Constitutional Law Outline, Study notes of Law

Download Constitutional Law Outline and more Study notes Law in PDF only on Docsity! P a g e | 1 Constitutional Law Outline Professor Mazur, Spring 2010 I. Constitutional Interpretation A. Constitutional Interpretation Overview: I. Methods of Interpretation 1. Textual - Power of argument derived from the actual words of the Constitution 2. Structural Analysis - arguments based on the interrelations between the various institutions of government guiding interpretation 3. Original Understanding - argument based on framers’ original intent and the history of the founding 4. Precedent, Common Law Development - based on court’s previous interpretation of the Constitution 5. Pragmatism – looking at issues in a practical current way 6. Moral and Ethical Values II. What does the constitution do? 1. Structure of federal government a. Procedures how government will operate 2. Defines and limits powers of new federal government 3. Divides powers between federal and state governments 4. Divides powers among three branches of the newly created federal government 5. Protects certain rights of individuals III. Supremacy Clause - Article 6 clause 2 “shall be the supreme law of the land; and judges in every state shall be bound thereby, any Thing in the constitution or laws of any state to the contrary notwithstanding.” B. District of Columbia v. Heller I. Issue: Heller is raising a claim that DC’s ban on having a handgun at home without being registered, and it is impossible to register, is against his second amendment right II. Who gives DC the authority to pass such a law? 1. From article 1 § 8 clause 17 of the Constitution. Because it is not a state it does not have state legislative authority, it is a district therefore the clause in the Constitution to control III. Methods of constitutional reasoning 1. Sentence structure of the amendment by breaking it down from the prefatory (introductory clause) and operative clause a. “A well regulated militia, being necessary to the security of a free state,” purpose clause not a clause of express limitation b. Operative clause - the court takes the meaning of each word as they were being used. Here they use dictionaries from that time period, and look at other historical documents to see how the words were customarily used 2. Structural Analysis – the court uses the rest of the Constitution to understand the general meaning of the phrases that are used. 3. Original Understanding – looking at how the people in the time period in which it was written understood the Second Amendment a. You have to be careful when looking at state constitutions that come after because you don’t know exactly what they were trying to get at. Were they saying it was a good idea, where they expanding on it, where they saying no it should be all the people or just some of the people? 4. Constitutional Precedent/ Common Law development a. One of the most important methods of arguing for a constitutional interpretation. b. U.S. v. Miller – holding of Miller is that the government can ban sawed off shotguns and that does not violate the 2nd amendment right because the gun is not in the scope of the military what the second amendment was designed to protect. P a g e | 2 5. Pragmatism - Preamble to the constitution makes it clear that the drafters were motivated by a sense of the way people should live in a moral and ethical way. Moral and ethical content should reform the way we read the constitution IV. Holding: “We hold that the district’s ban on handgun possession in the home violates the 2nd amendment, as does it prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self- defense.” The 2nd amendment protects individual’s right to bear arms for handguns V. Dissent: 1. Stevens: Original standing for the militia and now we don’t need the militia we don’t need guns. Must be a reasonable relationship to a well regulated militia. Stevens would also stick to the precedent of Miller 2. Breyer: Pragmatic approach saying that our society today is different than it was back then and we no longer need and value guns. Uses an interest balance analysis which rational basis standard. This requires a court to uphold regulation so long as it bears a rational relationship to a legitimate governmental purpose. Allowing time, place, manner restrictions Level Strict Scrutiny Intermediate Scrutiny Rational Basis Burden State State Challenger Standard Necessary to achieve a compelling interest Substantially related to a legitimate government purpose (important) Rationally related to a legitimate government purpose Trigger Race, National Origin, Alien status Non-marital Children, Gender Anything other than the aforementioned Degree Narrowly Tailored Less narrowly tailored Even less II. Judicial Review – the power to declare a law unconstitutional A. Marbury v. Madison - “it is emphatically the province and duty of the judicial department to say what the law is” I. Facts: established the authority of the judiciary to review the constitutionality of executive and legislative acts. II. Marshall held the court did not have jurisdiction to hear the case because Congress cannot expand the court’s original jurisdiction beyond Art. III. III. Grants the power to the court of judicial review IV. Section 13 of the judiciary act 1. Interpretation 1- grants power to the Supreme Court to issue such a writ when it hears the case in appellate capacity. If you interpret the statute that congress passed that awards authority of ordering writs of mandamus in an appellate capacity then this is perfectly under their power a. The court has no jurisdiction to hear the claim originally however the court does not use this interpretation 2. Interpretation 2 – the courts says that this act interprets this statute as ordering a writ of Mandamus as original jurisdiction to the supreme court. This is beyond congresses authority to do. Article 3 assigns a very specific and limited array of cases to the supreme courts jurisdiction and congress does not have authority to add more cases to that. It cannot be expanded. a. “it is emphatically the province and duty of the judicial department to say what the law is” V. Arguments for judicial review: 1. Constitution imposes limits on government powers and limits are meaningless unless subject to review because someone has to police them. 2. Checks and balances 3. Inherent to the judicial role to decide the constitutionality of the laws, they are experts 4. Protect against tyranny of the majority P a g e | 5 2. Holding: The court upheld the act stated that Congress, under its plenary power conferred by commerce clause, may control production by regulating shipments in interstate commerce 3. Putting the goods in interstate commerce is the hammer that allows the court to regulate 4. Even though this ships in interstate, imposing a fair playing field has to start with the production because production is where law wages will give a company an unfair advantage to keep the prices low. III. Wickard v. Fillburn – 1942 – rational basis test for interstate commerce 1. Facts: Challenged to Agricultural Adjustment Act. Under the act, secretary of agriculture set a quota for wheat production and each farmer was given an allotment. Filburn grew excess wheat for home consumption and to feed his livestock. Claimed federal law could not constitutionally apply to him because the wheat he grew was not part of interstate commerce. 2. Holding: Court upheld application of federal law and ruled against Fillburn because home grown wheat cumulatively effects would be felt in the interstate market. Fillburn’s contribution to the market, taken together with others similarly situated made it not as trivial a. Court rules that it doesn’t matter that it is indirect on the effect of interstate commerce. The amount or degree of your effect is irrelevant if you add the aggregate together it would influence interstate commerce. Cumulative effect. IV. Test for Interstate Commerce Clause to this point 1. Congress could regulate any activity if there was a substantial effect on interstate commerce. Supreme Court looked at cumulative effect of activity, not individual impact 2. Some cases even delete “substantial,” and only required a rational basis for believing that there was an effect on commerce. Invalidated only if it’s clear that there is no rational basis for the finding that regulated activity affects interstate commerce, or that there is no reasonable connection between the regulation and its ends. 3. Heart of Atlanta Motel Inc. v. United States – 1964 a. Facts: Motel, which had a policy of refusing accommodation to blacks, was located in downtown Atlanta, and about 75% of its registered guests from out-of-state. Challenged the constitutionality of Title II of the Civil Rights Act of 1964 which prohibited discrimination by places of public accommodation. b. Holding: Supreme Court upheld law under commerce clause. There was a two question analysis: i. Did congress have a rational basis for finding that racial discrimination affected commerce? ii. Were the means Congress selected to eliminate that evil reasonable and appropriate?  There was overwhelming evidence that racism impedes interstate commerce. 4. Katzenback v. McClung – 1964 a. Companion case to Hear of Atlanta, and the court upheld applicability of Act to small, family owned restaurant in Birmingham. b. Holding: The court stated that Congress rationally believed the cumulative effects of discrimination in restaurants negatively impacted interstate commerce I. Era 3 Commerce Clause in the Present Day (1995 – Present) I. United States v. Lopez - 1995 1. Facts: Kid brought a gun to school and was arrested under the federal law of a gun free school zone which does not allow anyone to bring a gun on campus or within 1000 ft. 2. Holding: The act exceeds the authority of congress. To allow it would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that they never will be a distinction between what is truly national and what is truly local. This we are unwilling to do. a. This statute was missing a jurisdictional hook. There was nothing in the statute to know that Congress was thinking about commerce or anything else for that matter when they wrote the law. b. Siding with Congress on this statute would give them an enormous amount of police power and could relate anything back to commerce to justify their actions. 3. Three broad categories of activity that congress may regulate under commerce clause: a. Congress may regulate the use of the channels of interstate commerce b. Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities P a g e | 6 c. Congress’s commerce authority includes the powers to regulate those activities having a substantial affect to interstate commerce 4. Concurring Opinions: a. Justice Thomas urged a much narrower interpretation of Congress’s power than majority. Does not like substantial effects test. b. Kennedy and O’Connor – stressed federalism and the protection of states’ prerogatives. Also stressed that most states had similar laws, and the federal laws were unnecessary 5. Dissenting Opinions: a. Breyer - Criticized majority for judicial activism, abandoning precedent and invalidating an important deferral statute. Believes that they should uphold the law as long as there is a rational basis that the activity affect interstate commerce. Guns are inherently a part of interstate commerce and have an economic impact when they are near schools that justifies federal regulation b. Stevens: belief that once something is in interstate commerce it never leaves and therefore gives Congress the ability to control it c. Souter: As long as its in the realm of reasoning, judicial restraint would require us to walk away II. United States v. Morrison – 2000 1. Facts: Woman was allegedly raped by football players at VT. After the players escaped prosecution and academic sanctions, woman sued the players and university under the Violence Against Women Act, which allowed victims of gender-motivated violence to sue for money damages. Act’s constitutionality challenged both under the commerce clause and §5 of the 14th amendment 2. Holding: Congress lacked the authority to adopt the provisions under the Commerce Clause. The court reaffirmed the 3 part test for Congress’s commerce clause authority which is congress may regulate: i. The channels of interstate commerce ii. The instrumentalities of interstate commerce and persons or things in interstate commerce, and iii. Activities that have a substantial effect on interstate commerce b. The court rejected the argument that violence against women, when looked at cumulatively across the nation, has a substantial impact on the national economy c. “Gender related crimes of violence are not in any respect interstate commerce. