results. o The first step: establish that the group is one that is a distinct class, singled out for different treatment under the laws, as written or applied. o Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as jurors, over a significant period of time. . . . After completion of these two steps, defendant has a prima facie case of discriminatory purpose, and the burden shifts to the State to rebut that case. Race based peremptory challenges violate EP. o Batson v. KY (1986): Afric. Amer. challenged prosecutors use of peremptory challenges to strike all AAs from jury. Ct said use of challenges not only harms , but also undermines public confidence in justice system Prima Facie case for racial discrim in preemptory challenges = 1. " must show that he is member of cognizable racial groupand that prosecutor exercised preemptory challenges to remove members of the s race from the venire Must be assumed that peremptory challenges allowed persons to discriminate against who they want to must establish using the relevant facts/inferences of race-exclusion from jury EP claim re: capitol punishment could only succeed if proved that decision-makers in HIS PARTICULAR CASE acted w/ discriminatory purpose when sentencing.
Page 11

o McCleskey v. Kemp (1987): Ct rejected claim that GA administered capitol sentences in racially discriminatory manner. Research alleging s who killed whites = more likely death penalty than those who murdered Afri. Amer. Problems in proving discriminatory intent.

III.

AFFIRMATIVE ACTION- (Race classifications designed to benefit minorities) o Strict scrutiny o Must pursue compelling govt interest probably past discrimination o Big deal in these cases: Narrow Tailor Test: RACE BASED ACTIONS THAT ARE NECESSARY TO FURTHER A COMPELLING INTEREST ARE CONSTITUTIONAL RESTRAINTS IF IT SATISFIES THE NARROW TAILORING TEST. o Past discrimination alone cannot is not pre se a compelling state interest in this context. City of Richmond v. Cronson o Yet, some argue should be intermediate scrutiny for racial classifications that serve to rectify history of discrimination

A. EDUCATION
Regents of Univ. of CA v. Bakke (1978): program designed to increase minority enrollment of UCDavis medical school. 16 of 100 seats reserved for minority groups that had suffered economic or educational deprivation. Even though state had a legitimate & substantial purpose, Ct said set-aside = unconstitutional. o Strict scrutiny applies o Govt must impose racial classifications narrowly tailored to further compelling govtl interests. o It is okay to look at race as a plus, but not to insulate them from comparison with other candidates o Brennan, White, Marshall, and Blackmun would have upheld w/intermediate scrutiny. Racial classifications for remedial purposes must serve important govt objectives and must be substantially related to achieve. o Stevens, Burger, Stewart, and Rehnquist would have found the program violated Civil Rights Act which prohibits discrimination by institutions receiving federal funds (didnt specify scrutiny) o Powell should use strict scrutiny. Set aside = unconstitutional. QUOTA narrowly tailored DIVERSITY = COMPELLING INTEREST OF UNIVERSITIES [ global market place, cross-race understandings-future leaders in our institutions] o Grutter v. Bollinger (2003): Ct ruled that colleges and univs have compelling interest in creating a diverse student body; can use race (+ other factors) to benefit minorities/enhance diversity. Gratz v. Bollinger (2003): Ct struck down Uof MIs undergrad admissions program, 100 points to be admitted, member of minority race = 20 automatic points. Ct said giving 1/5 required points based on race was not narrowly tailored to achieve the interest in educational diversity. It concluded that [n]arrow tailoring does not require exhaustion of every conceivable raceneutral alternative o only requires good-faith consideration of race-neutral alternatives, but the evidence here confirms that the law school did not consider alternatives
Page 12

B. EMPLOYMENT
Factors influencing o Lay off v. hiring/promotion o Is it a goal or quota o Flexibility of remedy o Duration of remedy o Amount of weight placed on race in employment decision Court does not have to act in color-blinded fashion when acting in remedial context o Fullilove v. Klutznick (1980) (Strict Scrutiny): Ct upheld fed (US Congress) law that required 10% of federal public works $ given to local govts be set aside for minority business owners. Said = remedy for past fed discrimination identified by congress. The limited duration of the program allowed court to go this way. Minority set-asides = generally struck down o City of Richmond v. Croson (1989) (Strict Scrutiny): Ct invalidated a VA (State, not US Congress) plan to set aside 30% of public works $ for minority owned businesses. Court did not find a compelling state interest and that other less discriminatory ways would not be sufficient OConner says: law failed both prongs of strict scrutiny inquiry: 1.) she does not believe remedying past discriminations is a acceptable compelling state interest & 2.) legislature could have used race-nuetral means to increase minority participation o Difference between State & Fed statutes in this area. Constitution allows Fed to have these distinguished powers o Adarand Constructors, Inc. v. Pena (1995): Federal practice of giving general contractors $ incentives to hire subcontractors made of socially and economically disadvantaged individuals and use of race based presumptions challenged as violation of EP. Ct held Ct of Appeals applied wrong std when it rejected EP claim. Ct decided a most searching examination of the use of racial or ethnic criteria scrutiny DOES NOT vary based on the race of those burdened/benefited by classification Was not narrowly tailored EP analysis should be same under either 14th or 5th o Scrutiny of fed action had not been as strict as that of state action. Race based classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests

Rice v. Cayetano Indigenous people DIFFERENT STORY! Stevens: Congress has always had plenary power over affairs of native Americans; Congress assumes fiduciary relationship. Legislation giving them special treatment usually upheld. (However, not in this case)
Page 13

IV.

GENDER DISCRIMINATION: EQUAL PROTECTION A. INTERMEDIATE SCRUITNY, BUT HISTORICALLY: o Traditionally, Rational Basis o Bradwell v. Illinois (1873): upheld refusal to license women practice law; rejected law = privilege arg o Minor v. Happersett (1875): Ct upheld constitutionality of excluding from voting o Mutter v. Oregon (1908): Ct upheld max number of hours could work in factories o Adkins v. Childrens Hospital (1923): ct invalidated minimum wage law for o West Coast Hotel Co. v. Parrish (1937): Overruled Mutter; upheld minimum wage law for o Hoyt v. FL (1961): Upheld state law that made men eligible for jury service unless they requested and granted an exception, where were automatically exempted unless they elected to opt-in B. INTERMEDIATE SCRUTINY important objectives & substantial relation Must have important government objectives & substantially related to those objectives Reed v. Reed (1971): ID estate law hierarchy for intestate succession (first parents, then kids, etc). If there were two competing applicants in the same category, the was preferred over the o 1st time Ct invalidated a gender classification but only applied RBR o Issue: whether gender had a rational relationship to ability to administer estate No, Ct said gender was irrelevant, therefore unconstitutional Frontiero v. Richardson (1973): fed law allowed automatically claim wife as a dependant (receive more allowances and med benefits) but could only get benefits if she could prove that husband was dependant on her for over 50% of his support o Brennan, joined by Douglas, White & Marshall argued for strict scrutiny US has long history of gender discrimination Brennan compared to gender discrimination to racial discrimination: still face subtle discrimination in the workplace, in education and political arena Sex, like race, = immutable characteristic determined solely by birth o Justice Stewart concurred, but thought Reed reasoning should be applied (RBR) o Because no majority for SSS, gender classification remained uncertain Craig v. Boren (1976)(Established Intermediate Scruitny): Involved OK law that allowed 18+ to buy low alcohol (3.2% beer) but had to be 21+ to buy same type of alcohol o Ct. said was unconstitutional established Intermediate Scrutiny test for gender classifications Must be important government objectives and substantially related to purpose o Safety was important govt interest, but Ct held that gender not substantially related to that objective Stats showed that 0.18% and 2% (18-21 yr old) were arrested for drunk driving A Little more than Intermediate Scrutiny Case:
Page 14

US v. Virginia (1996): S. Ct. declared unconstitutional the exclusion of by the VA Military Institute (VMI) o VA had created the VAs s Institute for Leadership at Mary Baldwin College o Ct: this was insufficient; still denied opportunity available only for and based all on gender stereotypes o Ginsberg applied a stricter scrutiny (exceedingly persuasive.) Burden of justification rests on state Justification cant rely on overbroad generalizations about the different talents, capacities, or preferences of and Justifications must be genuine & not hypothesized o Unlike this case, where there exists a scrutiny above intermediate (exceedingly pervasive), but below strict scrutiny, Michael M. provided a scrutiny below intermediate, but above rational basis (standard= not invidious, but instead reflects factual differences in genders). Rationale for Heightened scrutiny: 1.) immutable characteristic & 2.) history of discrimination Demonstrating Gender Classification (two ways): o Gender classification can exist on the face of the law o If statute is facially neutral, need to show: Discriminatory impact of the law, AND Discriminatory purpose behind it Feeney (1979, see above): S. Ct. upheld state law that gave preference to hiring veterans even though it had a substantially discriminatory impact against women o At the time, 98% of vets in MA were ; only 1.8% were o Ct upheld law on basis that = gender-neutral and discriminatory impact was not enough to prove existence of sex-based classification need purpose Definition of discrimination/constitutes gender based classification o Geduldig v. Aiello (1974) [stupid case]: S. Ct. held that Equal Protection not violated when states disability insurance system excluded pregnancy related disabilities, but included only disabilities Court found state had legitimate interest in maintaining the self-supporting nature of its insurance program. Court also reasoned: program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition pregnancy from the list of compensable disabilities. Ct explained: no risk that are protected and are not, and vice versa Case was overruled by Congress when it passed the Pregnancy Discrimination Act (defined pregnancy as a basis for sex discrimination) Irrebuttable Presumption doctrine[not really used anymore] The existence of an irrebuttable presumption is not enough to find a law unconstitutional; there must also be reason to distrust a law that discriminates against a suspect class or impinges a fundamental right. E.g.:
Page 15

o Stanley v. IL (1972): Ct invalidated law that made kids of unwed dads wards of state on moms death and presume father unfit. By contrast, unwed moms could be deprived of kids only by showing that they were unfit parents. Ct reasoned that deprivation of dads violated DP by erecting a conclusive presumption of unfitness o Cleveland Board of Edu v. LaFleur (1975): Ct invalidated regulations reqg a teacher to take maternity leave way before giving birth. Regs created a conclusive presumption that pregnant women were medically unfit = teach. Ct subsequently sharply restricted use of the conclusive presumption technique for attacking statutory classifications (Weinberger v. Salfi)