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history out cases have upheld commerce clause regulation of intrastate activity only where that activity is economic in nature” i. The court says that “if accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption.” III. Gonzalez v. Reich – 2005 – weed case 1. Facts: Congress, in this instance, has a rational basis, for concluding that leaving home consumed week unregulated could have an effect on price and market conditions. Under Wickard, Congress can regulate purely intrastate activity that is not itself “commercial” if it concludes that failure to regulate that class of activity that is not itself “commercial” if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity a. Distinguished from Lopez/Morrison in that these activities are quintessentially economic b. Dissent urges the state to be left to their own devises to regulate this activity IV. New York v. United States (1995) – Does the 10th Amendment Limit Congress’s Authority? – Yes 1. Facts: Congress, in an effort to combat radioactive waste disposal problem, passed the Low-Level Radioactive Waste Policy Amendments. The Act included monetary incentives, access incentives, and a take title provision, which offered states the option of taking title to and possession of low level radioactive waste generated within their borders and assuming liability for damages that waste generators suffer due to the states' tardiness. New York sued, claiming that the Act violated U.S. Const. amend. X. P a g e | 7 2. Holding: “we conclude that while Congress has substantial power under the Constitution to encourage States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon congress the ability simply to compel the States to do so a. that (a) monetary incentives constituted permissible exercises of congressional power under the Commerce, Taxing, and Spending Clauses of the Constitution; (b) access incentives represented permissible conditional exercise of Congress' commerce power; but (c) the take title clause exceeded the constitution 3. “Take title” provision a. Congress can choose to regulate directly and displace any inconsistent state law under the supremacy clause and they chose not to do it. However, they chose to make the state regulate and the court says that’s not an option that you have. Congress cannot make the state an actor in their regulatory scheme b. The states are not sub-divisions or political municipalities of the federal government. They are different sovereigns and can only be regulated by the federal government by way that the constitution allows. 4. The 10th Amendment does not prevent the federal government from commandeering the state judiciary because they are sworn to uphold the Constitution and the Constitution is the supreme law of the land. V. Printz v. United States – “Such commands are fundamentally incompatible with our constitutional system of dual sovereignty” 1. Facts: Congress established the Brady act to requires the attorney general to do background checks on gun purchases. Until it is able to be established, Congress mandated state and local law enforcement personnel must do background checks before issuing permit for firearms. 2. Holding: “The Federal Government may not compel the States to enact or administer a federal regulatory program.” “We hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those in their political subdivision, to administer or enforce a federal regulatory program. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” a. US Congress could have directly regulated the gun sellers by making them do the background check or they could have made the government purchasers apply directly to the federal government. J. The Taxing and Spending Power I. Art 1 § 8 “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” 1. Court adopted the approach the Congress has the broad authority to tax and spend for the general welfare (U.S. v. Butler) II. Unites States v. Butler – Congress has broad power to tax and spend 1. Facts: Agriculture Adjustment act declared that because of a crisis in agricultural production, the government can set limits on production of certain crops and impose taxes on production in excess of these limits 2. Holding: Held unconstitutional on the ground that it violated 10th amendment because the regulation of production was left to the states. This part of holding not followed. Discussion of the scope of the taxing and spending powers remains good law. a. Congress could tax and spend for any purpose in promotion of the general welfare, as long it didn’t violate any other provision of the Constitution. Separate power distinct from other enumerated powers. III. Sabri v. United States 1. The court unanimously upheld the constitutionality of a federal law which prohibits bribery of state, local, and tribal officials of entities that receive at least $10,000 in federal funds. 2. Argument was that Congress could only prohibit bribery as to those state, local and tribal activities that actually got federal money. Court rejected this argument “Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar for dollar value.” 3. Congress has the “power to bring federal power to bear directly on individuals who convert public spending into unearned private gain, not a means for bringing federal economic might to bear on a State’s own choice of public policy.” P a g e | 10 a. If YES: Invalid, except if strictest scrutiny has no alternative i. In almost all instances the law will be invalid b. If NO: Balancing health/safety against burden on interstate commerce i. How much a burden is too much? What is the baseline 2. Congress can approve of policy decisions that we would not allow the states to do themselves. They, under the power of the commerce clause, can enact discriminatory laws because they have the power to regulate interstate commerce. 3. Congress is supposed to be in a better position to make a legislation that is beneficial for everyone. They are represented by people from every state and states who matter have a say in the issue. VIII. Exceptions to the Dormant Commerce Clause 1. If Congress approves state law; or 2. Market Participant exception a. Allows states to favor their own citizens in receiving benefits from government programs and in dealing with government-owned businesses. IV. The Privileges and Immunities Clause of Article IV, § 2 Clause 1 & 14th Amendment. A. Privileges and Immunities Overview I. “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States” 1. The Supreme Court has interpreted this provision as limiting the ability of a state to discriminate against out- of-staters with regard to fundamental rights or important economic activities II. Most cases under the Privileges and Immunities Clause involve challenges to state and local laws that discriminate against out-of-staters with regard to their ability to earn a livelihood 1. Such discrimination will be allowed only if it is substantially related to achieving a substantial state interest III. The Supreme Court has long held that the term “citizen” in the Privileges and Immunities Clause is limited to individuals who are Unites States Citizens 1. Corporations and aliens cannot sue because by definition they are not citizens under Privileges and Immunities Clause. IV. The Dormant Commerce Clause and the Privileges and Immunities Clause overlap and can both be used to challenge state and local laws that discriminate against out of staters. 1. Differences between Dormant Commerce Clause (“DCC”) and Privileges and Immunities Clause (PIC) a. The PIC can be used only if there is discrimination against out-of-staters. The DCC can be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate against out-of staters b. Corporations and aliens can sue under DCC but not PIC c. There are two exceptions to the DCC that do not apply to the PIC i. If Congress approves state laws, the do not violate the DCC ii. There is a market participant exception to the DCC that allows states to favor their own citizens in receiving benefits from government programs and in dealing with government-owned businesses. B. Analysis Under the Privileges and Immunities Clause I. Two basic questions: 1. Has the state discriminated against out-of-staters with regard to privileges and immunities that it accords to its own citizens? 2. If there is such discrimination, is there a sufficient justification for the discrimination? a. The clause is not absolute, but it creates a strong presumption against state and local laws that discriminate against out-of-staters with regard to fundamental rights or important economic activity. II. What are the Privileges and Immunities of Citizenship? 1. Has to be sufficiently fundamental to the promotion of interstate harmony 2. The rights enumerated in the Bill of Rights seem are the most obvious. If a state were to prevent out of staters from engaging in religious worship, a challenge certainly could be brought under the clause. P a g e | 11 3. Test standard principal rule that the court sets out to determine whether the privileges and immunities doctrine has been violated. a. Whether state law has discriminated against the citizens of another state? i. If YES: What is a privileges and immunity  Civil liberties – constitutional rights (fundamental rights)  Important economic activity ii. If YES to both: is there a substantial reason for the justification and is it closely related or serving that reason. Sufficient Justification for discrimination 4. Toomer v. Witsell a. Facts: South Carolina Code requires payment of a license fee of $25 for each shrimp boat owned by a resident, and of $2,500 for each one owned by a non-resident b. Holding: the statute plainly and frankly discriminates against non-residents, and the record leaves little doubt but what the discrimination is so great that its practical effect virtually exclusionary. Unless there is something to indicate that non-citizens constitute a peculiar source of evil at which the state is aimed it is unconstitutional, which this one is. i. “It was long ago decided that one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.” 5. United Building & Construction Trades Council of Camden County v. Mayor & Council of Camden a. Facts: City of Camden requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. b. Holding: The court concludes that Camden’s ordinance is not immune from constitutional review at the behest of out of state resident merely because some instate residents are similarly disadvantaged. It would not be appropriate for this Court either to make factual determinations as an initial matter or to take judicial notice of Camden’s decay. The court deemed it wise to remand the case to the NJ Supreme Court to decide whether consistent with state procedure, on the best method for making the necessary findings. III. What Justifications are sufficient to Permit Discrimination 1. Supreme Court of New Hampshire v. Kathryn A. Piper – Strict Scrutiny a. Facts: New Hampshire Bar limits bar admission to state residents. Piper lives 400 yards from the New Hampshire border and passed the bar exam but she would have to establish a home in New Hampshire prior to being sworn in. b. Holding: Appellant neither advances a substantial reason for its discrimination against nonresident applicants to the bar, nor demonstrates that the discrimination practiced bears a close relationship to its proffered objectives i. Rational basis review- could the legislature rationally believe that this distinction between in and out of states would advance these issues ii. Rational basis is enough in some standards for other types of cases but here this is not a rational basis case. This is a significant scrutiny kind of case without doing research V. The Executive Power A. Express and Inherent Presidential Powers I. Inherent Presidential Power 1. Article 2 “The executive Power shall be vested in a President of the United States of America.” 2. Youngstown Sheet & Tube Co. v. Sawyer a. Facts: in early 1952, the United Steelworkers Union announced a planned nationwide strike as a result of labor management dispute. A few hours before the strike was to being, President Truman issued Executive Order which directed the secretary of commerce to take possession of the steel mills and to keep them running P a g e | 12 b. Holding: The Supreme Court declared the seizure of the steel mills unconstitutional. There were 7 different opinions written and Justices in the majority gave several different answers to the question of when the president may act without express constitutional or statutory authority. c. Four different approaches can be identified: i. There is no inherent presidential power; the president may act only if there is express constitutional or statutory authority. ii. The president has inherent authority unless the president interferes with the functioning of another branch of government or usurps the powers of another branch iii. The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute or the Constitution iv. The President has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated d. No Supreme Court case has made either of these approaches valid or discredits either. 3. Approach 1: No Inherent Presidential Power- Justice Black a. Denies the existence of any inherent presidential power. Justice Black stated “the president’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” b. Inherent authority is inconsistent with a written Constitution establishing a government of limited powers 4. Approach 2: Interstitial Executive Power – Justice Douglas a. Justice Douglas wrote “the president might seize and the Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected.” b. This view recognizes the ability of the president to act without express constitutional or statutory authority, so long as the president is not infringing or usurping the powers of Congress or the courts. 5. Approach 3: Legislative Accountability a. These acts were unconstitutional because Congress had denied the president the authority to seize industries b. Justice Jackson’s 3 subgroups: i. “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that congress can delegate.” ii. “When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain .” iii. “When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb”  This is because the president is disobeying a federal law, such presidential actions will be allowed only if the law enacted by Congress is unconstitutional 6. Approach 4: Broad Inherent Authority – Justice Vinson a. The president may act unless such conduct violates the Constitution. Federal laws restricting the Presidents power are unconstitutional. b. In recent years, there have been claims of broad inherent presidential power to protect national security and fight terrorism. II. Importances of both: B. War Powers I. The Constitution in Article I, grants Congress the power to declare war and the authority to raise and support the army and the navy. Article II makes the president the commander-in-chief. 1. Congress also has spending power where they can decide to fund or not fund a war II. Why is it that congress passes the war powers resolution 1. They couldn’t control the Vietnam war. 2. This adds what exactly a war is since is vague in the constitution III. Declaration of war P a g e | 15 II. Slaughter-House Cases: Butchers’ Benevolent Assn. of New Orleans v. Crescent City Livestock Landing & Slaughter-House Co. 1. Facts: The Louisiana legislature gave a monopoly in the livestock landing and the slaughterhouse business for the city of New Orleans to the Slaughter house company. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee. Butchers challenged on due process clause, equal protection clause and privileges or immunities grounds. 2. Holding: The Court narrowly construed all of these provisions and rejected the plaintiffs challenge to the legislatures grant of the monopoly. The Court said that the purpose of the 13th and 14th Amendments was solely to protect former slaves. The Court said that the equal protection clause only was meant to protect blacks and offered the prediction “we doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” (This was overruled). The court also rejected the application of the due process clause to protect a right to practice one’s trade (overruled). The Court narrow interpretation of the Privileges or immunities clause never has been expressly overruled and has precluded the use of that provision to apply to the Bill of Rights. Specifically the court held that the privileges or immunities clause was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws. a. Court held that the 14th Amendment only as it applies to national, not state citizenship. Not about protecting citizens of the states from the states “Not meant to provide a basis for invalidating state and local laws precluded use of the provision to apply to the Bill of Rights to the states C. The Incorporation of the Bill of Rights into the Due Process Clause of the 14th Amendment. I. In 1897 the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment prevents states from taking property without just compensation II. Twining v. New Jersey 1. Facts: The court rejected criminal defendants’ claim that a state court had violated their constitutional right by instructing the jury that it could draw a negative inference from their failure to testify at trial. 2. Holding: The court expressly recognized the possibility that the due process clause of the 14 th amendment incorporates provisions of the Bill of Rights and thereby applies them to state and local government. a. The Court said that it “is possible that some of the personal rights safeguarded against state action, because a denial of them would be a denial of due process of law. . . . If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.” III. Debate over incorporation: 1. History: Whether the framers of the 14th Amendment intended to apply the Bill of Rights to the states. 2. Federalism: Applying the Bill of Rights to the states imposes a substantial set of restrictions on state and local governments. a. Opponents of total incorporation argued based on federalism: desirability of preserving state and local government autonomy b. Defenders of total incorporation responded that federalism is not sufficient reason for tolerating violations of fundamental liberties 3. Appropriate Judicial Role: too much judicial discretion/activism under selective? Too much judicial oversight if total is adopted with no room for democracy to operate? D. The Current Law as to What’s Incorporated 1. Selective incorporationists prevailed and the Court has never accepted the total incorporationist approach. However, the Court found almost all the provisions to be incorporated 2. Duncan v. Louisiana a. Facts: Duncan was convicted of simple battery and sought trial by jury, but because the Louisiana Constitution grants jury trials only in cases in which capital punishment or imprisonment at hard labor may be imposed, the trial judge denied the request P a g e | 16 b. Holding: “Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the 14th Amendment guarantees a right of jury trial in all criminal cases which – were they to be tried in a federal court – would come within the Sixth Amendment’s guarantee.” i. Test: 1) whether a right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions; 2) whether it is basic in our system of jurisprudence; 3) whether it is a fundamental right essential to a fair trial? 3. Five Provisions of the Bill of Rights that never have been incorporated and do not apply to state and local governments. a. The Court has ruled that Second Amendment “right to bear arms” is not incorporated i. However, this will be reexamined because the Court found in Heller that the 2nd Amendment safeguards an individuals’ right to possess weapons b. The 3rd Amendment right to not have soldiers quartered in a person’s home never has been deemed incorporated. i. This is only because a case has never made it to the Supreme Court and if it did, the Court would likely find it to be incorporated c. The 5th Amendment’s right to a grand jury indictment in criminal cases. d. The 7th Amendment right to a jury trial in civil cases is not incorporated i. States can eliminate juries in some or all civil suits without violating the Constitution e. The Court has never ruled as to whether the prohibition of excessive fines in the 8th Amendment is incorporated E. The Application of the Bill of Rights and the Constitution to Private Conduct I. Requirement of “state action.” Private conduct generally does not have to comply with the Constitution. II. The Civil Rights Cases: United States v. Stanley 1. The Court declared the Civil Rights Act unconstitutional for prohibiting private racial discrimination. Court ruled that the 14th Amendment applies just to state and local government actions, that private action was governed by state law and not by the U.S. Constitution. “Federal Constitutional rights do not govern the individual behavior and Congress lacks the authority to apply them to private conduct.” This is all unless they are sanctioned or authorized by the state. It is not within their section 5 authority under the 14 th. III. Exceptions to State Action 1. “Public functions exception” – private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government. 