C. Three main patterns of gender classification a. Gender classifications based on role stereotypes: S. Ct. has often invalidated laws that benefit and disadvantage when Ct perceives that law as being based on gender stereotypes Weinberger v. Wiesenfeld (1975): S. Ct. invalidated social security law that let widowed wife but not widowed husband to get benefits based on dead spouses earning o Law based on stereotype that were the main wage earners and wage earners did not significantly contribute to familys support o Ct applied Weinberger in Califano v. Goldfarb (1977): where Ct invalidated a provision on the Federal Old-Age, Survivors, Disability Insurance Benefits program where automatically recd benefits based on hubbys earnings, but would only receive these benefits if he proved that he got at least half support from wife Ct: assumptions dont justify gender-based discrimination in distribution of employment-related benefits Wengler v. Druggists Mutual Insurance Co. (1980): Again, Ct invalidated state law that gave widow automatic benefits, but gave widower () benefits only when he proved that they were dependent on wifes income or were physically incapacitated J.E.B. v. Alabama ex rel. T.B. (1994): Case involved whether Def was father of kid and if so, extent of child support obligation. The state used nine of its ten peremptory strikes to remove male jurors. The defendant removed female jurors. But jury ended up being all S. Ct. (Blackmun) held that gender-based peremptory challenges, like racial ones, were unconstitutional the only justification offered invoked the same stereotypes that justified the wholesale exclusion of women from juries and the ballot box. Kennedy (concurring): Cannot prohibit racial and gender bias in jury selection only to encourage it in jury deliberations. Employment. Mississippi University for Women v. Hogan (1982): Ct invalidated state policy of operating a nursing school excluded Ct. (OConnor): gender classification here was not based on remedying past discrimination, but was based on an occupational stereotype (that nursing is exclusively a s job) Exceptions (where Ct upheld laws benefiting because of gender stereotypes): Michael v. (CA) Sonoma county (1981): case involved 17 yr old guy convicted of statutory rape for having sex w/ a 16 yr old girl
Page 16

o Ct upheld CAs statutory rape law that defined statutory rape as sexual intercourse w/ a not the wife of the perp; where the is under the age of 18 yrs old o Ct. says: non-invidious gener classification o Girl was not prosecuted b/c law held solely criminally liable for sex acts o Ct (Rehnquist for plurality) reasoned that state could attack issue of teen pregnancy and sexual activity by regulating and punishing Pregnancy itself a deterrent for young o If law was gender-neutral, young might be less willing to come forward if they were going to be held criminally liable too o Dissent: Brennan, law initially enacted on thought that young were incapable of consenting to such acts; needed states protection on such precious part (chastity) Rotsker v. Goldberg (1981): involved the Military Selective Service Act which reqd all b/w 18-26 to register for possible draft o Ct (Rehnquist) upheld male-only draft registration b/c , unlike , are not ready for combat AND o Congress & Prez intended to retain this policy o s exclusion from combat justified Congresss decision to exclude from register for the draft Dissent (Marshall): law founded on gender stereotypes and -only registration is unconstitutional

b. Gender classification benefiting women as remedy for past discrimination will be upheld: Ct has typically found that gender classifications benefiting will be allowed when the laws are designed to remedy past discrimination or differences in opportunity Califano v. Webster (1977): Ct upheld provision in Social Security Act that calculated benefits for more advantageously than for Ct: difference in formula not based on stereotypes but on the permissible goal of remedying societys longstanding disparate treatment of Schlesinger v. Ballard (1975): Ct upheld Navy regulation that reqd officers to be discharged if theyd gone 9 yrs w/o promotion, but gave officers 13 yrs. Ct said purpose was b/c had more opportunity for promotion Kahn v. Shevin (1974): Ct upheld FL law providing property tax exemption for widows not widowers Purpose due to: greater financial difficulties for a lone Whether from overt discrimination or from the socialization process of a maledominated culture, the job market is inhospitable to the seeking any but the lowest paid jobs. (also see this case for post Frontiero: Ct did not articulate scrutiny) c. Gender classifications benefiting b/c of biological difference b/w and Nguyen v. Immigration and Naturalization Service, S. Ct. (2001): Involved case of how kid born outside of US can become a US citizen if parents arent married but one parent is a US citizen Federal statute imposes different/more reqs if dad is the US citizen and mom isnt
Page 17

Ct upheld statute Cong. decision to impose more reqs on unmarried dads than unmarried moms o One, rule serves govt interest in being sure that there is a biological relationship b/w dad and kid (there is no doubt about relationship b/w mom and kid since kid has to come out of mom) o Two, govt interest furthered b/c want to ensure relationship b/w dad and kid beyond biological meaningful connection Have to show one of three things: o Legitimation o Declaration of paternity under oath of dad or o Court order of paternity INS rules essentially favored mothers over fathers b/c of greater certainty of identity of mothers and their establishing a relationship with kid as NV Department of Human Resources v. Hibbs (2003): Fed Family and Medical Leave Act statute authorized eligible employees to take up to 12 weeks of unpaid leave annually to care for spouse/child/parent w/serious med condition. S. Ct. upheld statute, reasoning that the law sought to overcome the pervasive sex-role stereotype that caring for family members is womens work

V. EQUAL PROTECTION: SEXUAL ORIENTATION

Ct. has not ruled whether sex orientation discrimination is reviewed under intermediate or strict scrutiny o It has gone as high as strict scrutiny & in rare cases as low as RB Same sex class seems to have similar characteristics as other heightened scrutiny cases: o history of discrimination o research says orientation is immutable (i.e., not a choice) o laws reflect prejudices and stereotypes Lawrence v. TX (2003): Ct (Kennedy) invalidated TX law that made it a crime for 2 persons of the same sex to engage in consensual and intimate sexual conduct (overruled Bowers v. Hardwick GA 1986) o Reasoning based on DP right of privacy and a presumed right to consensual sexual intimacy. Ct struck down statute as it does not further a legitimate state interest which can justify its intrusion into the personal and private life of the individual. Declined to rely on EP, but emphasized *w+hen homosexual conduct is made criminal by the laws of the State, that declaration in and of itself is invitation to subject homosexual persons to discrimination both in the public and in the private spheres o OConnor concurred, but would have invalidated based on EP b/c it prohibited sex acts b/w same sex couples that were allowed btwn opp sex couples o Neither Kennedy or OConnor mentioned what level of scrutiny should be used, but said RB does not seem like the adequate test
Page 18

Romer v. Evans (1996): Involved CO initiative that repealed all state and local laws that prohibited discrimination against gays, lesbians and bisexuals. Also prevented future laws from protecting this group. o Rational Basis: Ct (Kennedy) invalidated initiative b/c impermissibly discriminated based on sexual orientation No legitimate purpose to deny G/L/B same use of political process available to everyone else Case is significant b/c first time S. Ct. invalidated discrimination based on sexual orientation Mere moral disapproval is NOT a legitimate state purpose (i.e., Rational Basis test) SAME SEX MARRIAGE o Baehr v. Lewin (1993): Hawaii S. Ct. held that the existing restriction on marriage EP clause of HI Const, unless it could be shown that excluding same-sex marriage served a compelling state interest. Overruled by state constitutional amendment. One response to HI decision was Congresss enactment of Defense of Marriage Act (1996), which says: No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states. The word marriage means only a legal union between one man and one woman as husband and wife (685) o Baker v. Vermont (Vt. 1999): Ps challenged restrictions on the right of same-sex couples to benefits of marriage under the common benefit clause of the VT state constitution: That government is an instituted for the common benefit, protection, and security of the people and not to decide particularly who gets these baseline benefits Ct. concluded that prohibition was inconsistent w/ clause, but left it up to legislature to deal with it (either legalize same-sex marriage or create something else). VT legislature created civil unions same rights and benefits as marriage but not using the word marriage o Goodridge v. Department of Public Health (2003): MA ct invalidated opposite-sex marriage reqs (excerpts at pp. 683-84). Ct concluded that a fed. Civil union law would also be unconstitutional. State argued interests (none valid): marriage tied w/ procreation o MA S. Ct.: hetero couples who dont plan to (or cant) procreate can still marry marriage tied to optimal setting for child rearing o MA S. Ct.: restriction on same-sex marriage does not plausibly further this policy and no evidence that same-sex parents were not just as good parents limiting marriage furthered legitimate state interest in conserving scarce financial resources based on assumption that same-sex couples are more financially independent than married couples and so are less needy of public
Page 19

martial benefits, such as tax advantages, or private marital benefits (med insurance) o ban on same sex marriage has no rational relationship to the goal of economy o Current status. Including results from 2008 elections 2 states (MA and CT) allow same-sex marriage 5 states recognize some alternative form of same-sex union 12 states ban any recognition of any form of same-sex unions including civil union 28 states have adopted amendments to their state constitution prohibiting same sex marriage 20 states have enacted statutory Def of Marriage Acts.

VI. EP: OTHER CANDIDATES FOR HEIGHTENED SCRUTINY

A. ALIENAGE- Legal/Illegal aliens
14th Amend.= no person (not citizen) shall be denied equal protection of laws 14th covers all persons within the territorial jurisdiction without regard to any differences of race, of color, or of nationality (Yick Wo) Usually strict scrutiny for legal aliens, and must be narrowly tailored Carolene Products #4: SC stresses that more searching judicial inquiry in cases involving discrete and insular minorities might rest on the fact that prejudice tends to curtail the operation of those political processes ordinarily to be relied upon to protect those minorities. Aliens = discrete and insular minority (they can not vote and thus cannot protect themselves through the political process) close judicial scrutiny. Grahm v. Richardson. In Grahm the court stated that a State desire to preserve limited welfare benefits for its own citizens is inadequate to justify the discrimination agains aliens It conflicts also with federal immigration policy; once the federal gov has decided to admit aliens, states cannot discriminate against those present o Sugarman v. Dougall (1973): Ct held NY law excluding aliens from govt civil service = EP violation. Overall ban on employing aliens for positions bearing little relation to legitimate state interest cannot withstand scrutiny under 14th. o Used strict scrutiny Scrutiny varies o Ct generally only strict scrutiny application to discrimination against resident aliens, not against illegal aliens Nyquist v. Mauclet (1977): Ct used strict scrutiny to invalidate NY that limited financial aid for higher education to citizens, those whod applied for citizenship, and those whod declared intent to become citizens when eligible. Ct said law = discriminatory, directed at aliens. In re Griffiths (1973): Ct held state could not exclude aliens from BAR. However, Ct subsequently upheld state restrictions of employment of aliens in positions enforcing broader public policy / performing govt functions.
Page 20

Foley v. Connelie (1978): state police Amback v. Norwick (1979): teachers Cabell v. Chavez-Salido (1982): upheld citizenship requirement for probation officers. Bernal v. Fainter (1984): did not uphold for notary public responsibilities furthering govt policy, etc. o Discrimination by state and local bodies subject to stricter scrutiny than federal government. Congressional and Presidential action =RATIONAL BASIS Congress has plenary power to control immigration/naturalization deference Mathews v. Diaz (1976): Ct upheld fed statute limiting participation in fed med ins to citizens and aliens (5yr continuous in US and permanent residence). Federal admin agencies = STRICT SCRUTINY Hampton v. Mow Sun Wong (1976): Ct invalidated Civil Service Comm policy excluding aliens for most civil service jobs. Comm had no involvement in decisions re: immigration /foreign policy. Restriction justified by reasons of proper concern for agency. Illegal aliens suspect class bc presence in country is violation of federal law o RATIONAL BASIS, unless children intermediate o Plyler v. Doe (1982): Ct declared TX law unconstitutional that provided free education to children of citizens and documented aliens, but required undocumented aliens to pay. Not fair to punish children for choice of parents. o Education important, but NOT FUNDAMENTAL RIGHT.