2. “Entanglement exception” – private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct IV. Notes on State Action a. Since the 1960s, the Court has applied a much narrower definition of state action. The Court has been much more likely to apply the exceptions in cases involving racial discrimination than in cases involving other constitutional claims b. The adoption of the Civil Rights Act of 1964, which prohibited private discrimination by places of public accommodation and private employers, greatly lessened the need for constitutional litigation V. The Public Functions Exception: 1. Marsh v. Alabama a. Facts: Δ was convicted of trespass after having been warned not to do so after she refused to leave a sidewalk in a town where she was handing out religious literature. The town had a business section with shops and sidewalks as well as residential neighborhoods. There was nothing in its appearance to distinguish the town from any other town, except that the title to the town property belonged to a private corporation. Δ claimed that the imposition of criminal punishment on her for distributing religious literature on the premises of a company-owned town violated the 1st and 14th Amendment b. Holding: Declared that a privately held town is not like a private homeowners, and by opening up the property substantially to the public, the more the property owner’s rights become more limited by the P a g e | 17 constitutional rights of those using it. Running the city is a public function and the private town as stepped into the shoes of the state i. Used a balancing test and looks to whether the private property is used for a public purpose 2. Jackson v. Metropolitan Edison Co. a. Much more narrow holding than Marsh. Court declared there is state action “in the exercise by a private entity of powers traditionally exclusively reserved for the State.” Held that a private utility company did not have to provide Due Process before it terminated a customer’s service. Plaintiff asserted that a private utility, with a state granted monopoly, performed a public function and should also have to provide due process. i. Court held that there was not a sufficiently close nexus b/w the state and the utility’s action, not traditionally associated with the sovereignty, not all business actions affecting the public interest are state interests. ii. The Dissent noted the broad interaction b/w the state and the utility, that they should be recognized as “joint participants” iii. Focuses on whether it is an activity that has been traditionally, exclusively done by the government 3. Evans v. Newton a. Facts: The testator's will provided for a tract of land to be held in trust to be used as a segregated park. The trust's board of managers brought a suit against the city and the trustees of the residuary beneficiaries. The board of managers sought to enforce the racial limitations of the will. The state supreme court held that the testator had a right to leave his property to a limited class of beneficiaries and that charitable trusts were subject to the supervision of an equity court, which could appoint new trustees to avoid failure of the trust. b. Holding: Under the circumstances of the case, the public character of the park required that it be treated as a public institution subject to the command of the 14 th Amendment, regardless of who had title under state law. The tradition of municipal control of the park was firmly established; therefore, the Court could not take judicial notice that mere substitution of trustees instantly transferred the park from the public to the private sector. VI. The Entanglement Exception 1. Shelley v. Kraemer a. Facts: Suits to enforce restrictive covenants in deeds of residential property whereby the owners agreed that the property could only be sold to someone who is white. b. Holding: The court reversed the state courts' decisions upholding the covenants because, in granting judicial enforcement of the covenants, the states denied petitioners the equal protection of the laws. Although there was no state statute regulating the matter, there was nonetheless state action within the meaning of the 14th Amendment. This was a denial of equal protection i. A private action can turn into state action when the courts step in to decide the controversy. To get something to be state action all you need to do is try and bring a suit. 2. Edmonson v. Leesville Concrete Co. (Pg 573) a. Facts: During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Edmonson, who is black, requested the District Court to require Leesville to articulate a race-neutral explanation. The District Court denied the request and empanelled a jury of 11 white persons and 1 black person b. Courts Test: “Our precedents establish that, in determining whether a particular action or course of conduct is government in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, whether the actor is performing a traditional governmental function, and whether the injury caused is aggravated in a unique way by the incidents of governmental authority” c. Holding: “the exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state action. It cannot be disputed that, without the overt, significant participation of the P a g e | 20 Act had no relation to the capacity of female employees but, rather, was an invalid exercise of state police power by attempting to establish an arbitrary amount necessary to provide a living for women. Further, the Act required an employer to make an arbitrary payment to female employees without any causal connection to his business or the type of work the employee performed. C. Economic Substantive Due Process Since 1937 I. Enormous pressures were mounting for the court to abandon the laissez-faire philosophy of the Lochner Era. II. Legal realist attached the premise that the freedom of contract and related property rights were part of the natural liberties and argued that the law reflected political choices III. The end of Lochnerism 1. West Coast Hotel Co. v. Parrish a. The Court upheld a state law that required a minimum wage for women employees and expressly overruled Adkins. Court made it clear that it was abandoning the principles of Lochner. It notes that the minimum wage law was challenged as interfering with the freedom of contract and he Justice Hughes replied "what is this freedom of contract? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. . . . [R]egulation which is reasonable in relation to its subject and is adopted in the interests of community is due process." i. The court was emphatic that the government was not limited to regulating only to advance the public safety, public health, or public morals. ii. The court declared that it would no longer protect freedom to contract as a fundamental right, that government could regulate any legitimate purpose, and that the judiciary would defer to the legislature's choices so long as they were reasonable 2. United States v. Carolene Products Co. – famous footnote 4 case. Discrete and insular minorities a. The Court upheld the Filled Milk Act of 1923 that prohibited "filled milk," a substance obtained by mixing milk and vegetable oil. b. Economic regulations should be upheld so long as they are supported by a conceivable rational basis, even if it cannot be proved that it was the legislature's actual intent. "The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless…" there is no rational basis. i. Footnote 4: Double standard of review. Generally, the Court would defer to the government and uphold laws so long as they were reasonable. But deference would not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities.  The court generally would presume that laws are constitutional. However, this deference would be replaced by a "more searching judicial inquiry" when it is a law that interferes with individual rights, or a law that restricts the ability of the political process to repeal undesirable legislation, or a law that discriminates against a "discrete and insular minority." 3. Williamson v. Lee Optical of Oklahoma, Inc. a. Facts: The optician sought to have OK. Stat. declared unconstitutional because the effect was to forbid an optician from fitting or duplicating lenses without a prescription from an optometrist. In practical effect, it meant that no optician could fit old glasses into new frames or supply a lens without a prescription. b. Holding: Although the law might have exacted a needless, wasteful requirement in many cases, it was for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. i. Court very differentially accepts the legislature’s judgment helps under a rational basis standard ii. All the government has to show is that there is some conceivable purpose VIII. Equal Protection A. Introduction I. 14th Amendment "No state shall…deny to any person within its jurisdiction the equal protection of the laws." II. Equal protection rarely was found by the Court until the mid 1950s where it was referred to as "the last resort of constitutional arguments." P a g e | 21 III. Brown v. Board of Education, in 1954, ushered in the modern era of equal protection jurisprudence. 1. Since Brown the Court has relied on the clause as a key provision for combating discriminatory Acts and safeguarding fundamental rights. IV. While there remains no Constitutional provision that says that the federal government cannot deny equal protection of the laws (its found in the 14th Amendment for the states), the court has held that it applies to the federal government also V. All equal protection cases pose the same basic question: Is the government's classification justified by a sufficient purpose? 1. Most government laws draw a distinction among people and what constitutes a sufficient justification depends entirely on the type of discrimination a. Discrimination based on race = extremely suspicious, only if they are necessary to achieve a compelling government purpose (Strict Scrutiny) VI. Equal Protection Broken down into three questions 1. What is the Classification? a. How is the government drawing a distinction among people? b. Must begin by identifying how the government is distinguishing among people. Two basic types i. Facial Discrimination: Where the law in its terms draws a distinction among people based on a particular characteristic. Ex. a law that says only those 16 and older can have a driver's license. ii. Facially Neutral: law makes no distinctions by there is a discriminatory impact to the law or discriminatory effects from its administration. Ex. A law requiring police officers to be at least 5'10" and 150 lbs is, on its dace, only a height and weight classification. But, this includes 40% of men and only 2% of women, which means there is a discriminatory impact against women.  Court made it clear that discriminatory impact is insufficient to prove a racial or gender classification. Facially neutral must have discriminatory impact and discriminatory purpose. 2. What is the Appropriate Level of Scrutiny? a. Different levels of scrutiny will be applied depending on the type of discrimination. b. Strict scrutiny: Race or national origin, generally discrimination against aliens with exceptions. i. Strict Scrutiny: The government must have a truly significant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternative. The government has the burden of proof. c. Intermediate Scrutiny: discrimination based on gender and for discrimination against non-marital children i. Intermediate Scrutiny: a law is upheld if it is substantially related to an important government purpose. The court need not find the government's purpose compelling, but it must characterize that the objective is important. The government has the burden of proof. d. Rational Basis: A law will be upheld if it is rationally related to a legitimate government purpose. Rational way to accomplish the end. Challenger has the burden of proof, and the test is enormously deferential to the government, and only rarely have laws been declared unconstitutional. e. The notion is that it is unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change so the court generally requires a heightened level of scrutiny. f. The Court also considers the ability of a group to protect itself through the political process. Women, for example, are more than half the population, but traditionally they have been severely underrepresented in political office. g. History of discrimination against the group is also relevant. 3. Does the Government Action Meet the Level of Scrutiny? a. The Court evaluates both the law's ends and its means. i. For strict the end must be deemed compelling ii. Intermediate the end has to be regarded as important iii. Rational basis there has to be a legitimate purpose. b. In evaluating the relationship of the means of the particular law to the end, the Court focuses on the degree to which a law is underinclusive and/or overinclusive. P a g e | 22 i. Underinclusive if it does not apply to individuals who are similar to those to whom the law applied. Ex. Law that excludes those under age 16 from having a drivers license is somewhat underinclusive because some younger drivers undoubtedly have the physical ability and the emotional maturity to be good drivers. ii. Overinclusive if it applied to those who need to be included in order for the government to achieve its purpose; the law unnecessarily applies to a group of people. Ex. The government's decision to evacuate and intern all Japanese-Americans. Fear of spies interned all Japs. iii. The law can be both as well and just because it is one of these or both does not mean that its invalid.  If strict scrutiny is used, a relatively close fit is required and intermediate scrutiny requires a closer fit than rational basis. VII.The protection of Fundamental Rights Under Equal Protection 1. Sometimes Equal Protection is used if the government discriminate among people as to the exercise of a fundamental right, besides the discrimination based on age, sex, race, or disability. a. Ex. The Court declared a law, requiring sterilization for crimes involving moral turpitude, unconstitutional as violating equal protection because it discriminated among people in their ability to exercise a fundamental liberty: the right to procreate i. The right to procreate was fundamental under equal protection ii. Voting, access to judicial process, and interstate travel are all fundamental under EP. iii. Strict Scrutiny used for fundamental rights b. If a law is not fundamental then the Court will only apply a rational basis test. VIII. How is Equal Protection Proven? 1. Showing a statistical pattern that can be explained only by a discriminatory purpose. a. “Such cases are rare” 2. Can prove it through the history surrounding the government’s action 3. Legislative or administrative history of law "contemporary statements by members of the decision making body, minutes of its meetings, or reports" B. The Rational Basis Test I. Introduction 1. The basic requirement is that a law meets rational basis review if it is rationally related to a legitimate government purpose. 2. Under this review the Court is generally extremely deferential to the government when applying the rational basis test. As long as the government has any legitimate purpose. 3. Since 1937 the court has made it clear that it will defer to government economic and social regulations unless they infringe on a fundamental right or discriminate against a suspect group. II. Does the Law Have a Legitimate Purpose? 1. The government has a legitimate purpose if it advances a traditional “police” purpose: protecting safety, public health, or public morals. These are not the only legitimate purposes, almost any goal that is not forbidden by the Constitution will be deemed sufficient. a. Berman v. Parker: “Public safety, public health, morality, peace and quiet, law and order – these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it.” 2. Only rarely has the Court found that a government purpose was not legitimate 3. Romer v. Evans – Possible rational basis with a bite a. Facts: In Colorado, various ordinances that afforded protection to persons discriminated against by reason of sexual orientation gave rise to a statewide controversy. Voters passed Amendment 2 which prohibited all legislative, executive, or judicial action at any level of state or local government designed to protect homosexual persons. b. Holding: Amendment 2 violated the Equal Protection clause because the classification was unrelated to any legitimate state interest. “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.” “A state cannot so deem a class of persons a stranger to its laws.” P a g e | 25 a. Facts: During WWII, Japanese-Americans were placed in concentration camps. Justification was national security, fear that they would aid an invading Japanese army or commit espionage. Race alone was used to determine who was evacuated and incarcerated. b. Holding: Constitutionality of the evacuation upheld because the court accepted claim that measures were necessary because there was a serious risk to national security from disloyal Japanese-Americans and it was impossible to segregate the disloyal from the loyal. i. Emphasized the fact that it was wartime, and that “hardships are a part of war.” ii. Cases concerning Japanese evacuation only situation in which Court has affirmed express racial classifications burdening minorities. c. Dissent: “one of the most sweeping and complete deprivations of constitutional rights in the history of this nation.” d. Criticisms: i. Racial classification was enormously overinclusive.  All Japanese-Americans evacuated; not just those who were a threat.  Evidence that gov’t lawyers exaggerated threat to Court to persuade them to uphold the law. ii. Winning the war was a compelling purpose, but the means were not necessary to achieve the end. Thus should have failed SS. e. Decisions may be seen as SC’s enormous deference to the military in times of war. 2. Plessy v. Ferguson (affirmed separate but equal) a. Facts: Plessy made an arrest happen with the cooperation of law enforcement. He was sitting n a white car on a train and they arrested him because he said he didn’t want to leave. They did this so they can challenge the statute which required “equal but separate accommodations for the white, and colored races.” b. Holding: Court rejected the stigma argument, only stigmatizes blacks because “it is not by reason of anything gound in the act, but solely because the colored race chooses to put that constriction upon it.” Court upheld the law’s constitutionality. c. Dissent: Harlan wrote that everyone knows the statute in question had its origin in purpose to exclude blacks from coaches assigned to whites. i. Constitution does not authorize a caste system or the creation of a superior race. All citizens are equal before the law. ii. Interests of both races require that the government not legally sanction racism and hate. 3. Brown v. Board of Education -1954 “Separate education facilities are inherently unequal” a. Facts: Black children seek the aid of the courts in obtaining admission to the public schools of their community on non-segregated basis. The segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the 14th Amendment. b. Holding: “in the field of public education the doctrine of “separate but equal” has no place. Separate education facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situation for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the 14th Amendment” i. “To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a why unlikely ever to be undone.” c. Opinion authored by Chief Justice Warren. i. Stated that the historical sources of the 14th amendment were at best inconclusive, and the changes in the nature of education had rendered the framer’s intent of little value. Thus, the framer’s intent could not resolve the segregation question. ii. Decision could not turn on a comparison of the tangible factors of the white and black education facilities and resources. Instead, the focus was to be on the effect of segregation. V. Remedies: The Problem of School Segregation 1. In some cases, the Court must go further than simply invalidating a law, and issue an injunction. a. In desegregation cases the Court generally will issue an order prohibiting the offended conduct. P a g e | 26 2. Brown v. Board of Education – 1955 – issue of remedy a. “School authorities have the primary responsibility of elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.” “Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner.’ b. “The judgments below are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessarily and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases” i. A de facto segregated school (segregated by fact - back of layout of where people live) looks similar to De jure unitary system (which is racially unitary by law – by law there is no requirement that students attend school on a racially segregated bases – there is no longer mandated a state white school or black school. This makes little difference because there may be a de facto unitary system.) 3. Massive Resistance a. Southern states openly and aggressively resisted compliance. i. Ex. The Governor called out the Arkansas National Guard to keep blacks out of the Little Rock School District. Only after President Eisenhower used federal troops to protect them did blacks start attending white schools. b. In 1964, a decade after Brown, in the South, just 1.2% of black school children were attending school with whites. c. In a series of cases in the mid-and-late 1960s, the Court declared unconstitutional various obstructionist techniques used throughout the South 4. Swann v. Charlotte-Mecklenburg Board of Education a. Court addressed the issue of the federal courts’ power to issue remedies in school desegregation cases. District courts have broad authority in formulating remedies in desegregation cases. Mathematical ratios – such as comparisons of the race in particular schools with the overall race of the district – are a “useful starting point in shaping a remedy to correct past constitutional violations.” i. Court says not every school district has to reflect proper %ages and “some small number of one-race, or virtually one race schools within a district” may be unavoidable. ii. Court said that bus transportation is an important tool of school desegregation unless “the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process”, and should use affirmative action to achieve non discriminatory results. 5. Board of Education of Oklahoma City Public Schools v. Dowell a. Facts: π sought dissolution of a decree entered by the District Court imposing a school desegregation plan. b. Holding: Remand to district courts to decide whether the Board made a sufficient showing of constitutional compliance as of 1985, when the SRP was adopted, to allow the injunction to be dissolved. The district court should address “whether the board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated “ i. Unitary: some courts define it as a school district that has met the mandate of Brown, others have used it to describe any school that has currently desegregated student assignments, whether or not that status is solely the result of a court-imposed desegregation plan 6. Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) a. Facts: School districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. Race is not a problem with these schools and with one it never was and the other school has corrected the problem. b. Holding: “[B]ecause it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.” “we have reaffirmed that “[r]acial balance is not to be achieved for its own sake.” i. “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons” P a g e | 27 ii. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” iii. In all cases involving affirmative action, strict scrutiny will apply D. Discriminatory Intent I. Loving v. Virginia 1. SC declared Virginia anti-miscegenation law unconstitutional that made it a crime for a white person to marry outside the Caucasian race; that it deprived the Loving’s of a constitutionally protected liberty without DP of the law. 2. The Court expressly rejected the state’s argument that the law was permissible because it burdened both whites and minorities. “We reject the notion that the mere equal application of a statute concerning racial classifications is enough to remove the classifications from the 14th Amendment’s proscription of all invidious racial discriminations.” a. Court says the purpose of this law is to maintain white supremacy and this is against the central meaning of the 14th amendment. It says who can marry in the statute all for maintaining social cast which is terrible b. Unclear what grounds its justified under: procreation? Would this rule out right to gay marriage? E. Facially Neutral Laws with a Discriminatory Impact or with Discriminatory Administration I. Requirement for proof of a discriminatory purpose II. Washington v. Davis 1. Facts: Police recruits' qualifying test was directly related to the requirements of the police training program, and a positive relationship between the test and training course performance was sufficient to validate the former. Statistics revealed that blacks failed the examination mush more often than whites. 