B. WEALTH CLASSIFICATIONS
RATIONAL BASIS Defining the Class Poverty as a relative category poverty is inherently relative since individuals are only poor by comparison to toher individuals Facial discrimination against the poor is rare De Facto wealth classification Courts hinted that strict scrutiny might be appropriate when state failed to prove the poor with necessities (ie. welfare, food, shelter, subsistences of life), but very rare Cases suggesting wealth is suspect class, but it is not. maybe b/c not immutable? o Re: criminal trials, state cant discriminate based on poverty like it cant on religion, race, and color (Griffin v. IL, 1956 unconstitutional to deny indigent free trial transcript ) o Lines drawn on basis of wealth or property, like those of race, are traditionally disfavored. (Harper v. VA Board of Elections, 1966 poll tax = unconstitutional, draws lines based on wealth/property) o State must provide counsel for 1st criminal appeal (Douglas v. CA, 1963)
Page 21

Edwards v. CA (1941): Ct invalidated law criminalizing bringing a nonresident indigents into CA. Ct based holding on commerce clause, but mentioned stereotypical judgments re: poor justify laws disadvantaging them. Poor suspect class, only use rational basis. o San Antonio School Dist v. Rodriguez (1973): Challenge to TX system relying heavily on local property tax to fund public education as EP violation. Poor areas = high tax, but little $ for education. Ct held system did not operate to disadvantage poor. o EP clause does not require absolute equality or precisely equal advantages Harris v. McRae (1980): Ct upheld Hyde amendment prohibiting fed funding for abortions under Medicaid. Not penalty bc benefits recipient not disqualified from Medicaid if they got abortion.

C. DISABILITY
RATIONAL BASIS City of Cleburne v. Cleburne Living Center (1985): Ct invalidated ordinance that prevented construction of group home for retarded, but allowed hospitals, etc. Preventing home not rationally related to a legitimate govt purpose. Physically and mentally disabled have right to reasonable accommodation bc of systematic deprivation of fundamental rights. (TN v. Lane, 2004 upheld ADA)

D. AGE
RATIONAL BASIS 1) Older Americans not discrete and insular minority; 2) not subject to history of unequal treatment; and 3) not subjected to disabilities based on stereotypes not being indicative of abilities MA Board of Retirement v. Murgia (1976): Ct upheld state law requiring police to retire at 50. Ct said physical ability declines w/ age, so rationally related to states objective.

E. NON-MARITAL CHILDREN
INTERMEDIATE SCRUTINY though not suspect class Laws that treat illegitimate children differently than legitimate children must be substantially related to permissible state interests. Ct generally unsympathetic when restrictions justified as punishing parents for illicit sexual activity More sympathetic to issues w/ proof of paternity when unmarried parents causes different treatment

Page 22

VII. EQUAL PROTECTION: FUNDAMENTAL INTERESTS

Ct. has held that some liberties are so important = fundamental rights and generally, govt cant infringe on these rights unless strict scrutiny is met Chemerinsky notes four questions in analyzing fundamental rights questions. (Ct may focus on 1 or 2): 1. In there a fundamental right? Carolene Products footnote 4: the judiciary will defer to legislature unless there is discrimination against a discrete and insular: minority or infringement of a fundamental right (A) If right is a fundamental one, govt will only prevail if strict scrutiny is met (B) If right is not fundamental, generally, Ct will apply rational basis test 2. If so, is that right infringed? Ct considers [t]he directness and substantiality of the interference. (Zablocki v. Redhail, 1978) not a lot of direction from Ct on what this means 3. Is the govts actions justified by a sufficient purpose? No actual basis for what constitutes compelling; but govt has burden of persuading the Ct that the challenged law serves a vital interest Ct has recognized compelling interest as winning a war (Korematsu) 4. Are the means sufficiently related to the goal sought? nexus or fit Under strict scrutiny, not enough for the govt to prove a compelling purpose; must show that the law is necessary to achieve the objective

A. PROCREATION
Marriage and procreation = fundamental to the very existence and survival of the race. o Skinner v. OK (1942): OK law allowed court ordered sterilization for convicts (crimes of moral turpitude) Ct (Douglas) OK law unconstitutional on basis of EP; law denied person of right to have kids statute had bunch of inequalities, and various crimes (some not that serious) were defined as felonies for purposes of the statute power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. When state passes a sterilization law, SS justified lest invidious discriminations are made against groups or types of individuals in violation of the constitutional guranty of just and equal laws.

Page 23

B. VOTING
Ct. has repeatedly held that right to vote is a fundamental right protected under equal protection b/c its essential to a democratic society; if laws clearly infringe on right to vote, must meet strict scrutiny Denials of the right to vote Elections not necessarily constitutionally reqd. o Ct has let state and local govts select officeholders through other means than elections o Ex. Ct expressly upheld ability of state to have legislature select governor when no candidate recd majority of popular vote POLL TAXES o Unconstitutional in federal elections 24th Amendment o Unconstitutional in all local and state elections. Harper v. VA State Board of Elections (1966) Ct (Douglas) overruled Breedlove and invalidated VA law requiring the payment of a poll tax *W+here fundamental rights and liberties are asserted under the EP Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. o Dissents: Black Ct seemed to be using old natural-law-due process formula to justify striking down laws as violations of the Equal Protection Clause o Dissents: Harlan, joined by Stewart there is a rational basis for poll tax o Making affluence of voter or payment of any fee an electoral standard is a violation of EP clause PROPERTY OWNERSHIP REQUIREMENTS o Look at purpose & effect on whom o Kramer v. Union Free School District (1969): state statute permitted people to vote in school district elections only if they (1) owned (or leased) taxable real property within the district, or (2) were parents (or had custody) of children enrolled in local public schools Ct (Warren) declared unconstitutional; applied strict scrutiny b/c law kept some citizens from voting in school elections States justification was based on limiting voting those primarily interested in school affairs Ct said not sufficient for govt to measure interest by property ownership or having kids in certain school system Dissent: Stewart, joined by Harlan and Black just as states may limit the right to vote to state residents, state legislatures may also suppose that residents are likely to be better informed voters o Cipriano v. City of Houma (1969): Ct (same day as Kramer) invalidated LA law permitting only property-owning taxpayers to vote on whether to issue municipal utility bonds Ct emphasized that bonds were to be paid entirely from the operation of the utilities, and that therefore they did not especially burden owners of real property o PHX v. Kolodziejski (1970): law limited voting on gen obligation bonds to property-owning taxpayers Ct invalidated law
Page 24

Even though bonds to be paid from property taxes, Ct emphasized that non-property owners had a substantial interest in services and facilities financed by the bonds. So, differences btwn property owners and non-property owners justify excluding the non-owners. o In both Cipriano and Kolodziejski, Ct emphasized that all citizens have an interest in municipal services and therefore should be able to participate in elections o Salyer v. Tulare Lake Basin Water Storage Dist (1973): Ct upheld limiting voting to landowners re: H20 storage district elections. Project costs assessed against land in proportion to benefits received. Strict scrutiny did not apply because the special limited purpose and disproportionate effect of the districts activities on landowners as a group Ct also noted that although H20 had some govt authority, it didnt provide general public services ordinarily attributed to a governing body o Ball v. James (1981): Case also involved H20 district election; votes were allocated based on property ownership, i.e., one acre, one vote Unlike Salyer, votes here had major impact, district was major supplier of hydroelectric power Ct followed/applied Salyer still found that property ownership req for voting was justified DURATIONAL RESIDENCY REQUIREMENTS o Ct. has held city may limit voting in city elections to its residents, but waiting periods have been sharply limited o Dunn v. Blumstein (1972): Ct invalidated TN law that reqd 1yr residency. State purpose was that law (1) insured purity of the ballot box by protecting against fraud and (2) assure a knowledgeable voter. Ct didnt buy argument emphasized that a durational residency req would discourage interstate travel and migration, which violated fundamental right to travel NOTE: In Marston v. Lewis, Ct held that 50 day waiting period was ok to allow election officials to check rolls, prevent fraud and run election PRISONERS AND CONVICTED CRIMINALS o States cant deny vote to prisoners awaiting trial (McDonald and Skinner) but can permanently disenfranchise convicted felons. o If evidence of a racially discriminatory purpose behind the law, state cant permanently deny right to vote to ppl convicted of crimes involving moral turpitude. o Absentee ballots McDonald v. Board of Election Commissioners (1969): Ct (Warren) upheld IL law that granted absentee ballots only to ppl who were disabled and couldnt go to polling place or were out of the country; effect was that ppl in jail were denied absentee ballots. Ct reasoned that it was not the right to vote that was at stake, but only a claimed right to receive absentee ballots (applied RBR) It was not indicated that prisoners were kept from voting and there were other alternatives: polling place at jail; guarded transportation to polling place outside of jail; or even temp reductions in bail to inmates could get out and vote
Page 25