2. Holding: A statute, which was otherwise neutral on its face had to be applied so as to invidiously discriminate on the basis of race. The police department's efforts to recruit black officers, the changing racial composition of the recruit classes, and the relationship of the test to the training program negated any inference that the police department discriminated on the basis of race or that a police officer qualified on the color of his skin rather than ability. a. Statutes that don’t have an express classification based on race or enacted with a purpose to discriminate on race but do have an impact on race, those we will defer to the legislature b. The Court has never held that “a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” c. The Court explained that discriminatory impact, “[s]tanding alone, …does not trigger the rule that racial classification are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.” i. The court reasoned that without intent would open the door to a huge amount of challenges that laws have a disproportionate impact such as tax codes, welfare, public service… F. Gender Classifications I. There is a long history of discrimination against women in almost every aspect of society. 1. Women were not allowed to vote until the 19th Amendment in 1920, no woman has ever been elected president or vice president, there has only been 3 woman Supreme Court Justices, etc. II. The Level of Scrutiny 1. The more recent cases hold that intermediate scrutiny is the appropriate test for evaluating under the Equal Protection Clause 2. Like race, sex is immutable so strict scrutiny is advocated because of the need for a strong presumption against laws that discriminate against people based on traits that were not chosen. 3. Those who argue for intermediate scrutiny rather than strict scrutiny for gender make several arguments: a. Historical: Framers of the 14th Amendment meant to outlaw only race discrimination b. Biological differences between men and women make it more likely that gender classifications will be justified and thus less than strict scrutiny is appropriate to increase the chances that desirable laws will be upheld. c. Also claimed that women are a political majority who are no isolated from men and thus cannot be considered a discrete and insular minority III. Emergence of Intermediate Scrutiny 1. Frontiero v. Richardson a. Facts: A serviceman may claim his wife as a “dependent” without regard to whether she is in fact dependent upon him for any part of her support. A servicewoman, may not claim her husband as P a g e | 30 1. The Court has ruled that the federal governments' plenary power to control immigration requires judicial deference and that therefore only rational basis review is used if Congress has created the alienage classification or if it is the result of a presidential order. 2. In Hampton v. Wong, the Court articulated a distinction between decisions by Congress or the President and those by federal administrative agencies; rational basis review is used for the former. a. "if the rule were expressly mandated by the Congress or the President, we might presume that any interest which might rationally be served by the rule did in fact give rise to its adoption." VIII. Undocumented Aliens and Equal Protection 1. Plyler v. Doe a. The Court declared unconstitutional a Texas law that provided a free public education for children of citizens and of documented aliens, but required that undocumented aliens pay for their schooling. b. "Aliens, even aliens whose presence in this country is unlawful, have long been recognized as 'persons' guaranteed due process of law by the 5th and 14th Amendments." c. The Court did not expressly articulate a level of scrutiny, but it did say that "undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy. Nor is education a fundamental right." d. Court made it clear that it was using more than rational basis review. The state's claim of a desire to reserve benefits for its own citizens likely would meet a rational basis test. Looks like intermediate scrutiny. i. Court stressed the blamelessness of the children: They were being punished by being denied an education because their parents' choice to bring them into this country 2. Future of Plyler a. Courts will likely have the opportunity to relook at Plyler because states are adopting broad laws discriminating against undocumented aliens H. Other Types of Discrimination: Only Rational Basis Review I. Laws that determine who can practice law, who can have a driver's license, who can receive welfare, who can be a police officer, and who can have a broadcast license, all involve classifications that can be challenged as denying equal protection (rational basis) II. The Court has ruled that only rational basis review should be used for discrimination based on age, disability, wealth, and sexual orientation, even though these classifications share much in common with the types of discrimination for which heightened scrutiny is used. III. Age Classifications: 1. A person's age is immutable in the sense that a person cannot voluntarily change it and it is a characteristic that is visible. Yet the Court has expressly declared that only rational basis review 2. Massachusetts Board of Retirement v. Murgia a. Court upheld a state law that required police officers to retire at age 50. The Court gave several reasons for choosing rational basis review for age classifications; "while discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." i. "Since physical ability generally declines with age mandatory retirement at age 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age. This is clearly rationally related to the State's objective." IV. Wealth Discrimination 1. Held that only rational basis review should be used for wealth classifications. 2. Poverty is not a suspect classification and that discrimination against the poor should only receive rational basis review. 3. Discrimination against the poor does not warrant heightened scrutiny V. Sexual Orientation - Direct from Ian's outline in book on page 942 1. SC has not yet ruled as to whether discrimination based on sexual orientation warrants strict or intermediate scrutiny. (According to our book on page 936 sexual orientation was ruled rational basis) P a g e | 31 2. Analogy to Areas of Heightened Scrutiny a. Long history of discrimination b. Laws generally based on stereotypes instead of actual differences c. Sexuality may be immutable. 3. Arguments Against Strict Scrutiny a. Waters down strict scrutiny—slippery slope problem. b. Label may discourage beneficial legislation down the road. c. Legislative expertise v. judicial expertise—characteristic may spell out real differences. May not be an illogical proxy. IX. Fundamental Rights Under Due Process and Equal Protection A. Introduction: I. The Court has held that some liberties are so important that they are deemed to be "fundamental rights" and that generally the government cannot infringe them unless strict scrutiny is met II. What the Court has ruled on 1. Freedom of speech and religious freedom also are deemed fundamental rights 2. Invalidated laws restricting access to contraceptives both as violating equal protection and as infringing on the right to privacy 3. Rights to marry is a fundamental right protected by the majority under equal protection and concurring opinion under due process 4. Determined that the word “liberty” in the Due Process Clause to mean that parents have a fundamental to custody of their children III. For most of these rights the Court has indicated that strict scrutiny should be used IV. Court must decide whether a claimed liberty is sufficiently important to be regarded as fundamental, even though it is not mentioned in the text of the constitution. V. If the law denies the right to everyone, then due process would be the best grounds for analysis; but if a law denies a right to some, while allowing it to others, the discrimination can be challenged as offending equal protection or the violation of the right can be objected to under due process VI. The Ninth Amendment 1. 9th amendment is often mentioned in discussion of fundamental rights, especially rights not expressly mentioned in the text of the constitution as it states: “The enumeration of the Constitution of certain rights, shall not be construed to disparage others retained by the people.” 2. Court rarely invokes the 9th Amendment with the exception of Griswold v. Connecticut 3. It is used to provide textual justification for the Court to protect non-textual rights, such as the right to privacy VII.Procedural Due Process 1. When the government takes away a person’s life, liberty, or property it must provide adequate procedures B. Framework for Analyzing Fundamental Rights I. Is There a Fundamental Right? 1. If fundamental = strict scrutiny, if not = rational basis 2. There is a debate over how the Court should decide what rights are fundamental and particularly whether it should find fundamental rights that are not supported by the text or the clear intent of the framers a. Originalists: take the position that fundamental rights are limited to those liberties explicitly stated in the text or clearly intended by the framers. b. Non-originalism: view that it is permissible for the Court to protect fundamental rights that are not enumerated in the Constitution or intended by the drafters c. Moderate originalism: view that the judiciary should implement the framers’ general intent, but not necessarily their specific views d. History and tradition: fundamental rights include those liberties that are “deeply rooted in this Nation’s history and tradition” II. Is the Constitutional Right Infringed? P a g e | 32 1. There is no doubt that a right is infringed when the government strictly prohibits the fundamental right, but when is burdening the exercise of a fundamental right also to be considered an infringement? 2. Court has said you must look at “the directness and substantiality of the interference.” III. Is there a Sufficient Justification for the Government’s Infringement of the Right? 1. The Court has never articulated criteria for determining whether a claimed purpose is to be deemed compelling. But the government does have the burden of persuading the Court that a truly vital interest is served by the law in question 2. Court has recognized that a compelling interest has been winning a war and assuring that children receive adequate care. IV. Is the Means Sufficiently Related to the Purpose? 1. The government must show that the law is necessary to achieve the objective. This requires that the government prove that it could not attain the goal through any means less restrictive of the right. 