But 5 yrs later, in OBrien v. Skinner (1974), Ct struck down NY law that provided absentee ballots to inmates being held outside their county of residence, but denied absentee ballots to inmates in their own county and no other option of voting o Ct held that the govt MUST provide absentee ballots to jailed inmates where its proved that they have no other way of voting o Disenfranchising felons. Richardson v. Ramirez (1974): Ct (Rehnquist) relied on 2 of 14th Amendment to uphold that states could disenfranchise felons and ex-felons: that this section said states would get less representation in Congress if they denied the right to vote, except for people who participat*ed+ in rebellion, or other crime. Ct also looked at legislative history of 2 and at the time 14th Amendment was passed, 29 states had felony disenfranchisement provisions ENROLLMENT REQUIREMENTS FOR PRIMARIES o Rosario v. Rockeffer (1973): Ct upheld NY law that reqd voters to pick political party 30 days before general election so person could vote in next political primary Ct:[Purpose] law was designed to prevent raiding (voters of one political party vote in other partys primary to influence outcome) o Kusper v. Pontikes (1973): Ct distinguished Rosario and declared IL law unconstitutional that prohibited person from voting in one partys primary if had voted in another partys primary in preceding 23 months Law locked people in their pre-existing party affiliation and was not the least drastic means of attaining the states objectives. Pre-1962 (and Baker v. Carr) Ct had held that legislative districting controversies were nonjusticiable Malapportionment inevitably means vote dilution voters in more populous districts have proportionally less influence in political process than those in small districts o Colegrove v. Green (1946), Ct declined to rule on the constitutionality of congressional districts in IL based on the argument that the districts should be approximately equal in population. Justice Frankfurter: it would get the courts too involved in the politics of the country, and the Ct should not enter this political thicket. One Person, One Vote rule: for any legislative body, all districts must be about the same is district size (announced in Gray v. Sanders 1963) Reynolds v. Sims (1964): Ct (Warren) declared AL law unconstitutional where senate had 35 members elected from 35 districts ranging in size from 15,417 to 634,864 o Ct based on reasoning of previous case (Wesberry v. Sanders 1964) that theres no mathematical equation in drawing congressional districts, but cant ignore U.S. Constitutions plain objective of making equal representation for equal numbers of people the fundamental goal of the House of Rep o Geographical area doesnt make sense; only population was a permissible basis for drawing districts Warren: Legislators represent people, not trees or acres. o So, both houses of a state legislature must be proportioned by population, and cant mirror federal congressional set-up (senate w/ two reps per state) o Dissents:
Page 26

C. Dilution of Right to Vote

Harlan: pointed to 14th Amendment history drafters and supporters did not believe the Equal Protection clause was meant to limit power of states to apportion their legislatures Lucas v. Forty-Fourth General Assembly (1964): Involved CO law that apportioned only 1 of the 2 Houses on the basis of population, and had been approved in 1962 by a statewide referendum in which the voters specifically rejected a plan to apportion both Houses on the basis of population o Ct held that whether voters voted for malapportionment is irrelevant One Person, One Vote has been extended to all forms of local govt o Avery v. Midland County (1965): Ct said one-person, one-vote applied to county commissioners who had general govt powers over the entire geographic area served by the body. o Hadley v. Junior College District (1970): principal applied to a junior college district, an elected body with limited governing authority but did have authority to tax, employ teachers, and manage educational program Ct said that all elected officials must be selected in a manner that avoids vote dilution Deviation from One-Person, One-Vote Ct tolerates only relatively small deviations, more for districting for state and local office than the House of Rep o House of Rep [less deviation allowed]: Wesberry v. Sanders (1964): Ct invalidated districting the House of Rep where some districts had twice as many ppl as others (1) One district has 823,680, where another had 394,312 (2) Ct has since relied on Wesberry to invalidate congressional districting plans with much smaller deviations Kirkpatrick v. Preisler (1969): Ct invalidated districting the House of Rep where the most populous district was 3.13% above the mathematical ideal, and least populous ideal was 2.84% below. o State/local legislature [more deviation allowed]: Mahan v. Howell (1973): Ct upheld deviation where overrepresented districts exceeded ideal by 6.8% and underrepresented districts were 9.6% away from target Ct explicitly says that broader latitude given to states under equal protection clause in state legislative districting Gaffney v. Cummings (1973): Similarly, Ct upheld legislative apportionment where the max deviation was 7.83% and said differences were insignificant White v. Regester (1973): Ct allowed apportionment scheme where total variation b/w target biggest and smallest district was 9.9% Deviations from Majority Rule. Ct has allowed state and local governments to depart from simple majority rule, requiring a super-majority to approve a candidate or initiative o Gordon v. Lance (1971): CT upheld a WVA law prohibiting political subdivisions from incurring bonded indebtedness without the approval of 60 percent of the voters in a referendum election Ct rejected argument that super-majority was a rejection of One-Person, One Vote nothing in Constitution that reqs a majority always prevail on every issue (in giving minority power in super-majority) o Town of Lockport v. Citizens for Community Action at the Local level, Inc. (1977): Ct upheld state law that new county charter could only go into effect if approved by
Page 27

majority of people who lived in the county and majority of people living in the city (two reqs that amounted to super-majority) Gerrymandering: practice by a political party of drawing election districts to benefit itself and harm opponent o Gaffney v. Cummings (1973): Districts were drawn to create legislature reflecting strength of political parties in the state Ct indicated that it would be very reluctant to invalidate districts based on gerrymandering As long as one-person, one-vote maintained, and no racial or other group discriminated, politics involved in districting is ok o Davis v. Bandemer (1986): Reps had majority in IN legislature and created committee of just Reps to draw new elections districts; this plan led Dems to only 43/100 seats in House (despite 51.9% of statewide vote ) and 13/25 seats in senate (despite 53.1% to Dems in statewide election Later Overturned by Veith- Constricitng on gerrymandering through districts Racial discrimination in voting rights o At large elections. City of Mobile v. Bolden (1980): Mobile, AL governed by three person commission, with member elected by an at-large election; even though blacks constituted more than 35% of city, no blacks had even been elected Ct held that at-large elections and multimember districts are allowed, even if theres proof of discriminatory impact, unless proof of discriminatory purpose Rogers v. Lodge (1982): invalidated an at-large voting system because it was maintained for a racially discriminatory purpose But 1982 Amendments to Voting Rights Act of 65 eliminated need of proof of discriminatory purpose in challenging an election system as being racially discriminatory

D.) Denial of Access to the Ballot A. Williams v. Rhodes 1.) Ohio law: political parties that had received 10 % of the vote in the prior gubernatorial election automatically qualified for the next state presidential election ballot. Other parties, however, could earn a place on the ballot only if they had primary elections under rigorous standards and filed a petition nine months before the election signed by qualified electors totaling 15% of the number of ballots cast in the preceding gubernatorial election 2.) Court invalidates the scheme a.) Court said the plan burdened the right of individuals to associate for the advancement of political beliefs, and the rights of qualified voters to cast their votes effectively. Strict Scrutiny, need a compelling interest b.) State tried to assert that it may validly promote a two party system in order to encourage compromise and two party stability. c.) Ohio further argued that its highly restrictive provisions are justified because without them a large number of parties might qualify for the ballot, and the voters would then be confronted with a choice so confusing that the popular will be frustrated. Court said only a handful of parties attempt to qualify for the ballot position even when a very low number 1% of the electoral is required.
Page 28

B.) Petition Requirments: 1.) Jenness v. Fortson: Court distinguished Williams and unanimously upheld GA law providing that any political organization whose candidate received 20% of the vote at the most recent gubernatorial automatically qualified for the ballot, but that a nominee of any other political organization must file a petition five months before the election for the office. (No Strict Scrutiny) 2.) Differences: a.) GA freely provided for write-in votes b.) Did not require every candidate to be a nominee of a political party, did not fix an unreasonably early filing deadline, and did not require the establishment of primary election machinery. GA did not freeze the status quo C.) Texas v. White: 1.) Court upheld TX law providing that candidates of major parties would be on the ballot based upon the primary elections, but determining the minor party candidates gained access to the ballot only by holding nominating conventions and obtaining signatures of 1% of the persons last voting for governor. 2.) The court has sought to ensure reasonable flexibility even if the law favored well established parties D. ) Filing Fees: 1.) Lubin: Court invalidated as applied to indigents a CA law requiring payment of filing fee of 2% of the annual salary of the office sought 2.) Court did recognize the states interest in keeping the ballots within manageable understandable limits, but it must be achieved without burdening a minority party or individual candidates equally important interest in continued availability of political opportunity. E.) Party Loyalty Requirements: 1.) Court upheld a CA statute forbidding a ballot position to independent candidates who were registered with political parties within 1 year prior to the immediately preceding primary election. It reasoned that the law promoted stability in the political process and worked against candidacies prompted by short term goals or quarrels 2.) Storer was distinguished from Tashjian when court invalidated a CN statute requiring primary voters to vote only for members of the party of which they were registered members. The Republican Party, which had adopted a party rule permitting independents to vote in its primary, challenged the provision. The Court emphasized that it was recognizing the right of parties to take internal steps for the selection of candidates. Allowing voters in primaries to be registered party members does not destabilize parties the way precipitously running for another party might. F.) Disqualification of public officials: 1.) Clements: Court upheld two provisions of TX Constitution: (1) certain public officials shall not be eligible to the legislature until the expiration of their term (2) certain public officials who run for any other state/federal office must automatically resign their current condition. 2.) Court said candidacy is not a fundamental right. Court reasoned that its prior decisions established that states may not impose unfair burdens on political opportunity, but did not recognize a fundamental right to be a candidate for any preferred office. H.) In Ballot cases, the Court will focus on the degree to which the challenged restrictions unfairly or unnecessarily burden the availability of political opportunity. If there is not a huge burden, then law needs only a rational predicate (Clements) 1.) The court has departed form the traditional equal protection analysis in two lines of ballot case: a.) One involves classification based on Wealth
Page 29

b.) the second involves classification schemes that impose burden on new or small political parties or independent candidates. J.) Different Approach: 1.) Anderson: Court struck down a law requiring independent candidates to file nominating petitions in the Spring for November elections. Used Fist amendment, and its protection of the right of political association- combined with the courts precedent recognizing fundamental and closely related state interests (such as political stability & equal treatment) sufficiently to overcome the scrutiny called for in the first & Fourteenth amendment.

Page 30

VIII. FREEDOM OF EXPRESSION

S Ct. has frequently said very core of 1st Amend = govt CANNOT regulate speech based on its content o the First Amend means that govt has no power to restrict expression b/c of its message, its ideas, its subject matter or its content. (Police Department of Chi-town v. Mosley, 1972 NOT IN CASEBOOK) o Content based regulations are presumptively invalid. (R.A.V. v. City of St. Paul, 1992 NOT IN CASEBOOK) DISTINCTION BETWEEN CONTENT BASED & CONTENT NEUTRAL o CONTENT-BASED RESTRICTIONS: restrict communication b/c of message conveyed (cannot regulate speech based on the topic of the speech) Examples Forbidding the hiring of teachers who advocate violent overthrow of government Banning the display of swastika in certain neighborhoods Distinction btwn high and low value expression in content-based restrictions Low more susceptible to government regulation o CONTENT-NEUTRAL RESTRICTIONS: restrict communications w/o regard of message conveyed (if it regulates conduct and it has an effect on speech without regard to its content) Examples Laws prohibiting noisy speeches near hospitals Banning billboards near residential communities Requirement disclosure of names of leaflet hander-outters Govt MUST BE both: Viewpoint neutral govt cant regulate speech based on ideology of message (i.e. viewpoint) Subject matter neutral govt cant regulate speech based on topic of speech o Carey v. Brown (1980): Ct said that whenever govt attempts to regulate speech in public places, it must be subject matter neutral. Law regulating speech is content neutral if it applies to all speech regardless of the message! Ct has said that facially content-based restriction is considered content-neutral if motivated by a permissible content-neutral purpose. Rention v. Playtime Theatres, Inc. (1986) Content-based restrictions permissible for categories of speech that are unprotected and government can prohibit and punish (ex. incitement of illegal activity, fighting words, obscenity, etc.)

Page 31

A. HIGH VALUE SPEECH

INCITEMENT OF ILLEGAL CONDUCT

CLEAR AND PRESENT DANGER TEST (C&PDT)(Early Cases)(pre and post WWI): Schneck established this test. o Espionage Act of 1917: govts response to publics response to US involvement in WWI Law = when US at war, crime to make or convey false reports or false statements w/ intent to interfere w/ military success or to promote the success of its enemies. Also crime to obstruct US recruiting or enlistment services o Sedition Acts of 1918: prohibited people from saying anything w/ intent to obstruct the sale of war bonds; to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn US govt, Constitution or flag; urge curtailment of production of water materials w/ intent of hindering effort; or say anything supporting the cause of any country at war w/ US or opposing USs cause. o Schneck v. US (1919): involved individuals convicted for circulating leaflets saying draft violated 13th Amendment as form of involuntary servitude Ct (Holmes) held Schneck violated 1917 statute prohibiting speech tending to obstruct draft Holmes acknowledged that normally this type of speech would be protected, but in times of war, stds = stricter Established C&PDT: the question in every case is whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. ELEMENTS o Likelihood o Imminent o Significant harm o Frohwerk v. US (1919): 2 individuals who published German newspaper convicted prison b/c articles criticized the war Ct (Holmes) upheld convictions under 1917 Act Holmes acknowledged that there was no evidence that the articles had any adverse effect on the war, but still found that it could have incited o Debs v. US (1919): Soc Pty leader, Debs, sentenced to 10 yrs b/c of speech mildly criticizing draft Ct upheld conviction Holmes speech is not protected if part of speech (whether intentional or not) that had war opposition undertones o Abrams v. US (1919): Russian immigrants convicted (up to 20 yrs) for circulating leaflets objecting to US soldiers being sent to E. Europe after Russian revolution (note: objections had nothing to do w/ US involvement in war or the draft) Ct used Schenck and Frohwerk to uphold convictions encouraging resistance and conspiracy to urge curtailment of production of war materials Holmes dissent = silly leaflet not enough to present any immediate danger REASONABLENESS TEST (1920s-30s): Ct applied this test to laws involving criminal syndication (laws that made it a crime to advocate overthrowing US govt by force or violence)
Page 32

o Ct didnt use C&PDT; upheld laws as long as govts law and prosecution was reasonable (very similar to current RBR) o Gitlow v. NY(1925): Man convicted NY law prohibited advocating overthrowing & overturning organized govt by force, violence, and unlawful means, for publishing Left Wing Manifesto Ct (Sanford) upheld conviction b/c state had a right to punish threatening speech as a method of self-preservation Ct also expressed deference to legislative judgments in this area Holmes (+Brand) dissent: urged C&PDT. No present danger of attempt to overthrow govt o Whitney v. CA (1927): Anna W convicted of violating CA crim syndication law by attending mtg to organize branch of Communist Labor Party in NorCal Ct upheld conviction under state law; expressed deference to state leg in these matters Brandeis (+Holmes): URGED application of C&PDT To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. o Ct then started overturning criminal syndication convictions based on laws being unreasonable. Fiske v. KS (1927); DeJonge v. OR (1937); Herndom v. Lowry (1937) o Bradenburg v. OH (1969): Ct said, Whitney has been thoroughly discredited by later decisions. *in terms of using reasonableness to determine something akin to heightened scrutiny] RISK FORMULA (based on C&PDT): If the harm is great enough (ex. overthrowing US govt), then the danger doesnt need to be as probable (clear) or imminent (present) [est. in Dennis] o Dennis v. US (1951): Ppl convicted/sentenced to long prison terms under Smith Act for teaching books written by Marx, Stalin, Engels and Lenin govt argued that these ppl were conspiring to organize Communist Party in US w/ purpose of overthrowing govt (no actual evidence of this) Smith Act 2: illegal for a person to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any govt in the US by force or violence. 3: illegal to attempt or conspire to commit anything in 2 Ct (plurality; Vinson) upheld conviction under Act; that C&PDT appropriate here and not reasonableness test in Gitlow and Whitney Harms of govt overthrow are so enormous that govt doesnt need to show that the danger is imminent or probable in order to punish speech Gitlow and Whitney = different situations incomparable w/ threat of Communism Frankfurter concurred: argued for Gitlow and Whitney reasonableness test Jackson concurred: argued against C&PDT b/c too protect of speech Black dissent: convictions solely based on speech, not even charged w/ acts to overthrow Douglas dissent: convictions solely based on speech; to punish speech, there must be some immediate injury to society that is likely if speech is allowed. o Post Dennis Smith Act cases (gradual shift from RISK FORMULA to BRANDENBURG)
Page 33

Yates v. US (1957): Ct (Harlan, 6-1) adopted narrow interpretation of Smith Act, and overturned convictions of several Communists for conspiracy to violate the Act Ct emphasized difference btwn advocacy of abstract doctrine and advocacy directed at promoting unlawful action. o mere doctrinal justification of forcible overthrow violate Smith Act Ct didnt overruled Dennis, but distinguished it group not constitutionally protected when big group size, sufficiently oriented towards action, etc. to justify apprehension that action will happen JUST TALKING ABOUT IT ENOUGH, NEED TO LOOK LIKE YOU MIGHT ACT! Free speech cannot be denied where the advocacy falls short of incitement and nothing indicates that the advocacy would be immediately acted on. Kingsley Intl Pictures Corp. v. Regents of NY (1959): Ct found NY law prohibiting issuing license to show non-obscene movies that showed acts of sexual immorality [as] desirable, acceptable, or proper patterns of behavior, Unconstitutional. o State denied license to a movie w/ theme that adultery = proper behavior Bond v. Floyd (1966): Ct held GA House of Reps couldnt refuse to seat a representative that made anti-Vietnam War and draft comments. Ct held Bond couldnt be constitutionally convicted because fed law punishes someone who counsels, aids, or abets another to refuse or evade registration. Scales v. US (1961): *constitutional status of membership in subversive organizations] Ct upheld conviction for being member of organization that advocate overthrowing the govt Stressed that there had to be evidence that: o Person was an active members (not just passive or small), o Knew the organizations illegal objectives, AND o With specific intent of furthering organizations illegal goals BRANDENBURG TEST (CURRENT TEST; very narrow/protective of free speech) o Brandenburg v. OH (1969): KKK leader convicted under OH criminal syndication law. Video of him at Klan rally making racist/Anti-Semitic speech. Said if our President, our Congress, our Supreme Ct, continues to suppress the white, Caucasian race, its possible that there might have to be some revegeance taken. Fined 1K and sentenced to 1-10 yrs. Ct overturned conviction and overruled Whitney Free speech does not allow a state to prohibit speech, unless it advocates to incite or produce imminent illegal conduct and is likely to incite or produce such action. ELEMENTS Imminent harm; Likelihood of producing illegal action, and An intent to cause imminent illegality [note: intent element est. by Brandenburg] Ct has not established how to determine imminent or likelihood elements, or definition of intent or how to prove it o POST Brandenburg. Few cases were Brandenburg applied or explained
Page 34

Hess v. IN (1973): Ct reversed conviction for disorderly conduct for shouting Well take the fucking street later, after police cleared an antiwar demonstration from the street. Under B, insufficient b/c no evidence that the words were intended to produce, and likely to produce imminent disorder. NAACP v. Claiborne Hardware Co. (1982): Ct reversed conviction against NAACP for its boycott of white-owned businesses it alleged racially discriminated. Conviction partly based on stmt in speech by NAACP official: If we catch any of you going in any of them racist stores, were gonna break your damn neck. Ct held this speech protected by 1st Amend under Brandenburg test mere advocacy of the use of force or violence *doesnt+ remove speech from protection of the 1st Amendthe emotionally charged rhetoric*didnt+ transcend the bounds of protected speech set forth in Brandenburg. Basically, person can be convicted of incitement only if its proven that there was likelihood of imminent illegal conduct and the speech was directed at causing this conduct Distinction btwn Brandenburg and earlier cases = tenser times in past Ct has said that speech is not protected if its a true threat but circuits split on what constitutes a true threat some think its whether listener perceives threat, while others think it is whether a reasonable person would think its a true threat o FINISH W/ CLASS 20 p. 6

Page 35

 FIGHTING WORDS AND SPEECH THAT PROVOKES A HOSTILE REACTION

Involves danger that an audience might be lawless in reaction to speaker FIGHTING WORDS: speech that is directed at another person and likely to provoke a violent response NOT PROTECTED BY 1ST AMENDMENT!!! Include, the lewd and obscene, the profane, the libelous, and the insulting or fighting words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. o Chaplinsky v. NH (1942): C was Jehovahs Witness that was distributing literature and making speech on a street corner, denouncing other religious as rackets. Told 1 person You are a God damned racketeer and the whole govt of Rochester are Fascists or agents of Fascists. Ct (Murphy) upheld conviction for this speech Words had no social value and did not add to exposition of ideas Case recognizes two categories of speech: 1. Speech likely to cause violent response against speaker Issue = punish speaker or punish violent actor? 2. Insult likely to inflict immediate emotion harm Issue = should speech be punished b/c really upsetting to an audience FIGHTING WORDS UNPROTECTED BECAUSE: o Since FW are epithets or personal abuse, the intent = inflict harm, not convince of an idea. Some views FW as verbal assaults, more like a punch in the mouth than expression of opinion o Since some words are likely to provoke the average person to retaliation, and thereby cause a breach of the peace SHOULD NOT BE PROTECTED o FW not essential to exhibit ideas Since Chaplinsky, the Ct has not upheld a fighting words conviction (but, has not overturned Chaplinksy) Techniques used in overturning FW conviction o Narrowing the Fighting Words doctrine Street v. NY (1969): Ct reversed conviction for burning US flag; State argued Streets flag burning could provoke violent retaliation, but Ct concluded words were not so inherently inflammatory as to come within in the small class of fighting words. Cohen v. CA (1971): Ct held wearing jacket w/ Fuck the Draft on back is not directed at a specific person, so no one could reasonably believe insult directed to them RULE: Unprotected FW occur ONLY IF speech is directed to a specific person and likely to provoke violent response TX v. Johnson (1989): Ct (Brennan) invalidated TX law against flag desecration; held flag burning = PROTECT SPEECH. Same reasoning as Cohen not directed at specific person o FW laws often invalidated as unconstitutionally vague and overbroad. Goading v. Wilson (1972): G convicted for breach of peace for stmts made to police officers at an anti-war demo: White son of a bitch, Ill kill you and You son of a bitch, Ill kill you.
Page 36