2. Rational basis review, the means only has to be a reasonable way to achieve the goal and the government is not required to use the least restrictive alternative 3. It is the governments burden when there is an infringement of a fundamental right is to prove that no other alternative, less intrusive of the right, can work C. Constitutional Protection for Family Autonomy I. The Right to Marry 1. The Court first recognized the right to marry as fundamental right protected under the liberty of the Due Process Clause in Loving v. Virginia. II. The Right to Keep the Family Together 1. The Court has recognized a fundamental right to keep the family together that includes an extended family 2. Moore v. City of East Cleveland, Ohio a. Facts: A city ordinance limited the number of unrelated people who could live together in one household and defined “unrelated” to keep a grandmother from living with her two grandsons who were first cousins b. Holding: Liberty in the due process clause includes protections for family rights. Constitution protects family rights not just for parents and children but for the extended family as well. i. “Substantive due process has at times been treacherous field for this Court. There are risks when the judicial branch gives enhanced protections to certain substantive liberties without the guidance of more specific provisions in the Bill of Rights.” But “history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary – the boundary of the nuclear family.” III. The Right of Parents to Control the Upbringing of Their Children 1. Meyer v. Nebraska a. Facts: π was convicted for unlawfully teaching the subject of reading in the German language. b. Holding: the statute violated the right of parents to make decisions for their children. i. Court held that the “liberty” interest was more than freedom from bodily restraints, and people had the right to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children, to worship and generally to enjoy those recognized at common law as essential to the orderly pursuit of happiness by men. D. Constitutional Protection for Reproductive Autonomy I. The Right to Procreate 1. Court has held that the right to procreate is a fundamental right and therefore government-imposed involuntary sterilization must meet strict scrutiny 2. Skinner v. Oklahoma a. Facts: Oklahoma Habitual Criminal Sterilization Act that allowed courts to order the sterilization of those convicted of two or more times for crimes involving “moral turpitude.” b. Holding: law violated equal protection and spoke broadly of the right to procreate as a fundamental right: “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.” II. The Right to Purchase and Use Contraceptives P a g e | 35 II. In Lawrence v. Texas, the Court expressly overruled Bowers and held that the right to privacy protects a right to engage in private consensual homosexual activity III. Lawrence v. Texas: 1. Facts: Police in Texas received an anonymous tip of a disturbance in an apartment. They went to investigate and entered the apartment; they found two men having sex. The two men were convicted of a Texas law for “deviate sexual intercourse” 2. Holding: States may not prohibit private consensual activity between consenting adults of the same sex and the right to privacy protects this right. 3. Important because a. Lawrence means that laws in 13 states prohibiting private consensual homosexual activities are unconstitutional. b. Lawrence is a powerful affirmation of a right to privacy under the Constitution. c. Lawrence recognized that sexual activity is a fundamental aspect of personhood and that it is entitled to constitutional protection d. Recognized the rights of gays and lesbians to equal dignity and equal treatment under the Constitution. 4. Dissent: would put other laws in jeopardy such as adultery and masturbation 5. Did not talk about the level of scrutiny or speak about fundamental rights but did rely on privacy cases where strict scrutiny had been used. 6. The court has becomes very sensitive to these laws that are stigmatizing. Laws designed to stigmatize some identifiable persons as a lower class then other persons G. Constitutional Protections for a Right to Education I. The Court has refused to recognize a fundamental right to education II. San Antonio Independent School District v. Rodriguez 1. Facts: this was a challenge to the Texas system of funding public schools largely through local property taxes. Texas’ financing system meant that poor areas had to tax at a high rate, but had little to spend on education; wealthier areas could tax at low rates, but still had much more to spend on education. 2. This was challenged on two grounds: it violated equal protection as impermissible wealth discrimination, and it denied the fundamental right to education. 3. Holding: The Court rejected the first claim by holding that poverty is not a suspect classification and that therefore discrimination against the poor only needs to meet rational basis. Court expressly rejected the claim that education is a fundamental right. a. Although education is linked to the exercise of constitutional rights such as freedom of speech and voting, the Court nonetheless decided that education, itself is not a fundamental right.”The logical limitations on appellees’ nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent foot and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from benefits of the 1st Amendment” H. The Right to Vote I. 15th, 19th, 24th, and the 26th Amendments all concern the right to vote. II. In addition to the Amendments, the Court repeatedly has declared that the right to vote is fundamental right protected under equal protection. III. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of the representative government.” Hence, “any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.” – Laws must meet strict scrutiny. IV. Bush v. Gore 1. The Court ruled that counting the uncounted ballots without standards denies equal protection and that counting could not continue because Florida wished to choose its electors by the December 12 “safe harbor” date set by federal law P a g e | 36 2. Court in this opinion reaffirms that the right to vote is a fundamental right and that “when the state legislatures vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. 3. The central problem was that the Florida Supreme Court ordered the counting of the uncounted ballots, but failed to prescribe standards. “The problem inheres in absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.” a. Similar ballots were being treated differently 4. “The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.” 5. Dissent: Federalism. It is state laws that the federal government is getting in the way to try and interpret a. The supreme court says the courts of the state of Florida were stepping on the constitutional authority of the legislature and they were going to stop them b. These 2 branches have different interpretations of the statute and that raises the question then how do you reconcile the problem i. Dual sovereign friendly answer is saying that the state should work it out. Other less friendly is that the federal government resolve it c. Problem as Mazur sees with the way it played out; was that the government said you guys in Florida are unethical idiots and we need to now work on this. This downplayed the ability of the state to handle the problems 6. Mazur Boils bush v gore a. 5 votes constitutionally arbitrary and stop counting b. 2 votes being arbitrary counting stop doing that and keep count c. 2 votes not constitutionally arbitrary and keep doing what you are doing I. Procedural Due Process I. The phrase implies, refers to the procedurals that the government must follow before it deprives a person of life, liberty, or property. II. Class issues concern what kind of notice and what form of hearing the government must provide when it takes a particular action III. The Court has held that parents have a liberty interest in the custody of their children. Therefore, procedural due process requires that the government provide notice and a hearing, and that there be clear and convincing evidence of a need to terminate custody, before parental rights are ended. IV. What is a Deprivation of Property? 1. Board of Regents v. Roth - Property = entitlement a. Facts: Professor was hired for his first teaching job as an assistant professor at a state-run university. He was hired for a fixed term of one year and was not re-hired the following year. b. Issue: The professor brought suit against the university alleging that he was denied his 14th Amendment right to due process because the university never gave him a reason for their decision not to re-hire him and further he had no opportunity to challenge their decision at a hearing. c. Holding: The professor had no protected interest in continued employment, as he had completed his contracted for term, therefore, there could be no 14th protection. i. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. ii. State and local law defines what the job is. And it describes that the job is a year to year contract. It doesn’t say anything about an expectation of continuation. “Property interest, of course, are not created by the constitution. Rather they are created and their dimensions are defined by existing rules P a g e | 37 or understanding that stem from an independent source such as state law – rules or understandings that secure benefits and that support claims of entitlement to those benefits.” Property = entitlement V. What Procedures are Required? 1. In Mathews v. Eldridge, the Court articulated a balancing test for deciding what procedures are required when there has been a deprivation of life, liberty, or property and due process is required. 2. Mathews v. Eldridge a. Three factors that should be balanced i. “First, the private interest that will be affected by the official action;” ii. “Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probably value, if any, of additional or substitute procedural safeguards;” iii. “Finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” b. The more the court believes that the additional procedures will lead to better, more accurate, less erroneous decisions, the more likely it is that the Court will require them X. First Amendment: Freedom of Expression A. Introduction: I. “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 peaceably to assemble, and to petition the Government for a redress of grievances.” B. Free Speech Methodology I. The Distinction Between Content-Based and Content-Neutral Laws 1. The Court frequently has declared that the very core of the First Amendment is that the government cannot regulate speech based on its content. a. “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.” 2. “Content-based regulations are presumptively invalid.” 3. Content-Based = Strict Scrutiny 4. Content Neutral = Intermediate Scrutiny II. How is it Determined Whether a Law is Content-Based? 