Ct overturned conviction on grounds that the law was overbroad emphasized that state cts fail to construe the law to prohibit only protected fighting words. Rosenfeld v. NJ (1972)( repeatedly called teachers and school board members motherfuckers school board meeting); Lewis v. New Orleans (1972)(woman called police God-damn-mother-fucker police when they arrested her son); Brown v. OK (1972)(man called cops mother-fucking fascist pig cops): Ct reversed convictions for use of profanity in public, and vacated in light of Gooding, even if made in anger audience. SYNTHESIZED RULE: Fighting words will only be upheld if narrowly tailored to apply to just unprotected speech.

3. SPEECH THAT PROVOKES A HOSTILE REACTION Many cases (40s; 50s) Ct. applied C&PDT when govt punished ppl for speech provoking hostile audience Terminiello v. Chicago (1949): T attacked opponents in a speech as slimy scum, snakes, and bedbugs; convicted for disturbing the peace o Ct overturned conviction on basis that jury instruction was not sufficiently protective of speech o Freedom of speech protected against censorship unless theres a showing of C&PD of substantive evil that rises far above public inconvenience, annoyance or unrest. Cantwell v. CT (1940): Jehovahs Wit, convicted for playing record on st corner near to Catholic church o Ct (Roberts) overturned b/c speech didnt pose any C&P menace to public peace and order Feiner v. NY (1951): F gave speech sharply criticiz[ing] President and local politicians for inadequate record on civil rights. Audience members got upset and police asked F to leave. F refused arrested. o Ct (Vinson) upheld disturbing the peace conviction o Relied on Cantwell that govt may prevent or punish speech that posses C&PD o Black dissent: police had obligation to protect Fs const. right to talk, but they suppressed him Chemerinsky: issue w/ C&PDT in this context = audience controls what happens even if a speaker making a speech thats legal , speaker can be silenced b/c of illegal conduct (threats of violence/use of force) AUDIENCE CONTROL APPROACH. Later cases, Ct starts to follow approach in Blacks dissent in Feiner, though earlier cases never overruled. o Edwards v. SC (1963): Group of civil rights protestors at SC Capitol; significant hostile crowd gathered, but no violence or threats. Police gave 15 mins to disperse refused arrested Ct overturned convictions b/c police were present and could address possible disorder Ct distinguished from Feiner b/c there was not violence or threats in capitol march o Cox v. LA (1965): Person convicted for speech objecting to racial segregation of lunch counters and urging sit-in. Some ppl in audience thought speech = inflammatory and person was arrested.
Page 37

Ct overturned conviction and emphasized police presence. Although there were some mutterings, there was no evidence that any member of the white group threatened violence. o Gregory v. City of Chicago (1969): Civil Rights demonstrators marching to mayors house, opposing group gathered and got upset threatened started. Demonstrators arrested. Ct overturned convictions b/c law didnt limit convictions to instances where there was a threat of imminent violence, police have made all reasonable efforts to protect demonstrators, and police and requested that demonstration stop o Skokie v. Natl Socialist Party of America (1978): NSPoA leader told Skokie officials(Jewish) that the party was going to hold a peaceful assembly in Skokie to protest requirement of $350K ins bond before Skokie parks could be used for assemblies Marchers were going to wear Nazi-ish uniforms, swastikas, and have signs saying White Free Speech and Free Speech for White Man Skokie filed injunction to stop marchers from uniforms, swastikas, and distributing/ displaying any materials that incite or promote hatred against persons of Jewish faith or ancestry. *Skokie = large Jewish population] Ct reversed injunction issued by trial Ct, found it invalid SYNETHSIZED RULE: 1st Amend reqd police to try to control the audience that is threatening violence and stop the speaker only if crowd control = impossible and threat to breach the peace = imminent.

B. LOW VALUE SPEECH

HATE (RACIST) SPEECH

GROUP LIBEL PROTECTED BY 1ST AMENDMENT! o Beuharnais v. IL (1952): Group in IL urged major and Chi-town City Council to protect white neighborhoods from encroachment, harassment, and invasion by black people Ct (Frankfurter) affirmed conviction of individuals on the basis that state could punish for defamation directed at a group R.A.V. v. City of St. Paul (1972): ordinance = misd to put discriminatory graffiti (against race, religion, etc.) on public or private property. Teenages constructed cross, placed in yard, and burned. o Ordinance struck down b/c overbroad, proscribing both "fighting words" and protected speech, and because the regulation was "content-based," proscribing only activities which conveyed messages concerning particular topics. CROSS BURNING. VA v. Black (2003): 2 cross burning cases. One on remote farm and one on lawn of home purchased by black family. VA law prohibited cross burning with intent to intimidate a person or group of persons. The actual cross burning was prima facie evidence of intent to intimidate. o Three part holding (OConnor) 1) Burning = symbolic expression; govt CANNOT ban symbols b/c powerful and offensive 2) burning done w/ intent to threaten or intimidate (if = true threat) NOT PROTECTED BY 1ST! True threats include stmts when speaker means to communicate serious intent to commit act of unlawful violence to particular group of ppl. Dont have to carry out!
Page 38

3) Must be proof speech was true threat VAs law that burning itself evidence = UNCONST! Cross burning on farm not punishable b/c since no one there true threat Crossing burning on lawn remanded clear intent of a true threat o RULE: CROSS BURNING IS PROTECTED SPEECH AND CANNOT COMPLETELY BE OUTLAWED, BUT GOVT MAY PROHIBIT IT WHEN DONE IN WAY THAT CONSTITUTES TRUE THREAT. PENALTY ENHANCEMENTS FOR HATE CRIMES. WI v. Mitchell (1993): Ct (Rehnquist) unaminmously upheld state law that imposed greater punishment if victimization b/c of race. o Ct reasoned that penalty enhancements based on conduct, not speech o Greater punishment justified b/c of harm to society o For states w/ hate crime enhancements burden = beyond a reasonable doubt to jury

Page 39

 OBSCENITY

Obscenity = UNPROTECTED CATEGORY of 1st Amendment! (Roth v. US, 1957) o Obscenity has no social importance o Ct also said that sex and obscenity are not synonymous Obscene material is material that deals w/ sex in a manner appealing to the prurient interest: (defined as material having tendency to excite lustful thoughts) o Obscenity as an unprotected category reaffirmed by Paris Adult Theater v. Slaton (1973); Alexander v. US (1993); and Miller v. CA (1973) Pro-regulating obscenity: o Community should be able to determine its moral environment o Causes anti-social behavior, particularly violence against women o Counter argument to (c) below = other forms of speech also elicit physical responses Con-regulating obscenity: o Definition in Roth focuses on controlling thoughts, which shouldnt be regulated by govt o Govt shouldnt be able to decide what is moral and suppress speech that doesnt fit definition o Should be regarded as a sex aid, not speech Paris Adult Theater v. Slaton (1973): Ct upheld state cts injunction against showing of obscene films in a movie theater restricted to consenting adults o Ct doesnt like theory that obscene, porn movies get constitutional immunity from state reg b/c theyre only shown for consenting adults legitimate state interests in commercialized obscenity o RULE: Permissible for Cts to issue injunctions to prevent exhibition of obscene material. DEFINITION OF OBSCENE. Difficult to pin down single definition. o MILLER TEST: Miller v. CA basic guidelines for trier of fact must be: [conjunctive test] 3 Part Test. 1.) Whether the average person, applying contemporary community standards would find that the work/expression as a whole, appeals to prurient intent; (prurient interest is not defined; still left over from Roth: excites lustful or lascivious thoughts) 2.) Whether the work/expression depicts/describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; AND 3.) Whether the work/expression, taken as a whole, lacks serious literary, artistic, political or scientific value.

Determined by standards of the community reasonable person standard (not in that community but around the country)

Note: Offensive to the community is most likely where the ambiguity will be and most likely where a test question would focus
Page 40

 PORNOGRAPHY

Govt may prohibit exhibition, sale or distribution of child porn even if it doesnt meet Miller obscenity test o NY v. Ferber (1982): man convicted by NY law for selling films showing young boys masturbating. NY Law = prohibited any person from knowingly producing, directing, exhibiting or selling material depicting a sexual performance by a child under 16 years old Ct unanimously upheld conviction state had compelling interest to protect children Child porn correlated w/ child abuse b/c harm to kids physiological, emotional, and mental health kid potentially scarred by permanent record of involvement Ferber didnt define child pornography, just upheld NY law To = child pornography, production must include use of children. o Ashcroft v. The Free Speech Coalition (2002): Child Pornography Prevent Act of 1996, prohibited child porn whether based on actual pics of kids or computer-generated pics. Law prohibited stuff that appeared/conveyed impression of minor engaged in sex conduct (ex. adults dressed as kids). Ct (Kennedy) declared law unconstitutional b/c prohibited material that did not involve, let alone harm, any children. categories of sexual speech that dont meet test for obscenity (so is protected by 1st Amendment), but is low value speech so govt has latitude to regulate speech Government cannot prohibit or punish certain speech because others are offended by it. o Cohen v. CA (1971): Fuck the Draft jacket case (see above); Ct found that words were not fighting words b/c not directed at a specific person o Ct rejected captive audience arg; Presumed presence of unwitting listeners/viewers DOES NOT automatically justify curtailing potentially offensive speech. Exceptions: School. Bethel v. Fraser (1986): prohibition or punishment of this kind of speech at school ok b/c such speech is inconsistent w/ fundamental value of public education Broadcast Media. FCC v. Pacifica Foundation (1978): radio station in NY played George Carlins monologue on the seven dirty words. o Ct upheld FCCs ability to prohibit and punish indecent language over tv/radio o Govt can ban profane/indecent language from being aired over broadcast media b/c its uniquely pervasive and intrusive in the home o Warnings (at beginning) dont work b/c people can tune in the middle o Also, broadcasting is uniquely accessible to kids OTHER FORMS OF MEDIA o TELEPHONE. Sable Communications v. FCC (1989): Ct held federal statute designed to eliminate dial-a-porn industry unconstitutional Ct distinguished btwn obscene and indecent prohibiting obscene language = constitutional, but laws prohibiting indecent language are unconstitutional
Page 41