1. The requirement that the government be content-neutral in its regulation of speech means that the government must be both viewpoint neutral and subject matter neutral. a. Viewpoint neutral - that the government cannot regulate speech based on the ideology of the message. b. Subject matter neutral - that the government cannot regulate speech based on the topic of the speech 2. Boos v. Barry a. The government argued that the restriction of speech critical of foreign governments near their embassies was justified based on an international law obligation to shield diplomats from speech that offends their dignity. b. The Court declared this part of the law unconstitutional; “justified only by reference to the content of speech. Respondents and the United States do not point to the "secondary effects" of picket signs in front of embassies. They do not point to congestion, to interference with ingress or egress, to visual clutter, or to the need to protect the security of embassies. Rather, they rely on the need to protect the dignity of foreign diplomatic personnel by shielding them from speech that is critical of their governments. This justification focuses only on the content of the speech and the direct impact that speech has on its listeners.” C. Types of Unprotected and Less Protected Speech I. Incitement of Illegal Activity 1. Justice Brandeis: “even advocacy of [law] violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.” P a g e | 40 i. Facts: City ordinance prohibited placing on public or private property symbols, objects, characterizations, or graffiti ii. A very narrow fighting words law likely will be declared unconstitutional as impermissibly drawing content-based distinctions as to what speech is prohibited and what is allowed. iii. Rule: Even if you are regulating w/in a category that is presumptively outside the 1st amendment, you may not do so in a way that makes content based choices XI. First Amendment: Religion A. Introduction I. Two clauses dealing with Religion 1. Establishment clause – “Congress shall make no laws respecting an establishment of religion a. Purpose is to prevent government from endorsing/supporting a religion b. Incorporated into the Due Process Clause by Everson v. Board of Education. c. More controversial than free exercise because it is directed at the government 2. Free Exercise Clause – “or prohibiting free exercise thereof” a. Main purpose is to prevent government from outlawing or burdening a person’s pursuit of whatever religion, beliefs, and practices he chooses. Government cannot burden one’s belief b. First applied to the states through incorporation into the Due Process Clause of the 14th in Cantwell v. Connecticut. c. Often happens when government: i. Acts in pursuit of non-religious objectives by forbidding conduct required by a religion (army forbidding hats but Jews required to wear yamakas according to Jewish religion) OR ii. Compels/encourages conduct forbidden by belief (Sherbert: awarding benefits to jobless workers who make themselves available to work Mon-Sat  encourages conduct that violates religious beliefs that people can’t work on Sabbath. Gvt must exempt to avoid unintentional interference w/ religion if it can be done w/o impairing compelling purpose.) II. Both clauses protect freedom of religious belief and actions. Many government actions would violate both at the same time. III. Conflict arises when: religious group asks for gvt benefit. 1. If benefit given  Establishment problem 2. If benefit not given  could be burdening of religion 3. When these clauses conflict, Free Exercise Clause > Establishment Clause IV. Government actions to facilitate free exercise might be challenged as impermissible establishments and government efforts to refrain from establishing religion might be objected to as denying the free exercise of religion. V. Lemon Test: this is the primary test used for the establishment clause which states; 1. The government violates the Establishment Clause if the government’s primary purpose is to advance religion, or if the principal effect is to aid or inhibit religion, or if there is excessive government entanglement with religion. a. Anytime the government acts to protect free exercise of religion, its primary purpose is to advance religion; any time the principal effect is to facilitate free exercise, the government is aiding religion. i. Government recognized this tension is inherent in the 1st Amendment and has noted the difficulty of finding “a neutral course between the two religions Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.” VI. What is religion? 1. Any attempt to define religion raises concern that choosing a single definition is itself an establishment of religion. 2. There is a desire for a broad definition of religion for the purposes of the Free Exercise Clause so as to maximize protection for religious conduct, but a narrow definition of religion for establishment clause analysis so as to limit the constraints on government P a g e | 41 B. Free Exercise Clause I. The Court has thus said that the free exercise clause “embraces two concepts – freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.” II. The free exercise clause is also invoked when the government requires conduct that a person’s religions prohibits. III. Intentional v. Unintentional Burdens: 1. If interference with religion is intentional  Strict Scrutiny; (Sherbert v. Verner) 2. If unintentional  Rational Bases test IV. Employment Division, Department of Human Resources of Oregon v. Smith - free exercise clause not violated by neutral law of general applicability 1. Facts: Native Americans challenged law that prohibited use of peyote because of state determination that their religious belief constituted misconduct disqualifying them from receiving unemployment benefits. a. Sherbert: state denying unemployment benefits to religion lady who quit job to not work on Sabbath i. Applied SS: must be compelling purpose, no less restrictive means. ii. Must be closely connected b/w regulation and compelling purpose (NOTE: often purpose is not compelling even if useful. Anarchy concern is that most law would not meet SS standard.) b. Holding: Free exercise clause cannot be used to challenge a neutral law of general applicability. No matter how much a law burdens religious practices, it is constitutional so long as it does not single out religious behavior for punishment and was not motivated by a desire to interfere with religion. i. RULE: No free exercise issue if there is laws of general application ii. Rejects using SS on neutral, generally applicable law that burdens religion because cannot presume every regulation invalid that does not protect all religions.  Court avoids SS and adopts “general/neutral law = okay” to avoid regulating practice of religion. c. Concurrence: law should be upheld because there is a compelling interest in preventing use of peyote d. Dissent: Inadequate protection of religion; religion is a fundamental right and law burdening them should be subject to strict scrutiny e. NOTES: What is the change?  SS abandoned for evaluating laws burdening religion and neutral laws only have meet RB regardless of burden placed on religion. (basically doesn’t matter what the motive is) i. Law of general application: applies to everybody; not enacted for purpose of burdening religion. ii. Court doesn’t say what Standard of review. Only says, general application without purpose to burden is presumptively constitutional and can’t present free exercise issue. iii. Parallel to Equal Protection because vast laws are enacted without purpose to discriminate on race/sex BUT NOT uncommon that effect of those laws fell disproportionately on different classifications of people. iv. Although municipality could include accommodations, this COULD lead to issue of Establishment Clause b/c it could lead to complaints government is giving “special privileging”. C. Establishment Clause I. Theories under Establishment 1. Strict Separation (Separatism) a. To the greatest extent possible government and religion should be separated b. Separationists argue that when religion becomes part of government there is inevitable coercion to participate in that faith 2. Neutrality Theory a. The government must remain neutral toward religion; the government cannot favor religion over secularism or one religion over others. 3. Accommodation Theory a. The Court should interpret the establishment clause to recognize the importance of religion in society and accommodate its presence in government. b. The government violates the establishment clause only if it literally establishes a church, coerces religious participation, or favors one religion over others. II. Lemon v. Kurtzman (prevailing Establishment case) P a g e | 42 1. Holding: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion” 2. 3 main evils protected against by clause: No government sponsorship, support (financial), involvement (intrusion) 3. Not applying rational bases to purpose b/c it is conceivable that legislature is providing money to preserve art form. However, there is suspicion money is to support churches which is prohibited. III. Organ Music Act Example from class: constitutional to give funds to places open to public? Think Lemon 1. This is a provision of a direct benefit (funds) = establishment 2. Why is bussing kids to parochial schools not funded by government?: Line drawn in terms of direct financial benefit. Display cases don’t involve provision of some tangible benefit (money) but rather “endorsement or approval.” Here, it is prohibition of granting tangible benefit to parochial schools. (Churches would receive money.) a. Lemon: although there is no facial purpose in providing money to parochial schools. IV. What is money for? If gvt grants being used to subsidize religious practice  establishment. This is contrasted in social services provided by churches to feed the poor. V. Doe: If school’s process can be reasonably viewed as supporting school prayer, allowing student body election to allow student to choose to give prayer is irrelevant. VI. Rosenberger v. Rector & Visitors of the University of Virginia - gvt must treat religion equally in schools 1. Facts: UVA decided not to fund club’s student paper based on fact of club’s religious nature. 2. Holding: overbroad exclusion of school funds; if funding non-religious organizations, must fund religious organizations. a. Bright Line (Lemon): Focused on inability of financial grants given to religious-based orgs nor provide direct benefits of any kind.  that would be violation of establishment clause. b. Dissent: use of public funds to subsidize religious organizations is categorically forbidden. i. NOTES: School is wrong in understanding bright-line of Lemon and subsidizing religious practice.  Although newsletter discusses religion, it is not religious practice. Establishment clause doesn’t mean schools must restrict students from talking about religion. By prohibiting funding to this org is making a content-based judgment. VII.County of Allegheny v. ACLU, Greater Pittsburgh Chapter 1. Facts: holiday displays, menorah with Christmas tree & decorations & nativity scene separately displayed. 2. “Untended religious display” of symbols on public property: speaker is gone; when separating display from speaker, appearance at public place gives the rational thought it looks like it is the governments message. a. Tended: speaker holding signs; right to engage in speech on public property. (walking w/ signs) b. Could be argued displays blurred by “throwing in a Santa”. More important whether you feel sense of endorsement where Court does perceive one with nativity scene and not w/ menorah. c. In Lemon terms: what is the effect? Court sees endorsement of nativity scene but thinks its more secular w/ menorah b/c its blurred and a lot going on. 3. Holding Blackman: separatism; “Relevant question is whether the combined display of the tree, the sign, and the menorah has the effect of endorsing both Christian and Jewish faiths, or rather simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society. Of the two interpretations of this particular display, the latter seems far more plausible and is also in line with Lynch.” 4. Concurrence; O’Connor: Neutrality view: does display convey message to Christians that they are preferable members? OR in contrast, does these symbols send “freedom to choose” religion. If talking about “what kind of message being conveyed”  must neutrality; latter is okay. 5. Concurrence of Brennan/Stevens: separatism; religious viewpoints of displays could disrespect religious beliefs. a. “the establishment clause does not allow public bodies to foment such disagreement” 6. Kennedy Accommodation view: sees hostility toward religion in insisting either lack of endorsement or separatism. Court is picking out one idea and branding one idea as inappropriate.