LEWD, PROFANE, AND INDECENT

No captive audience callers are willing listeners Congress goal of protecting kids can be achieved through means of less restrictive speech o INTERNET. Ct has been protective so far. Reno v. ACLU (1997): Involved Communications Decency Act of 96 (CDA), crime to transmit obscene or indecent material over internet in way likely to be accessible by a minor Ct (Stevens, 7-2): prohibition of indecent material over internet =unconstitutional Distinguished Pacifica o Pacifica applied during to a time when kids might be listening, while this Act applied all the time o Pacifica applied sanctions, but CDA had criminal ramifications CDA vague issue b/c content-based restriction of speech and criminal statute Ct said CDA essentially struck down b/c too broad Ashcroft v. ACLU (2004): involved Child Online Protection Act, which sought to protect kids from sexual material on internet; Differed from CDA b/c only applied to commercial sites and applied a community standard to define offensive/objectionable material Ct. remanded to 3rd Cir, but said substantial likelihood that law unconstitutional Law was a content-based restriction (since only applied to sexual content over internet) and would have to meet strict scrutiny Law least restrictive way to meet govt interest of protecting kids: parents could install filters at home ZONING ORDINANCES o Young v. American Mini-Theatres (1976): Ct upheld city ordinance that limited number of adult theatres that could be on any block and prevented them to be in residential areas o City of Renton v. Playtime Theatres (1986): S. Ct. relied on Young to uphold a zoning ordinance that excluded adult movie theatres from being within 1,000 ft of any residential zone, church, park or school; this basically excluded adult theatres from 95% of the city. Although relied on Young which was content-based law, Ct noted that the regulation here was content-neutral b/c citys concern wasnt with the theaters themselves, but secondary effects of the theatres on the community o SYNTHESIZED RULE: Young and Renton give cities broad power to use zoning ordinances to regulate where adult entertainment establishments can be located. o City of LA v. Alameda Books (2002): Ct (w/o majority) upheld city ordinance preventing 2 adult bizs from being in the same building Plurality (OConnor) expressed deference to citys judgment that ordinance served the objective of preventing undesirable secondary effects

Page 42

 NUDITY

Nudity alone is not enough to be placed in low value speech level (be less protected) All nudity cannot be deemed obscene, even as to minors. o Erznoznik v. City of Jacksonville (1975): city ordinance public nuisance for any drivein theater to screen movies showing bare butts, breasts, or pubic areas, if visible from public st/area Ct declared the ordinance unconstitutional Ordinance too broad b/c it prohibited stuff irrespective of context or pervasiveness

Page 43

First Amendment: The Establishment Clause A.) Text: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peacefully assemble, and to petition the government for a redress of grievance B.) Lemon Test: 3 prong test to see whether statute violates establishment clause 1.) The statute must have a secular legislative purpose 2.) its principal or primary effect must be one that neither advances nor inhibits religion 3.) And, the statue must not foster an excessive government entanglement with religion The Anticoercion Principle A.) Lee v. Weisman (regards part 2 & 3 of Lemon Test) 1.) Court Held: the State had compelled attendance and participation in an explicitly religious exercise at an event of singular importance to every student, and the plaintiff student had no real alternative to avoid did not have to attend, but would be giving up a major benefit if the student did not 1.) Prayer in a benediction/graduation ceremony for middle and high schools. Principle at public school imposed the prayer(state actor). The prayer was conducted by a rabbi, but nonsectarian in content. 2.) Constitution guarantees government cannot coerce a person to support/participate in any religion, or act in any other way to establish a religion. a.) Government cannot establish official/civic religions or use social pressure to coerce 4.) Concurrence- want a standard less than coercion. B.) Walz v. Tax Commission (regards part 2 of Lemon test) 1.) Held: that government granting church property tax exemptions is constitutional. 2.) The state has granted exemption to all houses of worship with broad class of property owned by non-profit, quasi public corporations which the state considers beneficial and stabilizes influences in community life a.) the states purpose is not to advance/promote a religion, instead is support for religion & like establishments for most/all people C.) Engle v. Vitale 1.) Public school allowed students objecting to state-written prayers recited at the beginning of every class to remain silent, or be excused from attendance. 2.) Court held: the government indirectly coerced religious minorities to conform to the prevailing officially approved religion. a.) The state has a duty to avoid coercion, and not to make classmates feel different/separate because of their beliefs or, lack of beliefs. b.) If prayer held before or after school day, then not so much coercion Nonedorsement Principles & De Facto Establishment A.) Lynch v. Donnelly 1.) Court held the following does not violate establishment clause. Nonprofit org. owned land downtown and displayed Christmas decorations. All components of the display were owned by city. 2.) Court reiterates lemon Test
Page 44

3.) Court says this is not a purposeful effort to express some kind of subtle governmental advocacy of a particular religious message. The city was simply promoting a holiday long recognized in the Western World and a legitimate secular purpose. Court said, on occasion some advancement of religion will result from governmental action. 5.) Concurrence: messages were harmless like hope & peace 6.) Dissent: send message to other religions that they are not worthy of recognition or public support B.) In the past, such things have been allowable. 1.) can act to accommodate to some extent the opportunities for individuals to practice their religions 2.) Government is acting for secular purpose, even though it coincides with religious beliefs 3.) Government cannot completely prohibit religious belief/practices recognized/adopted by the public that are historic & traditional for secular purposes C.) Allegheny v. American Civil Liberties Union 1.) Court held unconstitutional a freestanding display of a nativity scene on the main stair case of the court house 2.) Dissent: This standard/principle unjustifiably hostile toward religion D.) Capital Square Review.v. Penitt. 1.) Court divided over whether, and under what circumstances, an unattended display of privately owned cross on public property could constitute an unconstitutional endorsement of religion. Court used to allow people to do these things, but in this case, KKK wanted to put cross up. 2.) Scalia for plurality says: constitution prohibits endorsement of religion, but not governments neutral treatment of private religious expression. Dissent says: this is a clear sponsorship/facilitation of religion through government entities E.) McGowan v. Maryland. 1.) Court rejected an establishment clause challenge to laws requiring that most large scale commercial enterprises remain closed on Sundays. Constitution does not ban federal/state regulations whose reason or effect happened to coincide with people of a particular religion. Sunday closing laws are secular in nature. F.) Look for long standing historical relationship between public & religion practice/belief. This may potentially be allowed. Impermissible Purpose: The School Prayer A.) Stone v. Graham 1.) held unconstitutional a KY statute requiring that a copy of the Ten Commandments be posted on the walls of each public school classroom. Court said no secular legislative purpose B.) Wallace v 1.) Court invalidated statute that required a moment of silence for meditation or voluntary prayer. Court said the statute served no secular purpose not already served by the states meditation (ie. 30 second meditation). 2.) Concurrence on ground that the statutes purpose and likely effect were to endorse and sponsor voluntary prayer in public schools. General Moment of silence constitutional because this particular moment is not inherently religious or in necessity for one to compromise their beliefs C.) Mcreary County v. ACLU of KY 1.) The government may not favor one religion over another, or non religion over religion, the governments role is to remain neutral D.) Van Orden v 1.) Ten Commandments posted on TX courthouse was constitutional because it had a dual significance in both religion & Government, and did not violate the establishment clause. E.) Determining Legislative Purpose: nondiscrimination and gerrymandering
Page 45

1.) Larson Case: MN statute imported reporting requirements on religious organizations that solicit more than 50% of their funds to nonmembers. Court said one religious denomination cannot be preferred over another. 2.) Such Denominational preferences must be justified by a compelling state interest, and narrowly tailored to serve that interest. Said, the distinctions in the statute engender a risk of politicizing religion and led the MN legislature to discuss the characteristics of various sects with a view toward religious gerrymandering. (strict sruitny) 3.) Court said the states interest in protecting citizens might be compelling, but the 50% rule was not closely fitted (narrowly tailored) to prevent abuse F.) McCreary County v. ACLU of KY 1.) Revisited issue of Ten Commandments and applied the Impermissible Purpose test & found display of Ten Commandments in court house room was unconstitutional. 2.) Impermissible Purpose test: The government action does not violate the establishment clause where it has a secular purpose that is genuine, not a sham and not merely secondarily to religious objectives. G.) Van Orden Again. 1.) Court upheld display of Ten Commandments on the state house grounds in Austin. Court said, if the relationship between government and religion is one of separation, but not mutual hostility & suspicion, one will inevitably difficult borderline cases. In these cases, the court must take into account context & consequences measured in light of the purpose. No exact formula can dictate a resolution to such fact-intensive case 2.) Court found determinative that 40 years passed and nobody challenged the practice. H.) Harris Case 1.) Court rejected an establishment clause attack on a statute restricting public financing of abortions. The challengers argued that the statute incorporates into law the Roman Catholic Church. Court responded that the fact of the funding restriction may coincide with the church does not, without more, breach the establishment clause I.) Course Selection: 1.) The creationism controversy: The 1st does not permit the State to require that teaching and learning must be tailored to principles or prohibitions of any religious sect. or dogma, despite undoubted right to prescribe the curriculum for its public schools. J.) Edwards: 1.) Unconstitutional: LA statute requiring public schools to teach creation science whenever they taught the theory of evolution, Said the preeminent purpose of LA legislature was clearly to advance the religious viewpoint that a supernatural being created humankind The Free Excersize Clause A.) Congress shall make no law respecting an establishment of religion, or prohibition of free exercise thereof; or abridge the freedom of speech, or of the press, or the right of the people to peacefully assemble, and to petition the Government for a redress of grievances. B.) Reynolds: 1.) Court upheld a conviction of bigamy, rejecting a free exercise defense. Said Congress had legislative power to reach actions which were in violation of social duties or subversive of good order. While the government cannot interfere with mere religious beliefs & actions, they may with practices C.) Cantwell: 1.) Court said that the free exercise clause embraces two concepts: freedom to believe & freedom to act. The first is absolute, but conduct remains subject to regulation for the protection of society. In every case the power to regulate must be so exercised as not duly to infringe the protected freedom.
Page 46

D.) Braunfield: (Strict Scruitny) 1.) State statue made Sunday a holiday, but not Saturday for a Jewish holiday. It is understandable that certain decisions may economically disadvantage some religions. 2.) So long as the Statute Purpose & effect is to advance secular goals, the statute is valid despite its indirect burden on religious observance unless the state may accomplish its purpose through means that do not impose such burden 3.) Legitimate purpose to eliminate commercial atmosphere on Sunday (noises & activity) E.) Sherbert (Strict Scruitny) 1.) Woman could not find work because she wanted to observe her Saturday Sabbath in a given work week. She sought unemployment compensation, but state law did not consider her reason a good cause. Court held the denial of unemployment violated free exercise clause. She said the government was forcing her to choose whether to work without her religion or stick to her beliefs and not receive benefits. 2.) Need a compelling state interest. Court considered preventing fraud as one. State must demonstrate that no alternative forms of regulations would combat such abuses without infringing on 1st. F.) Yoder: 1.) Amish guy would not let his kid go to secondary school. Sup. Court said the conviction could not stand. Court acknowledged the States interest in universal education, but the court said the arrest impinged on a fundamental right and the state needs as interest of sufficient magnitude. The court then noted the religious roots of the Amish and that secondary school conflicted with the beliefs G.) Lee: 1.) Guy tried to argue that Social Security interfered with the Amish religious beliefs. Court held the State statue was integral to the fiscal vitality of the nation and an overriding governmental interest. Could not accommodate the social security system with exceptions to varying beliefs. The tax system could not function H.) Restricted Environments: 1.) Goldman Case: The Military- Point of military is an ordered regime. Guy wanted to wear a Jewish hat. 2.) OLone Case: Prison- Muslim prevented from attending a weekly Muslim congregational service mandated by the Koran. The Court held that in a prison context alleged infringements on free exercise interests are judged under a reasonableness test less restrictive than that ordinarily applied to infringements of fundamental rights. Court said restriction was reasonable. I.) Lyng: 1.) Rejected a free exercise challenge to the Forest Services plan to permit timber harvesting and road construction in a part of a forest that Native Americans use for spiritual reasons 2.) Courts relied on words permit in text of 1st. 3.) Indirect coercion or penalties on the free exercise of religion, and outright prohibitions, are subject to strict scrutiny under the First Amendment. 4.) But here, the government program made it difficult to practice certain religions but had no tendency to coerce individuals for acting contrary to their religious beliefs; the government is not subject to strict scrutiny J.) Employment Division, Dept. of H.R. v. Smith 1.) Could Oregon Statute criminalize the use of peyote in Indian Religious Ceremonies? 2.) This case different from unemployment benefits because the conduct is illegal 3) Free exercise means the right to believe and profess whatever religion doctrine one wants. 4.) If prohibiting the exercise of religion is not the object of the law, but merely the incidental effect of a generally applicable and otherwise valid provision, the 1st amendment has not been offended.
Page 47

5.) Court said the only decision in which the court has held the 1st bars application of neutral, generally applicable law to religiously motivated action have not involved the free exercise clause alone. a.) Instead the free exercise clause in conjunction with other constitutional protections, such as freedom of speech and press. Court said this claim was unconnected to any communicative activity or parental rights 6.) Court said Sherbert Test was only previously utilized in the unemployment compensation context. Court said it will not extend it further than that context. 7.) Court said it refused to apply strict scrutiny because it would, here, produce a private right to ignore generally applicable laws. 8.) Footnote; Government classifications based in religion are normally subject to strict scrutiny. 9.) Concurrenc: thinks compelling interest, strict scrutiny should be used K.) Church of Leukemia Case: 1.) Court invalidated a citys ban ritual slaughter as applied to animal sacrifices conducted by church. Court said central element of the law suppression and that the background of the law demonstrated animosity to the religious adherents and that the religious practice was targeted. Court says the law was not narrowly tailored to protect animals. Permissible Accommodations: A. ) Statutes that attempt to accommodate the concerns of religious groups are in tension with some formulations of the establishment clause because they had purpose of advancing religion B. ) Corporation of presiding Bishop v. Amos 1.) Section 702 of 164 Civil Rights Act exempts religious organizations from Titlte VIIs prohibition against discrimination in employment on the basis of religion, but the statute had an exemption for secular nonprofit agencies of the religion. 2.) Plaintiff was a janitor at the Desert Gym, a nonprofit org., open to the public, run by Mormon church. He was fired after he failed to qualify for a certification of staffing stating that he was a member of a church. 3.) Lemon requires that the law at issue serve secular legislative purposes a.) This doesnt mean that the laws purpose is unrelated to religion, just cannot be done with the intent of promoting a particular point of view in religious matter. b.) Under Lemon Test, it is a permissible legislative purpose to alleviate significant government interference with the ability of religious organizations to define and carry out their religious missions. C.) that is the case here 4.) The Lemon Test also requires that the law in question have principal or primary effect that neither advances, not inhibits religion. A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden effects under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence. a.) Court finds no persuasive evidence on the record to show that Churchs ability to propagate its religious doctrine through the Gym is any greater now than it was prior to the Civil Rights Act. It is not attributable to the government, but to the church b.) The court has never stated that statutes that give special consideration to religious groups are invalid per se. They benefited all groups and did not promote one religion in particular. 5.) Lastly, the Lemon Test requires that the statute is limiting, not increasing, government entanglement with religion

Page 48

6.) As here, where a statute is neutral on its face and motivated by a permissible purpose of limiting government interference with the exercise of religion, we see no justification for applying strict scrutiny to a statute that passes the Lemon test. Otherwise apply RB Test a.) RB Test: As applied to the nonprofit activities of religious employers, 702 is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions. b.) Two Concurring (Brennan & Marshal): Focuses on the particular character of non-profit activity, believes that the particular character of nonprofit activity makes inappropriate a case-by-case determination whether its nature is religious or secular. Noticed the burden of a person who may be forced to change his religion compared to the autonomy of religious organizations to manage their own religious affairs. C.) OConner Concurring: The inquiry should be whether the governments purpose is to endorse religion and whether the statute actually conveys a message of endorsement. It is not clear, however, that activities conducted by religious organization solely as non-profitmaking enterprises will be likely to be directly involved in the religious mission of the organization. C.) Texas Monthly Case: 1.) A sharply divided court held unconstitutional a statute that exempted religious publications from a state sales tax 2.) 3 justices: This case was different than Walz because there the benefits derived by religious organization flowed to a large number of nonreligious groups as well 3.) The subsidy is conferred upon a wide array of nonsecretarian groups as well as religious groups in pursuit of some legitimate secular end, the fact that religious groups benefit incidentally does not deprive the subsidy of the secular purpose & primary effect mandated by the establishment clause. 4.) However, when government directs subsidy exclusively to religious organizations that is not required by the Free Exercise Clause and that either burdens nonbeneficiaries markedly or cannot reasonably be seen as removing a significant state-imposed deterrent to the exercise of free religion, it provides unjustifiable awards of assistance to religious organizations and cannot but convey a message of endorsement to slight members of the community. 5.) This is particularly true where, as here, the subsidy is targeted at writings that promulgate the teachings of religious faiths. D.) Board of Educaiton of Kiryasv. Grumet 1.) Village consisted of a bunch of Orthodox Jews in NY who avoid assimilation. Handicapped education was expensive and NY legislature gave these Jews a separate school district. Sup. Court said statute was unconstitutional. 2.) The Village was not simply one of the many communities eligible for equal treatment under a general law. Said that creating a separate district singles out a particular religious sect for special treatment. 3.) Concurrence: The School could have taught other children to be respective of the Jew customs. But what the legislature did segmented the people and provided official support to cement the attachment of young adherents to a particular faith. 4.) OConner: A district created under generally applicable scheme would be acceptable even though it coincides with a village which was conscientiously created by its voters as an enclave for their religious group E.) Thorton v. Caldor: 1.) Court held unconstitutional a CONN statute providing, No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on that day. Court said the statute imposes an absolute duty to conform business practices to the particular
Page 49

religious practices of the employee; the statute takes no account of the convenience or interests of the employer or those of other employees who don ot observe Sabboth. 2.) Concurrence: endorsement & illegal F.) Cutter v. Milkinson: 1.) Congress enacted RLUIPA: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the burden furthers a compelling governmental interest. Court said this was a permissible accommodation of religion because it alleviates exceptional government-created burden on private religious exercise. Noted the degree of governmental control in these situations. Court applied the test that the state was fine so long as it did not override other significant interests G. ) Content of View Point based on Discrimination 1.) Widmar Case: invoked the free speech clause to require a state university to make its facilities available to a student prayer group, just as it would make them available to her groups seeking public forum. Court held that a policy of nondiscrimination against religious speech would not violate the establishment clause. There is no realistic danger that he community would think that the district was embracing any particular religion or creed. Other cases relied on this one and said kids could meet at public schools on their own time at willfully arranged meeting to discuss religious belief H.) McDaniel Case: 1.) Held: invalidation of provision barring ministers from serving as legislators or as delegates to the States constitutional convention. 2.) Church members as political actors (Torasco): Invalidated a provision in the MA constitution requiring state officials to declare their belief in the existence of God. Neither the state not the federal government can constitutionally force a person to profess a belief or disbelief in any religion. And neither can aid those religions based on belief in the existence of God as against those religions founded on different beliefs. a.) Burger: The right to the free exercise of religion unquestionably encompasses the right to preach and to be a minster. If the disqualification were viewed as depriving clergy of civil rights solely because of their religious belief, then Torasco would control. But this disqualification was triggered by the ministers statute, defined in terms of conduct & activity rather than in terms of belief. Thus, the relevant precedent was Yoder, which required an interest of the highest order (compelling interest). But the state has failed to demonstrate that the danger of clergy participation in the political process have not lost whatever validity they may have once enjoyed. b.) Concurrence: Some argued Tarasco controlled, but it was said freedom of belief encompasses a freedom to pursue a livelihood. Said the TN rule was absolutely invalidated 3.) Churches as Political actors: a.) Larkin: held unconstitutional a statute granting churches and schools the power to veto the issuance of liquor licenses to restaurants within 500 feet b.) Delineating the veto power to churches had the effect of advancing religions and provides a symbolic benefit to religion in the minds of some.

Page 50